Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations 52661

(A) Missouri Emergency Rule, 10 CSR

10–2.330, Control of Gasoline Reid

Vapor Pressure, effective May 1, 1997,

and expires October 27, 1997.

* * * * *

3. Section 52.1323 is amended by

adding paragraph (l) to read as follows:

§ 52.1323 Approval status.

* * * * *

(l) The Administrator conditionally

approves Missouri emergency rule 10

CSR 10–2.330 under § 52.1320(c)(98).

Full approval is contingent on the state

submitting the permanent rule, to the

EPA, by November 30, 1997.

[FR Doc. 97–26529 Filed 10–8–97; 8:45 am]

BILLING CODE 6560–50–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MD 053–3020; FRL–5905–8]

Approval and Promulgation of Air

Quality Implementation Plans;

Maryland; 15% Rate of Progress Plan

for the Baltimore Ozone Nonattainment

Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is granting conditional

approval of the State Implementation

Plan (SIP) revision submitted by the

State of Maryland, for the Baltimore

severe ozone nonattainment area, to

meet the 15 percent reasonable further

progress (RFP, or 15% plan)

requirements of the Clean Air Act (the

Act). EPA is granting conditional

approval of the 15% plan, submitted by

the State of Maryland, because, on its

face, the plan achieves the required 15%

emission reduction, but additional

documentation to verify the emission

calculations is necessary for full

approval. Additionally, the plan relies

upon Maryland’s inspection and

maintenance (I/M) program that

received final conditional approval on

July 31, 1997. This action is being taken

under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is

effective on November 10, 1997.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air, Radiation,

and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107; and

the Maryland Department of the

Environment, 2500 Broening Highway,

Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT:

Carolyn M. Donahue, Ozone/Carbon

Monoxide and Mobile Sources Section

(3AT21), USEPA—Region III, 841

Chestnut Building, Philadelphia,

Pennsylvania 19107, or by telephone at

(215) 566–2095 or via e-mail, at the

following address:

donahue.carolyn@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(b)(1) of the Act requires

ozone nonattainment areas classified as

moderate or above to develop plans to

reduce volatile organic compounds

(VOC) emissions by 15% from 1990

baseline levels. The Baltimore area is

classified as a severe ozone

nonattainment area and is subject to the

15% plan requirement. The Baltimore

ozone nonattainment area consists of

the City of Baltimore, and Anne

Arundel, Baltimore, Carroll, Howard,

and Harford Counties.

The State of Maryland submitted the

15% plan SIP revision for the Baltimore

nonattainment area on July 12, 1995. On

August 5, 1997, EPA published a notice

of proposed rulemaking (NPR) in the

Federal Register proposing conditional

approval of the 15% plan (62 FR 42079).

EPA’s rationale for granting conditional

approval to the Maryland 15% plan for

the Baltimore area and the details of the

July 12, 1995 submittal are contained in

the August 5, 1997 NPR and the

accompanying technical support

document and will not be restated here.

II. Public Comments and EPA

Responses

EPA received a letter in response to

the August 5, 1997 NPR from the

Earthjustice Legal Defense Fund (ELDF).

The following discussion summarizes

and responds to the comments received.

Comment 1: ELDF commented that

the Baltimore 15% plan must be

disapproved because it failed to produce

the 15% emission reduction of 73.3

tons/day identified in the plan as

prescribed by section 182(b)(1)(A)(I) of

the Act.

Response 1: Under section 110(k)(4)

of the Act, EPA may conditionally

approve a plan based on a commitment

from the state to adopt specific

enforceable measures within one year

from the date of approval. EPA believes

that the 15% required reduction in the

Baltimore nonattainment area will be

63.9 tons/day based on new information

supplied by the State. Although this

information has not been established

through an official SIP submittal, this

information is contained in Maryland’s

rate-of-progress SIP revision for the

1996–1999 time period (known at the

Post-1996 plan). Maryland has held a

public hearing on this SIP revision,

which EPA provided comments on for

the public record, and expects to submit

it to EPA shortly. Under these

circumstances—including the fact that

the amount of emissions at issue is a

relatively small percentage of the 15%

requirement—EPA has the authority to

conditionally approve Maryland’s 15%

SIP, on the condition that Maryland

submit the requisite documentation.

