Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations 57775

TABLE 1 TO SUBPART E.—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued

U.S. code citation Civil monetary penalty description

Year penalty amount

was last set

by law

Original statutory maximum

penalty

amount

Adjusted maximum penalty

amount

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES TO OTHERS/

GAINS TO SELF.

1990 100,000 110,000

FOR ANY OTHER PERSONS/SUBSTANTIAL LOSSES TO OTHERS/

GAIN TO SELF.

1990 500,000 550,000

15 USC 78u(d)(3) FOR NATURAL PERSON ...................................................................... 1990 5,000 5,000

FOR ANY OTHER PERSON ................................................................. 1990 50,000 55,000

FOR NATURAL PERSON/FRAUD ........................................................ 1990 50,000 55,000

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 100,000 110,000

FOR ANY OTHER PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 500,000 550,000

15 USC 80a–9(d) FOR NATURAL PERSON ...................................................................... 1990 5,000 5,500

FOR ANY OTHER PERSON ................................................................. 1990 50,000 55,000

FOR NATURAL PERSON/FRAUD ........................................................ 1990 50,000 55,000

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES TO OTHERS/

GAINS TO SELF.

1990 100,000 110,000

FOR ANY OTHER PERSON/SUBSTANTIAL LOSSES TO OTHER/

GAINS TO SELF.

1990 500,000 550,000

15 USC 80a–41(e) FOR NATURAL PERSON ...................................................................... 1990 5,000 5,500

FOR ANY OTHER PERSON ................................................................. 1990 50,000 55,000

FOR NATURAL PERSON/FRAUD ........................................................ 1990 50,000 55,000

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 100,000 110,000

FOR ANY OTHER PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 500,000 550,000

15 USC 80b–3(i) FOR NATURAL PERSON ...................................................................... 1990 5,000 5,500

FOR ANY OTHER PERSON ................................................................. 1990 50,000 55,000

FOR NATURAL PERSON/FRAUD ........................................................ 1990 50,000 55,000

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES TO OTHERS/

GAIN TO SELF.

1990 100,000 110,000

FOR ANY OTHER PERSON/SUBSTANTIAL LOSSES TO OTHERS/

GAIN TO SELF.

1990 500,000 550,000

15 USC 80b–9(e) FOR NATURAL PERSON ...................................................................... 1990 5,000 5,500

FOR ANY OTHER PERSON ................................................................. 1990 50,000 55,000

FOR NATURAL PERSON/FRAUD ........................................................ 1990 50,000 55,000

FOR ANY OTHER PERSON/FRAUD .................................................... 1990 250,000 275,000

FOR NATURAL PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 100,000 110,000

FOR ANY OTHER PERSON/SUBSTANTIAL LOSSES OR RISK OF

LOSSES TO OTHERS.

1990 500,000 550,000

Dated: November 1, 1996.

By the Commission.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 96–28596 Filed 11–7–96; 8:45 am]

BILLING CODE 8010–01–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 078–2–0016; FRL–5642–8]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, South

Coast Air Quality Management District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a limited

approval and a limited disapproval of

revisions to the California State

Implementation Plan (SIP) proposed in

the Federal Register on February 28,

1995. The revisions concern rules from

the South Coast Air Quality

Management District (SCAQMD). This

final action will incorporate these rules

into the federally approved SIP. The

intended effect of approving these rules

is to regulate emissions of oxides of

nitrogen (NOX) and oxides of sulfur

(SOX) in accordance with the

requirements of the Clean Air Act, as

amended in 1990 (CAA or the Act). The

rules concern the control of NOX

emissions from facilities in the

SCAQMD with four or more tons of NOX

or SOX emissions per year from

permitted equipment. The subject

facilities, in order to meet annual

emission reduction requirements, will

participate in an economic incentive

program (EIP) in order to reduce

emissions at a significantly lower cost.

This document also serves to respond to

comments received from the public on

the February 28, 1995 notice of

proposed rulemaking (NPRM).

EFFECTIVE DATE: This action is effective

on December 9, 1996.

