Rules and Regulations. Final rule
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BILLING CODE 5001-06-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R09-OAR-2005-CA-0017; FRL-8504-2] Finding of Failure To Attain; California—Imperial Valley Nonattainment Area; PM-10 AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is finding that the Imperial Valley serious PM-10 nonattainment area did not attain the 24-hour particulate matter (PM-10) National Ambient Air Quality Standard (NAAQS) by the deadline mandated in the Clean Air Act (CAA), December 31, 2001. In response to this finding, the State of California must submit a revision to the California State Implementation Plan
(SIP)that provides for attainment of the PM-10 standard in the Imperial Valley area and at least five percent annual reductions in PM-10 or PM-10 precursor emissions until attainment as required by CAA section 189(d). The State must submit the SIP revision by December 11, 2008. DATES: *Effective Date:* This finding is effective on January 10, 2008. ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0583 for this action. The index to the docket is available electronically at *http://www.regulations.gov* and in hard copy at U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. While documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Adrienne Priselac, EPA Region IX,
(415)972-3285, *priselac.adrienne@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document “we,” “us,” and “our” refer to EPA. I. Background On August 11, 2004, EPA reclassified under the Clean Air Act (CAA or the Act) the Imperial Valley PM-10 nonattainment area (Imperial area) from moderate to serious in response to the opinion of the U.S. Court of Appeals for the Ninth Circuit in *Sierra Club* v. *United States Environmental Protection Agency, et al.* , 346 F.3d 955 (9th Cir. 2003), amended 352 F.3d 1186, *cert. denied,* 542 U.S. 919 (2004). See 69 FR 48792 (August 11, 2004). Also on August 11, 2004 (69 FR 48835), EPA proposed to find under the CAA that the Imperial area failed to attain the annual 1 and 24-hour PM-10 standards by the serious area deadline of December 31, 2001. Our proposed finding of failure to attain was based on monitored air quality data for the PM-10 NAAQS from January 1999 through December 2001. A summary of these data was provided in the proposed rule and is not reproduced here. 1 Effective December 18, 2006, EPA revoked the annual PM-10 standard. 71 FR 61144 (October 17, 2006). References to the annual standard in this proposed rule are for historical purposes only. EPA is not taking any regulatory action with regard to this former standard. EPA has the responsibility, pursuant to sections 179(c) and 188(b)(2) of the Act, of determining within 6 months of the applicable attainment date (i.e., June 30, 2002), whether the Imperial area attained the PM-10 NAAQS. Because the June 30, 2002 date has passed, EPA is required to make that determination as soon as practicable. *Delaney* v. *EPA* , 898 F.2d 687 (9th Cir. 1990). Section 179(c)(1) of the Act provides that attainment determinations are to be based upon an area's “air quality as of the attainment date,” and section 188(b)(2), which is specific to PM-10, is consistent with that requirement. EPA determines whether an area's air quality is meeting the PM-10 NAAQS based upon air quality data gathered at monitoring sites in the nonattainment area and entered into EPA's Air Quality System
(AQS)database. These data are reviewed to determine the area's air quality status in accordance with EPA regulations at 40 CFR part 50, appendix K. 2 For details about EPA's proposed failure to attain finding, please see the proposed rule. 2 Pursuant to appendix K, attainment of the 24-hour PM-10 NAAQS is achieved when the expected number of exceedances of the 24-hour NAAQS (150 mg/m 3 ) per year at each monitoring site is less than or equal to one. A total of three consecutive years of clean air quality data is generally necessary to show attainment of the 24-hour standard for PM-10. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is comprised of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days. II. EPA's Responses to Comments on the Proposed Rule EPA received eight comment letters on the proposed finding. Summaries of the comments and EPA's responses are set forth below. 1. Retroactive Finding of Failure To Attain Is Unlawful The Imperial County Air Pollution Control District (District or ICAPCD) claimed that EPA's proposed finding that the Imperial area failed to attain the serious area deadline of December 31, 2001, issued the same day as the reclassification of the area from moderate to serious, constitutes an unlawful and unjust retroactive rulemaking in that the area would be at once reclassified and punished for failing to meet the requirements of the new classification. The District strongly urged EPA to refrain from finalizing any rule that makes a nonattainment finding under these circumstances. In support of its position that this type of rulemaking is illegal under the Administrative Procedure Act (APA), the District cited a number of federal court decisions and EPA rulemakings. The District believes that these decisions and rulemakings support its position that the nonattainment finding could create liabilities and penalties for missing long past deadlines associated with serious nonattainment areas and/or impose more rigorous requirements than would otherwise be justified, e.g., the requirement under CAA section 189(d) to submit a revised plan in 12 months rather than the 18 months allowed under section 189(b)(2) when a moderate area fails to meet its attainment deadline. *Response:* At bottom, the argument that the District makes is that if the Imperial area had been reclassified as the CAA envisioned, the area would not now be subject to the requirements of section 189(d). In other words, EPA would have found that the area failed to attain the moderate area deadline of December 31, 1994 well before the serious area deadline of December 31, 2001. Consequently, the serious area plan for the Imperial area would have been due 18 months from the reclassification pursuant to section 189(b)(2) instead of being subject to the 12-month deadline in section 189(d). Furthermore, the argument goes, if the State had been able to demonstrate that attainment by 2001 was impracticable the area would have been able to avail itself of the attainment date extension provisions of section 188(e), 3 thereby potentially avoiding both the substantive and procedural requirements of section 189(d) entirely. Instead, the District argues, EPA's action has illegally circumvented the statutory scheme by precluding the area from taking advantage of allegedly more lenient submittal and substantive requirements. 3 Section 188(e) provides for a one-time extension of the attainment deadline for serious PM-10 nonattainment areas if certain conditions are met. However such an extension cannot extend beyond December 31, 2006. Because that date has now passed, a section 188(e) extension for the Imperial area is unavailable under any circumstances. Nevertheless we address in this final rule the comments we received relating to section 188(e) insofar as doing so enables us to fully respond to those comments. For example, here a discussion of section 188(e) is relevant to the District's claim, among others, that EPA's action subjects the area to more stringent requirements than otherwise would have been imposed. The cases and EPA actions cited by the District, however, do not support its position. With respect to the Imperial PM-10 nonattainment area, EPA reclassified it from moderate to serious and immediately proposed to find that the area had failed to attain the serious area deadline. The result of these actions is that the State will be required to submit in the future a plan for the area under CAA section 189(d). In contrast, in *Sierra Club* v. *EPA* , 356 F.3d 296 (D.C. Cir. 2004), EPA set a prospective submittal date pursuant to CAA section 182(i) upon reclassification of the Washington, D.C. ozone nonattainment area from serious to severe because the severe area plan submittal deadline in the CAA had already passed. Similarly, in several other ozone reclassification actions, EPA also determined that where a submittal date had passed and was therefore impossible to meet, the Agency could administratively establish a later date. EPA's reasoning in these cases was that to do otherwise would have subjected these areas to an immediate finding of failure to submit and the immediate initiation of sanctions clocks. 4 4 See Washington, DC, 68 FR 3410, 3413 (January 24, 2003). See also Santa Barbara, California, 62 FR 65025 (December 10, 1997); Phoenix, Arizona, 62 FR 60001 (November 6, 1997); and Dallas-Fort Worth, Texas, 63 FR 8128 (February 18, 1998). In the case of Washington, DC, EPA stated in its final rule that “the Administrative Procedure Act * * * requires that before a rule takes effect, persons affected will have advance notification of its requirements. A failure to meet an obligation, especially one accompanied by sanctions, cannot occur in advance of the imposition of that obligation.” 68 FR at 3414. The Court of Appeals agreed, quoting EPA, “that adopting petitioner's suggestion [that EPA retain the original submittal deadlines] `would give the reclassification retroactive effect by holding the States in default of their submission obligations before the events necessary to trigger that obligation (reclassification) * * * occurred.' ” 356 F.3d at 309. In *Sierra Club* v. *Whitman* , 130 F.Supp. 2d. 78 (D.D.C. 2001), cited by the D.C. Circuit in *Sierra Club* v. *EPA* above and the District in its comment letter, and affirmed in *Sierra Club* v. *Whitman* , 285 F.3d 63, 68 (D.C. Cir 2002), the plaintiffs sought to compel EPA to backdate a nonattainment determination to the date on which the Agency was statutorily required to make such a determination. In affirming the District Court's denial of the relief sought, the D.C. Circuit opined that: Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the matter worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time. *Id* . at 68. 