

[Federal Register: January 24, 2006 (Volume 71, Number 15)]
[Rules and Regulations]               
[Page 3764-3768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja06-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2005-ND-0002; FRL-8011-1]

 
Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan Revision for North Dakota; Revisions to the Air 
Pollution Control Rules; Delegation of Authority for New Source 
Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation of authority.

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SUMMARY: EPA is taking direct final action approving certain revisions 
to the State Implementation Plan (SIP) as submitted by the Governor of 
North Dakota with a letter dated April 11, 2003. The revisions affect 
certain portions of air pollution control rules regarding permitting. 
This action is being taken under section 110 of the Clean Air Act.
    EPA is also providing notice that on July 27, 2005, North Dakota 
was delegated authority to implement and enforce certain New Source 
Performance Standards, as of January 31, 2004.

DATES: This rule is effective on March 27, 2006 without further notice, 
unless EPA receives adverse comment by February 23, 2006. If adverse 
comment is received, EPA will publish a timely withdrawal of the direct 
final rule in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. R08-OAR-
2005-ND-0002, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/. On 

November 28, 2005, Regional Material in EDOCKET (RME), EPA's electronic 
public docket and comment system, was replaced by an enhanced federal-
wide electronic docket management and comment system located at http://www.regulations.gov.
 Therefore, you will be redirected to that site to 

access the docket EPA-R08-OAR-2005-ND-0002 and submit comments. Follow 
the on-line instructions for submitting comments.
     E-mail: long.richard@epa.gov and platt.amy@epa.gov.

     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466.
     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency (EPA), Region 8, 
Mailcode 8P-AR, 999 18th Street, Suite 200, Denver, Colorado 80202-
2466. Such deliveries are only accepted Monday through Friday, 8 a.m. 
to 4:55 p.m., excluding Federal holidays. Special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. R08-OAR-2005-
ND-0002. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available at http://docket.epa.gov/rmepub/index.jsp
, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and 
Federal regulations.gov Web site are ``anonymous access'' systems, 
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 EDOCKET or 
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 EDOCKET online 
or see the Federal Register of May 31, 2002 (67 FR 38102). For 
additional instructions on submitting comments, go to Section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the Regional 
Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp. 

Although listed in the index, some information is not publicly 
available, i.e., 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 in Regional Materials in EDOCKET or in 
hard copy at the Air and Radiation Program, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 
80202-2466. EPA requests that if at all possible, you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection 
Agency, Region 8, (303) 312-6449, platt.amy@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. Revisions in the April 11, 2003 Submittal That Are the Subject 
of This Document
IV. Delegation of Authority
V. Section 110(l)
VI. Final Action
VII. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or ND mean the State of North Dakota, unless 
the context indicates otherwise.

[[Page 3765]]

    (v) The initials NDDH mean or refer to the North Dakota Department 
of Health.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The Act requires States to follow certain procedures in developing 
implementation plans and plan revisions for submission to us. Sections 
110(a)(2) and 110(l) of the Act provide that each implementation plan 
must be adopted after reasonable notice and public hearing.
    To provide for public comment, the North Dakota Department of 
Health (NDDH), after providing notice, held a public hearing on April 
19, 2002 to address the revisions to the State Implementation Plan 
(SIP) and Air Pollution Control Rules. Following the public hearing, 
comment period, and legal review by the North Dakota Attorney General's 
Office, the North Dakota State Health Council adopted the revisions, 
which became effective on March 1, 2003. The North Dakota Governor 
submitted the SIP revisions to us with a letter dated April 11, 2003.
    On October 21, 2004, EPA published a notice of final rulemaking for 
the State of North Dakota (see 69 FR 61762). In that final rulemaking, 
we approved portions of the SIP revision submitted by the Governor of 
North Dakota on April 11, 2003. The portions of the SIP revision that 
we approved affected the North Dakota Air Pollution Control Rules 
regarding general provisions and emissions of particulate matter and 
sulfur compounds.
    As we discussed in our October 21, 2004 notice of final rulemaking, 
we were handling separately the revisions in the April 11, 2003 
submittal addressing North Dakota Air Pollution Control Rules Section 
33-15-01-13, regarding shutdown and malfunction of an installation, 
certain portions of Chapter 33-15-14, regarding construction and minor 
source permitting, and certain portions of Chapter 33-15-15, regarding 
prevention of significant deterioration.
    On August 8, 2005, EPA published a direct final rulemaking for the 
State of North Dakota (see 70 FR 45539). In that final rulemaking, we 
approved additional portions of the SIP revision submitted by the 
Governor of North Dakota on April 11, 2003. Those portions of the SIP 
revision that we approved affected certain section of the North Dakota 
Air Pollution Control Rules regarding permitting and prevention of 
significant deterioration of air quality.