ADDRESSES: Copies of the rule revisions

and EPA’s evaluation report for each

rule are available for public inspection

at EPA’s Region 9 office during normal

business hours. Copies of the submitted

rule revisions are available for

inspection at the following locations:
57776 Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street, S.W.,

Washington, D.C. 20460.

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 92123–1095.

South Coast Air Quality Management

District, 21865 E. Copley Drive,

Diamond Bar, CA 91765–4182.

FOR FURTHER INFORMATION CONTACT:

Kenneth Israels, Rulemaking Section,

(A–5–3), Air and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105, Telephone: (415)

744–1194.

SUPPLEMENTARY INFORMATION:

Background

On February 28, 1995 in 60 FR 10819,

EPA proposed granting limited approval

and limited disapproval of the following

rules into the California SIP: South

Coast Air Quality Management District,

Regulation XX, NOX and SOX Regional

Clean Air Incentives Market

(RECLAIM). Regulation XX was adopted

by SCAQMD on October 13, 1993. This

rule was submitted by the California Air

Resources Board to EPA on March 21,

1994. These rules were adopted as part

of South Coast Air Quality Management

District’s efforts to achieve the National

Ambient Air Quality Standards

(NAAQS) for ozone and in response to

section 182(f) NOX reasonably available

control technology (RACT) requirements

of the Clean Air Act (CAA). A detailed

discussion of the background for each of

the above rules and nonattainment areas

is provided in the NPRM cited above.

In the NPRM, EPA proposed

conditionally approving RECLAIM

provided that the SCAQMD submitted

an enforceable commitment within one

year of publication of the NPRM to

correct the deficiencies cited. EPA did

not receive an enforceable commitment

from SCAQMD within one year of the

publication of the NPRM, therefore EPA

is finalizing, as proposed in the

alternative in the NPRM, a simultaneous

limited approval and limited

disapproval under CAA provisions

regarding plan submissions and

requirements for nonattainment areas.

As a result of this limited disapproval

EPA will be required to impose highway

funding or emission offset sanctions

under the CAA unless the State submits

and EPA approves corrections to the

identified deficiencies within 18

months of the effective date of this

disapproval. Moreover, EPA will be

required to promulgate a Federal

implementation plan (FIP) unless the

deficiencies are corrected within 24

months of the effective date of this

disapproval.

On August 28, 1996 the State of

California submitted revisions to EPA

which EPA believes address all of the

deficiencies cited in the February 28,

1995 NPRM. Therefore, EPA is

proposing elsewhere in the Federal

Register today to approve into the SIP

the August 28, 1996 submittal which

addresses the cited deficiencies. The

final approval of the August 28, 1996

submittal will supersede the limited

disapproval of the March 21, 1994

submittal and remove the possibility of

sanctions associated with this limited

approval/limited disapproval noted

above.

EPA has evaluated the above rule for

consistency with the requirements of

the CAA and EPA regulations and EPA’s

interpretation of these requirements as

expressed in the various EPA policy

guidance documents referenced in the

NPRM. EPA is finalizing the limited

approval of these rules in order to

strengthen the SIP and finalizing the

limited disapproval requiring the

correction of the remaining deficiencies.

The NOX and SOX RECLAIM program

contains the following deficiencies:

• the program allows the use of

variances to avoid compliance with

program requirements; this results in

the program failing to meet the

requirements of section 110(i) of the

Act,

• the program does not meet certain

new source review (NSR) requirements

of the Act and Part D,

• the program allows the use of

Executive Officer discretion in the

implementation of certain emissions

monitoring provisions; this results in

the program failing to meet the

requirements of section 110(i) of the

Act,

• the program’s references to other

programs, notably those involving the

use of mobile source emission reduction

credits (MERCs) is inconsistent with

section 110(i) of the Act, and

• the submittal does not provide all of

the necessary demonstrations to ensure

that the requirements of EPA’s EIP rules

are being met.