5 5 The District also cites *Georgetown University Hospital* v. *Bowen* in which a federal agency reissued a procedurally defective rule and gave it retroactive effect. Both the D.C. Circuit and the U.S. Supreme Court invalidated the action, finding, among other things, that under the APA legislative rules must be given future effect only. 821 F.2d 759 (D.C. Cir. 1987); 488 U.S. 204 (1988). In the instant case, however, by giving the State the benefit of a future plan submittal deadline for the Imperial area, EPA's action is consistent with the holdings of the cases and with the EPA regulatory actions cited by the District. Under section 189(d), the State must submit a plan revision for the Imperial area “within 12 months after the applicable attainment date. * * *” That date was December 31, 2002. However, because, at the time of EPA's proposed finding of failure to attain, that date had already passed, EPA proposed that the section 189(d) plan revision be due “within one year of publication of a final finding of nonattainment pursuant to CAA section 179(d).” 69 FR at 48837. Thus, rather than invoking the long past submittal deadline in section 189(d), EPA looked to another provision of the Act to supply a prospective deadline. In doing so, EPA alleviated the problem of imposing a retroactive deadline without imposing immediate sanctions. While it is true, as the District points out, that a serious PM-10 area proceeding initially under section 189(b) instead of section 189(d) would in theory have had more time to submit a plan (18 rather than 12 months), in both instances the submittal deadlines are prospective and not retroactive. Furthermore, as we point out in our response to comment #3 below, the section 189(d) plan that the State is now required to submit is actually due later than the serious area plan would have been due under the scenario preferred by the District. Therefore, the retroactive penalty the District complains of with respect to the plan submittal deadline simply does not exist. Moreover, while it is also true that, as a result of EPA's nonattainment finding, the Imperial area must comply with the substantive requirements of CAA section 189(d) instead of those of section 188(e), this consequence cannot be construed as “punishment.” Under both sections 189(d) and 188(e), implementation of best available control measures
(BACM)under section 189(b)(1) and attainment of the PM-10 standards as expeditiously as practicable are required. In addition, while the respective substantive requirements of sections 188(e) and 189(d) are different, neither are necessarily more onerous than the other. See Corrected Brief of Respondent EPA, pages 40-42, in *Association of Irritated Residents, et al.* v. *EPA* , 423 F.3d 989 (9th Cir. 2005). Only if the State fails to submit the new plan in the future could sanctions come into play. Thus the substantive consequences here of EPA's nonattainment finding are not in fact retroactive, nor do they impose a penalty. For the reasons discussed in its proposed finding, EPA is legally compelled to finalize the nonattainment finding with the result that section 189(d) applies to the Imperial area. The section 189(d) plan is due within one year of publication of this final finding of nonattainment. 6 6 Our rationale for this plan submittal deadline is discussed in the proposed rule. See at 69 FR at 48837. 2. Waive the Attainment Date and Related Requirements Several commenters suggested that instead of finding that the Imperial area failed to attain the serious area attainment date, EPA should waive that date and the related submittal requirements and penalties to reduce the burden of the Agency's action on Imperial County. While two commenters who suggested this approach did not describe EPA's legal authority to grant a waiver, one commenter, the District, cited CAA section 188(f) as providing EPA with the authority to waive a specific attainment date where the Agency determines that nonanthropogenic sources contribute significantly to violations in the area and to waive any requirement applicable to any serious PM-10 area where anthropogenic sources do not contribute significantly to violations. The District stated that in the Imperial area, dry soil from vast barren lands are entrained by high winds producing an impact on the monitors. The District asserted that EPA has determined that this type of dust raised by high wind events constitutes a nonanthropogenic source of PM-10 pursuant to section 188(f) and, citing a May 30, 1996 EPA memorandum, that monitoring data impacted by such events may be excluded from consideration in attainment decisions. *Response:* Congress recognized in the Clean Air Act that there may be areas where the NAAQS may never be attained because of PM-10 emissions from nonanthropogenic sources, and that the imposition in such areas of certain state planning requirements may not be justified. Therefore, under section 188(f), Congress provided a means for EPA to waive a specific date for attainment and certain control and planning requirements when specified conditions are met in a nonattainment area. Section 188(f) provides two types of waivers. First, EPA may, on a case-by-case basis, waive any PM-10 nonattainment planning requirement applicable to any serious nonattainment area where EPA determines that anthropogenic sources of PM-10 do not contribute significantly to violation of the standards in the area. Second, EPA may waive a specific date for attainment of the standards where EPA determines that nonanthropogenic sources of PM-10 contribute significantly to the violation of the standards in the area. 7 In the Addendum, EPA set forth threshold levels for determining whether areas qualify for waivers under section 188(f). Addendum at 42004-42005. 7 59 FR 41998 (August 16, 1994) (“State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (Addendum)). In its comment letter, the District included and discussed a report 8 that it characterized as showing that windblown dust from barren lands represents over 92% or 792 tons per day
(tpd)of the total PM-10 inventory in Imperial County. The District maintained that “high winds frequently entrain large amounts of this dry soil into the ambient air, producing a documented impact on County monitors.” As a result of comments provided to the District by EPA and the California Air Resources Board (CARB), the Windblown Dust Study was revised in 2005. 9 The Revised Study concluded, among other things, that there are 157 tpd of fugitive dust emissions from barren lands. Revised Study at A-15. The Windblown Dust Study and the Revised Study are primarily inventories of windblown dust emissions in Imperial County. These documents do not address the requirements of section 188(f) and EPA's guidance on that provision. Therefore they do not provide sufficient analysis and documentation to support a waiver of either the December 31, 2001 attainment deadline or any of the serious area requirements. However, the section 188(f) waivers, if the conditions for them can be met, are available to the State in the context of the section 189(d) serious area plan. 10 8 *Development of a Wind Blown Fugitive Dust Model and Inventory for Imperial County, California, ENVIRON International Corporation and Eastern Research Group,* 2004 (Wind Blown Dust Study). 9 *Technical Memorandum: Latest Revisions of the Windblown Dust Study,* ENVIRON International Corporation, September 20, 2005 (Revised Study), attached as Appendix A to *Draft Final Technical Memorandum, Regulation VIII BACM Analysis,* ENVIRON, October 2005 (Regulation VIII BACM Analysis). 10 With respect to the section 188(f) waiver of serious area requirements, EPA cautions that while the District in its comment appears to characterize the predominant issue in the Imperial area to be nonanthropogenic sources, the District has identified anthropogenic PM-10 source categories that contribute significantly to peak 24-hour average PM-10 values in the area. See Regulation VIII BACM Analysis. The May 30, 1996 memorandum cited by the District is entitled “Areas Affected by PM-10 Natural Events” and is from Mary Nichols, Assistant Administrator for Air and Radiation to EPA Regional Division Directors (Natural Events Policy or NEP). This policy provides, among other things, that EPA believes it is appropriate to exclude air quality data attributable to uncontrollable natural events from the Agency's decisions regarding an area's attainment status. NEP at p. 2. 11 In the case of high winds, under the NEP EPA considers ambient PM-10 concentrations due to dust raised by unusually high winds as due to uncontrollable natural events (and thus excludable from attainment determinations) if either
(1)the dust originated from nonanthropogenic sources or
(2)the dust originated from anthropogenic sources controlled with BACM. NEP at pp. 4-5. 11 On March 22, 2007, EPA issued a final rule, intended to replace the NEP, governing the review and handling of air quality data influenced by exceptional events. 72 FR 13560. The rule became effective on May 21, 2007 and is codified at 40 CFR 50.1, 50.14 and 51.920. 72 FR 13560, 13580-13581. However, as discussed below, the 1999-2001 data relevant to this final action are not eligible for exclusion under the transition policy for the rule because the State did not meet the provisions of the NEP that were applicable at the time of the exceedances. See 72 FR 49046, 49048 (August 27, 2007). The NEP sets forth a process for declaring an exceedance as due to natural events and for documenting a natural events claim. NEP at pp. 7-10. Where a state believes that natural events caused the NAAQS exceedances it must establish through supporting documentation a clear causal relationship between the exceedance and the natural event. The amount and type of documentation must be sufficient to demonstrate that the natural event occurred and that it impacted a particular monitoring site in such a way as to cause the PM-10 concentrations measured. The documentation also should provide evidence that, absent the natural event emissions, concentrations at the monitoring site would not cause an exceedance. Under the NEP, when air quality data affected by a natural event are submitted to EPA for inclusion into the AIRS database, 12 the state is to request that a flag be placed on the data to indicate that a natural event was involved. NEP at 8-9. A number of exceedances in 1999-2001 in the Imperial area were flagged as high wind and other natural events. Under the NEP, the documentation supporting a natural events flag was required to be submitted no later than 180 days from the time the exceedance occurred. However no documentation with respect to the 1999-2001 exceedances was submitted to EPA. 13 Because the State did not comply with the provisions of the NEP, the flagged 1999-2001 data cannot be excluded as affected by natural events from EPA's determination of whether the Imperial area attained the PM-10 standard by December 31, 2001. 12 The AIRS database is the predecessor to the AQS database. 