Federal Register / Vol. 69, No. 43 / Thursday, March 4, 2004 / Rules and Regulations 10161

The Coast Guard certifies under 5 

U.S.C. 605(b) that this rule will not have 

a significant economic impact on a 

substantial number of small entities, 

because the regulation will only affect 

the bridge’s current operation by several 

minutes per opening per hour and 

continue to provide for navigational 

needs. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offered to assist small entities in 

understanding the rule so that they 

could better evaluate its effects on them 

and participate in the rulemaking 

process. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1–

888–REG–FAIR (1–888–734–3247). 

Collection of Information 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501–

3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in the 

preamble. 

Taking of Private Property 

This rule will not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

would not create an environmental risk 

to health or risk to safety that might 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, 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. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order, because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. It has not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. Therefore, it 

does not require a Statement of Energy 

Effects under Executive Order 13211.

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.1D, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

rule is categorically excluded, under 

figure 2–1, paragraph (32)(e), of the 

Instruction, from further environmental 

documentation. Under figure 2–1, 

paragraph (32)(e), of the Instruction, an 

‘‘Environmental Analysis Check List’’

and a ‘‘Categorical Exclusion 

Determination’’ are not required for this 

rule.

List of Subjects in 33 CFR Part 117 

Bridges.

Regulations

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows:

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS

■ 1. The authority citation for part 117 

continues to read as follows:

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039.

■ 2. In § 117.261 revise paragraph (ee) to 

read as follows:

§ 117.261 Atlantic Intracoastal Waterway 

from St. Marys River to Key Largo.

* * * * *

(ee) Commercial Boulevard bridge (SR 

870), mile 1059.0, at Lauderdale-by-theSea. The draws shall open on signal; 

except that, from 7 a.m. to 6 p.m., the 

draws need open only on the hour, 20 

minutes after the hour, and 40 minutes 

after the hour.

* * * * *

Dated: February 23, 2004. 

Harvey E. Johnson, Jr., 

Rear Admiral, U.S. Coast Guard, Commander, 

Seventh Coast Guard District.

[FR Doc. 04–4780 Filed 3–3–04; 8:45 am] 

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[AZ–082–0072; FRL–7626–1] 

Approval and Promulgation of 

Implementation Plans; Arizona—

Maricopa County Ozone, PM–10 and 

CO Nonattainment Areas; Approval of 

Revisions to Maricopa County Area 

Cleaner Burning Gasoline Program

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: We are approving revisions to 

the Arizona Cleaner Burning Gasoline 

10162 Federal Register / Vol. 69, No. 43 / Thursday, March 4, 2004 / Rules and Regulations 

1 In accordance with section 110(k)(1)(B), these 

SIP submittals were deemed complete by operation 

of law six months after submittal.

2This change was included in ADEQ’s February 

1999 ‘‘CBG Permanent Rules’’ submittal and reflects 

changes to the Arizona Revised Statutes by HB 

2307.

3For additional information, see ADEQ’s March 

2001 ‘‘Summertime Minimum Oxygen Content 

Removal’’ submittal. These changes reflect 

amendments to the Arizona Revised Statutes by SB 

1504.

4This change was also included in ADEQ’s 

August 2001 ‘‘CBG Wintertime Rules’’ submittal 

implementing changes to the Arizona Revised 

Statutes by HB 2347.

5See ADEQ’s August 2001 ‘‘CBG Wintertime 

Rules’’ submittal.

6The definition of the covered area has been 

changed in several statutory and regulatory 

revisions. The final definition submitted for EPA 

approval is described in ADEQ’s August 2001 ‘‘CBG 

Wintertime Rules’’ submittal and reflects statutory 

changes made by HB 2189.

(CBG) program currently approved in 

the State implementation plan (SIP). 

Specifically, we are approving revisions 

that, among other changes, replace 

Arizona’s interim CBG program with a 

permanent program, amend the 

wintertime CBG program to limit the 

types of gasoline that may be supplied, 

and remove the minimum oxygen 

content requirement for summertime 

gasoline.

EFFECTIVE DATE: April 5, 2004.

ADDRESSES: Copies of the documents 

relevant to this action are available for 

public inspection during normal 

business hours at EPA Region 9’s Air 

Planning Office (AIR–2), 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

Due to increased security, please call 24 

hours ahead of your visit so that we can 

arrange to have someone meet you. 

