61784 Federal Register / Vol. 67, No. 191 / Wednesday, October 2, 2002 / Rules and Regulations 

1See 66 FR 56476 (November 8, 2001)(boundary 

change for the San Joaquin Valley establishing the 

eastern portion of Kern County as its own 

nonattainment area).

2 In a 1994 rulemaking, EPA established the 

Agency’s selection of the sequence of these two 

sanctions: The offset sanction under section 

179(b)(2) shall apply at 18 months, followed 6 

months later by the highway sanction under section 

179(b)(1) of the Act. EPA does not choose to deviate 

PART 173—SECONDARY DIRECT 

FOOD ADDITIVES PERMITTED IN 

FOOD FOR HUMAN CONSUMPTION

1. The authority citation for 21 CFR 

part 173 continues to read as follows:

Authority: 21 U.S.C. 321, 342, 348.

2. Section 173.370 is amended by 

revising paragraph (b)(1) to read as 

follows:

§ 173.370 Peroxyacids.

* * * * *

(b)(1) The additive is used as an 

antimicrobial agent on meat carcasses, 

parts, trim, and organs in accordance 

with current industry practice where the 

maximum concentration of peroxyacids 

is 220 parts per million (ppm) as 

peroxyacetic acid, and the maximum 

concentration of hydrogen peroxide is 

75 ppm.

* * * * *

Dated: September 18, 2002.

L. Robert Lake,

Director, Office of Regulations and Policy, 

Center for Food Safety and Applied Nutrition.

[FR Doc. 02–25078 Filed 10–1–02; 8:45 am]

BILLING CODE 4160–01–S

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA–084–FON; FRL–7387–9] 

Finding of Failure To Submit State 

Implementation Plan Revisions for 

Ozone (1-Hour Standard), California—

San Joaquin Valley

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to 

find that California failed to submit state 

implementation plan (SIP) revisions 

required under the Clean Air Act (CAA 

or Act) for the severe San Joaquin Valley 

Ozone Nonattainment Area (the San 

Joaquin Valley or the Valley). The 

required revisions are an attainment 

demonstration, a reasonable further 

progress demonstration, a reasonably 

available control technology (RACT) 

rule for lime kilns, an inventory and 

contingency measures. California was 

required to submit these revisions by 

May 31, 2002. 

This action triggers the 18-month 

clock for mandatory application of 

sanctions and 2-year clock for a Federal 

implementation plan (FIP) under the 

Act. This action is consistent with the 

CAA mechanism for assuring SIP 

submissions.

EFFECTIVE DATE: This action was 

effective as of September 18, 2002.

FOR FURTHER INFORMATION CONTACT:

Doris Lo, U. S. Environmental 

Protection Agency, Region 9, Air 

Division (AIR–2), 75 Hawthorne Street, 

San Francisco, CA 94105–3901, 

Telephone: (415) 972–3959; 

lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

The San Joaquin Valley Ozone 

Nonattainment Area includes the 

following counties in California’s 

central valley: San Joaquin, part of 

Kern,1 Fresno, Kings, Madera, Merced, 

Stanislaus and Tulare.

When the CAA was amended in 1990, 

each area of the Country that was 

designated nonattainment for the 1-hour 

ozone standard, including the San 

Joaquin Valley, was classified by 

operation of law as ‘‘marginal,’’

‘‘moderate,’’ ‘‘serious,’’ ‘‘severe’’ or 

‘‘extreme’’ depending on the severity of 

the area’s air quality problem. CAA 

sections 107(d)(1)(C) and 181(a). Each of 

these CAA classifications has different 

requirements, with the most stringent 

requirements for ‘‘extreme’’ areas. Based 

on its air quality during the 1987–1989 

period, the San Joaquin Valley 

nonattainment area was initially 

classified as serious with an attainment 

date of no later than November 15, 1999. 

See 56 FR 56694 (November 6, 1991) 

and CAA section 181(a)(1). 

On June 19, 2000, EPA proposed to 

find that the San Joaquin Valley had 

failed to attain the 1-hour ozone 

national ambient air quality standards 

(NAAQS) by the serious area attainment 

date of November 15, 1999. 65 FR 

37926. A final finding of failure to attain 

was published on October 23, 2001 (66 

FR 56476) and the Valley was thus 

reclassified by operation of law as a 

severe ozone nonattainment area 

(effective December 10, 2001). Along 

with the severe classification, the Valley 

became subject to new planning 

requirements under section 182(d) of 

the CAA. Under section 182(d), severe 

area plans must meet the requirements 

for serious area plans in addition to 

those for severe areas. Moreover, the 

severe area plan revisions for the area 

must also meet the more general 

nonattainment provisions of section 

172(c). In its final reclassification 

action, EPA set May 31, 2002 as the due 

date for submittal of plan revisions 

addressing these requirements. 66 FR 

56481. 