The State of Maryland has agreed to

document the amount of reductions

needed to meet the 15% requirement,

and submitted such commitment in

writing on September 4, 1997.

Comment 2: EPA concluded that

‘‘EPA cannot credit this claim’’ of 6.3

tons/day from enhanced rule

compliance for the Baltimore area. EPA

nevertheless included this measure in

the list of creditable measures, acting

unlawfully and inconsistently.

Response 2: The commenter is

correct. This inconsistency is the result

of a typographical error. The credit

claim of 6.3 tons/day (TPD) from

enhanced rule compliance is not

creditable toward the 15% rate-ofprogress requirement for the Baltimore

nonattainment area. Therefore, the total

credits achieved by Maryland toward

the 15% requirement in the plan is 64.2

TPD.

Comment 3: ELDF commented that

the Maryland 15% plan, which takes

credit for federal control measures such

as architectural and industrial

maintenance coating, consumer/

commercial products and autobody

refinishing, should not be approved

because those federal control measures

have not yet been promulgated. ELDF

states that allowing such credit violates

section 182(b)(1)(C) of the Act. ELDF

further commented that EPA cannot

lawfully base SIP decisions on

unpromulgated rules because it does not

know what these final rules will say.

ELDF contends that allowing credit on

as yet unpromulgated rules, even with

the caveat that the states must revisit the

rule later if the federal rules turn out

differently than predicted, amounts to

an unlawful extension of a SIP

submission deadline. ELDF stated that

EPA must base its decision on the

record before it at the time of its

decision; not on some record that the

agency hopes will exist in the future.

Response 3: Section 182(b)(1)(A) of

the Act requires states to submit their

15% SIP revisions by November, 1993.

Section 182(b)(1)(C) of the Act provides

the following general rule for
52662 Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations

creditability of emissions reductions

towards the 15% requirement:

‘‘Emissions reductions are creditable

toward the 15 percent required * * * to

the extent they have actually occurred,

as of [November, 1996], from the

implementation of measures required

under the applicable implementation

plan, rules promulgated by the

Administrator, or a permit under Title

V.’’

This provision further indicates that

certain emissions reductions are not

creditable, including reductions from

certain control measures required prior

to the 1990 Amendments. This

creditability provision is ambiguous.

Read literally, it provides that although

the 15% SIPs are required to be

submitted by November 1993, emissions

reductions are creditable as part of those

SIPs only if ‘‘they have actually

occurred, as of [November 1996]’’. This

literal reading renders the provision

internally inconsistent. Accordingly,

EPA believes that the provision should

be interpreted to provide, in effect, that

emissions reductions are creditable ‘‘to

the extent they will have actually

occurred, as of [November, 1996], from

the implementation of [the specified

measures]’’ (the term ‘‘will’’ is added).

This interpretation renders the

provision internally consistent.

Section 182(b)(1)(C) of the Act

explicitly includes as creditable

reductions those resulting from ‘‘rules

promulgated by the Administrator’’.

This provision does not state the date by

which those measures must be

promulgated, i.e., does not indicate

whether the measures must be

promulgated by the time the 15% SIPs

were due (November, 1993), or whether

the measures may be promulgated after

this due date.

Because the statute is silent on this

point, EPA has discretion to develop a

reasonable interpretation, under

Chevron U.S.A. Inc. v. NRDC, 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984). EPA believes it reasonable to

interpret section 182(b)(1)(C) of the Act

to credit reductions from federal

measures as long as those reductions are

expected to occur by November 1996,

even if the Federal measures are not

promulgated by the November 1993 due

date for the 15% SIPs.