13 Note that even if adequate documentation had been submitted for the flagged events, the Imperial area would not have attained the PM-10 standard because of the number of unflagged exceedances. See “Imperial valley PM10 Exceedances 1999-2001,” Excel Spreadsheet, Bob Pallarino, EPA. 3. EPA Should Grant a 5-Year Extension To Allow More Time To Develop Plan Several commenters opposing our proposed action stated that our proposed time frame for the development and submittal of a serious area PM-10 plan, including a CAA section 189(d) plan, was too short, and that EPA should grant a 5-year extension of the attainment date for the Imperial area to provide time for preparation, submittal and consideration of an attainment demonstration. Of the commenters making this request, only the District cited any legal authority for a 5-year extension: “* * * The District requests that EPA withdraw its proposed 12-month deadline for the County's serious area SIP submittal * * * and instead grant a five-year extension under Section 188(e) to allow sufficient time for preparation, submittal and consideration of the County's final PM-10 attainment demonstration.” The District characterized the 12-month plan submittal schedule as “abbreviated” and as a “penalty.” One of the commenters suggesting the 5-year extension approach urged EPA to utilize our discretion under the CAA to extend the time allowed to prepare a plan so that unwarranted imposition of additional measures could be avoided. Another commenter stated that although a preferable outcome would have been an extension of the attainment date, it was clear that no attainment date extension was in place, and thus, the finding of failure to attain by EPA was mandatory under the Clean Air Act with the one-year deadline for an attainment demonstration. *Response:* CAA section 188(e) provides that, upon application by a state, EPA may extend the attainment deadline for a serious PM-10 nonattainment area no more than 5 years beyond, in this case, December 31, 2001, if:
(a)Attainment by that date would be impracticable;
(b)the state has complied with all requirements and commitments in the implementation plan for the area; and
(c)the state demonstrates that the plan contains the most stringent measures
(MSM)in the plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area. The state must submit at the time of its extension application a demonstration of attainment by the most expeditious alternative date practicable. As stated above, the Imperial area is no longer eligible for an attainment date extension under section 188(e) because that extension cannot extend beyond 2006. Regardless, the attainment date extension provided for in section 188(e) does not relate in any way to the submittal date for a serious area plan. Rather, under the Act, submittal dates for serious area PM-10 plans are initially governed by subpart 4 of part D of the CAA, i.e, either by section 189(b)(2) or 189(d). As explained in the proposed rule, EPA believes that section 189(d) applies to the Imperial area's situation. 69 FR at 48837. In the first instance, EPA looked to this provision, which applies exclusively to PM-10 nonattainment areas, for the applicable submittal date for the Imperial area's section 189(d) plan. Because the deadline for plan submittal under that section, December 31, 2002 has passed, EPA looked to subpart 1 of part D of the CAA in order to determine Congressional intent. Section 179(d) requires submittal of a plan revision within one year after EPA publishes a notice of a finding of failure to attain. In case of the Imperial area, the application of the deadline provided for in section 179(d) has already resulted in a significantly longer time for submittal of the serious area plan than the deadline that would otherwise have applied. If the Imperial area had been reclassified to serious prior to the end of 2001, it would have been subject to section 189(b)(2). As such, the deadline for submittal of a serious area plan would be 18 months from the date of the reclassification. The effective date of the reclassification here was September 10, 2004; therefore, the alternative to the due date provided in section 179(d) would result in the plan having been due by March 10, 2006. Instead, the area's serious area plan is not due until one year from publication of the **Federal Register** notice of this action. EPA knows of no legal theory that would allow the Agency to provide the 5 years apparently sought by the commenters for the development and submittal of a serious area PM-10 plan. 14 14 We note that subpart 4 of part D of title I which contains the Act's provisions specific to PM-10 does not have a provision that is analogous to section 182(i) which grants EPA considerable latitude to adjust submittal and other schedules upon an ozone area's reclassification. See also section 187(f). 4. Economic Hardship A number of commenters claimed that an EPA finding of failure to attain would result in adverse economic consequences for Imperial County. One commenter stated that the County has one of the poorest economies in the State, that EPA's finding will place an undue hardship on an economy that is already on the brink of breaking, and that the Agency should take economic justice into account. Another commenter suggested that another set of government-imposed regulations would place an unnecessary financial hardship on area companies and could possibly disrupt farming operations. Another commenter cited the County's high unemployment rate that would increase under severe emission control requirements that undermine an agriculture-dependent economy. The commenters attributed these perceived hardships to various factors they believe to be related to a nonattainment finding: the five percent and BACM requirements applicable to serious PM-10 attainment areas; the inability of the County to control Mexican emissions; and the prevalence of high wind natural events. We address each of these factors below. A. Five Percent and BACM Requirements A number of commenters opposed to our proposed rule requested that EPA reduce or remove entirely the proposed requirement that Imperial County submit a plan that achieves at least 5 percent annual reductions in PM-10 or PM-10 precursor emissions as required by CAA section 189(d). Some commenters stated that this requirement was not feasible or was too burdensome for Imperial County. Another commenter attributed severe economic consequences to the serious area plan requirements for expeditious implementation of BACM. *Response:* As stated above and in the proposed rule, EPA is legally compelled to finalize the nonattainment finding with the result that the 5 percent requirement of section 189(d) applies. Under section 189(b)(1)(B), the serious area PM-10 plan for the Imperial area is required to provide for the expeditious implementation of BACM. This requirement applies as a result of the Imperial area's reclassification to serious which was mandated by the U.S. Court of Appeals for the Ninth Circuit in *Sierra Club* v. *U.S. Environmental Protection Agency,* *et al.* , 346 F.3d 955 (9th Cir. 2003), amended 352 F.3d 1186, *cert. denied* , 542 U.S. 919 (2004). Therefore BACM would have to be implemented in the Imperial area even in the absence of EPA's finding that the area failed to attain the PM-10 standards by the end of 2001. EPA has defined BACM as: “* * * The maximum degree of emissions reduction of PM-10 and PM-10 precursors from a source * * * which is determined on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, to be achievable for such source through application of production processes and available methods, systems, and techniques for control of each such pollutant.” Addendum at 42010. Therefore, while EPA cannot take into account the general economy of a nonattainment area in determining what statutory requirements apply in a serious nonattainment area, it can consider the cost of reducing emissions from a particular source category and costs incurred by similar sources that have implemented emission reductions. In addition, where the economic feasibility of a measure depends on public funding, an appropriate consideration is past funding of similar activities as well as availability of funding sources. *Id.* at 42013. Nevertheless, the CAA still requires that the State submit a plan for the Imperial area to, among other things, attain the PM-10 NAAQS as expeditiously as practicable. Moreover, there are economic benefits to attaining the NAAQS. B. Mexican Emissions Several commenters felt that the economic hardship was a result of the failure of EPA, in its proposed action, to consider the fact that significant amounts of particulate matter air pollution in Imperial County emanate from the large and growing city of Mexicali, Mexico. Many commenters opposing our proposed rule stated that EPA ignored the fact that emissions from Mexico are one of the reasons that poor air quality exists in Imperial County. Some commenters pointed out that in the past, EPA has agreed that Imperial County would have attained the PM-10 NAAQS but for emissions from Mexico (e.g., EPA's approval of CAA section 179B demonstration; 66 FR 53106, October 2001). Additionally, the commenters claimed that the PM-10 plan needs to include consideration of how emissions from Mexico impact the attainment of the PM-10 NAAQS in Imperial County. *Response:* As explained in our proposed rule, EPA has the responsibility, pursuant to CAA sections 179(c) and 188(b)(2), to determine within 6 months of the applicable attainment date whether a PM-10 nonattainment area attained the 24-hour NAAQS. Section 179(c)(1) of the Act provides that determinations of failure to attain are to be based upon an area's “air quality as of the attainment date,” and section 188(b)(2) is consistent with this requirement. EPA determines whether an area's air quality is meeting the PM-10 NAAQS based upon air quality data gathered at monitoring sites in the nonattainment area and entered into EPA's AQS database. These data are reviewed to determine the area's air quality status in accordance with EPA regulations at 40 CFR part 50, appendix K. 69 FR at 48836. Thus, neither the CAA nor EPA regulations authorize the Agency to consider the economic circumstances of an area in making a finding of attainment or nonattainment; the determination is to be made solely on the basis of the ambient air quality in the area. Similarly, neither the CAA nor EPA regulations allow EPA to ignore the actual attainment status of an area based on the influx of a pollutant from another country. The attainment status is intended to reflect the actual ambient pollutant levels. Section 179B(d) of the Act does allow a moderate PM-10 nonattainment area to avoid a