Federal Register / Vol. 62, No. 167 / Thursday, August 28, 1997 / Rules and Regulations 45531

1EPA revised the NAAQS for particulate matter

on July 1, 1987 (52 FR 24672), replacing standards

for total suspended particulates with new standards

applying only to particulate matter up to 10

microns in diameter (PM–10). At that time, EPA

established two PM–10 standards. The annual PM–

10 standard is attained when the expected annual

arithmetic average of the 24-hour samples for a

period of one year does not exceed 50 micrograms

per cubic meter (ug/m3). The 24-hour PM–10

standard of 150 ug/m3 is attained if samples taken

for 24-hour periods have no more than one

expected exceedance per year, averaged over 3

years. See 40 CFR 50.6 and 40 CFR part 50,

Appendix K.

On July 18, 1997, EPA reaffirmed the annual PM–

10 standard, and slightly revised the 24-hour PM–

10 standard (62 FR 38651). The revised 24-hour

PM–10 standard is attained if the 99th percentile of

the distribution of the 24-hour results over 3 years

does not exceed 150 ug/m3 at each monitor within

an area. On July 18, 1997, EPA also established two

new standards for PM, both applying only to

particulate matter up to 2.5 microns in diameter

(PM–2.5).

This finding applies to the outstanding obligation

of the State to submit for the Owens Valley

Planning Area a plan addressing the 24-hour and

annual PM–10 standards, as originally promulgated.

Breathing particulate matter can cause significant

health effects, including an increase in respiratory

illness and premature death.

2 In reclassifying the Owens area, EPA observed

that: ‘‘Ambient PM–10 levels in Owens Valley are

among the highest in the country. In 1989, for

instance, the highest 24-hour PM–10 concentration

observed in the area was 1861 micrograms per cubic

meter (ug/m3) in contrast to the NAAQS of 150 ug/

m3. The PM–10 SIP for Owens Valley includes an

analysis of wind direction and wind speed on days

when PM–10 levels are high, which indicates that

the major source causing violations of the PM–10

NAAQS in this area is Owens Dry Lake. Owens Dry

Lake covers approximately 110 square miles near

the south end of the planning area. Approximately

60 square miles of the lake is dry.’’ (58 FR 3337)

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[FRL—5883–7]

Final Rule Making a Finding of Failure

to Submit a Required State

Implementation Plan for Particulate

Matter, California—Owens Valley

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action in

making a finding, under the Clean Air

Act (CAA or Act), that California failed

to make a particulate matter (PM–10)

nonattainment area state

implementation plan (SIP) submittal

required for the Owens Valley Planning

Area under the Act. Under certain

provisions of the Act, states are required

to submit SIPs providing for, among

other things, reasonable further progress

and attainment of the PM–10 national

ambient air quality standards (NAAQS)

in areas classified as serious. The

deadline for submittal of this plan for

the Owens Valley Planning Area was

February 8, 1997.

This action triggers the 18-month time

clock for mandatory application of

sanctions and 2-year time clock for a

federal implementation plan (FIP) under

the Act. This action is consistent with

the CAA mechanism for assuring SIP

submissions.

EFFECTIVE DATE: This action is effective

as of August 20, 1997.

FOR FURTHER INFORMATION CONTACT:

Larry Biland, Air Planning Office (AIR–

2), Air Division, U.S. EPA, Region 9

(AIR–2), 75 Hawthorne Street, San

Francisco, California, 94105–3901,

telephone (415) 744–1227.

SUPPLEMENTARY INFORMATION:

I. Background

In 1990, Congress amended the Clean

Air Act to address, among other things,

continued nonattainment of the PM–10

NAAQS.1 Pub. L. 101–549, 104 Stat.

2399, codified at 42 U.S.C., 7401–7671q

(1991). On the date of enactment of the

Amendments, PM–10 areas meeting the

qualifications of section 107(d)(4)(B) of

the amended Act were designated

nonattainment by operation of law.

These areas included all former Group

I areas identified in 52 FR 29383

(August 7, 1987) and clarified in 55 FR

45799 (October 31, 1980), and any other

areas violating the PM–10 NAAQS prior

to January 1, 1989. The Owens Valley

Planning Area (Owens Valley) was

identified in the August 7, 1987,

Federal Register notice (52 FR 29384).

A Federal Register notice announcing

all areas designated nonattainment for

PM–10 at enactment of the 1990

amendments was published on March

15, 1991 (56 FR 11101). The boundaries

of the Owens Valley nonattainment area

(Hydrologic Unit #18090103) were set

forth in a November 6, 1991, Federal

Register notice (56 FR 56694, codified

for the State of California at 40 CFR

81.305).

