8894 Federal Register/Vol. 67, No. 39/Wednesday, February 27, 2002/Rules and Regulations

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). Because this rule

only stays an imposed sanction and

defers the imposition of another, 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). For the same

reason, this rule also does not

significantly or uniquely affect the

communities of tribal 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

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), because it merely

stays a sanction and defers another one,

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 (62 FR 19885,

April 23, 1997), because it is not

economically significant.

This rule does not contain technical

standards, 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. As required by section 3 of

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. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the "Attorney

General's Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings" issued under

the executive order.

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. However, section

808 provides that any rule for which the

issuing agency for good cause finds (and

incorporates the finding and a brief

statement of reasons 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 stated previously, EPA

has made such a good cause finding,

including the reasons therefor, and

established an effective date of February

27, 2002. 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. This rule is not a "major rule" as defined by 5 U.S.C.

804(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental

regulations, Particulate matter,

Reporting and recordkeeping

requirements.

Dated: January 31, 2002.

Wayne Nastri,

Regional Administrator, Region IX.

[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]

Revisions to 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

action to 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 of particulate matter (PM-10)

from open burning, 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. If we receive such comments,

we will publish a timely withdrawal in

the Federal Register to notify the 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, San Francisco, CA 94105.

You can inspect copies of the

submitted rule revisions and EPA's

technical support document (TSD) at

our Region IX office during normal

business hours. You may also see copies

of the submitted rule revisions and TSD

at the 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.

San Joaquin 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 of Contents

I. The State's Submittal

A. What rules did the State submit?

B. Are there other versions of these rules?

C. What is the purpose of the submitted

rule revisions?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

B. Do the rules meet the evaluation

criteria?

C. Public comment and final action

III. Background Information

Why was this rule submitted?

IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

Table 1 lists the rules we are

approving with the date that they were

adopted by 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

S JV U A P C D ....... 4 103 O pen B urning ............................................................................................................... 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 must be met before formal EPA

review.

B. Are There Other Versions of These

Rules?

We approved into the SIP on July 26,

2000 (65 FR 45912) a version of Rule

4103, adopted on December 16, 1993.

Rule 4106 is a new rule.

C. What Is the Purpose of the Submitted

Rule Revisions?

The purpose of the submitted revised

Rules 4103 and 4106 are to remedy the

deficiencies cited in the limited

approval of Rule 4103 on July 26, 2000

(65 FR 45912).

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

Generally, SIP rules must be

enforceable (see section 110(a) of the

CAA) and must not relax existing

requirements (see sections 110(1) and

193). Section 189(b) of the 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 of BACM/

BACT. BACM/BACT is not required for

source categories that are not significant

( de minimus) and there are no major

sources. See Addendum to the General

Preamble for the Implementation of

Title I of the Clean Air Act Amendments

of 1990, 59 FR 41998 (August 16, 1994).

The following guidance documents

were used for reference:

* Requirements for Preparation,

Adoption, and Submittal of

Implementation Plans, U.S. EPA, 40

CFR Part 51.

* General Preamble Appendix C3-

Prescribed Burning Control Measures

(57 FR 18072, April 28, 1992).

* Prescribed Burning Background

Document and Technical Information

Document for Best Available Control

Measures (EPA-450/2-92-003).

* General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990, 57 FR

13498, 13540 (April 16, 1992).

* Addendum to the General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990, 59

FR 41998 (August 16, 1994).

B. Do the Rules Meet the Evaluation

Criteria?

We believe the rules are consistent

with the relevant policy and guidance

regarding enforceability, SIP relaxations,

and fulfilling BACM/BACT. All of the

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 should be done on a

permissive-burn day.) The exemption

from all provisions of Rule 4103 for an

imminent fire hazard that cannot be

abated by other means is still included

in the rule and could allow burning on

a no-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 of an

imminent fire hazard could remedy a

dangerous fire hazard instead of waiting

for a permissive-burn day and is an

appropriate measure. Hazard reduction

burning is a less imminent form of

hazard, and it is appropriate to require

such burning on a permissive-burn day.

The exemption for an imminent fire

hazard fulfills the requirements of

BACM.

* (Burning training should be done

on permissive-burn days or should be

limited to a short time or small amount

of fuel.) The District has argued that it

is very difficult to schedule personnel in

advance from different locations in a

large District of eight counties for

training that coincides with a

permissive-burn day, which often does

not occur for many consecutive days.

We concur that 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 of BACM.

0 (The addition of the exemption to

burn on no-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 than the SIP rule given a limited

approval/limited disapproval, therefore

this minor and unpredictable relaxation

does not violate section 110(1) of the

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 of unplanned natural

infestations where there is no

reasonable alternative. This exemption

is restricted to require that such burning

only be done after written authorization

from the APCO. 4103.4.2. This restricted

exemption for disease and pest

prevention fulfills the requirements of

BACM.

