MEMORANDUM TO DOCKET

Date: January 27, 2014

Subject: Regulatory Flexibility Act Screening Analysis for Proposed Arizona Regional Haze 

Federal Implementation Plan (EPA-R09-OAR-2013-0588)

Statutory Requirements1: 

The Regulatory Flexibility Act (RFA) imposes both analytical and procedural requirements 

on EPA and other federal agencies. The analytical requirements call for EPA to carefully 

consider the economic impacts our rules will have on small entities. The procedural 

requirements are intended to ensure that small entities have a voice when EPA makes policy 

determinations in shaping its rules. Together, these requirements ensure that EPA carefully 

considers the effect our regulations may have on small entities. However, the RFA's 

analytical and procedural requirements do not require EPA to reach any particular result 

regarding small entities.

SBREFA is the Small Business Regulatory Enforcement Fairness Act, a regulatory reform 

statute passed by the 104 Congress and signed into law by President Clinton on March 29,

1996. SBREFA (Pub Law No. 104-121) enacted a variety of provisions, including several

amendments to the RFA, 5 U.S.C. section 601, of particular importance to EPA rulemakings. 

The Agency refers to the RFA as amended by SBREFA simply as the RFA.

For each rule subject to the RFA, EPA must prepare Initial and Final Regulatory Flexibility 

Analyses, unless we certify that the rule does not have a significant economic impact on a 

substantial number of small entities (SISNOSE).

EPA Policy: Even where the Agency certifies that a rule will not have a SISNOSE, EPA's 

policy is to make an assessment of the rule's direct adverse impact on any small entities, to 

engage the potentially regulated entities in a dialog regarding the rule, and to minimize the

impact of the rule on small entities to the extent feasible while remaining consistent with 

applicable statutory requirements.

RFA Screening Analysis: Only rules that are required to undergo notice and comment under 

the Administrative Procedure Act (APA), or other applicable statutes, are subject to the 

requirements of the RFA (5 U.S.C. sections 603-604). This rule is subject to the notice-andcomment requirements of Clean Air Act (CAA) section 307(d) and is therefore subject to the 

requirements of RFA. 

The RFA provides separate definitions for what constitutes "small" for three types of entities:

• small businesses

• small governmental jurisdictions, and

• small organizations.

 1 See Final Guidance for EPA Rulewriters: Regulatory Flexibility Act as Amended by the Small Business and 

Regulatory Enforcement Fairness Act, November 2006
The RFA incorporates and uses the definition of "small business" found in the Small 

Business Act (5 U.S.C. section 601(3)). The Small Business Act authorizes the Small 

Business Administration (SBA) to define "small business" by issuing regulations. The SBA 

periodically reviews and reissues these definitions. SBA has established size standards for 

various types of economic activities, or industries, under the North American Industry 

Classification System (NAICS). These size standards generally define small businesses based 

on the number of employees or annual receipts. The current version of SBA's size standards 

can be found at http://www.sba.gov/size. The SBA definition of a small business applies to a 

firm's parent company and all affiliates2 as a single entity.

The RFA defines "small governmental jurisdiction" as the government of a city, county,

town, township, village, school district, or special district with a population of less than 

50,000 (5 U.S.C. section 601(5)). For the purposes of the RFA, States and tribal governments 

are not considered small governments.

The RFA defines "small organization" as any "not-for-profit enterprise which is 

independently owned and operated and is not dominant in its field" (5 U.S.C. section 601(4)).

There are six facilities that EPA is proposing to regulate in this rule. Each facility and its 

owner(s) are described below. 

Chemical Lime Nelson Plant, Chemical Lime Company (Lhoist Group) 

Pursuant to 13 CFR 121.201, footnote 1, a firm is small if, it is in NAICS 327410 (lime 

manufacturing) and the concern and its affiliates have no more than 500 employees. The 

Nelson Plant, located at Mile #112 off Hwy 66, Peach Springs, Arizona, is affiliated with 

Lhoist North America. See http://www.lhoist.us/html/Contact_Us/Arizona.htm

The Lhoist Group has more than 5,500 employees. See http://www.lhoist.com/en/mission

Therefore, Chemical Lime Company and the Lhoist Group are not small entities. 

