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Citation: 69 Fed. Reg. 63321 2004

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 69, No. 210/Monday, November 1, 2004/Rules and Regulations

37CFRPart 7

Administrative practice and procedure, Trademarks.
* The Officeis correcting parts 2and 7 oftitle 37 as follows:

PART 2-RULES OF PRACTICE IN TRADEMARK CASES

m 1. The authority citation continues to read as follows:

Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted.

* 2.Amend §2.190 byrevising paragraph (a) to read as follows:
§2.190 Addresses fortrademark correspondence with the UnitedStates Patent and Trademark Office.

(a) Trademark correspondence. In general. All trademark-related documents filed on paper, except documents sent to the Assignment Services Division for recordation; requests for copies oftrademark documents; and certain documents filed under the Madrid Protocol as specified in paragraph (e) ofthis section, should be addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451. All trademark-related documents may be delivered byhand, duringthe hours the Office is open to receive correspondence, to the Trademark Assistance Center, James Madison Building-East Wing, Concourse Level, 600 Dulany Street, Alexandria, Virginia 22314.

PART 7-RULES OF PRACTICE IN FILINGS PURSUANT TO THE PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS

* 3.The authority citation continues to read as follows:

Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. * 4. Revise §7.4, by revisingparagraph (c) to read as follows:
§7.4 Receipt ofcorrespondence.

(c) Hand-Delivered Correspondence. International applications under §7.11, subsequent designations under §7.21, responses to notices ofirregularity under §7.14, requests to record changes in the International Register under §7.23 and §7.24, requests for transformation under §7.31, and petitions to the Director to review an action ofthe Office's Madrid Processing Unit, may be delivered by hand during the hours the Office is open to receive correspondence. Madrid-related handdelivered correspondence must be delivered to the Trademark Assistance Center, James Madison Building-East Wing, Concourse Level, 600 Dulany Street, Alexandria, VA 22314, Attention: MPU.

Dated: October 26, 2004. Jon W. Dudas,
UnderSecretaryofCommerce forIntellectual Propertyand Director ofthe UnitedStates PatentandTrademarkOffice. [FR Doc. 04-24311 Filed 10-29-04; 8:45 am]

BILLING CODE 3510-16-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52
[AZ 120-0063; FRL-7820-2]

Revisionsto the Arizona State Implementation Plan, Arizona Department of Environmental Quality
AGENCY: Environmental Protection Agency (EPA). ACTION: Finalrule.

SUMMARY: EPA is finalizing a full approval ofsome revisions to the Arizona Department ofEnvironmental Quality (ADEQ)portion ofthe Arizona State Implementation Plan (SIP) and a limited approval/limited disapproval of anotherrevision to the SIP. This action

was proposed in the Federal Register on May 14, 2004 and concerns sulfur dioxide (SO 2)emissions from existing primary copper smelters. Under authority ofthe Clean Air Act as amended in 1990 (CAAor the Act), this action simultaneously approves rules thatregulate these emission sources and directs Arizona to correct rule deficiencies.
DATES: This rule is effective on December 1, 2004. ADDRESSES: You can inspect copies of the administrative record for this action
atEPA's Region IX office during normal business hoursby appointment. You

can inspect copies ofthe submitted SIP revisionsby appointment atthe following locations: Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail Code 6102T), Washington, DC 20460.

Arizona Department ofEnvironmental Quality, 1110 West Washington Street, Phoenix,AZ 85007.

A copy ofthe rules may also be available via the Internet athttp:// www.sosaz.com/public services! Title 18/18-02.htm.Please be advised that this is not an EPA Web site and
may not contain the same version ofthe rule that was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Al Petersen,EPA Region IX, (415) 947- 4118,petersen.alfred@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.

I. Proposed Action

The following table lists the rules addressed by this action, with the dates that they were adopted and submitted by the ADEQ.

Local agency Rule # Rule title Adopted Submitted

ADEQ

................................. R18-2-715 (sections F,G, Standards of Performance for Existing Primary Copper 08/09/02 09/12/03 and H). Smelters, Site-Specific Requirements. ADEQ

................................. R18-2-715.01

................... Standards of Performance for Existing Primary Copper 08/09/02 09/12/03 Smelters, Compliance and Monitoring. ADEQ

................................. R18-2-715.02

................... Standards of Performance for Existing Primary Copper 11/15/93 07/15/98 Smelters, Fugitive Emissions. ADEQ

................................. R18-2-appendix 8

............. Procedures for Utilizing the Sulfur Balance Method for 11/15/93 07/15/98 Determining Sulfur Emissions.