III. Revisions in the April 11, 2003 Submittal That Are the Subject of 
This Document

    The revisions in the April 11, 2003 submittal to be addressed in 
this document pertain to certain portions of the North Dakota Air 
Pollution Control Rules regarding permitting, which involve sections of 
the following chapter of the North Dakota Administrative Code 
(N.D.A.C.): 33-15-14 Designated Air Contaminant Sources, Permit to 
Construct, Minor Source Permit to Operate, Title V Permit to Operate 
(certain sections specific to construction and minor source 
permitting).

A. Chapter 33-15-14, N.D.A.C., Section 33-15-14-02, Permit To Construct

    In the Permit to Construct section, 33-15-14-02, subsection 33-15-
14-02.19, Amendment of Permits, was revised to clarify how the NDDH can 
amend a construction permit. Specifically, in the event that a 
modification would be a ``major modification'' as defined in the 
State's prevention of significant deterioration (PSD) regulations, then 
the procedures established in Chapter 33-15-15, N.D.A.C., must be 
followed.

B. Chapter 33-15-14, N.D.A.C., Section, 33-15-14-03, Minor Source 
Permit To Operate

    Subsection 33-15-14-03.16, Amendment of Permits, was similarly 
revised to clarify how the NDDH can amend a minor source permit to 
operate. Specifically, in the event that a modification would be a 
``major modification'' as defined in the State's prevention of 
significant deterioration (PSD) regulations, then the procedures 
established in Chapter 33-15-15, N.D.A.C., must be followed.
    The revisions discussed above are simply clarifying in nature and 
are approvable.

IV. Delegation of Authority

    With a February 10, 2005 submittal, the Governor of North Dakota 
requested delegation of authority for revisions to the New Source 
Performance Standards (NSPS), promulgated in Chapter 33-15-12, N.D.A.C. 
On July 27, 2005, delegation was given with the following letter:

Ref: 8P-AR

Honorable John Hoeven,
Governor of North Dakota State Capitol, 600 E Boulevard Avenue, 
Bismarck, North Dakota 58505-0001

Re: Delegation of Clean Air Act New Source Performance Standards

    Dear Governor Hoeven:
    In a February 10, 2005, letter from you and a February 15, 2005, 
letter from David Glatt, North Dakota Department of Health (NDDH), 
the State of North Dakota submitted revisions to its Air Pollution 
Control Rules and requested direct delegation to implement and 
enforce the Federal New Source Performance Standards (NSPS). 
Specifically, North Dakota Administrative Code Chapter 33-15-12, 
Standards of Performance for New Stationary Sources, was revised to 
update the citation for the incorporated Federal NSPS in 40 CFR Part 
60 as those in effect on January 31, 2004, with the exception of 
subpart Eb, which the State has not adopted.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those

[[Page 3766]]