On June 18 and August 6, 2002, 

California submitted plan revisions 

addressing several of the severe area 

requirements for the San Joaquin Valley 

(revised title V operating permit and 

new source review programs to address 

the new lower 25 ton per year major 

source cutoff for volatile organic 

compounds (VOCs) and oxides of 

nitrogen (NOX) and the offset ratio of 

1.3:1; rule requiring fees for major 

sources should the area fail to attain by 

2005; and RACT rules for most sources 

subject to the lower major source 

applicability threshold). Furthermore, 

on September 6, 2002, California 

submitted San Joaquin Valley Air 

Pollution Control District commitments 

to adopt new and revised control 

measures. 

II. Final Action 

A. Finding of Failure To Submit 

Required SIP Revisions 

While California’s submittals address 

several of the severe area requirements 

for the San Joaquin Valley and help 

ensure progress towards clean air, there 

are still requirements which have not 

been addressed. Specifically, the State 

has not submitted a demonstration of 

attainment of the ozone NAAQS by no 

later than 2005 (sections 181(a) and 

182(c)(2)(A)), a demonstration (known 

as reasonable further progress or rate of 

progress) of creditable emission 

reductions of ozone precursors of at 

least 3% per year until the attainment 

year (section 182(c)(2)(B)), a RACT rule 

for lime kilns addressing the 25 ton per 

year major source cutoff (section 

182(b)(2)(C)), an inventory (section 

172(c)(3)) and contingency measures 

(section 172(c)(9)). Thus, EPA is today 

making a finding of failure to submit SIP 

revisions addressing these CAA 

required elements. 

If California does not submit the 

required plan revisions within 18 

months of the effective date of today’s 

rulemaking, pursuant to CAA section 

179(a) and 40 CFR 52.31, the offset 

sanction identified in CAA section 

179(b) will be applied in the affected 

area. If the State has still not made a 

complete submittal 6 months after the 

offset sanction is imposed, then the 

highway funding sanction will apply in 

the affected area, in accordance with 40 

CFR 52.31.2 The 18-month clock will 

Federal Register / Vol. 67, No. 191 / Wednesday, October 2, 2002 / Rules and Regulations 61785

from this presumptive sequence in this instance. 

For more details on the timing and implementation 

of the sanctions, see 59 FR 39832 (August 4, 1994), 

promulgating 40 CFR 52.31, ‘‘Selection of sequence 

of mandatory sanctions for findings made pursuant 

to section 179 of the Clean Air Act.’’

stop and the sanctions will not take 

effect if, within 18 months after the date 

of the finding, EPA finds that the State 

has made a complete submittal 

addressing these severe area ozone 

requirements for the San Joaquin Valley. 

In addition, CAA section 110(c)(1) 

provides that EPA must promulgate a 

federal implementation plan (FIP) no 

later than 2 years after a finding under 

section 179(a) unless EPA takes final 

action to approve the submittal within 

2 years of EPA’s finding.

B. Effective Date Under the 

Administrative Procedures Act 

This final action is effective on 

September 18, 2002. Under the 

Administrative Procedures Act (APA), 5 

U.S.C. 553(d)(3), an agency rulemaking 

may take effect before 30 days after the 

date of publication in the Federal 

Register if an agency has good cause to 

mandate an earlier effective date. 

Today’s action concerns SIP revisions 

that are already overdue and the State 

has been aware of applicable provisions 

of the CAA relating to overdue SIPs. In 

addition, today’s action simply starts a 

‘‘clock’’ that will not result in sanctions 

for 18 months, and that the State may 

‘‘turn off’’ through the submission of a 

complete SIP submittal. These reasons 

support an effective date prior to 30 

days after the date of publication. 

C. Notice-and-Comment Under the 

Administrative Procedures Act 

This final agency action is not subject 

to the notice-and-comment 

requirements of the APA, 5 U.S.C. 