EPA’s interpretation is consistent

with the congressionally mandated

schedule for promulgating regulations

for consumer and commercial products,

under section 182(e) of the Act. This

provision requires EPA to promulgate

regulations controlling emissions from

consumer and commercial products that

generate emissions in nonattainment

areas. Under the schedule, by November

1993—the same date that the States

were required to submit the 15% SIPs—

EPA was to issue a report and establish

a rulemaking schedule for consumer

and commercial products. Further, EPA

was to promulgate regulations for the

first set of consumer and commercial

products by November, 1995. It is

reasonable to conclude that Congress

anticipated that reductions from these

measures would be creditable as part of

the 15% SIPs, as long as those

reductions were to occur by November,

1996.

Crediting reductions from federal

measures promulgated after the due date

for the 15% SIPs is also sensible from

an administrative standpoint. Crediting

the reductions allows the states to plan

accurately to meet the 15% reduction

target from the appropriate level of state

and federal measures. Not crediting

such reductions would mean that the

states would have to implement

additional control requirements to reach

the 15% mark; and that SIPs would

result in more than a 15% level of

reductions once the federal measures in

question were promulgated and

implemented. At that point in time, the

state may seek to eliminate those

additional SIP measures on grounds that

they would no longer be necessary to

reach the 15% level. Such constant

revisions to the SIP to demonstrate 15%

is a paper exercise that exhausts both

the states’ and EPA’s time and

resources.

The fact that EPA cannot determine

precisely the amount of credit available

for the federal measures not yet

promulgated does not preclude granting

the credit. The credit can be granted as

long as EPA is able to develop

reasonable estimates of the amount of

VOC reductions from the measures EPA

expects to promulgate. EPA believes

that it is able to develop reasonable

estimates, particularly because is has

already proposed and taken comment

on the measures at issue, and expects to

promulgate final rules by the spring of

1998. Many other parts of the SIP,

including state measures, typically

include estimates and assumptions

concerning VOC amounts, rather than

actual measurements. For example,

EPA’s document to estimate emissions,

‘‘Compilation of Air Pollutant Emission

Factors’’, January 1995, AP–42), provide

emission factors used to estimate

emissions from various sources and

source processes. AP–42 emission

factors have been used, and continue to

be used, by states and EPA to determine

base year emission inventory figures for

sources and to estimate emissions from

sources where such information is

needed. Estimates in the expected

amount of VOC reductions are

commonly made in air quality plans,

even for those control measures that are

already promulgated.

Moreover, the fact that EPA is

occasionally delayed in its rulemaking

is not an argument against granting

credits from these measures. The

measures are statutorily required, and

states and citizens could bring suit to

enforce the requirements that EPA

promulgate them. If the amount of credit

that EPA allows the state to claim turns

out to be greater than the amount EPA

determines to be appropriate when EPA

promulgates the federal measures, EPA

intends to take appropriate action to

require correction of any shortfall in

necessary emissions reductions that

may occur.

The above analysis focuses on the

statutory provisions that include

specific dates for 15% SIP submittals

(November, 1993), and implementation

(November 15, 1996). These dates have

expired, and EPA has developed new

dates for submittal and implementation.

EPA does not believe that the expiration

of the statutory dates, and the

development of new ones, has

implications for the issue of whether

reductions from federal measures

promulgated after the date of 15% SIP

approval may be counted toward those

15% SIPs. Although the statutory dates

have passed, EPA believes that the

analysis described above continues to be

valid.

Further, since the publication of the

proposed conditional approval for the

Baltimore nonattainment area, EPA has

promulgated Maryland’s state regulation

for autobody refinishing (62 FR 41853,

August 4, 1997). Maryland claimed 5.0

tons/day of creditable emissions

reductions in the 15% plan under their

state regulation, not under the federal

rule.

Comment 4: EPA has improperly

suggested that SIPs can be approved if

the state has failed to demonstrate

approvability. In this regard, EPA has

not been able to verify Maryland’s

emission reduction credit claims for

reformulated gasoline, Tier I or Stage II

vapor recovery, but has nonetheless

stated that it has no reason to dispute

the credit claimed by Maryland and is

therefore approving the 15% plan. An

absence of statutorily required

documentation requires disapproval.

