8958 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 

imposed by a Federal District Court of 

competent jurisdiction. 

(5) Where a person has been removed 

to the United States for a detention 

hearing or other judicial proceeding and 

a Federal Magistrate Judge orders the 

person’s release and permits the person 

to return to the overseas location, the 

Department of Defense (including the 

Military Department originally 

sponsoring the person to be employed 

or to accompany the Armed Forces 

outside the United States) shall not be 

responsible for the expenses associated 

with the return of the person to the 

overseas location, or the person’s 

subsequent return travel to the United 

States for further court proceedings that 

may be required. 

Appendix A to Part 153—Guidelines 

(a) Civilians employed by the Armed 

Forces outside the United States who commit 

felony offenses while outside the U.S. are 

subject to U.S. criminal jurisdiction under 

the Act, and shall be held accountable for 

their actions, as appropriate. 

(b) Civilians accompanying the Armed 

Forces outside the United States who commit 

felony offenses while outside the U.S. are 

subject to U.S. criminal jurisdiction under 

the Act, and shall be held accountable for 

their actions, as appropriate. 

(c) Former members of the Armed Forces 

who commit felony offenses while serving as 

a member of the Armed Forces outside the 

U.S., but who ceased to be subject to UCMJ 

court-martial jurisdiction without having 

been tried by court-martial for such offenses, 

are subject to U.S. criminal jurisdiction 

under the Act and shall be held accountable 

for their actions, as appropriate. 

(d) The procedures of this part and DoD 

actions to implement the Act shall comply 

with applicable Status of Forces Agreements, 

and other international agreements affecting 

relationships and activities between the 

respective host nation countries and the U.S. 

Armed Forces. These procedures may be 

employed outside the United States only if 

the foreign country concerned has been 

briefed or is otherwise aware of the Act and 

has not interposed an objection to the 

application of these procedures. Such 

awareness may come in various forms, 

including but not limited to Status of Forces 

Agreements containing relevant language, 

Diplomatic Notes or other acknowledgements 

of briefings, or case-by-case arrangements, 

agreements, or understandings with 

appropriate host nation officials. 

(e) Consistent with the long-standing 

policy of maximizing U.S. jurisdiction over 

its citizens, the Act and this part provide a 

mechanism for furthering this objective by 

closing a jurisdictional gap in U.S. law and 

thereby permitting the criminal prosecution 

of covered persons for offenses committed 

outside the United States. In so doing, the 

Act and this part provide, in appropriate 

cases, an alternative to a host nation’s 

exercise of its criminal jurisdiction should 

the conduct that violates U.S. law also violate 

the law of the host nation, as well as a means 

of prosecuting covered persons for crimes 

committed in areas in which there is no 

effective host nation criminal justice system. 

(f) In addition to the limitations imposed 

upon prosecutions by section 3261(b) of the 

Act, the Act and these procedures should be 

reserved generally for serious misconduct for 

which administrative or disciplinary 

remedies are determined to be inadequate or 

inappropriate. Because of the practical 

constraints and limitations on the resources 

available to bring these cases to successful 

prosecution in the United States, initiation of 

action under this part would not generally be 

warranted unless serious misconduct were 

involved. 

(g) The procedures set out in the Act and 

this part do not apply to cases in which the 

return of fugitive offenders is sought through 

extradition and similar proceedings, nor are 

extradition procedures applicable to cases 

under the Act. 

Appendix B to Part 153—

Acknowledgment of Limited Legal 

Representation (Sample) 

1. I, llllll, have been named as a 

suspect or defendant in a matter to which I 

have been advised is subject to the 

jurisdiction of the Military Extraterritorial 

Jurisdiction Act of 2000 (section 3261, et 

seq., of title 18, United States Code.); 

hereinafter referred to as ‘‘the Act’’). I have 

also been informed that certain initial 

proceedings under 18 U.S.C. 3265 may be 

required under this Act, for which I am 

entitled to be represented by legal counsel. 

2. I acknowledge and understand that the 

appointment of military counsel for the 

limited purpose of legal representation in 

proceedings conducted pursuant to the Act is 

dependent upon my being unable to retain 

civilian defense counsel representation for 

such proceedings, due to my indigent status, 

and that qualified military defense counsel 

has been made available. 

