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under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule only stays an imposed sanction and defers the imposition ofanother, itdoes
not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4). For the same reason, this rule also does not significantly oruniquely affect the communities oftribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will
not have substantial direct effects on the States, on the relationship between the national government and the States, or

onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely stays a sanction and defers another one, and does not alter the relationship or the distribution ofpower and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because itis not economically significant.

This rule does not contain technical standards, thus, the requirements of section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Asrequired by section 3of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPAhas complied with Executive Order 12630 (53 FR 8859, March 15, 1988)by examining the takings implications ofthe rule in accordance with the "Attorney General's Supplemental Guidelines for the Evaluation ofRisk and Avoidance of Unanticipated Takings" issued under the executive order.

This rule does not impose an information collection burden under the provisions ofthe 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 arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief
statement ofreasons therefor in the rule) that notice and public procedure thereon are impracticable, unnecessary,

or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As statedpreviously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date ofFebruary 27, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. This rule is not a "major rule" as defined by 5U.S.C. 804(2).

List ofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental regulations, Particulate matter, Reporting andrecordkeeping requirements.

Dated: January 31, 2002. Wayne Nastri, RegionalAdministrator, RegionIX. [FR Doc. 02-4525 Filed 2-26-02; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [CA 250-0317a; FRL-7145-8]

Revisionsto the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA is taking direct final actionto approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns the emission ofparticulate matter (PM-10) from openburning, prescribed burning, and hazard reduction burning. We are approving local rules that regulate this emission source under the Clean Air Act

as amended in 1990 (CAA or the Act). DATES: This rule is effective on April 29, 2002 without further notice, unless EPA receives adverse comments by March 29, 2002. Ifwe receive such comments,

we will publish a timely withdrawal in the Federal Register to notifythe public that this rule will not take effect. ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR4), U.S.Environmental Protection Agency, Region IX, 75 Hawthorne Street, SanFrancisco, CA 94105.

You can inspect copies ofthe submitted rulerevisions and EPA's technical support document (TSD) at

our Region IX office during normal business hours. You may also see copies ofthe submitted rule revisions and TSD
atthe following locations: Environmental Protection Agency, Air

Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460. California Air Resources Board,

Stationary Source Division, Rule Evaluation Section, 1001 "I" Street, Sacramento, CA 95814. SanJoaquin Valley Unified Air

Pollution Control District, 1990 East Gettysburg Street, Fresno, CA 93726.
FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.

Table ofContents

I.The State's Submittal

A. What rules didthe State submit? B.Are there other versions ofthese rules? C.What is thepurpose ofthe submitted

rule revisions? II.EPA's Evaluation and Action

A.How isEPA evaluating therules? B.Do therules meet the evaluation

criteria? C.Public comment and final action III. Background Information

Whywas thisrule submitted? IV.Administrative Requirements

I. The State's Submittal

A. WhatRulesDidtheState Submit?

Table 1lists the rules we are approving with the date thatthey were adoptedby the local air agency and submitted by the California Air Resources Board (CARB).

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TABLE 

### 1

.- SUBMITTED RULES

Local agency Rule # Rule title Adopted Submitted

SJVU APCD

....... 4103 Open Burning

............................................................................................................... 06/21/0 1 10/30/0 1 SJVUAPCD

....... 4106 Prescribed Burning and Hazard Reduction Burning

.................................................... 06/21/01 10/30/01

On January 18, 2002, this submittal

was found to meet the completeness criteria in 40 CFR part 51, appendix V, which mustbe metbefore formal EPA review.

B.Are There Other Versions ofThese Rules?

We approved into the SIP onJuly 26, 2000 (65 FR 45912) aversion ofRule 4103, adopted onDecember 16, 1993. Rule 4106 is a new rule.

C. WhatIs thePurposeoftheSubmitted RuleRevisions?

The purpose ofthe submitted revised Rules 4103 and 4106 are toremedy the deficiencies cited in the limited approval ofRule 4103 onJuly 26, 2000 (65 FR 45912).