Electronic Availability 

This document and the Technical 

Support Document (TSD) for this 

rulemaking are also available as 

electronic files on EPA’s Region 9 Web 

page at http://www.epa.gov/region09/

air/phoenixcbg/.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning, 

(AIR–2), EPA Region 9, 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

Phone: (520) 622–1622; e-mail: 

tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we’’, ‘‘us’’

and ‘‘our’’ refer to U.S. EPA. 

I. Background 

On September 29, 2003 (68 FR 55920), 

EPA published a notice of proposed 

rulemaking for the State of Arizona. The 

notice proposed approval of revisions to 

the SIP for Arizona’s CBG program. 

These revisions to the Arizona CBG 

program have been adopted by the 

Arizona Department of Environmental 

Quality (ADEQ) and the State legislature 

since EPA approval of the interim CBG 

program in 1998. 

ADEQ submitted the changes to its 

CBG program to EPA for approval into 

the SIP in five separate SIP submittals: 

SIP Revision, Arizona Cleaner Burning 

Gasoline Permanent Rules—Maricopa 

County Ozone Nonattainment Area,

February 1999 (‘‘CBG Permanent 

Rules’’), State Implementation Plan 

Revision for the Cleaner Burning 

Gasoline Program in the Maricopa 

County Ozone Nonattainment Area, 

March 2001 (‘‘Summertime Minimum 

Oxygen Content Removal’’), Arizona 

Cleaner Burning Gasoline Rule to Revise 

the State Implementation Plan for the 

Maricopa County Carbon Monoxide, 

Ozone, and PM10 Nonattainment Areas,

August 2001 (‘‘CBG Wintertime Rules’’), 

Supplement to Cleaner Burning 

Gasoline Program State Implementation 

Plan Revision, September 2001 

(‘‘Technical Supplement’’) and 

Supplement to Cleaner Burning 

Gasoline Program State Implementation 

Plan Revision, January 2004 (‘‘Statutory 

Supplement’’).1 The key changes from 

the interim CBG program approved into 

the SIP in 1998 are described below.

Since 1997, ADEQ has adopted 

several amendments to its CBG rule in 

order to make it a permanent rule and 

to reflect changes made by the State 

legislature to the fuel provisions of the 

Arizona Revised Statutes (ARS). Most of 

these changes involve the removal of 

SIP-approved requirements and options. 

The ‘‘CBG Permanent Rules’’ include 

the following key changes from the 

interim rules currently approved in the 

SIP: 

• The standards for Type 3 gasoline 

(modeled after Federal Phase 1 

reformulated gasoline [RFG]), which 

was only available as an option in 1998, 

have been removed along with 

references to this fuel option.2

• Summertime minimum oxygen 

content standards for Type 1 gasoline 

(modeled after Federal Phase 2 RFG) 

have been removed by specifying a 

0.0% minimum oxygen content for 

April 1 through November 1 in Table 1 

of the rule.3

• The option of supplying Type 1 fuel 

during the winter fuel season 

(November 2 through March 31) has 

been removed by including wintertime 

fuel specifications that limit suppliers to 

Type 2 gasoline (modeled after 

California Air Resources Board (CARB) 

Phase 2) beginning in 2000. With this 

change, requirements for wintertime 

NOX surveys have also been removed 

because Type 2 gasoline does not 

include a NOX performance standard. 

• The option to provide non-ethanol 

oxygenated fuel during the winter has 

been removed by amending the 

wintertime oxygen content provisions to 

require fuel containing 10% ethanol, 

unless the use of a non-ethanol 

oxygenate is approved by the Director of 

ADEQ.4

• NOX performance standards for 

Type 1 gasoline and summer survey 

requirements have been amended to 

conform with changes made by EPA to 

the Federal RFG regulations in 

December 1997 (62 FR 68196).5

• The area subject to the program has 

been redefined to include all of 

Maricopa County as well as some 

western portions of Pinal County and a 

small part of southern Yavapai County.6

A more complete description of 

Arizona’s submittals and the rationale 

for our approval are presented in the 

notice of proposed rulemaking (68 FR 

55920, Sept. 29, 2003), and associated 

Technical Support Document (available 

at www.epa.gov/region09/air/

phoenixcbg/). 

II. Public Comments on the Proposed 

Action 

We received two comment letters on 

the September 29, 2003, proposal. The 

first, from the Western States Petroleum 

Association (WSPA), strongly supported 

the proposed SIP approval. The second, 

from the Arizona Center for Law in the 

Public Interest (ACLPI), raised concerns 

regarding the impact on ambient ozone 

concentrations. ACLPI’s comments are 

addressed below. 