3. Pursuant to the Act, llllll, a 

Federal Magistrate Judge, has issued the 

attached Order and has directed that that 

military counsel be made available: 

ll For the limited purpose of representing 

me at an initial proceeding to be conducted 

outside the United States pursuant to 18 

U.S.C. 3265, 

ll For the limited purpose of representing 

me in an initial detention hearing to be 

conducted outside the United States 

pursuant to 18 U.S.C. 3265(b), 

4. llllll, military counsel, has been 

made available in accordance with 

Department of Defense Instruction 5525.bb, 

and as directed by the attached Order of a 

Federal Magistrate Judge. 

5. I (do) (do not) wish to be represented by 

llllll, military counsel ll (initials). 

6. I understand that the legal 

representation of llllll, military 

counsel, is limited to: 

a. Representation at the initial proceedings 

conducted outside the United States 

pursuant to 18 U.S.C. 3265. 

ll (Initials) 

b. The initial detention hearing to be 

conducted outside the United States 

pursuant to the Military Extraterritorial 

Jurisdiction Act of 2000 (18 U.S.C. 3261, et 

seq.). 

ll (Initials) 

c. Other proceedings (Specify): 

llllll. ll (Initials) 

lllllllllllllllllllll

Signature of Person To Be Represented By 

Military Counsel 

lllllllllllllllllllll

Signature of Witness* 

Attachment: 

Federal Magistrate Judge Order 

(*Note: The witness must be a person other 

than the defense counsel to be made 

available for this limited legal 

representation.) 

Dated: February 15, 2006. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, DoD 

[FR Doc. 06–1605 Filed 2–21–06; 8:45 am] 

BILLING CODE 5001–06–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2005–CO–0004; FRL–

8029–7] 

Approval and Disapproval and 

Promulgation of Air Quality 

Implementation Plans; Colorado; 

Affirmative Defense Provisions for 

Startup and Shutdown; Common 

Provisions Regulation and Regulation 

No. 1 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving a State 

Implementation Plan (SIP) revision 

submitted by the State of Colorado. The 

revision establishes affirmative defense 

provisions for source owners and 

operators for excess emissions during 

periods of startup and shutdown. The 

affirmative defense provisions are 

contained in the State of Colorado’s 

Common Provisions regulation. The 

intended effect of this action is to 

approve those portions of the rule that 

are approvable and to disapprove those 

portions of the rule that are inconsistent 

with the Clean Air Act. This action is 

being taken under section 110 of the 

Clean Air Act. In addition, EPA is 

announcing that it no longer considers 

the State of Colorado’s May 27, 1998 

submittal of revisions to Regulation No. 

1 to be an active SIP submittal. Those 

revisions, which we proposed to 

disapprove on September 2, 1999 and 

October 7, 1999, would have provided 


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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 8959 

1Earlier expressions of EPA’s interpretations 

regarding excess emissions during malfunctions, 

startup, and shutdown are contained in two 

memoranda, one dated September 28, 1982, the 

other February 15, 1983, both titled ‘‘Policy on 

Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions’’ and signed by 

Kathleen M. Bennett. However, the September 1999 

memorandum directly addresses the creation of 

affirmative defenses in SIPs and, therefore, is most 

relevant to this action. 

2EPA’s September 20, 1999 memorandum 

indicates that the term affirmative defense means, 

in the context of an enforcement proceeding, a 

response or defense put forward by a defendant, 

regarding which the defendant has the burden of 

proof, and the merits of which are independently 

and objectively evaluated in a judicial or 

administrative proceeding. See footnote 4 of the 

attachment to the memorandum. 

exemptions from existing limitations on 

opacity and sulfur dioxide (SO2) 

emissions for coal-fired electric utility 

boilers during periods of startup, 

shutdown, and upset. Since our 

proposed disapproval, the State of 

Colorado has removed or replaced the 

provisions in Regulation No. 1 that we 

proposed to disapprove, and has instead 

pursued adoption of the affirmative 

defense provisions in the State of 

Colorado’s Common Provisions 

regulation that we are approving today. 