A detailed discussion of the rule

provisions and evaluations has been

provided in the NPRM and in the

technical support document (TSD)

available at EPA’s Region IX office (TSD

dated February, 1995). On August 28,

1996 the State of California submitted

revisions to EPA which EPA believes

address all of the deficiencies cited in

the February 28, 1995 NPRM. Therefore,

EPA is proposing elsewhere in the

Federal Register today to approve into

the SIP the August 28, 1996 submittal

which addresses the cited deficiencies.

Response to Public Comments

A 30-day public comment period was

provided in 60 FR 10819. EPA received

comments on a wide range of issues

including the approval of the overall

program. Four industry commentors

supported full approval of the program,

one environmental group opposed

approval of the program, and one

regulatory agency supported resolving

program issues identified by EPA in the

conditional approval and approving the

program. EPA agrees with the

commentors supporting approval of a

federally enforceable RECLAIM program

and is optimistic that such a program

will lead to emission reductions

necessary to achieve attainment of the

ozone national ambient air quality

standard (NAAQS) in the SCAQMD.

EPA also received specific comments

from the public on the following issues:

(1) program definitions, (2) NSR, (3) the

use of variances in the program, (4) the

use of MERCs in the program, (5) EIP

rule demonstrations, (6) monitoring

requirements, (7) environmental justice,

(8) planning requirements, (9) public

participation, (10) the program’s penalty

structure, and (11) RACT. Following are

EPA’s responses to these more specific

comments:

1. Program Definitions

Comments: Two industry groups

disagreed with EPA’s request to modify

or add definitions to RECLAIM to

ensure that federal requirements relating

primarily to NSR were being met.

Response: EPA believes that the

definitions cited are necessary to

demonstrate that the fundamental

requirements of NSR programs are being

met. For example, the constructionrelated definitions cited as deficiencies

in the NPRM are necessary to ensure

that the statutory offset provisions

found in Section 182 of the CAA are

being met. Throughout the TSD, EPA

cited the appropriate federal

requirements to ensure that the rationale

for requiring modification or addition of

key definitions was clear.

With respect to specific comments

made regarding construction

definitions, EPA believes that there is a

fundamental need to address such

definitions, via rule language or legal

interpretation, in programs like

RECLAIM which implement NSR

requirements via trading mechanisms.
Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations 57777

2. NSR Issues

a. Offset Ratios and Tracking System:

Comments: One environmental group

commented that the NSR offset ratio for

South Coast sources should be greater

than 1:1. Two industry commentors

commented that a tracking system is not

necessary to ensure that the statutory

offset ratio is being met by sources in

South Coast in the aggregate.

Response: EPA believes that the

statutory offset ratios (1.5:1 or 1.2:1 if all

major sources apply best available

control technology—BACT) in an

extreme ozone nonattainment area

should be maintained. EPA believes that

this requirement can be met on an

aggregate basis. [See discussion in EIP

preamble at 59 FR 16696, dated April 7,

1994] In order to meet this requirement,

as EPA noted in its NPRM, a tracking

system is necessary to demonstrate that

the statutory offset ratios are met. The

purpose of the tracking system would be

to demonstrate that a balance of

reductions between non-major and

major sources both in RECLAIM and

outside of RECLAIM achieved the

statutory NSR offset ratio (considering

factors such as the RECLAIM declining

mass emissions cap).

b. NSR Analysis on a Trade-by-trade

Basis:

Comment: One industry commentor

stated that EPA’s proposed approval

would lead to a NSR analysis on a tradeby-trade basis in RECLAIM.

Response: EPA’s understanding of

RECLAIM NSR is that NSR

requirements do not, with respect to the

need to purchase offsetting emissions,

need to be examined on a trade-by-trade

basis. The NSR offset requirements

would only be triggered if a particular

facility exceeded its initial RECLAIM

allocation plus nontradeable emission

allocation. However, the NSR lowest

achievable emission rate (LAER)

requirement is one which needs to be

examined on a trade-by-trade basis

when such trades increase emissions at

an emissions unit. In these instances,

while NSR offsets may not be necessary,

LAER must still be applied to the

emissions unit.

c. Incorporation of the Requirements

of 40 CFR 51.164 into RECLAIM:

Comment: One industry commentor

did not believe that the Stack height

procedures found in 40 CFR 51.164

needed to be incorporated into the

RECLAIM rules.