NSPS, so long as the State's regulations are equivalent to the 
Federal regulations. EPA reviewed the pertinent statutes and 
regulations of the State of North Dakota and determined that they 
provide an adequate and effective procedure for the implementation 
and enforcement of the NSPS by the State. Therefore, pursuant to 
Section 111(c) of the Clean Air Act (Act), as amended, and 40 CFR 
Part 60, EPA hereby delegates its authority for the implementation 
and enforcement of the NSPS to the State of North Dakota as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of North Dakota subject to the standards of performance 
for new stationary sources promulgated in 40 CFR Part 60. The 
categories of new stationary sources covered by this delegation are 
all NSPS subparts in 40 CFR Part 60, as in effect on January 31, 
2004, with the exception of subpart Eb, which the State has not 
adopted. Note this delegation does not include the emission 
guidelines in subparts Cb, Cc, Cd, Ce, BBBB, and DDDD. These 
subparts require state plans which are approved under a separate 
process pursuant to Section 111(d) of the Act.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision making to ensure national consistency, and (3) EPA 
rulemaking to implement. Therefore, of the NSPS of 40 CFR Part 60 
being delegated in this letter, the enclosure lists examples of 
sections in 40 CFR Part 60 that cannot be delegated to the State of 
North Dakota. Please note that the enclosed list has been updated 
since our November 6, 2003, delegation of authority to implement and 
enforce the NSPS to the State of North Dakota.
    (C) The North Dakota Department of Health (NDDH) and EPA will 
continue a system of communication sufficient to guarantee that each 
office is always fully informed and current regarding compliance 
status of the subject sources and interpretation of the regulations.
    (D) Enforcement of the NSPS in the State will be the primary 
responsibility of the NDDH. If the NDDH determines that such 
enforcement is not feasible and so notifies EPA, or where the NDDH 
acts in a manner inconsistent with the terms of this delegation, EPA 
may exercise its concurrent enforcement authority pursuant to 
section 113 of the Act, as amended, with respect to sources within 
the State of North Dakota subject to NSPS.
    (E) The State of North Dakota will at no time grant a variance 
or waiver from compliance with NSPS regulations. Should the NDDH 
grant such a variance or waiver, EPA will consider the source 
receiving such relief to be in violation of the applicable Federal 
regulation and initiate enforcement action against the source 
pursuant to section 113 of the Act. The granting of such relief by 
the NDDH shall also constitute grounds for revocation of delegation 
by EPA.
    (F) If at anytime there is a conflict between a State regulation 
and a Federal regulation (40 CFR Part 60), the Federal regulation 
must be applied if it is more stringent than that of the State. If 
the State does not have the authority to enforce the more stringent 
Federal regulation, this portion of the delegation may be revoked.
    (G) If the Regional Administrator determines that a State 
procedure for enforcing or implementing the NSPS is inadequate, or 
is not being effectively carried out, this delegation may be revoked 
in whole or part. Any such revocation shall be effective as of the 
date specified in a Notice of Revocation to the NDDH.
    (H) Acceptance of this delegation of presently promulgated NSPS 
does not commit the State of North Dakota to accept delegation of 
future standards and requirements. A new request for delegation will 
be required for any standards not included in the State's requests 
of February 10, and 15, 2005.
    (I) Upon approval of the Regional Administrator of EPA Region 8, 
the Director of the NDDH may subdelegate his authority to implement 
and enforce the NSPS to local air pollution control authorities in 
the State when such authorities have demonstrated that they have 
equivalent or more stringent programs in force.
    (J) The State of North Dakota must require reporting of all 
excess emissions from any NSPS source in accordance with 40 CFR 
60.7(c).
    (K) Performance tests shall be scheduled and conducted in 
accordance with the procedures set forth in 40 CFR Part 60 unless 
alternate methods or procedures are approved by the EPA 
Administrator. Although the Administrator retains the exclusive 
right to approve equivalent and alternate test methods as specified 
in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in 
methodology provided these changes are reported to EPA Region 8. The 
Administrator also retains the right to change the opacity standard 
as specified in 40 CFR 60.11(e).
    (L) Determinations of applicability such as those specified in 
40 CFR 60.5 and 60.6 shall be consistent with those which have 
already been made by the EPA.
    (M) Alternatives to continuous monitoring procedures or 
reporting requirements, as outlined in 40 CFR 60.13(i), may be 
approved by the State only if the specific NSPS grants that 
authority. Otherwise, EPA retains the authority to review and 
approve such alternatives.
    (N) If a source proposes to modify its operation or facility 
which may cause the source to be subject to NSPS requirements, the 
State shall notify EPA Region 8 and obtain a determination on the 
applicability of the NSPS regulations.
    (O) Information shall be made available to the public in 
accordance with 40 CFR 60.9. Any records, reports, or information 
provided to, or otherwise obtained by, the State in accordance with 
the provisions of these regulations shall be made available to the 
designated representatives of EPA upon request.
    (P) All reports required pursuant to the delegated NSPS should 
not be submitted to the EPA Region 8 office, but rather to the NDDH.
    (Q) As 40 CFR Part 60 is updated, North Dakota should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    EPA is approving North Dakota's request for NSPS delegation for 
all areas within the State except for the following: Lands within 
the exterior boundaries of the Fort Berthold, Fort Totten, Standing 
Rock and Turtle Mountain Indian Reservations; and any other areas 
which are ``Indian Country'' within the meaning of 18 U.S.C. 1151.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of North Dakota will be 
deemed to accept all the terms of this delegation. EPA will publish 
an information notice in the Federal Register to inform the public 
of this delegation, in which this letter will appear in its 
entirety.
    If you have any questions on this matter, please contact me or 
have your staff contact Richard Long, Director of our Air and 
Radiation Program, at (303) 312-6005.

 Sincerely yours,

Robert E. Roberts

Regional Administrator.