In addition to these comments, we 

received e-mails submitted prior to 

publication of the proposal in the 

Federal Register, apparently reacting to 

news stories about the CBG program and 

MTBE. While these e-mails do not 

appear to address our proposed action 

and therefore do not appear to be 

intended as comments, we discuss them 

below to address potential confusion 

over the nature of today’s action. 

ACLPI Comments 

Comment: ACLPI suggests EPA’s 

finding under CAA section 110(l)—that 

the CBG program revisions will not 

interfere with attainment and reasonable 

further progress—is not sufficiently 

definitive. Specifically, ACLPI notes 

that, ‘‘EPA acknowledges that this 

removal [of the summertime minimum 

oxygen content requirement] ‘could 

result in increases in VOC and CO 

emissions and a decrease in NOX

emissions’ all of which would have the 

effect of increasing ozone.’’ ACLPI 

argues that the basis for EPA’s finding 

is the unsupported assumption that 

Federal Register / Vol. 69, No. 43 / Thursday, March 4, 2004 / Rules and Regulations 10163

7The benefit of adding oxygen to gasoline is to 

‘‘lean out’’ chemically an engine that is running 

rich (i.e., too much fuel, not enough air (oxygen)), 

so that complete combustion occurs (i.e., the 

additional air/oxygen results in CO being converted 

to CO2). Newer vehicles, however, include 

sophisticated feedback controls, which enable these 

vehicles to maintain air/fuel ratios within tight 

parameters. These ratios are maintained with or 

without the addition of oxygen to gasoline. As a 

result, the benefits of gasoline oxygenates will 

decline as these feedback controls improve in 

newer vehicles.

oxygen content will not affect emissions 

from newer vehicles and therefore the 

projected emissions changes are 

‘‘relatively small’’ and are more than 

offset by Phoenix’s general downward 

trend in ambient ozone concentrations 

from 1996 to 2002. 

Response: We concluded in our 

proposal that the removal of the two 

percent minimum oxygen requirement 

for summertime CBG is not a relaxation 

of the SIP because the SIP-approved 

regulations already allowed the use of 

non-oxygenated CBG (CBG Type 2 

produced under the averaging option) 

during the summer control period. 

Thus, the fuel options allowed under 

the revised State rules will be no less 

stringent than those allowed under the 

current SIP. This side-by-side 

comparison of regulatory requirements 

is appropriate for purposes of satisfying 

CAA section 110(l) in areas meeting the 

NAAQS. See Hall v. EPA, 273 F.3d 

1146, 1160 n. 11 (9th Cir. 2001) (noting 

‘‘no relaxation’’ test would ‘‘clearly be 

appropriate in areas that achieved 

attainment under preexisting rules’’).

We nonetheless went further in 

working with ADEQ to assess the 

changes in emissions and ozone 

concentrations likely to occur as a result 

of this change to the CBG program. 

ACLPI notes our preliminary conclusion 

that small emissions increases might not 

be a concern given the declining ozone 

concentrations in the area. As noted 

above, this preliminary assessment was 

not the basis for our 110(l) 

determination. Nor was it the end of our 

analysis. 

To confirm this preliminary 

conclusion we conducted detailed 

modeling to predict not only how 

emissions might change but what these 

emission changes would mean for ozone 

concentrations. First, we looked at how 

historical ozone concentrations would 

have been affected by the potential fuel 

changes. Our modeling showed that the 

new fuel, if used in place of the baseline 

fuel, would have resulted in a four 

percent decrease in the ozone design 

value from the 1999 baseline year. 

Second, to evaluate future ozone 

concentrations, we conducted a 

qualitative analysis to predict likely 

trends in emissions and concentrations. 

We explained that with newer vehicles, 

the effect of gasoline oxygen content on 

vehicle emissions is likely to diminish, 

and any small emissions changes will be 

overwhelmed by emission reductions 

achieved by new engine controls. 

Between these two findings, we 

concluded that the fuel provided to the 

area will be better for ozone 

concentrations than the fuel used in the 

area at the time of attainment and that 

emissions from vehicles will continue to 

decline into the future. 

ACLPI does not acknowledge the 

analysis provided. Instead, ACLPI 

points to our note that there is not 

enough data to conclude that gasoline 

oxygen content will affect emissions 

from the newest generation of vehicles. 