II. EPA's Evaluation and Action

A. HowIs EPAEvaluatingtheRules?

Generally, SIP rules must be enforceable (see section 110(a) ofthe CAA) and must not relax existing requirements (see sections 110(1) and 193). Section 189(b) ofthe CAA requires serious nonattainment areas with significant PM-10 sources to adopt best available control measures (BACM), including best available control technology (BACT). SJVUAPCD is a serious PM-10 nonattainment area and
must meet the requirements ofBACM/ BACT. BACM/BACT is not required for

source categories that are not significant (deminimus)andthere are no major

sources. SeeAddendum to the General Preamble fortheImplementationof TitleI ofthe CleanAirActAmendments of1990, 59 FR 41998 (August 16, 1994).

The following guidance documents

were used for reference:

* Requirements forPreparation, Adoption, andSubmittalof ImplementationPlans,U.S. EPA, 40 CFR Part 51.

* GeneralPreamble Appendix C3- Prescribed BurningControlMeasures (57 FR 18072, April 28, 1992).

* Prescribed BurningBackground DocumentandTechnicalInformation DocumentforBestAvailable Control Measures(EPA-450/2-92-003). * GeneralPreamble forthe ImplementationofTitleI ofthe Clean AirActAmendments of1990, 57 FR 13498, 13540 (April 16, 1992).

* Addendum to theGeneralPreamble fortheImplementationofTitleI ofthe CleanAirActAmendments of1990, 59 FR 41998 (August 16, 1994).

B. Do theRulesMeet theEvaluation Criteria?

We believe the rules are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and fulfilling BACM/BACT. All ofthe deficiencies identified in our previous limited approval and limited disapproval action on Rule 4103 have been adequately addressed as follows: 9 (Burning to prevent an imminent fire hazard that cannot be abated by other means shouldbe done ona permissive-burn day.) The exemption from allprovisions ofRule 4103 for an imminent fire hazard that cannot be abated by other means is still included in the rule and could allow burning on

ano-burn day. 4103.4.1.2. There is no exemption for hazard reduction burning, which is allowed only on a permissive-burn day.4106.5.1.4. We

concur with the District's argument that burning allowed in the case ofan imminent fire hazard could remedy a dangerous fire hazard instead ofwaiting for apermissive-burn day and is an appropriate measure. Hazard reduction burning is a less imminent form of hazard, andit is appropriate torequire suchburning on apermissive-burn day. The exemption for an imminent fire hazard fulfills the requirements of BACM. * (Burning training should be done

onpermissive-burn days or should be limited to a short time or small amount offuel.) The District has argued that it is very difficult to schedule personnel in advance from different locations in a large District ofeight counties for training that coincides with a permissive-burn day, which often does
not occur for many consecutive days. We concurthat the exemption from the rule for fire-fighting training, which could allow burning on no-burn days, is reasonable. However, the exemption

was restricted to require written authorization from the Air Pollution Control Officer (APCO) for all necessary fire-fighting training activities and to require that a burn plan be submitted and receive prior approval from the APCO for any fire-fighting training activities not located at a stationary firetraining facility. 4103.4.2.1 and 4103.6.2.1. This restricted exemption for burning training fulfills the requirements ofBACM.

0 (The addition ofthe exemption to burn onno-burn days for disease and pest prevention, where there is no reasonable alternative, is a SIP relaxation.) The District argued that Rules 4103 and 4106 are more stringent overall thanthe SIP rule given alimited approval/limited disapproval, therefore this minor and unpredictable relaxation does not violate section 110(1) ofthe CAA. We concur with the District's argument that this exemption, which could allow burning on no-burn days, is

a necessary and appropriate measure for timely control ofunplanned natural infestations where there is no reasonable alternative. This exemption is restricted to require that suchburning onlybe done after written authorization fromthe APCO. 4103.4.2. Thisrestricted exemption for disease andpest prevention fulfills the requirements of BACM.

* (Emptypesticide sacks shouldbe burned onpermissive-burn days unless the source category is deminimums.) The exemption to burn on no-burn days

was expanded to include toxic substances other than pesticides but to notinclude fertilizer sacks. 4103.4.3.1. The District showed that this source category is almost deminimums, since it accounts for only 1.4% ofthe total PM-10 emissions. They argue that itis less hazardous to burn empty pesticide and hazardous material sacks in the field where emptied thanto transport and store them while waiting to burn on

a permissive-burn day. Furthermore, suchburning is still restricted bypermit requirements and subject to the tonnage allocation by the APCO to prevent an exceedance ofthe National Ambient Air Quality Standards (NAAQS) even on a no-burn day. This restricted exemption for empty pesticide and toxic material sacks fulfills the requirements ofBACM.