Response: NSR regulations must state

that sources may not affect their

emissions by erecting a stack that does

not meet the Stack height requirements

found in Section 123 of the CAA and in

40 CFR 51.164. EPA disagrees with the

commentor.

3. The Use of Variances in the RECLAIM

Program

Comment: Two industry commentors

want the use of variances from program

requirements in the program while one

environmental group wants the use of

variances out of the program.

Response: Section 110(i) of the Clean

Air Act prohibits the use of variances to

change the federally-enforceable SIP.

EPA agrees with the environmental

group commentor in that the use of such

mechanisms in a market system may be

detrimental to the system’s achievement

of clean air goals.

4. The Use of Mobile Source Emission

Reduction Credits (MERCs) in the

Program

Comment: One industry group does

not believe MERC rules need to be SIP

approved prior to being used in

RECLAIM while one environmental

group believes that MERCs can not be

used in RECLAIM regardless of SIP

approval.

Response: EPA believes that MERCs

can be used in the RECLAIM program as

a means of compliance with the

RECLAIM mass emissions cap.

However, the use of MERCs generated

using rules which have not been SIP

approved raises an issue of whether

such uses are consistent with the

federally-enforceable SIP. EPA believes

that if the underlying rules used to

generate MERCs for RECLAIM

compliance purposes have not been SIPapproved, the credits are not federallyenforceable. EPA believes that the

District and EPA can work out a

satisfactory solution on this issue which

provides facilities using such

unapproved MERCs notice that such

credits are not federally enforceable

(until the particular MERC-generating

rule(s) are approved into the SIP) and

consequently users of such credits may

be subject to federal enforcement action.

5. EIP Rule Demonstrations

Comment: One industry group does

not believe that the environmental

benefit demonstration found at 40 CFR

51.493(e)(1)(ii) is needed as other

program elements address this issue

while one environmental group does not

believe that the program as a whole

meets the EIP requirements.

Response: With respect to the

environmental benefit demonstration,

the package EPA proposed for action on

February 28, 1995 did not address this

issue and therefore did not meet the EIP

requirements. However, EPA believes

that, given the RECLAIM declining caps’

rate of reduction goes beyond existing

RACT requirements, the environmental

benefit provision in the EIP can be met

as a result of the program’s design.

With respect to the program as a

whole meeting the EIP demonstration

requirements, EPA agrees that some of

the requirements were not met and

therefore cited these demonstrations in

the NPRM and February, 1995 TSD as

deficiencies.

6. Monitoring Requirements

Comment: One industry commentor

did not support using the SIP-approval

mechanism to incorporate changes to

RECLAIM monitoring requirements into

the federally-approved SIP.

Response: EPA intends to use the SIPapproval mechanism to incorporate

changes to monitoring requirements in

RECLAIM into the federally-enforceable

SIP. In the future, if a generic set of

criteria to determine the approvability

of monitoring changes is developed,

EPA may reconsider its position,

provided such criteria are SIP-approved.

Section 110(i) of the Clean Air Act does

not allow such changes to become

federally-enforceable without a SIP

revision.

7. Environmental Justice

Comment: One environmental group

does not believe that EPA considered

RECLAIM’s environmental justice

impacts in its proposed action.