TEP Sundt/Irvington Generating Station, Tuscon Electric Power Company

Pursuant to 13 CFR 121.201, footnote 1, firms primarily engaged in the generation, 

transmission, and/or distribution of electric energy for sale are small if, including affiliates, 

the total electric output for the preceding fiscal year did not exceed 4 million megawatt 

hours. In 2011 Tuscon Electric Power Company (TEP) sold 12,804,370 megawatt hours of 

electricity.

3 Therefore, TEP is not a small entity. 

ASARCO Hayden Smelter, ASARCO (Grupo México)

Pursuant to 13 CFR 121.201, a firm is small if it is in NAICS 33140 (Nonferrous Metal 

(except Aluminum) Smelting and Refining) and the concern and its affiliates have no more 

than 1000 employees. A firm is small if it is in NAICS 212234 (Copper Ore and Nickel Ore 

Mining) and the concern and its affiliates have no more than 500 employees. Asarco is a 

 2 Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a 

third party or parties controls or has the power to control both. It does not matter whether control is exercised, 

so long as the power to control exists. 13 CFR 121.103(a)(1)

3 TEP 10-K form for the fiscal year ending December 31, 2011. 
subsidiary of Americas Mining Corporation whose parent company is Grupo México. As of 

2011, Grupo México had 26,989 employees.4 Therefore, Grupo México is not a small entity. 

Freeport-McMoran Miami Smelter, Freeport-McMoran Copper & Gold

Pursuant to 13 CFR 121.201, a firm is small if it is in NAICS 33140 (Nonferrous Metal 

(except Aluminum) Smelting and Refining) and the concern and its affiliates have no more 

than 1000 employees. A firm is small if it is in NAICS 212234 (Copper Ore and Nickel Ore 

Mining) and the concern and its affiliates have no more than 500 employees. FreeportMcMoRan Copper & Gold has over 29,700 employees.5 Therefore, Freeport-McMoRan is 

not a small entity. 

CalPortland Rillito Cement Plant, CalPortland (Taiheyo Cement)

Pursuant to 13 CFR 121.201, a firm is small if, it is in NAICS 327310 (cement 

manufacturing) and the concern and its affiliates have no more than 750 employees. The 

Rillito Plant, located at 11115 Casa Grande Hwy., Rillito, Arizona, is owned by 

CalPortland. CalPortland is owned by the Japanese company Taiheiyo Cement. (Source: 

Hoovers report on CalPortland Company). See map of holdings of Taiheyo Cement, 

identifying cement plant in Rillito, Arizona. CalPortland Company, its parent the Taiheyo 

Cement Corporation, and affiliates, have more than 750 employees. Therefore CalPortland 

and Taiheyo are not small entities. 

Phoenix Cement Company, Salt River Pima-Maricopa Indian Community

Phoenix Cement Company (PCC) was purchased by the Salt River Pima-Maricopa Indian 

Community (SRPMIC) in 1987. See http://www.srmaterials.com/about/tribal-affiliation.html. 

PCC is considered a division of SRPMIC’s government.6 For the purposes of the RFA, tribal 

governments are not considered small governments. 5 U.S.C. 601(5). Therefore SRPMIC is 

not a small entity. 

Conclusion: None of the entities that directly impacted by the proposed rule is a small entity. 

Therefore, the rule does not have a significant economic impact on a substantial number of 

small entities and no further analysis is required under the RFA.

 4 Grupo Mexico 2011 Annual Report. 

5 http://www.fcx.com/company/who.htm

6 Letter from Diane Enos, President, SRPMIC, to Jared Blumenfield, Regional Administrator, EPA Region 9 

(December 20, 2012).