On May 14, 2004 (69 FR 26786), EPA proposed a full approval ofADEQ's submitted Rules R18-2-715 (sections F, G, and H), R18-2-715.01, and R18-2- 715.02 asfulfilling the requirements of RACT, SIP relaxations, and enforceability. On the same date, we proposed a limited approval and limited disapproval ofRule R18-2-appendix 8. 

### 6332163322 Federal Register/Vol. 69, No. 210/Monday, November 1, 2004/Rules and Regulations

We proposed a limited approval because

we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions ofRule R18-2-appendix 8 conflict with section 110 and part D of the Act. These provisions include the following: 1. Sections A.8.1.2 and A.8.2 contain excessive Director's discretion by allowing the Director to approve an equivalent method to calculate the sulfur content without providing the criteria that willbe used to determine approvability.

2. Sections A.8.1.2.1.1, A.8.1.2.1.2, and A.8.1.2.1.3 should clarify how a representative sample should be taken from belt feeders, railcars, and trucks so that the sampling process is notbiased. 3. Sections A.8.1.2.3.1 and A.8.1.2.3.2 shouldprovide specific test methods for the "barium sulfate" and "potassium iodide" procedures.

4. Section A.8.2.5.5 shouldprovide a specific test method for "chemical gravimetric means." Also the accuracy is stated as +50%, but it shouldbe a + number. The accuracy ofa gravimetric procedure isnormally about +1%, not +50%. 5.The reference in A8.3.1 shouldbe changed from R18-2-715(C)(4) to R18- 2-715.01(K)-(O). Also, the reference in A.8.3.2 shouldbe changed from R18-2- 715(C)(7)(v) to R18-2-715.01(Q).

Based oninformation received during the comment period ofour proposed action, we no longer consider deficiency #2 or the second part ofdeficiency #4 above tobe deficiencies in Rule R18-2- appendix 8. See Comments and Responses #3 and #4. Our proposed action contains more information on the basis for this rulemaking and on our evaluation ofthe submittals.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30- day public comment period ending on June 14, 2004. We received comments from the following parties:

Kenneth Evans, Arizona Mining Association (AMA); letter dated June 14, 2004 and received on June 14, 2004.

Nancy Wrona, ADEQ; letter dated June 11, 2004 and received on June 11, 2004.

The comments and our responses are summarized below.

Comment 1: EPA cited as adeficiency excessive ADEQDirector's discretion to approve alternate analytical procedures in Appendix 8. AMA and ADEQ state that Title V permits, which could include alternate analytical procedures approved bythe ADEQDirector's discretion, are then subject to EPA approval by the review and objection authority granted to EPA under Title V. Therefore, requiring another EPA approval ofan alternate analytical procedure approved by the ADEQ Director's discretion is duplicative and unwarranted.

Response:Appendix 8 in its present form allows the ADEQ Director to approve an "equivalent method" without regard to the status ofa Title V permit orEPA's approval ofthatpermit. First, as noted in our proposed rule, the
term "equivalent method" shouldbe replaced with the term "alternative method," as these phrases have distinct meanings. Second, not all alternative procedures under Appendix 8 would necessarily end up in a Title V permit. Finally, depending onEPA's workload,

we may not review every Title V permit thoroughly, and our default approval of

an alternative procedure by our oversight, would not comply with the intent ofClean Air Act section 110(i). Appendix 8 must be revised to provide the criteria thatwill be used to determine approvability of an alternative method or must explicitly require the approval ofboth the ADEQ Director and EPA of an alternate analytical procedure.

Comment2:EPA cited as a deficiency the absence ofreferences to specific test methods for barium sulfate and potassium iodine procedures, aswell as "chemical gravimetric means." AMA
states that the chemical gravimetric

means ofanalysis in sections A.8.1.2.3.1, A.8.1.2.3.2, andA.8.2.5.5 of appendix 8 are taken from Standard Methods ofChemicalAnalysis, 6th edition, N. Howell Furman, Ph.D, editor, D. Van Nostrand Co., Inc. (1962). This has been the "bible" ofchemical analytical methods since the 1930s.