Response: RECLAIM is a program

designed to reduce ozone precursor

emissions from stationary sources. As

such, it is designed to address the areawide ozone issue in the Los Angeles

area, not the localized toxics impacts

issue. As the SCAQMD develops

regulations which regulate toxic

emissions, EPA will review those

regulations under section 112 of the

Clean Air Act. With respect to the

concern that RECLAIM may incidentally

increase toxic emissions as a result of

trading, the RECLAIM program, as noted

in the NPRM, meets the requirements of

Section 182(e)(3) of the CAA which

requires clean fuels or advanced

controls for boilers which emit greater

than 25 tons per year of NOX (see the

February, 1995 TSD). The majority of

emissions which can potentially be

traded in RECLAIM are covered by this

clean fuels/advanced controls

requirement (see RECLAIM supporting

documentation). As a result, the bulk of

RECLAIM emissions (including toxic

emissions) will be controlled to a high

degree through compliance with Section

182(e)(3) of the CAA, which can not be

met through trading. Further, SCAQMD

examined the toxic impacts of

RECLAIM (see pages EX–14 and 15 and

EX–29 and 5–31 of Volume 1 of the

RECLAIM documentation); this analysis
57778 Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations

shows that there will be no increase in

toxic air pollutants as a result of the

trading of NOX and SOX under the

RECLAIM program. EPA has reviewed

the SCAQMD analysis and agrees with

its conclusions that there will be little,

if any, impact on local communities as

a result of trading in RECLAIM as most

of the products of incomplete

combustion (combustion is the primary

source of NOX emissions in RECLAIM)

are not classified as hazardous air

pollutants (HAPs). For those incomplete

combustion products which are

classified as HAPs, their impact on local

communities will be addressed in the

SCAQMD’s and EPA’s toxic control

strategies (see Section 112 of the CAA).

EPA believes that, as a result of each of

these factors (Section 182(e)(3) of the

CAA controls and State, local, and

federal measures to control toxics) in

the program design, EPA’s approval of

RECLAIM is consistent with the goals

set out in Executive Order 12898, which

provides the framework for federal

agencies to address environmental

justice issues.

8. Planning Requirements

a. RECLAIM and the 1991 Air Quality

Management Plan (AQMP) and

reasonable further progress (RFP):

Comment: One environmental group

believes that the program is less

effective than the 1991 AQMP and that

it will not show RFP.

Response: EPA’s decision to approve

NOX/SOX RECLAIM is based on the

District’s lack of federally approved

rules regulating these source categories,

not on the 1991 AQMP which had, at

the time of submittal, not been

approved. The RECLAIM program, from

this perspective, strengthens the

federally enforceable SIP and is more

effective than measures in an

unapproved attainment plan. Further,

the test for the effectiveness of an

attainment plan under Section 182(c)(2)

does not rely on a single measure to

demonstrate attainment, but relies on all

of the measures in the plan used to

achieve attainment. As with the

comment regarding RECLAIM and the

1991 AQMP, the RECLAIM program

alone does not have to demonstrate

compliance with the CAA’s RFP

requirements. In Section 182(c)(2)(B) of

the CAA, RFP is defined over the period

of 1990 to 1996 in terms of VOC

emission reductions; after 1996, NOX

emission reductions may be substituted

for VOC emission reductions. EPA

disagrees with the commentor that

RECLAIM does not meet RFP

requirements as individual measures do

not shoulder the burden of meeting

requirements taken on by an entire

progress showing.

b. Baselines:

Comment: One environmental group

believes that the baselines have been

inflated causing the program to fail to

meet planning requirements.

Response: EPA recognizes the need

for EIPs to address economic inequities

in the design of such programs. In the

case of RECLAIM, as the commentor has

pointed out, baselines for some facilities

may have been established in

recognition of such inequities. Provided

that increases in emissions resulting

from the recognition of these inequities

are addressed, then there should be no

failure of the SCAQMD to meet the CAA

planning requirements. As noted

elsewhere in this notice, individual

measures in an attainment plan need

not meet specific CAA planning

requirements as long as the plan as a

whole demonstrates attainment.

9. Public Participation

Comment: One environmental group

believes that the program does not

provide enough public participation.