Response 4: EPA believes Maryland

has demonstrated that it has

appropriately modeled its mobile source

program benefits, through proper use of

EPA’s MOBILE emissions factor

estimation model, combined with state

vehicle miles of travel estimates. It is

not practical to submit the hundreds or
Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations 52663

even thousands of modeling input and

output runs needed to evaluate the

mobile source-related portions of the

15% rate-of-progress SIP. Maryland

instead submitted to EPA a list of the

variables and assumptions utilized in its

MOBILE modeling analysis, along with

sample model input and output

scenarios.

While the SIP does not contain

sufficient data to reconstruct the

analysis and, therefore, to

independently verify the State’s claims,

EPA believes the State’s methodology is

sound. However, EPA has deferred the

specific results of that methodology, in

part, to the State.

Comment 5: ELDF commented that

EPA allowed credit for lithographic

printing and surface cleaning operations

based on the assertion that these

regulations would be approved by EPA

in other proceedings. However, EPA

does not state that these approvals have

occurred and may not lawfully grant

credit to measures that do not comply

with section 110(a).

Response 5: The rule for lithographic

printing was approved and published in

the Federal Register on September 2,

1997 (62 FR 42199). The surface

cleaning operations regulation was

approved on August 4, 1997 (62 FR

41853).

Comment 6: ELDF commented that it

is unlawful for EPA to allow substantial

credit from an I/M program that is not

before the agency. The 15% plan before

EPA was submitted on July 12, 1995,

and thus does not incorporate

Maryland’s current I/M plan which was

submitted in March 1996. Also, it is

unlawful to allow postponements under

the National Highway System

Designation Act (NHSDA) for an area

that did not submit an NHSDA-type

program.

Response 6: Maryland’s March 1996

I/M submittal was an amendment to the

I/M program submitted to EPA on July

11, 1995. The March I/M submittal does

not supercede the July 1995 program;

thus Maryland’s current I/M program is

before EPA. EPA granted conditional

approval of Maryland’s I/M program on

July 31, 1997. If the rules submitted

from Maryland to EPA are valid, they do

not have to be submitted in a particular

order.

EPA believes that test-only I/M

programs like the one in Maryland

should be treated in the same manner as

NHSDA state programs (test and repair

programs) with regard to 15% plan

requirements. In a letter from Mary

Nichols to MDE Secretary Jane Nishida

dated January 30, 1996, EPA stated this

position is justified in light of

administrative and statutory changes in

the I/M requirements and the extent to

which states relied on I/M programs in

their 15% submittals. EPA’s approach

would have the effect of keeping a level

playing field by assuring that Maryland

would not be penalized for adopting a

test-only program.

Comment 7: ELDF commented that

EPA cannot postpone the deadline for

achieving the required 15% reduction

any further than the current deadline of

November 15, 1999. It contends that,

without conceding the legality of a 3-

year postponement of the statutory

deadline of November 15, 1996 allowed

by EPA, any longer postponement

would be unlawful. Once a compliance

date has expired, compliance must

occur in the shortest time possible. The

commenter cited various court decisions

in an effort to demonstrate that a

postponement longer than three years

would not adhere to the strict standard

of compliance. Also, ELDF claimed that

postponing a requirement for reasonable

further progress until after the deadline

for attainment would be unlawful.

Response 7: The case law cited by the

commenter considers various

circumstances, such as failure by EPA to

promulgate rules on the statutorily

mandated deadline or to take action on

state failures to make SIP submissions

on the statutorily mandated deadline.

See, e.g., Natural Resources Defense

Council v. EPA, 22 F.3d 1125 (D.C. Cir.

1994), Natural Resources Defense

Council v. Train, 510 F.2d 692 (D.C. Cir.

1975). These cases articulate various

formulations of the standards by which

the courts establish new deadlines. EPA

believes that its formulation of the

standard by which States must achieve

the 15% reductions—‘‘as soon as

practicable’’—is generally consistent

with the case law.