Response:We concur that this is an excellent reference for chemical gravimetric means and chemical analytical methods. However, this reference ismissing from the submitted rule. It should be explicitly cited in Appendix 8. Comment3:EPArequested clarification of sampling procedures for sulfur-bearing materials introduced into the smelting process, so that sampling is not biased. ADEQ states that the materials sampled are afine homogeneous mixture ofconcentrate from the flotation process, andtherefore the current methods in sections A.8.1.2.1.1, A.8.1.2.1.2, andA.8.1.2.1.3 ofappendix 8 are adequate to assure accurate accounting ofthe sulfurbearing materials. Response:As noted byADEQ, sampling bias can occur when there is

a large variation in the size ofmaterials being sampled. However, sampling from

a homogeneous mixture offinely ground material can be considered reliable and unbiased. Additional sulfurbearing materials are also introduced to the smelting process along with the homogeneous dry floatation concentrate mentioned by ADEQ, but the
concentrate contains over 90% ofthe sulfur content in the mixture. EPA

concurs that the methods described in the sections cited in Comment 3 are adequate for the type of sulfur-bearing material described. Therefore, we are notfinalizing our concern regarding sampling procedures as a deficiency.

Comment4:EPA commented that the accuracy ofgravimetric methods is normally about +1% instead ofthe +50% accuracy required in section A.8.2.5.5. Thisrequirement addresses the sulfur content ofcopper ingots. The sulfur content ofcopperingots at one facility over a one-month period was 4 to 108 ppm sulfur with an average of 24.5 ppm. Atthese verylow sulfur contents, an accuracy of+1% is not feasible.

Response:EPAbelieves thatbetter accuracy than +50% for sulfur in copper ingots is feasible, although not close to +10%. However, a+500% error in the sulfur content ofcopperingots would

cause a maximum error in the sulfur balance of+0.03%. Other measurements in the sulfur balance are subject to greater maximum errors, such as +5%, therefore an accuracy ofbetter than +50% is not reasonably required for the section A.8.2.5.5 contribution to the sulfurbalance. Therefore, we are not finalizing our concern about the
accuracy ofgravimetric methods as a deficiency. However, as specified in deficiency #4 above, Section A.8.2.5.5 should provide a specific test method for "chemical gravimetric means," and shouldbe revised to specify the maximum error as +50%, rather than +50%.

III. EPA Action

Although some submitted comments led us to notfinalize some deficiencies listed in the proposed action, the remaining deficiencies in Rule R-18-2- appendix 8 conflict with section 110 and part D ofthe CAA and prevent full approval ofthis rule. Therefore, as authorized in sections 110(k)(3) and 301(a) ofthe Act, EPAis finalizing a full approval ofADEQ's submitted Rules R18-2-715 (sections F, G, and H), R18- 2-715.01, and R-18-2-715.02. We are also finalizing a limited approval of Rule R-18-2-appendix 8. This action

### Federal Register/Vol. 69, No. 210/Monday, November 1, 2004/Rules and Regulations

incorporates the submitted rules into the Arizona SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval ofthe Rule R-18-2- appendix 8. As aresult, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date ofthis action. These sanctions willbe imposed under section 179 ofthe Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless

we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rules have been adopted by the ADEQ, and EPA's final limited disapproval does not prevent the local agency from enforcing them.

IV. Statutory and Executive Order Reviews

A. Executive Order12866,Regulatory PlanningandReview

The Office ofManagement and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled "Regulatory Planning and Review."

B. Paperwork ReductionAct
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.)

C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on

a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number ofsmall entities.

Moreover, due to the nature ofthe Federal-State relationship under the Clean Air Act, preparation offlexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPAto base its actions concerning SIPs on such grounds. UnionElectricCo. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. UnfundedMandatesReform Act

Under sections 202 ofthe Unfunded Mandates Reform Act of1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPA must prepare abudgetary impact statement to accompany any proposed orfinal rule that includes a Federal mandate that may result in estimated costs to State, local, ortribal governments in the aggregate; orto the private sector, of $100 million or more. Under section 205, EPA must select the most costeffective and least burdensome alternative that achieves the objectives ofthe rule andis consistent with statutory requirements. Section 203 requires EPA to establish aplan for informing and advising any small governments that may be significantly

oruniquely impacted bythe rule.

EPA has determined that the approval action promulgated 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, orto the private sector. This Federal action approves pre-existing requirements under State orlocal law, and imposes

no new requirements. Accordingly, no additional coststo State, local, ortribal governments, orto the private sector, result from this action.

E.Executive Order13132,Federalism

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 ofregulatory policies that have federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations that have "substantial direct effects onthe States, onthe relationship between the national government and the States, or onthe distribution of power and responsibilities among the various levels ofgovernment." Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and thatis not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance
costs incurredby State and local governments, orEPA consults with State and local officials early inthe 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 inthe process of developing the proposed regulation.