Response: EPA believes that

RECLAIM afforded the public ample

opportunity to comment during the

design of the program and affords the

public ample opportunity to participate

during the implementation of the

program via the permitting and auditing

processes. The development of

RECLAIM used a public process almost

unprecedented in the history of air

quality regulatory development. Over a

three year period a steering committee,

an advisory committee, and a myriad of

workgroups dealing with such issues as

socio-economic impacts, allocations

(baselines), and energy impacts met on

a regular basis. RECLAIM was adopted

by the SCAQMD Governing Board after

a two-session hearing, during which

issues such as the baseline-setting

procedures, environmental justice, NSR,

public participation, and enforcement

were discussed. In addition, the

RECLAIM permitting process conforms

to the CAA’s NSR and Title V

permitting requirements for public

review.

10. Penalty Structure

Comment: One environmental group

believes that the penalty structure is too

lenient.

Response: In crafting the RECLAIM

emission violation penalty structure,

EPA, the SCAQMD, and members of the

RECLAIM Steering Committee

conducted a thorough analysis of what

penalties for such violations are

appropriate. In this analysis, the group

sought to define appropriate penalties

by examining the level of deterrence

necessary to discourage noncompliance

with applicable emission limits. EPA

examined the history of enforcement of

a variety of federal CAA programs to

discover what level of deterrence has

been historically effective. The group

also linked the market mechanism to the

amount of statutory maximum penalties

in the RECLAIM program. EPA believes

that a penalty structure which is based

on the mass exceedance of the emission

cap like the one in RECLAIM is suitable

for this particular type of program. The

results of this analysis led to the

RECLAIM penalty scheme.

11. RACT

a. RACT aggregation:

Comment: One environmental group

believes that RACT aggregation violates

the Act.

Response: EPA disagrees with the

commentor. This issue was thoroughly

explored in the final EIP rule. In the

preamble to the final EIP rule EPA

states:

‘‘An EIP may allow sources subject to the

RACT requirement to attain RACT-level

emissions reductions in the aggregate,

* * *’’ [See 59 FR 16695, dated April 7,

1994]

Further, the EIP preamble states:

‘‘Under the EPA’s interpretation, the

application of the requirement to impose

RACT upon ‘‘existing sources’’ meant that

RACT applied in the aggregate, as opposed to

source by source. This interpretation, which

is reflected in the Emissions Trading Policy

Statement [51 FR 43814 (December 4, 1986),

the ‘‘Bubble Policy’’], was upheld in NRDC

v. EPA, 33 ERC 1657 (4th Cir. 1991), an

unpublished decision.’’ [See 59 FR 16703,

dated April 7, 1994]

Finally, the final EIP rule preamble

states:

‘‘Under the 1990 Act, the EPA continues to

take the position established under the 1977

Act that RACT applies in the aggregate

because the RACT requirement of section

172(c)(1) of the Act is phrased identically to

the RACT requirement of the 1977 Act (vis.,

‘‘existing sources’’). EPA does not read

section 182(b)(2) to indicate to the contrary.

Rather, the cross-reference to section

172(c)(1) contained in section 182(b)(2)

indicates that RACT is to be interpreted in

the same manner under section 182(b)(2) as

under section 172(c)(1).’’ [See 59 FR 16703–

16704, dated April 7, 1994]

b. Long term averaging to meet RACT:

Comment: One environmental group

believes that long term averaging to

meet RACT violates the Act.

Response: EPA disagrees with the

commentor. In the preamble to the final

EIP rule EPA states:

‘‘The final rules retain the proposed

allowance for long-term emissions
Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations 57779

averaging, as well as requirements that

States make statistical showings that

any such emissions averaging is

consistent with applicable RACT, RFP,

and short-term NAAQS. These

statistical showings are necessary to

show equivalency to, or noninterference

with, each of these statutory

requirements, although as a practical

matter the same showing may suffice to

assure consistency with more than one

of the requirements. The statistical

showings should take into account the

extent to which emissions variations

from an individual source or from all

sources are random or systematic and,

thus, the extent to which the variations

can be considered to be independent.

