Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Rules and Regulations 19

State’s submittal becomes effective or 

until EPA takes action proposing or 

finally disapproving in whole or part 

the State submittal. If EPA’s direct final 

action fully approving the State 

submittal becomes effective, at that time 

any sanctions clocks will be 

permanently stopped and any imposed 

sanctions will be permanently lifted. 

Because EPA has preliminarily 

determined that the State has an 

approvable plan, relief from sanctions 

should be provided as quickly as 

possible. Therefore, EPA is invoking the 

good cause exception to the 30-day 

notice requirement of the 

Administrative Procedure Act because 

the purpose of this notice is to relieve 

a restriction. See 5 U.S.C. 553(d)(1). 

III. 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 

Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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 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 March 4, 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 

regulations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements.

Dated: November 29, 2001. 

Laura Yoshii, 

Deputy Regional Administrator, Region IX.

[FR Doc. 01–32098 Filed 12–31–01; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA 252–312a; FRL–7118–1] 

Revisions to the California State 

Implementation Plan, Mojave Desert 

Air Quality Management District

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Mojave Desert Air Quality Management 

District (MDAQMD) portion of the 

California State Implementation Plan 

(SIP). These revisions concern Oxides of 

Nitrogen (NOX) emissions from cement 

kilns. We are approving a local rule that 

regulates these emission sources under 

the Clean Air Act as amended in 1990 

(CAA or the Act).

DATES: This rule is effective on March 4, 

2002 without further notice, unless EPA 

receives adverse comments by February 

1, 2002. If we receive such comment, 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 (AIR–

4), U.S. Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

You can inspect copies of the 

submitted SIP 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 SIP revisions at the 

following locations:

U.S. Environmental Protection Agency, 

Region IX, Rulemaking Office (AIR–

4), Air Division, 75 Hawthorne Street, 

San Francisco, CA 94105. 

California Air Resources Board, 

Stationary Source Division, Rule 

20 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Rules and Regulations 

Evaluation Section, 2020 ‘‘L’’ Street, 

Sacramento, CA 95812. 

Mojave Desert AQMD, 14306 Park 

Avenue, Victorville, CA 92392–2310.

FOR FURTHER INFORMATION CONTACT:

Charnjit Bhullar, Rulemaking Office 

(AIR–4), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3960.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What Is the purpose of the submitted 

rule revisions? 

II. EPA’s Evaluation and Action. 

A. How is EPA evaluating this rule? 

B. Does the rule 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 Rule Did the State Submit? 

Table 1 lists the rule we are approving 

with the dates that it was adopted by the 

local air agency and submitted by the 

California Air Resources Board (CARB).

TABLE 1.—SUBMITTED RULE

Local agency Rule No. Rule title Adopted Submitted 

MDAQMD ..... 1161 Portland Cement Kilns ........................................................................................................ 10/22/01 11/8/01 

On November 21, 2001, this rule 

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 This 

Rule? 

We approved a version of Rule 1161 

into the SIP on May 11, 2000. The 

MDAQMD adopted revisions to the SIPapproved version on October 22, 2001 

and CARB submitted them to us on 

November 8, 2001. 

C. What Is the Purpose of the Submitted 

Rule Revisions? 

Rule 1161 applies to cement 

manufacturing operation within the 

Federal Ozone non-attainment area 

regulated by the MDAQMD. This rule 

controls emission of oxides of nitrogen 

(NOX) from Portland cement kilns. 

On May 11, 2000, the EPA published 

a limited approval and limited 

disapproval of this rule, because some 

rule provisions conflicted with section 

110 and part D of the Clean air Act. 

Those provisions included the 

following: 

1. Alternative Compliance strategy in 

section (D). 

2. Exemption during start-up and 

shutdown in section (G)(1)(a). 

3. Referring to a rule not approved in 

the SIP in section (G)(1)(c). 

The revisions are designed primarily 

to correct these deficiencies. The TSD 

has more information about this rule. 

II. EPA’s Evaluation and Action 

A. How Is EPA Evaluating This Rule? 

Generally, SIP rules must be 

enforceable (see section 110(a) of the 

Act), must require Reasonably Available 

Control Technology (RACT) for major 

sources in nonattainment areas (see 

sections 182(a)(2)(A) and 182(f)), and 

must not relax existing requirements 

(see sections 110(l) and 193). The 

MDAQMD regulates an ozone 

nonattainment area (see 40 CFR part 81), 

so Rule 1161 must fulfill RACT. 