This rule will nothave substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution ofpower and responsibilities established in the Clean AirAct. Thus, the requirements of section 6 ofthe Executive Order donot apply to this rule.

F. Executive Order13175,Coordination With IndianTribalGovernments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65FR 67249, November 9, 2000), requires EPA to develop an accountable process to

ensure "meaningful and timely input by tribal officials inthe development of regulatory policies that have tribal implications." This final rule does not have tribal implications, as specified in Executive Order 13175. It will nothave 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. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order13045,Protectionof ChildrenFromEnvironmentalHealth Risks andSafetyRisks

ProtectionofChildrenFrom EnvironmentalHealthRisksandSafety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1)Is determined tobe "economically significant" as defined underExecutive Order 12866, and (2) concerns an environmental health or safety risk that EPAhas reason to believe mayhave 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 

### 6332363324 Federal Register/Vol. 69, No. 210/Monday, November 1, 2004/Rules and Regulations

explain why the planned regulation is preferable to other potentially effective andreasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

H. Executive Order13211,Actions That Significantly Affect EnergySupply, Distribution,or Use

This rule is not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply,Distribution, orUse" (66 FR 28355, May 22, 2001) because it is
not a significant regulatory action under Executive Order 12866.

L NationalTechnologyTransferand AdvancementAct

Section 12 ofthe 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) ifavailable and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPAbelieves that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use ofVCS.

J.Congressional ReviewAct
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. 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 FederalRegister. 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 5U.S.C. 804(2). This rule will be effective December 1, 2004.

K.Petitions forJudicial Review
Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by January 3, 2005. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe 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, Reporting andrecordkeeping requirements, Sulfur oxides.

Dated: September 14, 2004. Wayne Nastri, RegionalAdministrator, RegionIX.

* Part 52, ChapterI, Title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

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

Authority:42 U.S.C. 7401 et seq. Subpart D-Arizona

* 2.Section 52.120 is amendedby adding paragraphs (c)(110)(i)(A)(2) and (c)(116)to read asfollows:
§52.120 Identification of plan.

(c) * * * (110) * * * 

### (i) * * *
(A) *** (2) Rules R18-2-715.02 andR18-2- 715, Appendix 8 amended onNovember 15, 1993.

(116) New and amended regulations

were submitted on September 12, 2003, by the Governor's designee. (i) Incorporation byreference. (A)Arizona Department of Environmental Quality. (1)Rules R18-2-715 (sections F, G, and H) and R18-2-715.01 amended on August 9, 2002.
[FR Doc. 04-24334 Filed 10-29-04; 8:45 am]

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [ID-02-003; FRL-7825-3]
Approval and Promulgation of Air Quality Implementation Plans; Idaho; Correcting Amendments

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correcting amendments.

SUMMARY: This action corrects the incorporation by reference provisions in the approval ofthe Idaho PM10 State Implementation Plan (SIP)maintenance planfor the Ada County/Boise, Idaho

area published on October 27, 2003. DATES: This action is effective November 1, 2004. ADDRESSES: Copies ofthe supporting documentation usedin developing this action andthe action being corrected are available for inspection during normal business hours at the following locations: U.S. Environmental Protection Agency, Region 10, Office of Air,Waste andToxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101; Idaho Operations Office, 1435 North Orchard Street, Boise, Idaho 83706.

FOR FURTHER INFORMATION CONTACT: ColleenHuck at (206) 553-1770 or Donna Deneen at (206) 553-6706 or at the above EPA,Region 10 address.
SUPPLEMENTARY INFORMATION: On October 27, 2003, (68 FR 61106), EPA approved an Idaho SIP maintenance planwhich addressed the attainment and maintenance ofthe National Ambient Air Quality Standard (NAAQS) for PMo in the Ada County/Boise, Idaho

area. PM 10 air pollution is suspended particulate matter with a diameter less than or equal to a nominal ten micrometers.

In approving the Ada County/Boise, Idaho PM10 maintenance plan, EPA incorporated by reference specific permit conditions limitingparticulate
matter emissions for a number of facilities in the Ada County/Boise Idaho

area (68FR 61110). In doing so, EPA inadvertently incorporated by reference permit conditions relating to the installation of abeet cleaning system, a transformer evaporator, and mill heaters in the State ofIdaho AirPollution Operating Permit for the Amalgamated Sugar Company LLC, Permit No. 027- 00010, issued September 30, 2002.

Idaho subsequently provided information to EPA indicating that the installation ofthe beet cleaning system,