The showings must demonstrate that the

pattern of emissions resulting from

relaxed averaging periods would

approximate the pattern of emissions

that would occur without relaxed

averaging periods to an extent sufficient

to reasonably conclude that the relaxed

averaging periods would not interfere

with the statutory requirements.’’ [See

59 FR 16706, dated April 7, 1994]

EPA Action

EPA is finalizing a limited approval

and a limited disapproval of the abovereferenced rule. The limited approval of

these rules is being finalized under

section 110(k)(3) in light of EPA’s

authority pursuant to section 301(a) to

adopt regulations necessary to further

air quality by strengthening the SIP. The

approval is limited in the sense that the

rules strengthen the SIP. However, the

rules do not meet the section

182(a)(2)(A) CAA requirement because

of the rule deficiencies which were

discussed in the NPRM. Thus, in order

to strengthen the SIP, EPA is granting

limited approval of these rules under

sections 110(k)(3) and 301(a) of the

CAA. This action approves the rules

into the SIP as federally enforceable

rules.

At the same time, EPA is finalizing

the limited disapproval of these rules

because they contain deficiencies that

have not been corrected as required by

section 182(a)(2)(A) of the CAA, and, as

such, the rules do not fully meet the

requirements of Part D of the Act. As

stated in the NPR, upon the effective

date of this NFR, the 18 month clock for

sanctions and the 24 month FIP clock

will begin. Sections 179(a) and 110(c). If

the State does not submit the required

corrections and EPA does not approve

the submittal within 18 months of the

NFR, either the highway sanction or the

offset sanction will be imposed at the 18

month mark. It should be noted that the

rule covered by this NFRM has been

adopted by the SCAQMD and is

currently in effect in the SCAQMD.

EPA’s limited disapproval action will

not prevent SCAQMD or EPA from

enforcing this rule.

On August 28, 1996 the State of

California submitted revisions to EPA

which EPA believes address all of the

deficiencies cited in the February 28,

1995 NPRM. Therefore, EPA is

proposing elsewhere in the Federal

Register today to approve into the SIP

the August 28, 1996 submittal which

addresses the cited deficiencies. The

final approval of the August 28, 1996

submittal will supersede the limited

disapproval of the March 21, 1994

submittal and remove the possibility of

sanctions associated with this limited

approval/limited disapproval noted

above.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Administrative Requirements

A. Executive Order 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995 memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget (OMB) has exempted this

regulatory action from E.O. 12866

review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under sections 110 and

301, and subchapter I, part D of the CAA

do not create any new requirements but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

CAA, preparation of a flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under Section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new Federal requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, will result from this

action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States
57780 Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 / Rules and Regulations

Court of Appeals for the appropriate

circuit by January 7, 1997. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compound.

Note: Incorporation by reference of the

State Implementation Plan for the State of

California was approved by the Director of

the Federal Register on July 1, 1982.

Dated: October 6, 1996.

Felicia Marcus,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart F—California

2. Section 52.220 is amended by

adding paragraph (c)(232) to read as

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(232) New regulations for the

following APCD were submitted on

March 21, 1994, by the Governor’s

designee:

(i) Incorporation by reference.

(A) South Coast Air Quality

Management District.

(1) Regulation XX, adopted October

15, 1993.

* * * * *

[FR Doc. 96–28594 Filed 11–7–96; 8:45 am]

BILLING CODE 6560–50–W

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 960129019–6019–01; I.D.

110196A]

Fisheries of the Exclusive Economic

Zone Off Alaska; Tanner Crab Bycatch

Allowances for Vessels Using Trawl

Gear in Zone 1 of the Bering Sea and

Aleutian Islands

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Inseason adjustment; request for

comments.

SUMMARY: NMFS has determined that

the current bycatch allowances of the

Chionoecetes bairdi (C. bairdi) Tanner

crab prohibited species catch (PSC)

limit allocated to the yellowfin sole and

rock sole/flathead sole/‘‘other flatfish’’

trawl fishery categories in Zone 1 of the

Bering Sea and Aleutian Islands

management area (BSAI) are incorrect.

NMFS is respecifying the PSC limit

apportioned to these categories. These

actions are necessary to achieve the

optimum yield from the groundfish

fisheries. They are intended to promote

the goals and objectives of the Fishery

Management Plan for the Groundfish

Fishery of the Bering Sea and Aleutian

Islands Area (FMP).

