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

37 CFR Part 7

Administrative practice and

procedure, Trademarks.

* The Office is correcting parts 2 and 7

of title 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 by revising

paragraph (a) to read as follows:

§2.190 Addresses for trademark

correspondence with the United States

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 of trademark

documents; and certain documents filed

under the Madrid Protocol as specified

in paragraph (e) of this section, should

be addressed to: Commissioner for

Trademarks, P.O. Box 1451, Alexandria,

VA 22313-1451. All trademark-related

documents may be delivered by hand,

during the 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 revising paragraph

(c) to read as follows:

§7.4 Receipt of correspondence.

(c) Hand-Delivered Correspondence.

International applications under § 7.11,

subsequent designations under § 7.21,

responses to notices of irregularity

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 of the 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,

Under Secretary of Commerce for Intellectual

Property and Director of the United States

Patent and Trademark Office.

[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]

Revisions to the Arizona State

Implementation Plan, Arizona

Department of Environmental Quality

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a full

approval of some revisions to the

Arizona Department of Environmental

Quality (ADEQ) portion of the Arizona

State Implementation Plan (SIP) and a

limited approval/limited disapproval of

another revision 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 of the Clean Air Act as

amended in 1990 (CAA or the Act), this

action simultaneously approves rules

that regulate 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

at EPA's Region IX office during normal

business hours by appointment. You

can inspect copies of the submitted SIP

revisions by appointment at the

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 of Environmental

Quality, 1110 West Washington Street,

Phoenix, AZ 85007.

A copy of the rules may also be

available via the Internet at http://

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 of the

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 of ADEQ's

submitted Rules R18-2-715 (sections F,

G, and H), R18-2-715.01, and R18-2-

715.02 as fulfilling the requirements of

RACT, SIP relaxations, and

enforceability. On the same date, we

proposed a limited approval and limited

disapproval of Rule R18-2-appendix 8.

63321
63322 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 of Rule 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 will be 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 not biased.

3. Sections A.8.1.2.3.1 and A.8.1.2.3.2

should provide specific test methods for

the "barium sulfate" and "potassium

iodide" procedures.

4. Section A.8.2.5.5 should provide a

specific test method for "chemical

gravimetric means." Also the accuracy

is stated as +50%, but it should be a +

number. The accuracy of a gravimetric

procedure is normally about +1%, not

+50%.

5. The reference in A8.3.1 should be

changed from R18-2-715(C)(4) to R18-

2-715.01(K)-(O). Also, the reference in

A.8.3.2 should be changed from R18-2-

715(C)(7)(v) to R18-2-715.01(Q).

Based on information received during

the comment period of our proposed

action, we no longer consider deficiency

#2 or the second part of deficiency #4

above to be 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 of the 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 a deficiency

excessive ADEQ Director'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 by the ADEQ Director'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 of an 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 of a Title V

permit or EPA's approval of that permit.

First, as noted in our proposed rule, the

term "equivalent method" should be

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 on EPA'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 of Clean Air Act section 110(i).

Appendix 8 must be revised to provide

the criteria that will be used to

determine approvability of an

alternative method or must explicitly

require the approval of both the ADEQ

Director and EPA of an alternate

analytical procedure.

Comment 2: EPA cited as a deficiency

the absence of references to specific test

methods for barium sulfate and

potassium iodine procedures, as well as "chemical gravimetric means." AMA

states that the chemical gravimetric

means of analysis in sections

A.8.1.2.3.1, A.8.1.2.3.2, and A.8.2.5.5 of

appendix 8 are taken from Standard

Methods of Chemical Analysis, 6th

edition, N. Howell Furman, Ph.D,

editor, D. Van Nostrand Co., Inc. (1962).

This has been the "bible" of chemical

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 is missing from the submitted

rule. It should be explicitly cited in

Appendix 8.

Comment 3: EPA requested

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 a fine

homogeneous mixture of concentrate

from the flotation process, and therefore

the current methods in sections

A.8.1.2.1.1, A.8.1.2.1.2, and A.8.1.2.1.3

of appendix 8 are adequate to assure

accurate accounting of the sulfurbearing materials.