DATES: This final rule is effective March 

24, 2006. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2005–CO–0004. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Program, 

Environmental Protection Agency 

(EPA), Region 8, 999 18th Street, Suite 

300, Denver, Colorado 80202–2466. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR

FURTHER INFORMATION CONTACT section to 

view the hard copy of the docket. You 

may view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Laurie Ostrand, Air and Radiation 

Program, Mailcode 8P–AR, 

Environmental Protection Agency 

(EPA), Region 8, 999 18th Street, Suite 

200, Denver, Colorado 80202–2466, 

(303) 312–6437, ostrand.laurie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background of State Submittal 

II. EPA Analysis of State Submittal 

III. Final Action 

IV. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words as 

follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words State or Colorado 

mean the State of Colorado, unless the 

context indicates otherwise. 

I. Background of State Submittal 

On July 31, 2002, the State of 

Colorado submitted a SIP revision that 

added affirmative defense provisions for 

excess emissions during startup and 

shutdown. These affirmative defense 

provisions are contained in the 

Common Provisions Regulation at 

section II.J and were adopted by the 

Colorado Air Quality Control 

Commission (AQCC) on August 16, 

2001. 

On December 7, 2005 (70 FR 72741), 

we proposed to approve sections II.J.1 

through II.J.4 of the Common Provisions 

regulation and proposed to disapprove 

section II.J.5 of the Common Provisions 

regulation. No comments were received 

on the December 7, 2005 proposal. See 

the December 7, 2005 notice of 

proposed rulemaking for additional 

information. 

On December 7, 2005 (70 FR 72741) 

we also announced that we no longer 

consider Colorado’s May 27, 1998 

submittal of revisions to Regulation No. 

1 to be an active submittal, and that we 

do not intend to finalize our proposed 

disapprovals. The May 1998 Regulation 

No. 1 submittal would have provided 

exemptions from the existing limitations 

on opacity and sulfur dioxide (SO2) 

emissions for coal-fired electric utility 

boilers during periods of startup, 

shutdown, and upset. We proposed to 

disapprove the May 1998 Regulation 

No. 1 submittal on September 2, 1999 

(64 FR 48127) and October 7, 1999 (64 

FR 54601). 

II. EPA Analysis of State Submittal 

EPA’s interpretations of the Act 

regarding excess emissions during 

malfunctions, startup and shutdown are 

contained in, among other documents, a 

September 20, 1999 memorandum titled 

‘‘State Implementation Plans: Policy 

Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown,’’

from Steven A. Herman, Assistant 

Administrator for Enforcement and 

Compliance Assurance, and Robert 

Perciasepe, Assistant Administrator for 

Air and Radiation.1 That memorandum 

indicates that because excess emissions 

might aggravate air quality so as to 

prevent attainment and maintenance of 

the national ambient air quality 

standards (NAAQS) or jeopardize the 

prevention of significant deterioration 

(PSD) increments, all periods of excess 

emissions are considered violations of 

the applicable emission limitation. 

However, the memorandum recognizes 

that in certain circumstances states and 

EPA have enforcement discretion to 

refrain from taking enforcement action 

for excess emissions. In addition, the 

memorandum also indicates that states 

can include in their SIPs provisions that 

would, in the context of an enforcement 

action for excess emissions, excuse a 

source from penalties (but not 

injunctive relief) if the source can 

demonstrate that it meets certain 

objective criteria (an ‘‘affirmative 

defense’’).2 Finally, the memorandum 

indicates that EPA does not intend to 

approve SIP revisions that would 

recognize a state director’s decision to 

bar EPA’s or citizens’ ability to enforce 

applicable requirements. 

We have evaluated Colorado’s 

affirmative defense provisions for 

startup and shutdown and find that, 

except for one paragraph, they are 

consistent with our interpretations 

under the Act regarding the types of 

affirmative defense provisions we can 

approve in SIPs. The Affirmative 

Defense provisions in the Common 

Provisions Regulation, sections II.J.1 

through II.J.4 are consistent with the 

provisions for startup and shutdown we 

suggested in our September 20, 1999 

memorandum. Thus, these provisions 

will provide sources with appropriate 

incentives to comply with their 

emissions limitations and help ensure 

protection of the NAAQS and 

increments and compliance with other 

Act requirements. 