reclassification to serious if a state establishes to the satisfaction of EPA that such an area would have attained but for emissions emanating from outside the United States. EPA did approve such a demonstration for the Imperial area but that approval was overturned by the Ninth Circuit in *Sierra Club* . See the discussion of this case and its aftermath, 69 FR at 48835. The State can, however, take the effect of Mexican emissions into account in addressing the CAA section 189(d) attainment demonstration requirement. See CAA section 179B(a) and the Addendum at 42000-42002. In this regard, note that section 179B does not provide authority to exclude monitoring data influenced by international transport from regulatory determinations related to attainment and nonattainment. Thus, even if EPA approves a section 179B “but for” demonstration for an area, the area would continue to be designated as nonattainment and subject to the applicable requirements, including nonattainment new source review, nonattainment conformity, and other measures prescribed for nonattainment areas by the CAA. C. High Wind Events Several commenters felt that the economic hardship was a result of the failure of EPA's proposal to consider the fact that significant amounts of particulate matter air pollution in Imperial County are the result of high wind natural events. To support their claims, commenters cited the Wind Blown Dust Study. *Response:* As discussed in our response to comment #2, EPA will under certain circumstances exclude from attainment determinations ambient PM-10 concentrations due to dust raised by unusually high winds. However, the State did not provide documentation to support the flagged high wind events from 1999-2001 and the data are therefore not eligible for exclusion here. 15 Moreover, as noted previously, even if the State had met the provisions of EPA's NEP that were applicable at the time of the relevant exceedances, the Imperial area would not have attained the PM-10 standard by December 31, 2001. The State can, however, if it meets the requirements of EPA's exceptional events rule, take future unusually high winds into account in developing its CAA section 189(d) attainment demonstration. See 72 FR at 13565-13566 and 13576-13577. 15 See footnote 11. 5. Governmental Entities Should Work Together One commenter urged EPA to immediately initiate a coordinated effort involving the federal government, Mexican government counterparts and County officials to develop a federally funded international plan to reduce emissions. Another commenter requested that, given the short time provided in the CAA to develop and submit a plan in this case, and the need for the plan to consider international transport, and perhaps, nonanthropogenic sources, EPA be involved early in the plan development to ensure a timely plan submittal. One commenter also stated that EPA needs to work with other governmental agencies to implement reasonable policies for controlling PM-10 pollution in the Imperial area. *Response:* EPA agrees with the commenters who encourage governmental entities to work together to address air pollution from Mexicali to Imperial County. Reducing air pollution anywhere along the U.S./Mexico border requires binational cooperation and coordination. Since 1983, EPA has been working with the Mexican Government and other stakeholders to reduce air pollution along the border region. Pursuant to the 1983 La Paz Agreement, the U.S. and Mexico developed the Border XXI Program and more recently its successor, the Border 2012 U.S.-Mexico Environmental Program. Through these programs, EPA and Mexico have worked together with border tribal, state, and local governments, as well as academia and the general public, to improve our understanding of the relative impacts of contributing international sources of air pollution and have developed and implemented cost-effective control strategies to reduce those emissions. EPA continues to implement the Border 2012 regionally-based border program in the Mexicali-Imperial area. We are active participants in the Imperial/Mexicali Air Quality Task Force which provides a forum for the federal, state, and local governments to discuss and analyze with community stakeholders how to improve air quality in the binational region. EPA continues to fund numerous projects that study and manage air pollution in various crossborder airsheds like the Imperial/Mexicali area. In addition to supporting the District's work to develop its PM-10 plan, EPA also provides direct funding for the Mexicali-Imperial Air Quality Task Force for binational public forums to discuss the air quality of the Mexicali-Imperial region, and to carry out projects, including projects to monitor air quality (especially in Mexico), to demonstrate retrofit equipment technologies for diesel trucks, and to provide real time air quality information to residents of Imperial County. Regarding the comment that EPA be involved early in the development of the air quality plan, we intend to provide guidance and assistance to the District and the State to support a technically sound and timely submittal. Lastly, regarding the need to develop reasonable policies, EPA has worked closely with the State and District to improve the PM-10 emissions inventory for the Imperial area, to develop a natural events action plan (NEAP), 16 and to develop rules to control certain sources of fugitive dust in the nonattainment area. 16 Under EPA's NEP, if natural events caused ambient concentrations of PM-10 that exceeded the NAAQS in an area, the State was responsible for developing a NEAP meeting certain specified requirements to address future events. NEP at 5-8. Under EPA's exceptional events rule NEAPs are not required, although similar requirements apply under 40 CFR 51.920. 72 FR at 13581. 6. Finding of Failure To Attain Is Mandatory Under the CAA and Fully Supported by Ambient Monitoring Data One commenter stated that the proposal correctly reflects that the Imperial Valley is a serious PM-10 nonattainment area that has missed its attainment date and does not have an extension of the attainment date in place. The same commenter stated further that EPA correctly assessed that areas in situations like this have one-year to submit a plan including a 5 percent plan. Another commenter who agreed with EPA's proposed rule stated that EPA's proposal had omitted some statutory requirements (e.g., BACM implemented expeditiously, major source cutoffs), and reserved the right to comment further on EPA's proposed action on the PM-10 SIP. *Response:* EPA agrees with comments supporting the proposal. We did not include a comprehensive list of the CAA requirements applicable to the Imperial area, but expect the plan to address all of them. See Section III below. 7. PM-10 Is Not a Regulated Pollutant One commenter, California Cattlemen's Association (CCA), notes that the U.S. Court of Appeals for the District of Columbia Circuit in *American Trucking Ass'n* v. *Browner* vacated EPA's 1997 PM-10 standard because it included both coarse and fine PM and therefore was “inherently confounded.” CCA claims that the 1987 standard suffers from the same defect. Therefore, CCA argues, there is no 1987 standard and, as a result, the Imperial area cannot be out of compliance with it. CCA states that if EPA's response is that the 1987 standard was re-instituted in a final rule (65 FR 80776; December 22, 2000), there was not sufficient notice as that rule was noticed within a ruling for Ada County, Idaho (65 FR 39321; June 26, 2000). Also, CCA believes that because the same problem exists with the 1987 standard as the 1997 standard, simply reinstating the old standard was not the court's intention. Finally, CCA discusses EPA's then current process of revising the PM NAAQS and finds, among other things, similar confounding problems in measurements contained in studies that EPA is using to consider setting its new NAAQS. *Response:* In a portion of *American Trucking Ass'ns* v. *EPA,* 175 F. 3d 1027, not later reversed by the Supreme Court, the D.C. Circuit held that, although there was “ample support” for EPA's decision to regulate coarse-fraction particles, EPA had not provided a reasonable justification for its choice of PM-10 as an indicator for coarse particles, especially given that PM-10 includes not only coarse particles but PM fine as well. 175 F. 3d at 1054-55. Pursuant to the D.C. Circuit's decision, EPA deleted 40 CFR 50.6(d), the regulatory provision controlling the transition from the pre-existing 1987 PM-10 standards to the 1997 PM-10 standards. 65 FR 80776. EPA proposed this deletion in the context of a proposed rule to rescind a finding, made prior to the D.C. Circuit's vacatur of the 1997 standards, that the 1987 PM-10 standards no longer applied in Ada County, Idaho. As EPA explained in the proposed rule, the Ada County finding was based on the existence of the 1997 standards as well as the transition policy. Because the court vacated those standards, leaving in place the finding would have resulted in no federal protection from high levels of coarse particulate matter pollution. Finding that result untenable, EPA concluded that it was appropriate to restore the pre-existing PM-10 standards with respect to Ada County. 65 FR at 39323. As is clear from the final rule, however, the 1987 standards were never revoked with respect to the rest of the country. Therefore, although EPA deleted 40 CFR 50.6(d)(as required by the mandate of *ATA I* ), the pre-existing NAAQS continue to apply. 65 FR at 80777. If CCA believes that insufficient notice was provided in connection with this final action, it was required under CAA section 307(b)(1) to file a petition for review of that action in the U.S. Court of Appeals within 60 days of December 22, 2000. CCA did not do so and is therefore foreclosed from raising this issue now. Moreover, to the extent that CCA raises issues with respect to the pre-existing 1987 PM-10 standards, we note that those standards were upheld in *Natural Resources Defense Council, Inc.* , *et al.* v. *EPA, et al.* , 902 F.2d 962 (D.C. Cir. 1990). In any case, the 1987 standards do not use PM-10 as an indicator exclusively for coarse particles, but rather are intended to address both PM-2.5 and PM-10-2.5, i.e. both fine and coarse particles. 52 FR 24634, 24639 (July 1, 1987). Thus, any concerns that PM-10 may be an inappropriate indicator for coarse particles exclusively are inapplicable to the 1987 standard. When CCA submitted its comment letter in 2004, EPA was in the process of developing proposed regulations to again address thoracic coarse particles. The Agency subsequently finalized such regulations in 2006. 