ACLPI implies that we therefore do not 

know how fuel changes will affect 

emissions in the future. 

While our models for estimating 

vehicle emissions do not yet include 

data for the newest generation of 

vehicles, we know how gasoline oxygen 

content affects older vehicles and we 

know that as the overall fleet of vehicles 

changes, the effect of oxygen content 

diminishes.7 In addition, we know that 

as the fleet changes to include more 

newer vehicles, engine technologies will 

result in significant emission reductions 

that overwhelm this diminishing effect 

from gasoline oxygen content. Thus, 

even though we cannot model the 

specific effect of oxygen content on 

newer vehicles, it is reasonable to 

conclude that emissions will continue 

to improve with changes to the fleet.

Comment. ACLPI also claims that it is 

anticipated that Phoenix will violate the 

new 8-hour ozone standard and 

therefore objects to EPA’s failure to 

analyze the potential impact on 8-hour 

ozone concentrations. 

Response. While we did not conduct 

a separate analysis for 8-hour ozone 

concentrations, we did explain that the 

analysis described above should ensure 

that the revisions to the fuel program 

will not interfere with 8-hour ozone 

attainment. Modeling showed that the 

new fuels likely to be provided to the 

area will result in a decrease in peak 

ozone concentrations as compared to 

the fuel provided in 1999. In addition, 

motor vehicle emissions will continue 

to decline as improvements in engine 

technologies will overwhelm the 

diminishing effect of gasoline oxygen 

content on these emissions.

Related E-mails Submitted to EPA 

We received four e-mails, all 

submitted before the September 29 

publication of the proposed action—one 

on September 8, one on September 15 

and two from the same person on 

September 23. The first two of these emails encouraged ADEQ to move away 

from using MTBE as an oxygenate. The 

final two raised questions about how 

emission reductions would be achieved 

if the area no longer had a CBG program 

with MTBE. 

These e-mails suggest some confusion 

regarding the nature of the action being 

taken by ADEQ and EPA. We therefore 

felt it important to reiterate that our 

action does not ban MTBE from Arizona 

summertime gasoline. The revisions to 

the CBG program remove the minimum 

summertime oxygen content 

requirement, but do not ban the use of 

MTBE or any other oxygenate during the 

summer. Our approval of these revisions 

likewise, does not preclude the use of 

MTBE. 

With this in mind, we evaluated the 

fuel formulations refiners are likely to 

supply the area. We concluded approval 

of these CBG program revisions may 

result in a mixture of MTBE-oxygenated 

CBG and non-oxygenated CBG (i.e., 

ethanol-oxygenated fuel appears 

unlikely). The cheapest fuel to produce 

will likely be non-oxygenated Type 1 

CBG. We used these likely fuels to 

evaluate air quality impacts and 

concluded these changes will not 

adversely affect air quality in the area. 

III. Final Action 

In today’s action, we are finding that 

the Arizona CBG program implemented 

in the Maricopa County area meets CAA 

and EPA requirements for a state fuels 

program. In addition, under CAA 

section 110(l), we are finding that the 

SIP revisions submitted by ADEQ do not 

interfere with any applicable 

requirements for CO, ozone, and PM–10 

attainment and reasonable further 

progress (RFP) or any other 

requirements of the CAA applicable to 

the Phoenix area. The basis for these 

findings is discussed in the proposal for 

today’s action. See 68 FR 55920. 

We have evaluated the submitted SIP 

revisions and have determined that they 

are consistent with the CAA and EPA 

regulations. Therefore, we are approving 

the Arizona CBG program into the 

Arizona SIP under section 110(k)(3) of 

the CAA as meeting the requirements of 

section 110(a) and part D to address 

ozone, CO and PM–10 nonattainment in 

the Maricopa County area. 

Specifically, we are approving the 

following elements of the CBG program: 

Arizona Administrative Code (AAC) 

R20–2–701, R20–2–716, R20–2–750 

through 762, and title 20, chap. 2, art. 

7, Tables 1 and 2 (March 31, 2001); and 

Arizona Revised Statutes (ARS) §§ 49–

541(1)(a), (b), and (c) (as codified on 

10164 Federal Register / Vol. 69, No. 43 / Thursday, March 4, 2004 / Rules and Regulations 

August 9, 2001), 41–2124 (as codified 

on April 28, 2000), 41–2123 (as codified 

on August 6, 1999), 41–2113(B)(4) (as 

codified on August 21, 1998), 41–2115 

(as codified on July 18, 2000), and 41–

2066(A)(2) (as codified on April 20, 

2001). 