* (Tumbleweeds should be burned with a permit on a permissive-burn day.) This is implemented. 4103.5.8.

* (Range improvement burning (a type ofprescribed burning) from January 1to May 31 should occur on a permissive-burn day.) This is implemented. 4106.4.9.5.

* (Agricultural burning (a type of prescribed burning) for growing crops or raising fowl or animals above 3,000 feet elevation should occur on apermissive

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burn day.) This is implemented. 4106.4.9.5.

* (Agricultural burning above 6,000 feet elevation should occur on permissive-burn days.) This is implemented. 4106.4.9.5.

* (Excessive Director's discretion in granting permission for agricultural burning on no-burn days in the event of imminent and substantial economic loss shouldbe restricted by allowing only the acreage to be burned as limited by meteorological conditions andmeeting the NAAQS.) Director's discretion for the exemption to burn in the case of imminent and substantial economic loss, which could occur on no-burn days, is restricted by limitingburning acreage to 200 acres per county per day, by requiring a forecast by the District that the NAAQS will be not be violated in downwind metropolitan areas, and by requiring thatburning not be prohibited by a fire agency for safety

reasons. 4103.4.3.3. This restricted exemption for imminent and substantial economic loss fulfills the requirements ofenforceability and BACM.

* (BACMmay require an overall approach of approving burns based on
an evaluation ofthe airshed's capacity
to disperse emissions on permissiveburn days so that cumulative emissions from all burns and PM-10 sources will
not cause aviolation ofthe NAAQS.) The District is required to allocate burning based onpredicted meteorological conditions andwhether the total tonnage tobe emitted would allow the volume ofsmoke and other contaminants to impact smoke sensitive

areas or create or contribute to an exceedance ofthe NAAQS. 4103.5.2 and 4106.4.2. This measure for an overall approach to allocation ofburning fulfills the requirements ofBACM.

* (BACMmay require burner training.) Burner training in a course approved bythe APCO is required for prescribed burns over 10 acres. 4106.4.9.1. This measure forburner training fulfills the requirements of BACM. * (BACM may require the use ofthe best emission reduction efforts for prescribed burning and describing them in a smoke management plan.) The use ofvarious best management practices is required. 4106.4.9. Extensive requirements for smoke management plans are described. 4106.5.2. These

measures forbest emission reduction efforts fulfill the requirements ofBACM.

* (BACM may include second level smoke evaluation, which analyzes whether existing fires shouldbe extinguished.) Aland manager must coordinate daily with the District or CARB for multi-day burns to affirm that the burn project remains within the conditions specified in the smoke management plan. 4106.4.9.2. Surveillance and contingency plans are required for burns over 100 acres for actions to be taken if smoke impacts

occur in smoke-sensitive areas. 4106.5.2.3. Arelated issue is whether to allow a naturally-ignited fire to continue in order to achieve aresource benefit. Requirements regulating this issue are provided. 4106.5.3. This measure fulfills the requirements ofBACM.

An exemption was added that could allow burning paper raisin trays onnoburn days. 4103.4.3.2. The District showed thatthis source category is de minimus, since it accounts for only 0.32% ofthe PM-10 emissions during the two-month burning periods in each ofyears 1997-1999. This exemption for
paper raisin trays is not required to fulfill the requirements ofBACM. Rules 4103 and 4106 are more stringent overall, therefore section 110(1) ofthe CAA is not violated.

An exemption was added that could allow burning of confiscated contraband

onno-burn days. The District argues that this PM-10 source is deminimus. Furthermore, the relevant law enforcement agency must submit aburn plan 15 days in advance to the APCO for approval. 4103.6.2.2. Also import of contraband from outside the District for burning is prohibited. 4103.5.7.1. This exemption for confiscated contraband is
notrequired to fulfill the requirements ofBACM. Rules 4103 and 4106 are more stringent overall, therefore section 110(1) ofthe CAA is not violated.

The TSD has more information on our evaluation.