71 FR 61144 (October 17, 2006). CCA's concerns regarding new standards for PM-10, including putative confounding problems, were properly raised in the context of that rulemaking. In fact, challenges to the use of PM-10 as an indicator for coarse particles, as well as challenges to the scientific bases for the 2006 final rule have been raised by various petitioners in the pending D.C. Circuit cases ( *American Farm Bureau Fed. et al.* v. *EPA* and consolidated cases) challenging the rule. CCA can, and is, pursuing its concerns in that forum. III. Final Action EPA is finding that the Imperial area failed to attain the 24-hour PM-10 NAAQS by the December 31, 2001 attainment deadline and is requiring the State to submit under section 189(d) of the Act “plan revisions which provide for attainment of the PM-10 air quality standards and, from the date of such submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area.” The plan must be submitted to EPA no later than one year from the publication of this final rule. The pollutant-specific requirements for moderate and serious PM-10 nonattainment areas are found in section 189 of the CAA, and the general planning and control requirements for nonattainment plans are found in CAA sections 110 and 172. In addition to the attainment demonstration and 5 percent annual reductions requirements referenced above, the PM-10 plan for the Imperial area must include the following elements: 17 17 For a brief discussion of these requirements, see our proposed approval of the San Joaquin Valley PM-10 plan at 69 FR 5413, 5414 (February 4, 2004). See also the final rule at 69 FR 30006 (May 26, 2004). • Transportation conformity and motor vehicle emissions budgets; • Emissions inventories; • Best available control measures for significant sources of PM-10; • Reasonably available control measures for significant sources of PM-10; • Control requirements applicable to major stationary sources of PM-10 precursors pursuant to section 189(e); and • Reasonable further progress and quantitative milestones. The District must also revise its new source review
(NSR)rule to reflect the serious area definitions for major new sources in CAA section 189(b)(3) and must make any changes in its Title V operating permits program necessary to reflect the change in the major source threshold from 100 tpy for moderate areas to 70 tpy for serious areas. Revisions to the NSR and Title V rules must also be submitted no later than one year from the publication of this final rule. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final 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 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely makes a determination based on air quality data and does not impose any additional requirements. Accordingly, the Administrator certifies that this final 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 does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 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 makes a determination based on air quality data and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Executive Order 12898 establishes a Federal policy for incorporating environmental justice into Federal agency actions by directing agencies to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. Today's action involves determinations based on air quality considerations. It will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities. 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. 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.* ). 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 February 11, 2008. 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 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: November 30, 2007. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E7-23943 Filed 12-10-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R01-RCRA-2007-0999; FRL-8504-4] Rhode Island: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: The State of Rhode Island has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this immediate final action. DATES: This final authorization will become effective on February 11, 2008 unless EPA receives adverse written comment by January 10, 2008. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the **Federal Register** and inform the public that this authorization will not take immediate effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2007-0999, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: biscaia.robin@epa.gov.* • *Fax:*
(617)918-0642, to the attention of Robin Biscaia. • *Mail:* Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023. • *Hand Delivery or Courier:* Deliver your comments to Robin Biscaia, Hazardous Waste Unit, Office of Ecosystem Protection, EPA New England—Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA 02114-2023. Such deliveries are only accepted during the Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Identify your comments as relating to Docket ID No. EPA-R01-RCRA-2007-0999. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or claimed to be other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2007-0999. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although it may be listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the following two locations:
(i)EPA Region 1 Library, One Congress Street—11th Floor, Boston, MA 02114-2023; by appointment only; tel:
(617)918-1990; and
(ii)Rhode Island Department of Environmental Management, 235 Promenade St., Providence, RI 02908-5767, by appointment only through the Office of Technical and Customer Assistance, tel:
(401)222-6822. FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; *telephone number:*
(617)918-1642; *fax number:*
(617)918-0642, e-mail address: *biscaia.robin@epa.gov.* SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We have concluded that Rhode Island's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Rhode Island final authorization to operate its hazardous waste program with the changes described in the authorization application. Rhode Island's Department of Environmental Management (RIDEM) has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program covered by its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement any such requirements and prohibitions in Rhode Island, including issuing permits, until the State is granted authorization to do so. C. What Is the Effect of This Authorization Decision? The effect of this decision is that a facility in Rhode Island subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Rhode Island has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA also retains its full authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to: • Perform inspections, and require monitoring, tests, analyses or reports. • Enforce RCRA requirements and suspend or revoke permits. • Take enforcement actions. This action does not impose additional requirements on the regulated community because the regulations for which Rhode Island is being authorized by today's action are already effective under State law, and are not changed by today's action. D. Why Wasn't There a Proposed Rule Before This Rule? EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect adverse comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's **Federal Register** we are publishing a separate document that proposes to authorize the State program changes. E. What Happens if EPA Receives Comments That Oppose This Action? If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the **Federal Register** before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule based upon this proposed rule that also appears in today's **Federal Register** . You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time. If we receive adverse comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The **Federal Register** withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn. F. What Has Rhode Island Previously Been Authorized for? Rhode Island initially received final Authorization on January 30, 1986, effective January 31, 1986 (51 FR 3780) to implement its base hazardous waste management program. We granted authorization for changes to their program on March 12, 1990, effective March 26, 1990 (55 FR 9128), March 6, 1992, effective May 5, 1992 (57 FR 8089), October 2, 1992, effective December 1, 1992 (57 FR 45574) and August 9, 2002, effective October 8, 2002 (67 FR 51765). G. What Changes Are We Authorizing With This Action? On April 25, 2007 EPA received Rhode Island's complete program revision application seeking authorization for their changes in accordance with 40 CFR 271.21. The RCRA program revisions for which Rhode Island is seeking authorization address Corrective Action, Used Oil and Mixed Waste requirements. The State is also seeking authorization for various changes it recently has made to its base program requirements. The State's authorization application includes such documents as a Corrective Action Program Description, a Corrective Action Memorandum of Agreement
(MOA)between EPA and the RIDEM, a Radioactive Mixed Waste Program Description which also includes a Memorandum of Understanding
(MOU)between Rhode Island Department of Health and RIDEM concerning Mixed Waste, a copy of RIDEM's Rules and Regulations for Hazardous Waste Management dated February 14, 2007 and a Supplement to the Attorney General's Statement. We are now making an immediate final decision, subject to reconsideration only if we receive written comments that oppose this action, that Rhode Island's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Rhode Island final authorization for the program changes identified below. Note, the Federal requirements are identified by their checklist
(CL)number and/or letter and rule descriptions followed by the corresponding state regulatory analog (“Rule”) from Rhode Island's Rules and Regulations for Hazardous Waste Management as in effect on March 4, 2007 or state statutory analog (“R.I.G.L.”) from the Rhode Island General Laws (2001 Reenactment). First, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Corrective Action program. CL 17L—HSWA Codification Rule, Corrective Action, 50 FR 28702-28755, July 15, 1985: Rule 2.02(B), 7.01(F), 7.01(G), 8.04(G), 9.03, 16.01(A), 16.01(B); CL 17 O—HSWA Codification Rule, Omnibus Provision, 50 FR 28702-28755, July 15, 1985: Rule 2.02(B), 2.03; CL 44A—HSWA Codification Rule 2, Permit Application Requirements Regarding Corrective Action, 52 FR 45788-45799, December 1, 1987: Rule 2.02(B), 8.01(G), 8.01(K); CL 44B—HSWA Codification Rule 2, Corrective Action Beyond the Facility Boundary, 52 FR 45788-45799, December 1, 1987: Rule 2.02(B), 16.01(A), 16.01(B); CL 44C—HSWA Codification Rule 2, Corrective Action for Injection Wells, 52 FR 45788-45799, December 1, 1987: Rule 7.01(F); CL 121—Corrective Action Management Units and Temporary Units; Corrective Action Provisions Under Subtitle C, 58 FR 8658-8685, February 16, 1993: Rule 2.02(B), 3.00 Definitions, “Disposal,” “Hazardous waste disposal facility,” “Facility,” “Landfill,” “remediation waste” incorporated by reference in introductory paragraph; 7.06(B), 12.00, 16.01(A), 16.03(B); CL 175—Hazardous Remediation Waste Management Requirements (HWIR Media), 63 FR 65874-65947, November 30, 1998: Rule 2.02(B), 3.00 Definitions, “Facility,” “remediation waste” incorporated by reference in introductory paragraph, “Remediation waste management site,” “staging pile” incorporated by reference in introductory paragraph; 8.01(C), 9.12, 12.00, 16.01(A), 16.02, 16.03(B); CL 196—Amendments to the Corrective Action Management Unit