Nothing in this action should be 

construed as permitting or allowing or 

establishing a precedent for any future 

implementation plan. Each request for 

revision to a 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. 

IV. Statutory and Executive Order 

Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

State law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by State law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, 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, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action merely 

approves a State rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 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. 804(2). 

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 May 3, 2004. 

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 CAA 

section 307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental regulations, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements.

Dated: January 26, 2004. 

Wayne Nastri, 

Regional Administrator, Region 9.

■ 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 et seq.

Subpart D—Arizona

■ 2. Section 52.120 is amended by 

adding paragraphs (c)(112) and (c)(113) 

to read as follows:

§ 52.120 Identification of plan.

* * * * *

(c) * * *

(112) Revised regulations were 

submitted on August 15, 2001, by the 

Governor’s designee as part of the 

submittal entitled Arizona Cleaner 

Burning Gasoline Rule to Revise the 

State Implementation Plan for the 

Maricopa County Carbon Monoxide, 

Ozone, and PM10 Nonattainment Areas.

The incorporated materials from this 

submittal supercede those included in 

the submittals entitled SIP Revision, 

Arizona Cleaner Burning Gasoline 

Permanent Rules—Maricopa County 

Ozone Nonattainment Area, submitted 

on February 24, 1999, and State 

Implementation Plan Revision for the 

Cleaner Burning Gasoline Program in 

the Maricopa County Ozone 

Nonattainment Area, submitted on 

March 29, 2001. 

(i) Incorporation by reference. 

(A) Arizona Administrative Code. 

(1) AAC R20–2–701, R20–2–716, R20–

2–750 through 762, and Title 20, Chap. 

2, Art. 7, Tables 1 and 2 (March 31, 

2001). 

(113) Revised statutes were submitted 

on January 22, 2004, by the Governor’s 

designee as part of the submittal entitled 

Supplement to Cleaner Burning 

Gasoline Program State Implementation 

Plan Revision. The incorporated 

materials from this submittal supercede 

those included in the submittals entitled 

SIP Revision, Arizona Cleaner Burning 

Gasoline Permanent Rules—Maricopa 

County Ozone Nonattainment Area,

submitted on February 24, 1999, State 

Implementation Plan Revision for the 

Federal Register / Vol. 69, No. 43 / Thursday, March 4, 2004 / Rules and Regulations 10165

Cleaner Burning Gasoline Program in 

the Maricopa County Ozone 

Nonattainment Area, submitted on 

March 29, 2001, and Arizona Cleaner 

Burning Gasoline Rule to Revise the 

State Implementation Plan for the 

Maricopa County Carbon Monoxide, 

Ozone, and PM10 Nonattainment Areas,

submitted August 15, 2001. 

(i) Incorporation by reference. 

(A) Arizona Revised Statutes. 

(1) ARS sections 49–541(1)(a), (b), and 

(c), 41–2124, 41–2123, 41–2113(B)(4), 

41–2115, and 41–2066(A)(2) (as codified 

on March 31, 2001).

[FR Doc. 04–4814 Filed 3–3–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62

[PA190–7008a; FRL–7631–7] 

Approval and Promulgation of State 

Air Quality Plans for Designated 

Facilities and Pollutants; 

Commonwealth of Pennsylvania; 

Control of Emissions from Existing 

Small Municipal Waste Combustion 

Units

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve a section 111(d)/129 

negative declaration submitted by the 

Pennsylvania Department of 

Environmental Protection (PADEP). The 

negative declaration certifies that small 

municipal waste combustion (MWC) 

units, subject to the requirements of 

sections 111(d) and 129 of the Clean Air 

Act (the Act), do not exist within its air 

pollution control jurisdiction, excluding 

the jurisdictions of the Health 

Departments (air pollution control 

agencies) in Allegheny and Philadelphia 

counties.

DATES: This rule is effective on May 3, 

2004 without further notice, unless EPA 

receives adverse written comment by 

April 5, 2004. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect.