Further, EPA believes that Maryland

has demonstrated that it has met this

standard. The notice of proposed

rulemaking and the TSD accompanying

that proposal establish that

implementation of the I/M program is as

soon as practicable. The main reason for

the delays in the development and

implementation of Maryland’s 15% SIP

relate to its enhanced I/M plan. Most

recently, these enhanced I/M delays

were closely associated with the

enactment, in November 1995, of the

NHSDA. The NHSDA afforded states the

opportunity to revise their I/M plans in

a manner that would be treated as

meeting certain EPA requirements on an

interim basis. The NHSDA provided

additional time for the State and EPA to

develop and process the revised I/M

plans. In the January 1996 letter to

Secretary Nishida from Mary Nichols,

EPA states it will credit Maryland’s testonly enhanced I/M program for

purposes of the 15% requirement. This

approach enables states with test-only

programs to enhance those programs

starting in 1997 while applying credit

for those programs to satisfy the 1996

15% VOC reduction plan requirements.

Maryland acted expeditiously in

developing and implementing a revised

enhanced I/M program. However, the

amount of time necessary to develop

and implement the I/M program

rendered impossible achieving the 15%

reduction target by the end of 1996. The

addendum to the TSD showing the

chronology of Maryland’s I/M program

development demonstrates the necessity

of the extension.

Moreover, EPA has reviewed other

VOC SIP measures that are at least

theoretically available to Maryland, and

has concluded that implementation of

any such measures that might be

appropriate would not accelerate the

date of achieving the 15% reductions.

For reasons indicated elsewhere in the

record, EPA considers the biennial I/M

program selected by Maryland to be as

soon as practicable, notwithstanding the

fact that other states may choose to

implement an annual program.

Comment 8: ELDF commented that

any further delays in achieving the

mandate 15% reduction from VOC

control measures, including most

prominently, enhanced I/M, must not be

tolerated. Furthermore, missing the

November 15, 1996 deadline unlawfully

rewards states for failure to meet the

deadline by giving them increased

credits under national programs such as

the Tier I Federal Motor Vehicle Control

Program. ELDF argues that such an

approach unlawfully delays the

achievement of clean air by allowing the

states to reduce their own emission

control efforts by the amount of the

post-November 1996 fleet turnover

benefits. Consequently, EPA must deny

the post-November 1996 Tier I credit

and require states to adopt emission

reductions to compensate for post-1996

growth in vehicle miles traveled (VMT).

ELDF further argues that EPA cannot

delay the section 182(b)(1) requirement

for states to account for growth in the

15% plans to the Post-1996 rate-ofprogress plans, particularly because the

Post-1996 plans involve potential NOX

substitution that is not permitted in the

VOC-only 15% plans.

Response 8: EPA disagrees with this

comment. The NHSDA was enacted by

Congress in November of 1995. Section

348 of this statute provided states’

renewed opportunity to satisfy the

Clean Air Act requirements related to

the network design for I/M programs.

States were not only granted the
52664 Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations

flexibility to enact test-and-repair

programs, but were provided additional

time to develop those programs and to

submit proposed regulations for interim

SIP approval. Maryland moved rapidly

to propose I/M regulations and to

submit to EPA on March 27, 1996 an

amendment to the I/M SIP containing

those regulations. EPA granted

conditional approval of the Maryland

I/M program on July 31, 1997 (62 FR

40938).

Under the terms of the 15%

requirement in section 182(b)(1)(A)(I) of

the Act, the SIP must—‘‘provide for

[VOC] emission reductions, within 6

years after the date of enactment of the

Clean Air Act Amendments of 1990, of

at least 15 percent from baseline

emissions, accounting for any growth in

emissions after [1990].’’

EPA interprets this provision to

require that a specific amount of VOC

reductions occur, and has issued

guidance for computing this amount.

Maryland, complying with this

guidance, has determined the amount of

the required VOC reductions needed to

meet the 15% goal. It is no longer

possible for Maryland to implement

measures to achieve this level of

reduction as the November 15, 1996

date provided under the 15% provisions

has passed. Accordingly, EPA believes

that Maryland will comply with the

statutory mandate as long as it achieves

the requisite level of reductions on an

as-soon-as-practicable basis after 1996.