Once an area is designated

nonattainment, section 188 of the

amended Act outlines the process for

classification of the area and establishes

the area’s attainment date. In

accordance with section 188(a), at the

time of designation, all PM–10

nonattainment areas, including Owens

Valley, were initially classified as

moderate by operation of law. Section

188(b)(1) of the Act further provides that

moderate areas can subsequently be

reclassified as serious before the

applicable moderate area attainment

date if at any time EPA determines that

the area cannot ‘‘practicably’’ attain the

PM–10 NAAQS by this attainment date.

Air monitoring of the Owens Valley

during the past 18 years has measured

the highest PM–10 pollution in the

United States, the result of watergathering activities by the City of Los

Angeles. California submitted a

moderate area PM–10 SIP for Owens

Valley on January 9, 1992. Based on this

submittal, EPA determined on January

8, 1993, that Owens Valley could not

practicably attain by the applicable

attainment deadline for moderate areas

(December 31, 1994, per section

188(c)(1) of the Act), and reclassified

Owens Valley as serious (58 FR 3334).2

In accordance with section 189 (b)(2) of

the Act, the applicable deadline for

submittal of a SIP for Owens Valley

addressing the requirements for serious

PM–10 nonattainment areas in section

189 (b) and (c) of the Act (58 FR 3340)

is February 8, 1997 (4 years after the

effective date of the reclassification).

These requirements, as they pertain to

the Owens Valley nonattainment area,

include:

(a) A demonstration (including air

quality modeling) that the plan will

provide for attainment as expeditiously

as practicable but no later than

December 31, 2001, or an alternative

demonstration that attainment by that

date would be impracticable and that

the plan provides for attainment by the

most expeditious alternative date

practicable (CAA Section 189(b)(1)(A)

(i) and (ii); and

(b) Quantitative milestones which are

to be achieved every 3 years and which

demonstrate reasonable further progress

toward attainment by December 31,

2001 (CAA section 189(c)).

Notwithstanding significant efforts by

the Great Basin Unified Air Pollution

Control District and the California Air

Resources Board to work with the City

of Los Angeles to reach a mutually

acceptable solution, the State has failed

to meet the February 8, 1997 deadline

for the required SIP submission. EPA is

therefore compelled to find that the

State of California has failed to make the

required SIP submission for the Owens

Valley PM–10 nonattainment area.

The CAA establishes specific

consequences if EPA finds that a state

has failed to meet certain requirements

of the CAA. Of particular relevance here

is CAA section 179(a)(1), the mandatory

sanctions provision. Section 179(a) sets

forth four findings that form the basis

for application of a sanction. The first

finding, that a State has failed to submit

a plan required under the CAA, is the

finding relevant to this rulemaking.

If California has not made the

required complete submittal within 18

months of the effective date of today’s
45532 Federal Register / Vol. 62, No. 167 / Thursday, August 28, 1997 / Rules and Regulations

3 In a 1994 rulemaking, EPA established the

Agency’s selection of the sequence of these two

sanctions: the offset sanction under section

179(b)(2) shall apply at 18 months, followed 6

months later by the highway sanction under section

179(b)(1) of the Act. EPA does not choose to deviate

from this presumptive sequence in this instance.

For more details on the timing and implementation

of the sanctions, see 59 FR 39832 (August 4, 1994),

promulgating 40 CFR 52.31, ‘‘Selection of sequence

of mandatory sanctions for findings made pursuant

to section 179 of the Clean Air Act.’’

rulemaking, pursuant to CAA section

179(a) and 40 CFR 52.31, the offset

sanction identified in CAA section

179(b) will be applied in the affected

area. If the State has still not made a

complete submission 6 months after the

offset sanction is imposed, then the

highway funding sanction will apply in

the affected area, in accordance with 40

CFR 52.31.3 In addition, CAA section

110(c) provides that EPA must

promulgate a federal implementation

plan (FIP) no later than 2 years after a

finding under section 179(a).

The 18-month clock will stop and the

sanctions will not take effect if, within

18 months after the date of the finding,

EPA finds that the State has made a

complete submittal of a plan addressing

the serious area PM–10 requirements for

Owens Valley. In addition, EPA will not

promulgate a FIP if the State makes the

required SIP submittal and EPA takes

final action to approve the submittal

within 2 years of EPA’s findings (section

110(c)(1) of the Act). EPA encourages

the responsible parties to continue

working together on a solution which

can cancel out the potential sanctions

and FIP.