However, we cannot approve the 

provisions in section II.J.5 of the 

Common Provisions regulation. Section 

II.J.5 reads as follows: 

II.J.5. Affirmative Defense Determination: 

In making any determination whether a 

source established an affirmative defense, the 

Division shall consider the information 

within the notification required in paragraph 

2 of this section and any other information 

the division deems necessary, which may 


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8960 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 

3Section II.J.5 may be confusing the concept of 

affirmative defense with the concept of enforcement 

discretion. By definition, an affirmative defense is 

a defense that may be raised in the context of an 

enforcement proceeding before an independent trier 

of fact. Before pursuing an enforcement action, the 

state might evaluate the likelihood that an owner/ 

operator could prove the elements of the affirmative 

defense, but this would go to the state’s exercise of 

enforcement discretion. While the state might 

decide not to pursue an enforcement action based 

on such an evaluation, if EPA or citizens were to 

pursue enforcement action, an independent trier of 

fact might reach a conclusion different from the 

state’s, i.e., that the owner/operator had not proved 

the elements of the affirmative defense. 

include, but is not limited to, physical 

inspection of the facility and review of 

documentation pertaining to the maintenance 

and operation of process and air pollution 

control equipment. 

Under this language, the Division could 

make a determination outside the 

context of an enforcement action, or at 

any time during an enforcement action, 

that a source has established the 

affirmative defense. If we were to 

approve section II.J.5, a court might 

conclude that we had ceded the 

authority to the Division to make this 

determination, not just for the State, but 

on behalf of EPA and citizens as well. 

Consequently, a court might also view 

the Division’s determination that a 

source had established the affirmative 

defense as barring an EPA or citizen 

action for penalties. 

As we stated in the September 1999 

memoranda, we do not intend to 

approve SIP language that would allow 

a state’s decision to constrain our or 

citizens’ enforcement discretion. To do 

so would be inconsistent with the 

regulatory scheme established in Title I 

of the Act, which allows independent 

EPA and citizen enforcement of 

violations, regardless of a state’s 

decisions regarding those violations and 

any potential defenses.3

Section 110(l) of the Clean Air Act 

states that a SIP revision cannot be 

approved if the revision would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress towards attainment of 

the NAAQS or any other applicable 

requirements of the Act. The Colorado 

SIP revision that is the subject of this 

document does not interfere with the 

maintenance of the NAAQS or any other 

applicable requirement of the Act. The 

July 31, 2002 submittal merely adopts 

affirmative defense provisions for 

source owners and operators for excess 

emissions during periods of startup and 

shutdown. These provisions provide, 

that in the context of an enforcement 

action for excess emissions, a source can 

be excused from penalties (but not 

injunctive relief) if the source can 

demonstrate that it meets certain 

objective criteria. Therefore, section 

110(l) requirements are satisfied. 

III. Final Action 

We are approving sections II.J.1 

through II.J.4 of the Common Provisions 

Regulation submitted on July 31, 2002 

for the reasons expressed above. We are 

disapproving section II.J.5 of the 

Common Provisions Regulation 

submitted on July 31, 2002 because this 

section is inconsistent with the Clean 

Air Act. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

‘‘answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * *’’ 44 U.S.C. 

3502(3)(A). Because this final rule does 

not impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This final rule will not have a 

significant impact on a substantial 

number of small entities because SIP 

approvals and disapprovals under 

section 110 and subchapter I, part D of 

the Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the State 

is already imposing. Therefore, because 

the Federal SIP approval/disapproval 

does not create any new requirements, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of 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). 

D. Unfunded Mandates Reform Act 

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 the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective 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 this final 

action 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 partially approves and 

partially disapproves pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, Federalism 

(64 FR 43255, August 10, 1999), revokes 

and replaces Executive Orders 12612 

(Federalism) and 12875 (Enhancing the 

Intergovernmental Partnership). 

Executive Order 13132 requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, EPA may not issue a 

regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 


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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 8961 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This final rule will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely partially approves and partially 

disapproves state rules implementing a 

federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

This action does not involve or impose 

any requirements that affect Indian 

tribes. Thus, Executive Order 13175 

does not apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children From 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit 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 United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). This 

rule will be effective March 24, 2006. 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by April 24, 2006. 

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) of the Clean Air Act.) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 30, 2006. 

Robert E. Roberts, 

Regional Administrator, Region 8. 