Guidance and policy documents that 

we used to define specific enforceability 

and RACT requirements include the 

following: 

1. ‘‘State Implementation Plans; 

Nitrogen Oxides Supplement to the 

General Preamble; Clean Air Act 

Amendments of 1990 Implementation of 

Title I; Proposed Rule,’’ (the NOX

Supplement), 57 FR 55620, November 

25, 1992. 

2. ‘‘Issues Relating to VOC Regulation 

Cutpoints, Deficiencies, and Deviations; 

Clarification to Appendix D of 

November 24, 1987 Federal Register

Notice,’’ (Blue Book), notice of 

availability published in the May 25, 

1988 Federal Register. 

3. Nitrogen Oxides (NOX) reasonably 

Available Control Technology (RACT) 

for the repowering of Utility Boilers, 

U.S. EPA Office of Air Quality Planning 

and Standards, March 9, 1994. 

B. Does This Rule Meet the Evaluation 

Criteria? 

We believe this rule corrects the 

deficiencies identified in our May 11, 

2000 action and is consistent with the 

relevant policy and guidance regarding 

enforceability, RACT, and SIP 

relaxations. The TSD has more 

information on our evaluation. 

C. Public Comment and Final Action 

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

the Act, EPA is fully approving the 

submitted rule because we believe it 

fulfills all relevant requirements. We do 

not think anyone will object to this 

approval, so we are finalizing it without 

proposing it in advance. However, in 

the Proposed Rules section of this 

Federal Register, we are simultaneously 

proposing approval of the same 

submitted rule. If we receive adverse 

comments by February 1, 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 March 4, 

2002. This will incorporate this rule 

into the federally enforceable SIP. 

III. Background Information 

Why Was This Rule Submitted? 

NOX helps produce ground-level 

ozone, smog and particulate matter, 

which harm human health and the 

environment. Section 110(a) of the CAA 

requires states to submit regulations that 

control NOX emissions. Table 2 lists 

some of the national milestones leading 

to the submittal of this local agency 

NOX rule.

TABLE 2.—OZONE NONATTAINMENT

MILESTONES

Date Event 

March 3, 1978 EPA promulgated a list of 

ozone nonattainment 

areas under the Clean Air 

Act as amended in 1977. 

43 FR 8964; 40 CFR 

81.305. 

May 26, 1988 EPA notified Governors that 

parts of their SIPs were inadequate to attain and 

maintain the ozone standard and requested that 

they correct the deficiencies (EPA’s SIP–

Call). See section 

110(a)(2)(H) of the preamended Act. 

November 15, 

1990.

Clean Air Act Amendments 

of 1990 were enacted. 

Pub. L. 101– 549, 104 

Stat. 2399, codified at 42 

U.S.C. 7401–7671q. 

Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Rules and Regulations 21

TABLE 2.—OZONE NONATTAINMENT

MILESTONES—Continued

Date Event 

May 15, 1991 Section 182(a)(2)(A) requires 

that ozone nonattainment 

areas correct deficient 

RACT rules by this date. 

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 

Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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 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 March 4, 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, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements.

Dated: November 29, 2001. 

Laura Yoshii, 

Deputy 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)(286) and (c)(287) to 

read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(286) [Reserved]. 

(287) New and amended regulations 

for the following APCD were submitted 

on November 8, 2001 by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) Mojave Desert Air Quality 

Management District. 

(1) Rule 1161 adopted on October 22, 

2001.

* * * * *

[FR Doc. 01–32099 Filed 12–31–01; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration 

49 CFR Part 219 

[Docket No. 2001–11213, Notice No. 1] 

RIN 2130–AA81 

Alcohol and Drug Testing: 

Determination of Minimum Random 

Testing Rates for 2002

AGENCY: Federal Railroad 

Administration (FRA), DOT.

ACTION: Notice of determination.

SUMMARY: Using data from Management 

Information System annual reports, FRA 

has determined that the 2000 rail 

industry random testing positive rate 

was .20 percent for drugs and .79 

percent for alcohol. Since the industrywide random drug testing positive rate 

continues to be below 1.0 percent, the 

Federal Railroad Administrator 

(Administrator) has determined that the 

minimum annual random drug testing 

rate for the period January 1, 2002 

through December 31, 2002 will remain 

at 25 percent of covered railroad 

employees. Since the random alcohol