(CAMU)Rule, 67 FR 2962-3029, January 22, 2002: Rule 2.02(B), 3.00 Definitions, “remediation waste” incorporated by reference in introductory paragraph, 16.03(B), 16.03(C). Second, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Mixed Waste program. MW—Radioactive Mixed Waste, 51 FR 24504, July 3, 1986: Rule 1.01, 1.02, 3.00 Definitions, “hazardous waste,” “mixed waste;” CL 191—Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 FR 27218-27266, May 16, 2001: Rule 3.00 Definitions, “hazardous waste,” “Low-Level Mixed Waste,” Low-Level Radioactive Waste,” “Mixed Waste,” “Naturally Occurring and/or Accelerator-produced Radioactive Material (NARM),” 14.00 introductory paragraph, 14.02; Third, we are authorizing revised state rules that are analogous to Federal rules which relate to EPA's Recycled Used Oil program. This includes CL 203—Recycled Used Oil Standards; Clarification, 68 FR 44659-44665, July 30, 2003 and EPA's Special Consolidated Checklist for Recycled Used Oil as of June 30, 2001 which addresses requirements in the following rule checklists: CP—Hazardous and Used Oil Fuel Criminal Penalties, HSWA §§ 3006(h), 3008(d), and 3014, November 8, 1984; CL 112—Recycled Used Oil Management Standards, 57 FR 41566-41626, September 10, 1992; CL 122—Recycled Used Oil Management Standards; Technical Amendments and Corrections, 58 FR 26420-26426, May 3, 1993 as amended on June 17, 1993 at 58 FR 33341-33342; CL 130—Recycled Used Oil Management Standards; Technical Amendments and Corrections II, 59 FR 10550-10560, March 4, 1994; CL 166—Recycled Used Oil Management Standards; Technical Correction and Clarification, 63 FR 24963-24969, May 6, 1998, as amended July 14, 1998, at 63 FR 37780-37782. Note, the corresponding state regulatory or statutory analogs (“Rule” or “R.I.G.L.”) are as follows: R.I.G.L. 23-19.1-18(a) and (h); Rule 2.02(A) and (B), 3.00 Definitions, “Above-ground tank,” “Container,” “Used Oil Collection Center,” “Tank,” “Household used oil,” “Household used oil generator,” “Processing Used Oil,” “Re-Refining Distillation Bottoms,” “Specification Used Oil,” “Tolling Agreement,” “Used Oil,” “Used Oil Aggregation Point,” “Used Oil Burner,” “Used Oil Burning Equipment,” “Used Oil Collection Center,” “Used Oil Fuel,” “Used Oil Generator,” “Used Oil Marketer,” “Used oil generator,” “Used oil Processor or Re-refiner,” “Used Oil Temporary Storage Facility,” “Used Oil Transporter;” 5.00; 15.01(A), 15.01(B)(1)-(3), 15.01(C)-(H), 15.01(I) [partially broader in scope], 15.01(J)-(L); 15.02, 15.02(A)-(H); 15.03, 15.03(A)(1)-(2), 15.03(B)(1)-(3), 15.03(C)(1)-(4), 15.03(D)(1)-(4), 15.03(E), 15.03(F) [partially broader in scope relating to on-spec oil], 15.03(F)(1)-(8) [(F)(5) is partially broader in scope], 15.03(G) [partially broader in scope relating to on-spec oil], 15.04, 15.04(A)-(I); 15.05(A)-(C); 15.06(A)-(D); 15.07(A)-(C), 15.07(D)(1), 15.07(F)-(G), 15.07(H)(1), 15.07(H)(12)-(19) [(H)(16) is partially broader in scope], 15.07(I); 15.08(A), 15.08(K)-(U) [(T)(4) is partially broader in scope], 15.08(W)-(Z); 15.09(A)-(G). In addition to the regulations listed above, EPA is also authorizing the State for miscellaneous changes it has made to its previously authorized base program rules as follows (note, the analogous state provisions follow the general area of 40 CFR to which the changes relate): 40 CFR 260.10 definitions and related cross references in 40 CFR parts 260 through 273—State has revised and removed numbering of terms in section 3.00 Definitions and has revised related cross references accordingly in Rules 1.00 through 17.00; 40 CFR 262.34 Accumulation time—State has revised provisions at Rule 5.02(A) to require documentation of inspections; No direct Federal analog—State has revised the edition references for 49 CFR and 40 CFR in section 3.00 Definitions; 40 CFR 263.10(b), Scope of Standards Applicable to Transporters of Hazardous Waste—State has added and clarified exemption at Rule 6.00(A) [partially broader in scope]; 40 CFR 263.12, transporter transfer facility requirements and used oil storage at transfer facilities at 40 CFR 279.45—State has revised, added and clarified provisions at Rule 6.14; 6.14(A), (B)(1)-(2), and 6.14(E) [partially broader in scope]; 40 CFR 270.10(b), general RCRA permit requirements—State has revised and clarified Rule 7.01(A); 40 CFR part 270, Standards for Universal Waste Management related to lamps—State has revised and clarified its incorporation by reference in the introductory paragraph of Rule 13.6 and has also revised and clarified Rule 13.04, 13.06(A)(3), 13.06(C)(1)-(2), 13.06(C)(3) removal of “lamps,” 13.06(C)(5) and 13.06(J)(2) changes related to lamps; 40 CFR 273.8 Applicability, household and CESQG waste—State has revised and clarified provisions at Rule 13.06(B)(1)(a)-(c) and (B)(2); 40 CFR 273.9 Definitions—State has revised and clarified provisions at Rule 13.06(C)(1)-(5); 40 CFR 273.32, Notification—State has revised and clarified provisions of Rule 13.06(J)(1)-(3). The final authorization of new State regulations and regulation changes is in addition to the previous authorization of State regulations, which remain part of the authorized program. H. Where Are the Revised State Rules Different From the Federal Rules? The most significant differences between the State rules being authorized and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply. 1. More Stringent Provisions There are aspects of the Rhode Island program which are more stringent than the Federal program. All of these more stringent requirements are, or will become, part of the Federally enforceable RCRA program when authorized by the EPA and must be complied with in addition to the State requirements which track the minimum Federal requirements. These more stringent requirements include the following:
(a)Relating to requirements concerning Corrective Action for injection wells at 40 CFR 144.1(h), 40 CFR 144.31(g) and 40 CFR 270.60(b)(3), Rhode Island's hazardous waste program is more stringent in that its rules prohibit hazardous waste disposal by underground injection at Rule 7.01(F);
(b)Rhode Island's administrative requirement relating to Remedial Action Plans
(RAPs)at Rule 16.02(I) is more stringent than the analogous Federal requirement at 40 CFR 270.190(c) as it provides a 30-day timeframe by which an informal appeal must be submitted; and
(c)Relating to the Recycled Used Oil Management Standards, a number of Rhode Island's regulatory provisions at Rule 15.00 are more stringent, some of which are as follows:
(1)Certain definitions of the terms that apply to the State's used oil program are more stringent than the Federal definitions found at 40 CFR 279.1, e.g., “Used Oil Aggregation Point” does not apply to household used oil and “Used Oil Collection Center” only accepts used oil from households (not from other generators);
(2)pertaining to mixtures of used oil and characteristic hazardous waste at 40 CFR 279.10(b)(2), Rhode Island's used oil program at 15.01(C) is more stringent than the Federal program as it only allows mixtures of used oil and hazardous waste that solely exhibit the characteristic of flammability. Mixtures of used oil and listed wastes that were listed solely for the characteristic of ignitability are not allowed under the State regulations. Also, the State criterion for flammability captures more wastes than the Federal characteristic of ignitability and, thus, also excludes more waste;
(3)the Federal requirement at 40 CFR 279.10(b)(3) allows mixtures of used oil and conditionally exempt small quantity generator (CESQG) hazardous wastes regulated under 40 CFR 261.5 to be subject to regulation as used oil under 40 CFR part 279; however, as Rhode Island's program does not recognize this CESQG exemption, such mixtures may be regulated as hazardous waste;
(4)Rule 15.00 does not provide exemptions of applicability to generators who mix used oil and diesel fuel for use in the generator's own vehicle, as provided in the Federal program at 40 CFR 279.20(a);
(5)under the State's used oil program prohibitions, Rule 15.02(C) restricts the burning of off-spec used oil to the site of generation. There is no such restriction under the Federal used oil program. Thus, this requirement is considered more stringent in that it prohibits the offsite shipment of off-spec oil for the purpose of burning for energy recovery that otherwise would be allowed under the Federal program. (Note, shipments of off-spec used oil directed to processors and refiners is allowed at Rule 15.09(B));
(6)also, Rhode Island's provisions are more stringent than the Federal requirements at 40 CFR 279.23 in that they exclude used oil collected from households from being burned by generators in space heaters of less than 500,000 BTUs, and subject burners of household used oil to additional regulation under Rule 15.03(B);
(7)Rule 15.08 requires processors and re-refiners to comply with additional requirements related to responding to facility emergencies than those contained in the analogous Federal regulations at 40 CFR 279.52(a);
(8)Rule 15.02(B) does not provide the exception to the prohibition of using used oil as a dust suppressant which allows State petition for such use. 2. Partially Broader in Scope Provisions There are also aspects of the Rhode Island program which are partially broader in scope than the Federal program. The portions of the State requirements which are broader in scope are not considered to be part of the federally enforceable RCRA program. However, they are fully enforceable under State law and must be complied with by sources in Rhode Island. The various changes Rhode Island has made to its used oil regulations and previously authorized base program regulations that are broader-in-scope are discussed below.