II. Final Action

A. Rule

Today, EPA is making a finding of

failure to submit for the Owens Valley

PM–10 nonattainment area, due to

failure of the State to submit a SIP

revision addressing the serious area

PM–10 requirements of the CAA.

B. Effective Date Under the

Administrative Procedures Act

EPA has issued this action as a

rulemaking because the Agency has

treated this type of action as rulemaking

in the past. However, EPA believes that

it would have the authority to issue this

action in an informal adjudication, and

is considering which administrative

process—rulemaking or informal

adjudication—is appropriate for future

actions of this kind.

Because EPA is issuing this action as

a rulemaking, the Administrative

Procedures Act (APA) applies.

Today’s action will be effective on

August 20, 1997. Under the APA, 5

U.S.C. 553(d)(3), agency rulemaking

may take effect before 30 days after the

date of publication in the Federal

Register if an agency has good cause to

mandate an earlier effective date.

Today’s action concerns a SIP

submission that is already overdue and

the State has been aware of applicable

provisions of the CAA relating to

overdue SIPs. In addition, today’s action

simply starts a ‘‘clock’’ that will not

result in sanctions for 18 months, and

that the State may ‘‘turn off’’ through

the submission of a complete SIP

submittal. These reasons support an

effective date prior to 30 days after the

date of publication.

C. Notice-and-Comment Under the

Administrative Procedures Act

This notice is a final agency action,

but is not subject to the notice-andcomment requirements of the APA, 5

U.S.C. 533(b). EPA believes that because

of the limited time provided to make

findings of failure to submit regarding

SIP submissions, Congress did not

intend such findings to be subject to

notice-and-comment rulemaking.

However, to the extent such findings are

subject to notice-and-comment

rulemaking, EPA invokes the good cause

exception pursuant to the APA, 5 U.S.C.

553(d)(3). Notice and comment are

unnecessary because no EPA judgment

is involved in making a nonsubstantive

finding of failure to submit SIPs

required by the CAA. Furthermore,

providing notice and comment would

be impracticable because of the limited

time provided under the statute for

making such determinations. Finally,

notice and comment would be contrary

to the public interest because it would

divert Agency resources from the

critical substantive review of submitted

SIPs. See 58 FR 51270, 51272, note 17

(October 1, 1993); 59 FR 39832, 39853

(August 4, 1994).

D. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this action from

review under Executive Order 12866.

E. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 600 et seq., EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

business, small not-for-profit enterprises

and government entities with

jurisdiction over populations of less

than 50,000.

As discussed in section II.F. below,

findings of failure to submit required

SIP revisions do not by themselves

create any new requirements. Therefore,

I certify that today’s action does not

have a significant impact on small

entities.

F. Unfunded Mandates

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’)

signed into law on March 22, 1995, EPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.

In addition, under the Unfunded

Mandates Act, before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, EPA must have

developed, under section 203, a small

government agency plan.

EPA has determined that today’s

action is not a Federal mandate. The

CAA provision discussed in this notice

requires states to submit SIPs. This

notice merely provides a finding that

California has not met that requirement.

This notice does not, by itself, require

any particular action by any State, local,

or tribal government, or by the private

sector.

For the same reasons, EPA has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments.

G. SBREFA Notice

Under section 801(a)(1)(A) of the APA

as amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted a report containing

this final rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the General

Accounting Office prior to publication

of the rule in today’s Federal Register.

This rule is not a ‘‘major rule’’ as

defined by section 804(2) of the APA as

amended.

As noted above, EPA is issuing this

action as rulemaking. There is a

question as to whether this action is a

rule of ‘‘particular applicability,’’ under

section 804(3)(A) of the APA as

amended by SBREFA—and thus exempt

from the Congressional submission

requirements—because this rule applies

only to a named state. In this case, EPA

has decided to submit this rule to

Congress, but will continue to consider
Federal Register / Vol. 62, No. 167 / Thursday, August 28, 1997 / Rules and Regulations 45533

the issue of the scope of the exemption

for rules of ‘‘particular applicability.’’

H. Paperwork Reduction Act

This rule does not contain any

information collection requirements

which require OMB approval under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

J. Judicial Review

Under CAA section 307(b)(1), a

petition to review today’s action may be

filed in the Court of Appeals for the

appropriate circuit by October 27, 1997.

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) of the Act.

Dated: August 20, 1997.

Felicia Marcus,

Regional Administrator.