C.PublicCommentandFinal Action

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rulesbecause we believe they fulfill allrelevant requirements. We do
notthink anyone will object to this, so

we are finalizing the approval without proposing itin advance. However, in the Proposed Rules section ofthis FederalRegister, we are simultaneously proposing approval ofthe same submitted rules. Ifwe receive adverse
comments by March 29, 2002, we will publish atimely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the
comments in a subsequent final action based onthe proposal. Ifwe do not receive timely adverse comments, the direct final approval will be effective without further notice onApril 29, 2002. This will incorporate these rules into the federally-enforceable SIP.

Please note that ifEPA receives adverse comment on an amendment, paragraph, or section ofthis direct final rule and ifthat provision may be severed from the remainder ofthe rule, EPA may adopt as final those provisions ofthe rulethat are not the subject of an adverse comment.

III.Background Information
Why Was This RuleSubmitted?

PM-10 harms human health and the environment. Section 110(a) ofthe CAA requires states to submit regulations that control PM-10 emissions. Table 2lists

some ofthe national milestones leading
to the submittal oflocal agency PM-10 rules.

TABLE 

### 2.-PM-10 NONATTAINMENT MILESTONES

Date Event

March 3, 1978

............................. EPA promulgated a list of total suspended particulate (TSP) nonattainment areas under the Clean Air Act, as amended in 1977. 43 FR 8964; 40 CFR 81.305. July 1, 1987

................................. EPA replaced the TSP standards with new PM standards applying only up to 10 microns in diameter (PM10). 52 FR 24672. November 15, 1990

..................... Clean Air Act Amendments of 1990 were enacted, Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q. November 15, 1990

..................... PM-10 areas meeting the qualifications of section 107(d)(4)(B) of the CAA were designated nonattainment by operation of law and classified as moderate pursuant to section 188(a). States are required by section 110(a) to submit rules regulating PM-10 emissions in order to achieve the attainment dates specified in section 188(c).

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IV. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore is not subject toreview by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 32111, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (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 (5U.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 oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4).

This rule also does not have tribal implications because itwill 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,

onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, 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 ofpower and responsibilities established in the CAA. 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 itis not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence ofa prior existing requirement for the State to use voluntary consensus standards (VCS), EPAhas no authority
to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) ofthe National Technology Transfer andAdvancement Act of1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., 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 arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This actionis not a "major rule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by April 29, 2002. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

Dated: January 31, 2002. Wayne Nastri, RegionalAdministrator, RegionIX.
Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

1.The authority citation for Part 52 continues to read asfollows:

Authority: 42 U.S.C. 7401 et seq. Subpart F-California

2. Section 52.220 is amended by adding paragraph (c)(288) to read as follows:
§52.220 Identification of plan.

(c) * * * (288) New and amended regulations for the following APCDs were submitted

on October 30, 2001, by the Governor's designee.

(i) Incorporation by reference. (A) San Joaquin Valley Unified Air Pollution Control District.

(1)Rules 4103 and 4106, adopted on June 21, 2001.

[FR Doc. 02-4526 Filed 2-26-02; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [MD121-3082a; FRL-7144-5]
Approval and Promulgation of Air Quality Implementation Plans; Maryland Nitrogen Oxide Averaging Plan for Constellation Power Source Generation
AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA istaking direct final action to approve a revision to the Maryland State Implementation Plan (SIP). This SIP revision consists ofa Consent Order to Constellation Power Source Generation, Inc. for an interfacility averaging plan for emissions of nitrogen oxides (NOx)at facilities located in Maryland and owned by Constellation Power. The SIP revision allows Constellation Power to use system-wide emissions averaging to comply with the applicable NOx reasonably available control technology (RACT) limits for 10 boiler units located
atfive electric generating facilities owned by Constellation Power. EPA is approving this revision in accordance with the requirements ofthe Clean Air Act. DATES: This rule is effective on April 29, 2002 without further notice, unless EPA receives adverse written comment by March 29, 2002. IfEPA receives such comments, it willpublish a timely withdrawal ofthe direct final rule in the FederalRegister andinform the public that the rule will not take effect. ADDRESSES: Written comments should be mailed to David L. Arnold, Chief,Air 

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