(a)Rule 15.07, Used Oil Transporter and Temporary Storage Facility Standards includes broader-in-scope provisions at
(1)Rule 15.07(D)(2) which requires transporters to obtain a permit which is not required under Federal requirements for used oil transporters under 40 CFR part 279, subpart E;
(2)Rule 15.07(E) requires used oil transporters to maintain liability insurance as required by Department of Transportation regulations at 49 CFR 387.7(d); and
(3)Rule 15.07(H)(2) requires a used oil transporter who acts as a used oil temporary storage facility to apply for a Letter of Authorization from the RIDEM, a permit-like document for which a facility must provide details relating to the applicable operation which also includes a fee (15.07(H)(6)).
(b)Rule 15.08, Used oil Processor and Re-Refiner Standards, requires used oil processors and re-refiners to obtain a permit from RIDEM, which is not required under analogous Federal requirements at 40 CFR part 279, subpart F and, therefore, broader in scope. Other requirements include liability insurance, financial requirements, and fees, all of which are broader in scope when compared to the applicable Federal requirements.
(c)The State includes both off-spec and on-spec used oil in its definition of “used oil burner” at section 3.00 whereas the analogous Federal definition at 40 CFR 279.1 references the burning of only off-spec used oil. This difference is significant as it subjects burners of on-spec used oil in Rhode Island to additional requirements as reflected in section 15.03 of the State's regulations, Burning Used Oil for Energy Recovery. Under the Federal program, on-spec used oil destined to be burned for energy recovery is not subject to the restrictions on burning in 40 CFR part 279, subpart G (40 CFR 279.60(c)), and once conditions for on-spec used oil at 40 CFR 279.11 and 40 CFR part 279, subpart H have been met, the on-spec used oil can be handled like any other virgin fuel oil, as long as it has not been contaminated with hazardous waste. Rhode Island, however, continues to regulate the burning and other aspects of on-spec oil under Rule 15.03 beyond that which is subject to regulation under the Federal program as follows. The State regulates burners of on-spec used oil according to category of BTU capacity as well as by unit type, i.e., onsite and offsite, in Rule 15.03(A)-(D). The State's requirements for used oil burners are partially broader in scope in that they set notification requirements upon burners of on-spec used oil in Rule 15.03(B)(4) and (C)(5) and notification and approval requirements under Rule 15.03(D)(5). Various requirements, such as storage, handling, tracking, etc., are also imposed upon these on-spec burners at Rule 15.03(F)-(G) which are generally required for off-spec used oil burners but are broader in scope when applied to on-spec burners (see 40 CFR part 279, subpart G). (Please note, additional requirements which relate to the burning of used oil are also discussed in the following section, Equivalent but Different Provisions.) 3. Equivalent But Different Provisions While many State regulations track Federal requirements identically, some differ from the Federal regulation in particular details but have been determined by the EPA to be equivalent to the Federal regulations in providing the same (or greater) overall level of environmental protection with respect to each Federal requirement. There are various Rhode Island regulations which differ from but have been determined to be equivalent to the Federal regulations. These regulations are part of the Federally enforceable RCRA program. These different but equivalent requirements include the following:
(a)Rhode Island's used oil definition is broader than the Federal definition in that it includes used oils which have become unsuitable for their original purpose other than through use (e.g., the State includes used oils that have become contaminated during storage). This generally results in more stringent regulation of oils that mostly would be considered only non-hazardous solid wastes in the Federal program. In a few cases the State regulations might allow such used oils which are characteristic to be handled in the used program rather than as fully regulated hazardous wastes (as they technically would be in the Federal program). The used oils would not be different in composition from those regulated under the Federal used oil program. The State's approach makes environmental sense and is part of a regulation which is overall at least as stringent as the corresponding Federal requirement.
(b)As stated previously, Rhode Island's requirements for burning used oil at Rule 15.03 are broader in scope as they regulate burners of on-spec oil in Rule 15.03(A)-(D), and Rhode Island's provisions are also more stringent in that they only allow on-spec oil to be shipped off-site to be burned for energy recovery. However, the State's used oil requirements are also equivalent but different in transferring the analytical and recordkeeping requirements imposed on used oil marketers of on-spec oil in 40 CFR 279.72 onto on-spec used oil burners at 15.03(B)(1) and (2), (C)(2) and
(3)and (D)(2) and (3). Rhode Island regulations are also different but equivalent in allowing on-spec burners to aggregate off-spec used oil with virgin oil or on-spec used oil for burning blended mixtures at Rule 15.03(B)(3), (C)(4) and (D)(4) provided analysis shows it meets specification requirements (aggregation by off-spec used oil burners is allowed at 40 CFR 279.61(b)(2)).
(c)Rhode Island's program is also different in that it has adopted a regulatory approach to address small amounts of used oil that are generated by companies that service oil-fired furnaces that heat buildings. While there is no direct counterpart in the Federal used oil program for this specific scenario, the State's provisions closely track the agency's requirements for off-site shipments of used oil to aggregation points owned by the generator at 40 CFR 279.24(b), a provision for which Rhode Island is also being authorized. Under the Federal provision, EPA allows generators to self-transport up to 55 gallons at a time of used oil (without an EPA I.D. Number) to aggregation points owned by the generator. Rhode Island's used oil program at Rule 15.04(H) allows service companies, upon generation of used oil during service of oil-fired furnaces used to heat buildings, to assume the role of generator and to self-transport up to 5 gallons of used oil to the company's place of business, as long as basic requirements, such as handling, labeling and spill control measures are met. Upon arrival, the used oil must be transferred to appropriate storage containers or tanks on the premises of the service company who is considered the generator of the used oil and subject to all applicable requirements of section 15.00 of Rhode Island's Used Oil Management Standards. Rhode Island has adopted state requirements which tailor a Federal requirement to address a specific activity in which small amounts of used oil are generated at many sites, including households, which can immediately be removed from the site of generation and consolidated at the generator's site of business. By applying this provision in this way, it is likely to be more protective of human health and the environment in assuring small quantities of used oil are managed properly. Thus, we believe the State regulation is legally consistent and equivalent to and perhaps even more stringent than the Federal used oil program.