[FR Doc. 97–22948 Filed 8–27–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80

[FRL–5883–3]

RIN 2060–AH48

Regulation of Fuels and Fuel

Additives: Baseline Requirements for

Gasoline Produced by Foreign

Refiners

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This final rule revises the

requirements for imported conventional

gasoline. The Agency has revised the

rules for conventional gasoline (59 FR

7716, February 16, 1994) to allow a

foreign refiner to choose to petition EPA

to establish an individual baseline

reflecting the quality and quantity of

gasoline produced at a foreign refinery

in 1990 that was shipped to the United

States. The foreign refiner is required to

meet the same requirements relating to

the establishment and use of individual

refinery baselines as are met by

domestic refiners. This final action also

includes additional requirements that

address issues that are unique to

refiners and refineries located outside

the United States, namely those related

to tracking the movement of gasoline

from the refinery to the United States

border, monitoring compliance with the

requirements applicable to foreign

refiners, and imposition of appropriate

sanctions for violations. EPA will

monitor the quality of imported

conventional gasoline, and if it exceeds

a specified benchmark, EPA will apply

appropriate remedial action. Under this

final action, the baseline for gasoline

imported from refiners without an

individual baseline would be adjusted

to remedy the exceedance.

EPA believes this final rulemaking is

consistent with the Agency’s

commitment to fully protect public

health and the environment, and with

the U.S. commitment to comply with its

obligations under the World Trade

Organization agreement.

DATES: This final rule is effective August

27, 1997.

ADDRESSES: Materials relevant to the

final rule have been placed in Public

Docket A–97–26 at the address below.

Additional materials can be found in

Public Dockets A–91–02 and A–92–12,

A–94–25 and A–96–33 located at Room

M–1500, Waterside Mall (ground floor),

U.S. Environmental Protection Agency,

401 M Street S.W., Washington, DC

20460. The docket may be inspected

from 8 a.m. until 5:30 p.m. Monday

through Friday. A reasonable fee may be

charged by EPA for copying docket

materials.

FOR FURTHER INFORMATION CONTACT:

Karen Smith, Fuels and Energy

Division, U.S. EPA (6406J), 401 M

Street, SW., Washington, DC 20460,

Telephone: (202) 233–9674.

SUPPLEMENTARY INFORMATION:

Availability on the TTNBSS

Copies of this final rule are available

electronically from the EPA Internet

Web site and via dial-up modem on the

Technology Transfer Network (TTN),

which is an electronic bulletin board

system (BBS) operated by EPA’s Office

of Air Quality Planning and Standards.

Both services are free of charge, except

for your existing cost of Internet

connectivity or the cost of the phone

call to TTN. Users are able to access and

download files on their first call using

a personal computer per the following

information. The official Federal

Register version is made available on

the day of publication on the primary

Internet sites listed below. The EPA

Office of Mobile Sources also publishes

these notices on the secondary Web site

listed below and on the TTN BBS.

Internet (Web)

http://www.epa.gov/docs/fedrgstr/EPA–

AIR/

(either select desired date or use Search

feature)

http://www.epa.gov/OMSWWW/

(look in What’s New or under the

specific rulemaking topic)

TTNBBS: The TTNBBS can be

accessed with a dial-in phone line and

a high-speed modem (PHι 919–541–

5742). The parity of your modem should

be set to none, the data bits to 8, and

the stop bits to 1. Either a 1200, 2400,

9600, or 14400 baud modem should be

used. When first signing on, the user

will be required to answer some basic

informational questions for registration

purposes. After completing the

registration process, proceed through

the following series of menus:

(T) Gateway to TTN Technical Areas

(Bulletin Boards)

(M) OMS—Mobile Sources Information

(Alerts display a chronological list of

recent documents)

(K) Rulemaking and Reporting

At this point, choose the topic (e.g,

Fuels) and subtopic (e.g., Reformulated

Gasoline) of the rulemaking, and the

system will list all available files in the

chosen category in date order with brief

descriptions. To download a file, type

the letter ‘‘D’’ and hit your Enter key.

Then select a transfer protocol that is

supported by the terminal software on

your own computer, and pick the

appropriate command on your own

software to receive the file using that

same protocol. After getting the files you

want onto your computer, you can quit

the TTN BBS with the ‘‘G’’oodbye

command.

Please note that due to differences

between the software used to develop

the document and the software into

which the document may be

downloaded, changes in format, page

length, etc. may occur.

Regulated Entities

Entities regulated by this action are

those foreign refiners and importers

which produce, import or distribute

gasoline for sale in the United States.

Regulated categories and entities

include:

Category Examples of regulated entities

Industry ..................... Foreign Refiners, Importers.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities potentially

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be