Response: As noted by ADEQ,

sampling bias can occur when there is

a large variation in the size of materials

being sampled. However, sampling from

a homogeneous mixture of finely ground

material can be considered reliable and

unbiased. Additional sulfur bearing

materials are also introduced to the

smelting process along with the

homogeneous dry floatation concentrate

mentioned by ADEQ, but the

concentrate contains over 90% of the

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

not finalizing our concern regarding

sampling procedures as a deficiency.

Comment 4: EPA commented that the

accuracy of gravimetric methods is

normally about +1% instead of the

+50% accuracy required in section

A.8.2.5.5. This requirement addresses

the sulfur content of copper ingots. The

sulfur content of copper ingots at one

facility over a one-month period was 4

to 108 ppm sulfur with an average of

24.5 ppm. At these very low sulfur

contents, an accuracy of +1% is not

feasible.

Response: EPA believes that better

accuracy than +50% for sulfur in copper

ingots is feasible, although not close to

+10%. However, a +500% error in the

sulfur content of copper ingots 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 of better than

+50% is not reasonably required for the

section A.8.2.5.5 contribution to the

sulfur balance. Therefore, we are not

finalizing our concern about the

accuracy of gravimetric 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

should be revised to specify the

maximum error as +50%, rather than

+50%.

III. EPA Action

Although some submitted comments

led us to not finalize some deficiencies

listed in the proposed action, the

remaining deficiencies in Rule R-18-2-

appendix 8 conflict with section 110

and part D of the CAA and prevent full

approval of this rule. Therefore, as

authorized in sections 110(k)(3) and

301(a) of the Act, EPA is finalizing a full

approval of ADEQ'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 of the Rule R-18-2-

appendix 8. As a result, sanctions will

be imposed unless EPA approves

subsequent SIP revisions that correct the

rule deficiencies within 18 months of

the effective date of this action. These

sanctions will be imposed under section

179 of the 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 Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled "Regulatory Planning and

Review."

B. Paperwork Reduction Act

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.)

C. 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

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 of small entities.

Moreover, due to the nature of the

Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

D. Unfunded Mandates Reform Act

Under sections 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 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

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 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, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

E. Executive Order 13132, 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 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

merely approves a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

F. Executive Order 13175, Coordination

With Indian Tribal Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 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." This final rule does not

have tribal implications, as specified in

Executive Order 13175. 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.

Thus, Executive Order 13175 does not

apply to this rule.

G. Executive Order 13045, Protection of

Children From Environmental Health

Risks and Safety Risks

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

63323
63324 Federal Register/Vol. 69, No. 210/Monday, November 1, 2004/Rules and Regulations

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.

H. Executive Order 13211, Actions That

Significantly Affect Energy Supply,

Distribution, or Use

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.

L 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.

The EPA believes that VCS are

inapplicable to this action. Today's

action does not require the public to

perform activities conducive to the use

of VCS.

J. Congressional Review Act

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). This rule

will be effective December 1, 2004.

K. 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 January 3, 2005.

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,

Reporting and recordkeeping

requirements, Sulfur oxides.

Dated: September 14, 2004.

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]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart D-Arizona

* 2. Section 52.120 is amended by

adding paragraphs (c)(110)(i)(A)(2) and

(c)(116) to read as follows:

§52.120 Identification of plan.

(c) * * *

(110) * * *

(i) * * *

(A) ***

(2) Rules R18-2-715.02 and R18-2-

715, Appendix 8 amended on November

15, 1993.

(116) New and amended regulations

were submitted on September 12, 2003,

by the Governor's designee.

(i) Incorporation by reference.

(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 of the Idaho PM10 State

Implementation Plan (SIP) maintenance

plan for the Ada County/Boise, Idaho

area published on October 27, 2003.

DATES: This action is effective

November 1, 2004.

ADDRESSES: Copies of the supporting

documentation used in developing this

action and the 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 and Toxics (AWT-107), 1200

Sixth Avenue, Seattle, Washington

98101; Idaho Operations Office, 1435

North Orchard Street, Boise, Idaho

83706.

FOR FURTHER INFORMATION CONTACT:

Colleen Huck 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

plan which addressed the attainment

and maintenance of the 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 limiting particulate

matter emissions for a number of

facilities in the Ada County/Boise Idaho

area (68 FR 61110). In doing so, EPA

inadvertently incorporated by reference

permit conditions relating to the

installation of a beet cleaning system, a

transformer evaporator, and mill heaters

in the State of Idaho Air Pollution

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 of the beet cleaning system,