(d)Rhode Island has adopted a conditional exemption for oil filters in its Rule 15.01(E) which differs from the Federal exemption of 40 CFR 261.4(b)(13) by allowing cold draining and crushing of the filters whereas the Federal regulation allows only hot draining. The State regulation specifies that any cold draining must include crushing using a mechanical, pneumatic or hydraulic device designed for the purpose of crushing oil filters and effectively removing the oil. This State provision will encourage recycling of used oil by enabling filters from junked vehicles to be managed in accordance with the exemption. Junked vehicles often cannot be started and consequently filters removed from those vehicles cannot meet the hot draining criteria of the Federal regulation. This approach of combining cold draining and crushing used oil filters was adopted by the State of Vermont and authorized by EPA [70 FR 36350, June 23, 2005]. Vermont provided documentation showing that as much or more used oil is removed from used oil filters through cold draining plus crushing than is removed by some of the hot draining methods allowed in the Federal regulation. Thus, while the Rhode Island exemption, like the Vermont exemption, differs from the Federal exemption, the State regulation is at least as stringent as the Federal regulation in requiring the removal of the oil. Note, copies of Vermont's documentation relative to the cold crushing/draining of oil filters has been included in the Administrative Docket to this notice. Relative to terne-plated filters, the State has also combined the Federal scrap metal exemption at 40 CFR 261.6(a)(3)(ii) as referenced in its definition of hazardous waste at 3.00, with its oil filter exemption at 15.01(E). Rhode Island allows terne-plated filters to be exempt from hazardous waste requirements once they have both been processed to remove excess oil and when the metals are sent offsite for reclamation which is documented. This is equivalent to the combination of the two Federal exemptions. I. How Does This Action Affect Indian Country (18 U.S.C. 115) in Rhode Island? Rhode Island is not authorized to carryout its hazardous waste program in Indian country within the State which includes the land of the Narragansett Indian Tribe. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in these lands. J. Who Handles Permits After the Authorization Takes Effect? Rhode Island will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Rhode Island prior to the effective date of this authorization until the State incorporates the terms and conditions of the Federal permits into the State RCRA permits. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in this notice above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Rhode Island is not yet authorized. K. What Is Codification and Is EPA Codifying Rhode Island's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart UU for this authorization of Rhode Island's program until a later date. L. Administrative Requirements The Office of Management and Budget has exempted this action (RCRA State Authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes 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 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. 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. Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document 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 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 action nevertheless will be effective February 11, 2008, because it is an immediate final rule. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: November 2, 2007. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E7-23946 Filed 12-10-07; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Part 302-4 [FTR Amendment 2007-06; FTR Case 2007-306; Docket 2007-0002, Sequence 5] RIN 3090-AI40 Federal Travel Regulation; Relocation Allowances; OCONUS Travel AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: Federal Travel Regulation
(FTR)Amendment 2007-03, FTR Case 2007-301 was published in the **Federal Register** on June 27, 2007 (72 FR 35187). That final rule changed the mileage reimbursement rate for using a personally owned vehicle
(POV)for relocation to equal the Internal Revenue Service
(IRS)Standard Mileage Rate for moving purposes in the continental United States (CONUS). Subsequent information revealed that in changing to this rate, GSA inadvertently removed any ability to apply this rate to both foreign and non-foreign overseas (OCONUS) relocations. This final rule will allow for the new mileage reimbursement rate to be applied worldwide. It will also allow for the use of actual expense for OCONUS relocations if the agency chooses to do so. The FTR and any corresponding documents may be accessed at GSA's website at *http://www.gsa.gov/ftr* . DATES: *Effective Date* : This final rule is effective December 11, 2007. *Applicability Date* : This final rule is applicable to September 25, 2007. FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat (VIR), Room 4035, GS Building, Washington, DC, 20405,
(202)501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ed Davis, Office of Governmentwide Policy (M), Office of Travel, Transportation and Asset Management (MT), General Services Administration at
(202)208-7638 or e-mail at *ed.davis@gsa.gov* . Please cite FTR Amendment 2007-06; FTR case 2007-306. SUPPLEMENTARY INFORMATION: A. Background On June 27, 2007, GSA published a final rule specifying that the IRS Standard Mileage Rate for moving purposes would be the rate at which agencies will reimburse an employee for using a POV for CONUS relocation. The final rule, published in the **Federal Register** on June 27, 2007 (72 FR 35187) clearly limited the scope of the rule to CONUS relocations. Research since that date, in response to an inquiry from the Department of Defense (DoD), has shown that this was a mistake. Therefore, this new final rule removes any reference to CONUS from section 302-4.300 of the FTR and allows for this rate to be applied worldwide. The FTR also will authorize actual expense for these expenses. B. Summary of the Issues Involved This final rule corrects an inadvertent error, and allows for the reimbursement of OCONUS relocation mileage at either the mileage rate specified in FTR section 302-4.300 or actual expense under new section 302-4.304. In addition, FTR section 302-4.302 currently allows an agency to authorize a higher mileage reimbursement rate for OCONUS relocations utilizing a POV under certain circumstances. Thus, agencies will have three choices for reimbursing an OCONUS relocation mileage reimbursement rate for POV usage. Each agency through its internal policy, must decide what form its relocation mileage reimbursement rate will take. But, before any agencies can have a legitimately based OCONUS rate, GSA must change the wording of the June 27, 2007 final rule to allow agencies to use the IRS rate worldwide. C. Changes to Current FTR This final rule revises section 302-4.300 of the FTR to reflect the Internal Revenue Service Standard Mileage Rate for relocation by POV and adds section 302-4.304 allowing for actual expense. D. Executive Order 12866 This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that executive order. E. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment; therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. F. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 302-4 Government employees, Relocation, Travel and transportation expenses. Dated: September 27, 2007. Lurita Doan, Administrator of General Services. For the reasons set out in this preamble, 41 CFR part 302-4 is amended as set forth below: PART 302-4—ALLOWANCES FOR SUBSISTENCE AND TRANSPORTATION 1. The authority citation for 41 CFR part 302-4 continues to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1973 Comp., p. 586. 2. Revise § 302-4.300 to read as follows: § 302-4.300 What is the POV mileage rate for PCS travel? For approved/authorized PCS travel by POV, the mileage reimbursement rate is the same as the moving expense mileage rate established by the Internal Revenue Service
(IRS)for moving expense deductions. See IRS guidance available on the Internet at *www.irs.gov* . GSA publishes the rate for mileage reimbursement in an FTR Bulletin on an intermittent basis. You may find the FTR Bulletins at *www.gsa.gov/relo* . 3. Add § 302-4.304 to read as follows: § 302-4.304 For relocation outside the continental United States (OCONUS), may my agency allow actual expense reimbursement instead of the POV mileage rate for PCS travel? Yes, for an OCONUS relocation involving POV usage, your agency may allow reimbursement of certain actual expenses of using the POV ( *i.e.* , fuel plus the additional expenses listed in § 301-10.304). [FR Doc. E7-23861 Filed 12-10-07; 8:45 am] BILLING CODE 6820-14-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 061109296-7009-02] RIN 0648-XE18 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason quota transfer. SUMMARY: NMFS announces that the State of Maine and the State of Maryland are transferring commercial bluefish quota to the State of Rhode Island from their 2007 quotas. By this action, NMFS adjusts the quotas and announces the revised commercial quota for each state involved. DATES: Effective December 6, 2007, through December 31, 2007. FOR FURTHER INFORMATION CONTACT: Emily Bryant, Fishery Management Specialist,
(978)281-9244, fax
(978)281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the Atlantic bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.160. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.160(f). The Regional Administrator is required to consider the criteria set forth in § 648.160(f)(1) in the evaluation of requests for quota transfers or combinations. Maine and Maryland have agreed to transfer 25,000 lb (11,340 kg) and 50,000 lb (22,680 kg), respectively, of their 2007 commercial quotas to Rhode Island. The Regional Administrator has determined that the criteria set forth in § 648.160(f)(1) have been met. The revised bluefish quotas for calendar year 2007 are: Rhode Island, 738,790 lb (335,110 kg); Maine, 32,323 lb (14,661 kg); and Maryland, 207,403 lb (94,076 kg). Classification This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: December 5, 2007. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-6010 Filed 12-6-07; 1:33 pm]
Connectionstraces to 20
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register
U.S. Code
- Definitions§ 601
- Establishment, functions, and activities§ 272
- Purposes§ 3501
- Congressional findings and declaration of purpose§ 7401
- Authorized State hazardous waste programs§ 6926
- Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member§ 115
- SHORT TITLE.§ 801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Authorities of Administrator§ 6912
- Regulations§ 5738
- Quarters, quarters allowances, and storage§ 905
- Findings, purposes and policy§ 1801
51 references not yet in our index
- 40 CFR 81
- 346 F.3d 955
- 352 F.3d 1186
- 542 U.S. 919
- 898 F.2d 687
- 40 CFR 50
- 356 F.3d 296
- 130 F. Supp. 2
- 285 F.3d 63
- 821 F.2d 759
- 488 U.S. 204
- 423 F.3d 989
- 40 CFR 51.920
- 175 F.3d 1027
- 902 F.2d 962
- Pub. L. 104-4
- 40 CFR 271
- 40 CFR 271.21
- 40 CFR 260.10
- 40 CFR 262.34
- 40 CFR 263.10(b)
- 40 CFR 263.12
- 40 CFR 279.45
- 40 CFR 270.10(b)
- 40 CFR 270
- 40 CFR 273.8
- 40 CFR 273.9
- 40 CFR 273.32
- 40 CFR 144.1(h)
- 40 CFR 144.31(g)
- 40 CFR 270.60(b)(3)
- 40 CFR 270.190(c)
- 40 CFR 279.1
- 40 CFR 279.10(b)(2)
- 40 CFR 279.10(b)(3)
- 40 CFR 261.5
- 40 CFR 279
- 40 CFR 279.20(a)
- 40 CFR 279.23
- 40 CFR 279.52(a)
+ 11 more
Citation graph
cites case law
Rules and Regulations
Final rule
F. App'x346 F.3d 955
F. App'x352 F.3d 1186
SCOTUS542 U.S. 919
Cites 71 · showing 12Cited by 0 across 0 sources