In computing the reductions, EPA

believes it acceptable for states to count

reductions from federal measures, such

as vehicle turnover, that occur after

November 15, 1996, as long as they are

measures that would be creditable had

they occurred prior to that date. These

measures result in VOC emission

reductions as directed by Congress in

the Act; therefore, these measures

should count towards the

achievement—however delayed—of the

15% VOC reduction goal.

EPA does not believe states are

obligated as part of the 15% SIP to

implement further VOC reductions to

offset increases in VOC emissions due to

post-1996 growth. As noted above, the

15% requirement mandates a specific

level of reductions. By counting the

reductions that occur through measures

implemented pre- and post-1996, SIPs

may achieve this level of reductions.

Although section 182(b)(1)(A)(I), quoted

above, mandates that the SIPs account

for growth after 1990, the provision does

not, by its terms, establish a mechanism

for how to account for growth, or

indicate whether, under the present

circumstances, post-1996 growth must

be accounted for. EPA believes that its

current requirements for the 15% SIPs

meet section 182(b)(1)(A)(I). In addition,

although post-1996 VOC growth is not

offset under the 15% SIPs, such growth

must be offset in the Post-1996 plans

required for serious and higher

classified areas to achieve 9% in VOC

reductions every three years after 1996

(until the attainment date). Maryland’s

Post-1996 plan for the Baltimore area,

which is nearing completion, does

appear to achieve the 9% emissions

reductions required between 1996 and

1999, taking into account growth in

VOCs during that time. The fact that

these Post-1996 SIPs may substitute

NOX reductions for VOC reductions in

the 1996 to 1999 period does not

undermine the integrity of the 15%

SIPs. Allowing NOX substitution is fully

consistent with the health goals of the

Clean Air Act.

Under EPA’s approach, post-1996

growth will be accounted for in the

plans that Congress intended to take

account of such growth—the Post-1996

‘‘rate of progress’’ SIPs. To shift the

burden of accounting for such growth to

the 15% plans, as commenters would

have EPA do, would impose burdens on

states above and beyond what Congress

contemplated would be imposed by the

15% requirement (which was intended

to have been achieved by November 15,

1996). In the current situation, where it

is clearly impossible to achieve the

target level of VOC reductions (a 15%

reduction taking into account growth

through November 1996) by November

1996, EPA believes that its approach is

a reasonable and appropriate one. It will

still mean that post-1996 growth is

taken into account in the SIP revisions

Congress intended to take into account

such growth and it means that the target

level of VOC reductions will be

achieved as soon as practicable. Once

the Post-1996 rate of progress plans are

approved and implemented, areas will

have achieved the same level of progress

that they were required to have

achieved through the combination of the

15% and rate of progress requirements

as originally intended by Congress.

Comment 9: ELDF commented that

EPA proposed disapproval of the

Philadelphia 15% plan in 1996 because

the plan assumed credit from control

strategies either not fully adopted, not

creditable under the Clean Air Act, or

which had not been adequately

quantified. Furthermore, EPA proposed

disapproval of the plan because

Pennsylvania switched I/M programs

yet did not revise the 15% plan to

reflect the differences in the I/M

program description and projected

emission reductions. EPA set

precedence with this rulemaking and to

propose approval of the Baltimore 15%

plan when the same deficiencies exist is

acting in an arbitrary and capricious

manner of treating similar situations in

such a diametrically opposed fashion.

Response 9: EPA’s proposed approval

of the Baltimore 15% plan is not

inconsistent with the proposed

disapproval of the Philadelphia 15%

plan. On July 10, 1996, EPA proposed

to disapprove Pennsylvania’s 15% plan

for the Philadelphia area because it

would not have achieved sufficient

reductions to meet the requirements of

section 182(b)(1) of the Act (61 FR

36320). EPA did not credit any

reductions from Pennsylvania’s

enhanced I/M program because at the

time of the July 10, 1996 rulemaking

EPA had disapproved Pennsylvania’s

I/M submittal. In a letter dated April 13,

1995, EPA converted the August 31,

1994 conditional approval of

Pennsylvania’s I/M submittal to a

disapproval. As discussed above, on

July 31, 1997, EPA granted conditional

approval of Maryland’s I/M program in

the Maryland SIP (62 FR 40938).