ADDRESSES: Comments may be 

submitted either by mail or 

electronically. Written comments 

should be mailed to Walter Wilkie, 

Chief, Air Quality Analysis Branch, 

Mailcode 3AP22, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Electronic comments should be 

sent either to wilkie.walter@epa.gov or 

to http://www.regulations.gov, which is 

an alternative method for submitting 

electronic comments to EPA. To submit 

comments, please follow the detailed 

instructions described in part II of the 

Supplementary Information section. 

Copies of the documents relevant to this 

action are available for public 

inspection during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT:

James B. Topsale, P.E., at (215) 814–

2190, or by e-mail at 

topsale.jim@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

Sections 111(d) and 129 of the Act 

requires states to submit plans to control 

certain pollutants (designated 

pollutants) at existing solid waste 

combustor facilities (designated 

facilities) whenever standards of 

performance have been established 

under section 111(b) for new sources of 

the same type, and EPA has established 

emission guidelines (EG) for such 

existing sources. A designated pollutant 

is any pollutant for which no air quality 

criteria have been issued, and which is 

not included on a list published under 

section 108(a) or section 112(b)(1)(A) of 

the CAA, but emissions of which are 

subject to a standard of performance for 

new stationary sources. However, 

section 129 of the Act, also requires EPA 

to promulgate EG for MWC units that 

emit a mixture of air pollutants. These 

pollutants include organics (i.e.,

dioxins/furans), carbon monoxide, 

metals (cadmium, lead, mercury), acid 

gases (hydrogen chloride, sulfur 

dioxide, and nitrogen oxides) and 

particulate matter (including opacity).

On December 6, 2000 (65 FR 76350 

and 76378), EPA promulgated small 

municipal waste combustion unit new 

source performance standards, 40 CFR 

part 60, subpart AAAA, and emission 

guidelines (EG), subpart BBBB, 

respectively. The designated facility to 

which the EG apply is each existing 

small MWC unit that has a design 

combustion capacity of 35 to 250 tons 

per day of municipal solid waste (MSW) 

and commenced construction on or 

before August 30, 1999. 

Subpart B of 40 CFR part 60 

establishes procedures to be followed 

and requirements to be met in the 

development and submission of state 

plans for controlling designated 

pollutants. Also, 40 CFR part 62 

provides the procedural framework for 

the submission of these plans. When 

designated facilities are located in a 

state, the state must then develop and 

submit a plan for the control of the 

designated pollutant. However, 40 CFR 

60.23(b) and 62.06 provide that if there 

are no existing sources of the designated 

pollutant in the state, the state may 

submit a letter of certification to that 

effect (i.e., negative declaration) in lieu 

of a plan. The negative declaration 

exempts the state from the requirements 

of subpart B that require the submittal 

of a 111(d)/129 plan. 

The Harrisburg Materials, Energy, 

Recycling and Resource Recovery 

Facility was the only known designated 

facility (based on the derated capacity of 

its two combustion units) subject to the 

EG. However, on June 18, 2003, the City 

of Harrisburg permanently ceased 

operation of its two small MWC units. 

Permanent closure of the units was 

confirmed by PADEP staff during 

inspections of the facility on August 4 

and 11, 2003. 

II. Final EPA Action 

The PADEP has determined that there 

are no designated facilities, subject to 

the small MWC unit EG requirements, 

in its air pollution control jurisdiction. 

Accordingly, the PADEP Bureau of Air 

Quality Director has submitted to EPA 

a negative declaration letter certifying 

this fact. The submittal date of the letter 

is October 30, 2003. 

Therefore, EPA is amending part 62 to 

reflect the receipt of the negative 

declaration letter from the PADEP. 

Amendments are being made to 40 CFR 

part 62, subpart NN (Pennsylvania). 

These amendments exclude the local 

Pennsylvania air pollution control 

jurisdictions that submitted their own 

approvable negative declarations—

Allegheny and Philadelphia (City) 

counties. 

After publication of this Federal 

Register notice, if a small MWC unit is 

later found within jurisdiction of the 

PADEP, then that unit will become 

subject to the requirements of the 

Federal small MWC 111(d)/129 plan, as 

promulgated on January 31, 2003 (68 FR 

5144). 

EPA is publishing this rule without 

prior proposal because the Agency 

views this as a noncontroversial 

amendment and anticipates no adverse 

comment. However, in the ‘‘Proposed 

Rules’’ section of today’s Federal 

Register, EPA is publishing a separate 

document that will serve as the proposal 

to approve the section 111(d)/129 

negative declaration if adverse 

comments are filed. This rule will be 

effective on May 3, 2004 without further