* (Empty pesticide sacks should be

burned on permissive-burn days unless

the source category is de minimums.)

The exemption to burn on no-burn days

was expanded to include toxic

substances other than pesticides but to

not include fertilizer sacks. 4103.4.3.1.

The District showed that this source

category is almost de minimums, since

it accounts for only 1.4% of the total

PM-10 emissions. They argue that it is

less hazardous to burn empty pesticide

and hazardous material sacks in the

field where emptied than to transport

and store them while waiting to burn on

a permissive-burn day. Furthermore,

such burning is still restricted by permit

requirements and subject to the tonnage

allocation by the APCO to prevent an

exceedance of the 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 of BACM.

* (Tumbleweeds should be burned

with a permit on a permissive-burn

day.) This is implemented. 4103.5.8.

* (Range improvement burning (a

type of prescribed burning) from

January 1 to 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 a permissive8895

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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

should be restricted by allowing only

the acreage to be burned as limited by

meteorological conditions and meeting

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 limiting burning

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 that burning 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

of enforceability and BACM.

* (BACM may require an overall

approach of approving burns based on

an evaluation of the airshed's capacity

to disperse emissions on permissiveburn days so that cumulative emissions

from all burns and PM-10 sources will

not cause a violation of the NAAQS.)

The District is required to allocate

burning based on predicted

meteorological conditions and whether

the total tonnage to be emitted would

allow the volume of smoke and other

contaminants to impact smoke sensitive

areas or create or contribute to an

exceedance of the NAAQS. 4103.5.2 and

4106.4.2. This measure for an overall

approach to allocation of burning fulfills

the requirements of BACM.

* (BACM may require burner

training.) Burner training in a course

approved by the APCO is required for

prescribed burns over 10 acres.

4106.4.9.1. This measure for burner

training fulfills the requirements of

BACM.

* (BACM may require the use of the

best emission reduction efforts for

prescribed burning and describing them

in a smoke management plan.) The use

of various best management practices is

required. 4106.4.9. Extensive

requirements for smoke management

plans are described. 4106.5.2. These

measures for best emission reduction

efforts fulfill the requirements of BACM.

* (BACM may include second level

smoke evaluation, which analyzes

whether existing fires should be

extinguished.) A land 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. A related issue is whether to

allow a naturally-ignited fire to continue

in order to achieve a resource benefit.

Requirements regulating this issue are

provided. 4106.5.3. This measure fulfills

the requirements of BACM.

An exemption was added that could

allow burning paper raisin trays on noburn days. 4103.4.3.2. The District

showed that this source category is de

minimus, since it accounts for only

0.32% of the PM-10 emissions during

the two-month burning periods in each

of years 1997-1999. This exemption for

paper raisin trays is not required to

fulfill the requirements of BACM. Rules

4103 and 4106 are more stringent

overall, therefore section 110(1) of the

CAA is not violated.

An exemption was added that could

allow burning of confiscated contraband

on no-burn days. The District argues

that this PM-10 source is de minimus.

Furthermore, the relevant law

enforcement agency must submit a burn

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

not required to fulfill the requirements

of BACM. Rules 4103 and 4106 are more

stringent overall, therefore section 110(1)

of the CAA is not violated.

The TSD has more information on our

evaluation.

C. Public Comment and Final Action

As authorized in section 110(k)(3) of

the CAA, EPA is fully approving the

submitted rules because we believe they

fulfill all relevant requirements. We do

not think anyone will object to this, so

we are finalizing the approval without

proposing it in advance. However, in

the Proposed Rules section of this

Federal Register, we are simultaneously

proposing approval of the same

submitted rules. If we receive adverse

comments by March 29, 2002, we will

publish a timely 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 on the proposal. If we do not

receive timely adverse comments, the

direct final approval will be effective

without further notice on April 29,

2002. This will incorporate these rules

into the federally-enforceable SIP.

Please note that if EPA receives

adverse comment on an amendment,

paragraph, or section of this direct final

rule and if that provision may be

severed from the remainder of the rule,

EPA may adopt as final those provisions

of the rule that are not the subject of an

adverse comment.

III. Background Information

Why Was This Rule Submitted?

PM-10 harms human health and the

environment. Section 110(a) of the CAA

requires states to submit regulations that

control PM-10 emissions. Table 2 lists

some of the national milestones leading

to the submittal of local 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.

7401-7671 q.

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 to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 32111,

"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

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 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 CAA. 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 CAA. 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 CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by April 29, 2002. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Particulate matter, Reporting and

recordkeeping requirements.

Dated: January 31, 2002.

Wayne Nastri,

Regional Administrator, Region IX.

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 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 is taking direct final

action to approve a revision to the

Maryland State Implementation Plan

(SIP). This SIP revision consists of a

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

at five electric generating facilities

owned by Constellation Power. EPA is

approving this revision in accordance

with the requirements of the 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. 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: Written comments should

be mailed to David L. Arnold, Chief, Air

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