DATES: 1200 hrs, Alaska local time

(A.l.t.), November 4, 1996, until 2400

hrs, A.l.t., December 31, 1996.

Comments must be received at the

following address no later than 4:30

p.m., A.l.t., November 19, 1996.

ADDRESSES: Comments may be sent to

Ronald J. Berg, Chief, Fisheries

Management Division, Attn: Lori Gravel,

Alaska Region, NMFS, P.O. Box 21668,

Juneau, AK 99802–1668, or be delivered

to Room 457, Federal Building, 709

West 9th Street, Juneau, AK.

FOR FURTHER INFORMATION CONTACT:

Thomas Pearson, 907-486-6919.

SUPPLEMENTARY INFORMATION: The

groundfish fishery in the BSAI exclusive

economic zone is managed by NMFS

according to the FMP prepared by the

North Pacific Fishery Management

Council under authority of the

Magnuson-Stevens Fishery

Conservation and Management Act.

Fishing by U.S. vessels is governed by

regulations implementing the FMP at

subpart H of 50 CFR part 600 and 50

CFR part 679.

Pursuant to § 679.21(e)(1)(ii) the PSC

limit of C. bairdi Tanner crab caught

while conducting any trawl fishery for

groundfish in Zone 1 of the BSAI during

any fishing year is 1 million animals. In

accordance with § 679.21(e)(3)(i) the

Final 1996 Harvest Specifications of

Groundfish (61 FR 4311, February 5,

1996) apportioned this PSC limit among

the trawl gear fishery categories defined

at § 679.21(e)(3)(iv) as follows: (1)

Yellowfin sole, 250,000 animals; (2)

rock sole/flathead sole/‘‘other flatfish’’,

425,000 animals; (3) Pacific cod,

250,000 animals; and (4) pollock/Atka

mackerel/other species, 75,000 animals.

As of October 12, 1996, 80,000

animals remain of the C. bairdi Tanner

crab PSC limit to be taken in the trawl

rock sole/flathead sole/‘‘other flatfish’’

category in Zone 1. This fishery category

will not reopen during 1996. The

yellowfin sole fishery category has no C.

bairdi Tanner crab PSC limit

apportionment remaining in Zone 1 and

cannot harvest the 45,000 mt of

yellowfin sole remaining in that species

total allowable catch (TAC) in Zone 1.

NMFS has determined that the Zone 1

PSC limit for C. bairdi Tanner crab

apportioned to the yellowfin sole and

rock sole/flathead sole/‘‘other flatfish’’

fishery categories is incorrectly

specified based on the best available

scientific information pertaining to

bycatch rates reported by NMFScertified observers. The C. bairdi Tanner

crab PSC limit apportioned to the

yellowfin sole fishery category needs to

be augmented to promote achieving the

optimum yield from the yellowfin sole

fishery.

Under § 679.25(a)(1)(iii), the

Administrator, Alaska Region, NMFS, is

adjusting the C. bairdi Tanner crab PSC

limit by (1) increasing the

apportionment specified for the

yellowfin sole fishery category in Zone

1 by 80,000 animals, resulting in an

adjusted apportionment of 330,000

animals for this fishery, and (2)

decreasing the apportionment specified

for the rock sole/flathead sole/‘‘other

flatfish’’ fishery category in Zone 1 by

80,000 animals, resulting in an adjusted

apportionment of 345,000 animals for

this fishery. This adjustment is

necessary to prevent the underharvest of

the BSAI yellowfin sole TAC and is

authorized pursuant to

§ 679.25(a)(2)(i)(C).

As required by § 679.25(b), all

information relevant to this inseason

adjustment, including the effect of

overall fishing effort within the

statistical area and economic impacts on

affected fishing businesses, was

considered. Current C. bairdi Tanner

crab bycatch allowances in Zone 1 will

prevent harvest of the remaining 45,000

mt of yellowfin sole remaining in that