533(b). EPA believes that because of the 

limited time provided to make findings 

of failure to submit regarding SIP 

submissions, Congress did not intend 

such findings to be subject to noticeand-comment rulemaking. However, to 

the extent such findings are subject to 

notice-and-comment rulemaking, EPA 

invokes the good cause exception 

pursuant to the APA, 5 U.S.C. 553(d)(3). 

Notice and comment are unnecessary 

because no EPA judgment is involved in 

making a nonsubstantive finding of 

failure to submit SIPs required by the 

CAA. Furthermore, providing notice 

and comment would be impracticable 

because of the limited time provided 

under the statute for making such 

determinations. Finally, notice and 

comment would be contrary to the 

public interest because it would divert 

Agency resources from the critical 

substantive review of submitted SIPs. 

See 58 FR 51270, 51272, note 17 

(October 1, 1993); 59 FR 39832, 39853 

(August 4, 1994). 

III. Administrative Requirements 

A. Executive Order 12866 

The Office of Management and Budget 

has exempted this regulatory action 

from Executive Order 12866, entitled 

‘‘Regulatory Planning and Review.’’

B. Executive Order 13211 

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. 

C. Executive Order 13045 

Executive Order 13045, entitled 

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. 

D. Executive Order 13132 

Executive Order 13132, entitled 

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 

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 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 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. 

E. Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 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.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This final rule does not have tribal 

implications. 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, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

F. 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 

61786 Federal Register / Vol. 67, No. 191 / Wednesday, October 2, 2002 / Rules and Regulations 

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 

findings of failure to submit required 

SIP revisions do not by themselves 

create any new requirements. Therefore, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

G. Unfunded Mandates 

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 private sector, of $100 

million or more. Under section 205, 

EPA must select the most cost-effective 

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 today’s 

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. The 

CAA provision discussed in this notice 

requires states to submit SIPs. This 

notice merely provides a finding that 

California has not met that requirement. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

H. 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. EPA 

believes that VCS are inapplicable to 

today’s action because it does not 

require the public to perform activities 

conducive to the use of VCS. 

I. Submission to Congress and the 

Comptroller General 

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 rule is not a ‘‘major’’ rule as 

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

J. 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 December 2, 

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, Intergovernmental 

relations, Particular matter, Reporting 

and recordkeeping requirements.

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

Dated: September 18, 2002. 

Wayne Nastri, 

Regional Administrator, Region IX.

[FR Doc. 02–24912 Filed 10–1–02; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[FRL–7387–5] 

Approval and Promulgation of 

Implementation Plans; Louisiana; 

Baton Rouge Nonattainment Area; 

Ozone; 1–Hour Ozone Attainment 

Demonstration; Attainment Date 

Extension, and Withdrawal of 

Nonattainment Determination and 

Reclassification

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: Pursuant to the Clean Air Act 

(Act), EPA is approving the Louisiana 1-

hour ozone attainment demonstration 

State Implementation Plan (SIP) for the 

Baton Rouge serious ozone 

nonattainment area. In conjunction with 

its approval of the attainment 

demonstration, EPA is: approving 

Louisiana’s transport demonstration and 

extending the ozone attainment date for 

the Baton Rouge ozone nonattainment 

area to November 15, 2005, while 

retaining the area’s current classification 

as a serious ozone nonattainment area; 

withdrawing EPA’s June 24, 2002, 

rulemaking determining nonattainment 

and reclassification of the Baton Rouge 

ozone nonattainment area; finding that 

the Baton Rouge ozone nonattainment 

area meets the reasonably available 

control measures (RACM) requirements 

of the Act; approving the State’s 

enforceable commitment to perform a 

mid-course review and submit a SIP 

revision to EPA by May 1, 2004; 

approving the motor vehicle emissions 

budget (MVEB) and an enforceable 

commitment to submit revised budgets 

using MOBILE6; and approving an 

enforceable transportation control 

measure (TCM). 

This action also approves SIP 

submittals relating to corrections to the 

1990 Base Year Emissions Inventory, the 

9% Rate-of-Progress Plan (ROPP), and 

the 15% ROPP.

DATES: This rule is effective October 2, 

2002. The amendment to § 81.319 which 

published on June 24, 2002 (67 FR 

42688) and were revised on August 20, 

2002 (67 FR 53882) are withdrawn.

ADDRESSES: Copies of documents 

relevant to this action are available for 

public inspection during normal 

business hours at the following 

addresses: U.S. Environmental 

Protection Agency, Region 6, Air 

Planning Section, 1445 Ross Avenue, 

Dallas, Texas 75202–2733; Louisiana