Enclosure

cc: David Glatt, NDDH
    Terry O'Clair, NDDH
Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective 
Through January 31, 2004, to the State of North Dakota

   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
         40 CFR subparts                        Section(s)
------------------------------------------------------------------------
A...............................  60.8(b)(2) and (b)(3), and those
                                   sections throughout the standards
                                   that reference 60.8(b)(2) and (b)(3);
                                   60.11(b) and (e); and 60.13(i).
Da..............................  60.45a.
Db..............................  60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc..............................  60.48c(a)(4).
Ec..............................  60.56c(i), 60.8.
J...............................  60.105(a)(13)(iii) and 60.106(i)(12).

[[Page 3767]]


Ka..............................  60.114a.
Kb..............................  60.111b(f)(4), 60.114b,
                                   60.116b(e)(3)(iii),
                                   60.116b(e)(3)(iv), and
                                   60.116b(f)(2)(iii).
O...............................  60.153(e).
S...............................  60.195(b).
DD..............................  60.302(d)(3).
GG..............................  60.332(a)(3) and 60.335(a).
VV..............................  60.482-1(c)(2) and 60.484.
WW..............................  60.493(b)(2)(i)(A) and 60.496(a)(1).
XX..............................  60.502(e)(6).
AAA.............................  60.531, 60.533, 60.534, 60.535,
                                   60.536(i)(2), 60.537, 60.538(e) and
                                   60.539.
BBB.............................  60.543(c)(2)(ii)(B).
DDD.............................  60.562-2(c).
GGG.............................  60.592(c).
III.............................  60.613(e).
JJJ.............................  60.623.
KKK.............................  60.634.
NNN.............................  60.663(f).
QQQ.............................  60.694.
RRR.............................  60.703(e).
SSS.............................  60.711(a)(16), 60.713(b)(1)(i) and
                                   (ii), 60.713(b)(5)(i), 60.713(d),
                                   60.715(a) and 60.716.
TTT.............................  60.723(b)(1), 60.723(b)(2)(i)(C),
                                   60.723(b)(2)(iv), 60.724(e) and
                                   60.725(b).
VVV.............................  60.743(a)(3)(v)(A) and (B), 60.743(e),
                                   60.745(a) and 60.746.
http://WWW.............................  60.754(a)(5).

CCCC............................  60.2030(c).
------------------------------------------------------------------------

V. Section 110(l)

    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the National Ambient Air Quality Standards 
(NAAQS) or any other applicable requirements of the Act. There are no 
nonattainment areas in North Dakota. The revisions to the permitting 
provisions were clarifying in nature, will not affect emissions, and 
will not interfere with requirements of the Act related to 
administrative or procedural provisions. Therefore, these revisions do 
not interfere with attainment or maintenance of the NAAQS or other 
applicable requirements of the Act.

VI. Final Action

    We reviewed the adequacy of these certain revisions submitted by 
the North Dakota Governor with a letter dated April 11, 2003, and find 
them approvable. In addition, as requested by the North Dakota Governor 
with his February 10, 2005 submittal, we are providing notice that we 
granted delegation of authority to North Dakota on July 27, 2005, to 
implement and enforce the NSPS promulgated in 40 CFR part 60, 
promulgated as of January 31, 2004 (except subpart Eb, which the State 
has not adopted). However, the State's NSPS authorities do not include 
those authorities which cannot be delegated to the states, as defined 
in 40 CFR part 60.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective March 27, 2006 without 
further notice unless the Agency receives adverse comments by February 
23, 2006. If the EPA receives adverse comments, EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (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

[[Page 3768]]

responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 27, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 7, 2005.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. Section 52.1820 is amended by adding paragraph (c)(35) to read as 
follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (c) * * *
    (35) Certain revisions to the North Dakota State Implementation 
Plan and Air Pollution Control Rules as submitted by the Governor with 
a letter dated April 11, 2003. The revisions affect portions of North 
Dakota Administrative Code (N.D.A.C.) regarding construction and minor 
source permitting.
    (i) Incorporation by reference.
    (A) Revisions to the North Dakota Air Pollution Control Rules as 
follows:
    (1) In Chapter 33-15-14, N.D.A.C., Designated Air Contaminant 
Sources, Permit to Construct, Minor Source Permit to Operate, Title V 
Permit to Operate, the sentence in each first paragraph of subsections 
33-15-14-02.19 and 33-15-14-03.16 that reads as follows, ``In the event 
that the modification would be a major modification as defined in 
chapter 33-15-15, the department shall follow the procedures 
established in chapter 33-15-15.'' These revisions were effective March 
1, 2003.

[FR Doc. 06-629 Filed 1-23-06; 8:45 am]

BILLING CODE 6560-50-P