Therefore, the factual basis for EPA’s

conditional approval of Baltimore’s 15%

plan is not similar to that of the

Philadelphia 15% plan. In the July 10,

1996 proposed disapproval, EPA

credited the measures in Pennsylvania’s

15% plan towards meeting the rate of

progress requirements of the Act even

though they were insufficiently

documented to qualify for full approval.

See, 61 FR 36322. That action is wholly

consistent with EPA’s conditional

approval of the Baltimore 15% plan.

III. Conditional Approval

EPA has evaluated Maryland’s July

12, 1995 submittal for consistency with

the Act, applicable EPA regulations, and

EPA policy and has determined, as

documented in the August 5, 1997 NPR,

that, on its face, the 15% plan for the

Baltimore area achieves the required

15% VOC emission reduction to satisfy

the requirements of section 182(b)(1) of

the Act. However, there are measures

included in the Maryland 15% plan,

which may be creditable towards the

Act requirement, but which are

insufficiently documented for EPA to

take action on at this time. While the

amount of creditable reductions for

certain control measures has not been

adequately documented to qualify for

Clean Air Act approval, EPA has

determined that the submittal for the

Baltimore area contains enough of the

required structure to warrant

conditional approval. EPA cannot grant

full approval of the Baltimore 15% rateof-progress plan under section 110(k)(3)

and part D of the Clean Air Act. Instead,
Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations 52665

EPA is granting conditional approval of

this SIP revision under section 110(k)(4)

of the Act, because the State must meet

the specified conditions and

supplement its submittal to satisfy the

requirements of section 182(b)(1) of the

Act regarding the 15% rate-of-progress

plan, and because the State must

supplement its submittal and

demonstrate it has achieved the

required emission reductions.

The August 5, 1997 NPR listed the

conditions that Maryland must meet in

order to convert the conditional

approval to full approval. In a

September 4, 1997 letter to EPA, the

State committed to meet all the

conditions listed in the NPR within 12

months of final conditional approval.

The conditions from the NPR are

restated here. The State of Maryland

must fulfill the following conditions by

no later than October 9, 1998:

1. Maryland’s 15% plan calculations

must reflect the EPA approved 1990

base year emissions inventory (61 FR

50715, September 27, 1996).

2. Maryland must meet the conditions

listed in the October 31, 1996

conditional I/M rulemaking notice,

including its commitment to remodel

the I/M reductions using the following

two EPA guidance memos: ‘‘Date by

which States Need to Achieve all the

Reductions Needed for the 15 Percent

Plan from I/M and Guidance for

Recalculation,’’ note from John Seitz

and Margo Oge dated August 13, 1996,

and ‘‘Modeling 15% VOC Reductions

from I/M in 1999—Supplemental

Guidance,’’ from Gay MacGregor and

Sally Shaver dated December 23, 1996.

3. Maryland must remodel to

determine affirmatively the creditable

reductions from RFG and Tier I in

accordance with EPA guidance.

4. Maryland must submit a SIP

revision amending the 15% plan with a

determination using appropriate

documentation methodologies and

credit calculations that the 64.2 TPD

reduction, supported through creditable

emission measures in the submittal,

satisfies Maryland’s 15% ROP

requirement for the Baltimore area.

After making all the necessary

corrections to establish the creditability

of chosen control measures, Maryland

must demonstrate that 15% emission

reduction is obtained in the Baltimore

nonattainment area as required by

section 182(b)(1) of the Act and in

accordance with EPA’s policies and

guidance issued pursuant to section

182(b)(1).

IV. Final Action

EPA is today granting conditional

approval of the Baltimore 15% plan as

a revision to the Maryland SIP. This

rulemaking action will not convert to

full approval until Maryland has met

conditions 1 through 4 of this

rulemaking. If the conditions are not

met within 12 months of today’s

rulemaking, this rulemaking will

convert to a disapproval. Once

Maryland satisfies the conditions of the

I/M rulemaking and receives final

approval of I/M, EPA will grant final

approval of the 15% plan (assuming that

the other conditions have been met).