■ 40 CFR part 52 is amended to read as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart G—Colorado 

■ 2. Section 52.320 is amended by 

adding paragraph (c)(109) to read as 

follows: 

§ 52.320 Identification of plan. 

* * * * * 

(c) * * * 

(109) A revision to the State 

Implementation Plan was submitted by 

the State of Colorado on July 31, 2002. 

The submittal revises the Common 

Provisions regulation by adding 

affirmative defense provisions for 

source owners and operators for excess 

emissions during periods of startup and 

shutdown. 

(i) Incorporation by reference. 

(A) Common Provisions Regulation, 5 

CCR 1001–2, sections II.J.1 through 

II.J.4, adopted August 16, 2001, effective 

September 30, 2001. 

■ 3. Section 52.329 is amended by 

adding paragraph (c) to read as follows: 

§ 52.329 Rules and regulations. 

* * * * * 

(c) A revision to the State 

Implementation Plan was submitted by 

the State of Colorado on July 31, 2002. 

The submittal revises the Common 

Provisions regulation by adding 


cprice-sewell on PROD1PC66 with RULES
8962 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 

affirmative defense provisions for 

source owners and operators for excess 

emissions during periods of startup and 

shutdown. The affirmative defense 

provisions are contained in section II.J. 

As indicated in 40 CFR 52.320(c)(109), 

EPA approved the affirmative defense 

provisions contained in sections II.J.1 

through II.J.4 of the Common Provisions 

regulation, adopted August 16, 2001 and 

effective September 30, 2001. Section 

II.J.5 of the Common Provisions 

regulation, adopted August 16, 2001 and 

effective September 30, 2001, is 

disapproved. 

[FR Doc. 06–1567 Filed 2–21–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0003; FRL–8034–

7] 

Approval and Promulgation of State 

Implementation Plans; Texas; Revision 

to the Rate of Progress Plan for the 

Beaumont/Port Arthur Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The EPA is approving 

revisions to the Texas State 

Implementation Plan (SIP) Post-1996 

Rate of Progress (ROP) Plan, the 1990 

Base Year Inventory, and the Motor 

Vehicle Emissions Budgets (MVEB) 

established by the ROP Plan, for the 

Beaumont/Port Arthur (BPA) ozone 

nonattainment area submitted 

November 16, 2004. The intended effect 

of this action is to approve revisions 

submitted by the State of Texas to 

satisfy the reasonable further progress 

requirements for 1-hour ozone 

nonattainment areas classified as 

serious and demonstrate further 

progress in reducing ozone precursors. 

We are approving these revisions in 

accordance with the requirements of the 

Federal Clean Air Act (CAA). 

DATES: This rule is effective on April 24, 

2006 without further notice, unless EPA 

receives relevant adverse comment by 

March 24, 2006. If EPA receives such 

comment, EPA will publish a timely 

withdrawal in the Federal Register 

informing the public that this rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06–

OAR–2005–TX–0003, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Thomas Diggs at 

diggs.thomas@epa.gov. Please also send 

a copy by e-mail to the person listed in 

the FOR FURTHER INFORMATION CONTACT

section below. 

• Fax: Mr. Thomas Diggs, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Thomas Diggs, Chief, Air 

Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. 

Thomas Diggs, Chief, Air Planning 

Section (6PD–L), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

Such deliveries are accepted only 

between the hours of 8 a.m. and 4 p.m. 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2005–

TX–0003. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30am and 

4:30pm weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Carl 

Young, Air Planning Section (6PD–L), 

EPA Region 6, 1445 Ross Avenue, 

Dallas, Texas 75202–2733, telephone 

214–665–6645, young.carl@epa.gov. 

SUPPLEMENTARY INFORMATION: 

What Action Are We Taking? 

We are approving revisions to the 

BPA area post-1996 ROP Plan for the 

1997–1999, 2000–2002 and 2003–2005 

time periods submitted in a letter dated 

November 16, 2004. The post-1996 ROP 

plan is designed to achieve an 

additional 9 percent reduction in 

emissions between 1996 and 1999, a 

further 9 percent reduction between 

1999 and 2002, and another 9 percent 

reduction between 2002 and 2005. We 

are also approving revisions to the 1990 

base year inventory and the ROP Plan’s 

associated Motor Vehicle Emissions 

Budgets (MVEB) for 1999, 2002, and 

2005. 


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