Conversely, if EPA disapproves the

Maryland I/M program, EPA’s

conditional approval of Baltimore’s 15%

plan would also convert to a

disapproval. EPA would notify

Maryland by letter that the conditions

have not been met and that the

conditional approval of the 15% plan

has converted to a disapproval. Each of

the conditions must be fulfilled by

Maryland and submitted to EPA as an

amendment to the SIP. If Maryland

corrects the deficiencies within one year

of conditional approval, and submits a

revised 15% plan as a SIP revision, EPA

will conduct rulemaking on that

revision.

Further, EPA makes this conditional

approval of the 15% plan contingent

upon Maryland maintaining a

mandatory I/M program. EPA will not

credit any reductions toward the 15%

ROP requirement from a voluntary

enhanced I/M program. Any changes to

I/M which would render the program

voluntary or discontinued would cause

a shortfall of credits in the 15%

reduction goal. Therefore, this action

will convert automatically to a

disapproval should the State make the

enhanced I/M program a voluntary

measure.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

The Office of Management and Budget

(OMB) has exempted this regulatory

action from E.O. 12866 review.

Under the Regulatory Flexibility Act,

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

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, the

EPA certifies that it does not have a

significant impact on any small entities

affected. Moreover, due to the nature of

the Federal-State relationship under the

Act, preparation of a flexibility analysis

would constitute Federal inquiry into

the economic reasonableness of state

action. The Clean Air Act forbids EPA

to base its actions concerning SIPs on

such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2).

Conditional approvals of SIP

submittals under section 110 and

subchapter I, part D of the Act do not

create any new requirements but simply

approve requirements that the State is

already imposing. Therefore, because

the Federal SIP approval does not

impose any new requirements, EPA

certifies that it does not have a

significant impact on any small entities

affected. Moreover, due to the nature of

the Federal-State relationship under the

Act, preparation of a flexibility analysis

would constitute Federal inquiry into

the economic reasonableness of state

action. The Clean Air Act forbids EPA

to base its actions concerning SIPs on

such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2).

If the conditional approval is

converted to a disapproval under

section 110(k), based on the State’s

failure to meet the commitment, it will

not affect any existing state

requirements applicable to small

entities. Federal disapproval of the state

submittal does not affect its stateenforceability. Moreover, EPA’s

disapproval of the submittal does not

impose a new Federal requirement.

Therefore, EPA certifies that this

disapproval action does not have a

significant impact on a substantial

number of small entities because it does

not remove existing requirements nor

does it substitute a new federal

requirement.

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the
52666 Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule 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, pertaining to the final

conditional interim approval of the 15%

plan for the Baltimore severe ozone

nonattainment area, must be filed in the

United States Court of Appeals for the

appropriate circuit by December 8,

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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons, Ozone.

Dated: September 19, 1997.

A.R. Morris,

Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart V—Maryland

2. Section 52.1072 is amended by

adding paragraph (c) to read as follows:

§ 52.1072 Conditional approval.

* * * * *

(c) The State of Maryland’s July 12,

1995 submittal for the 15 Percent Rate

of Progress Plan (15% plan) for the

Baltimore ozone nonattainment area, is

conditionally approved based on certain

contingencies. The conditions for

approvability are as follows:

(1) Maryland’s 15% plan calculations

must reflect the EPA approved 1990

base year emissions inventory in

§ 52.1075.

(2) Maryland must meet the

conditions listed in the October 31,

1996 conditional I/M rulemaking notice,

including its commitment to remodel

the I/M reductions using the following

two EPA guidance memos: ‘‘Date by

which States Need to Achieve all the

Reductions Needed for the 15 Percent

Plan from I/M and Guidance for

Recalculation,’’ note from John Seitz

and Margo Oge dated August 13, 1996,

and ‘‘Modeling 15% VOC Reductions

from I/M in 1999—Supplemental

Guidance,’’ from Gay MacGregor and

Sally Shaver dated December 23, 1996.

(3) Maryland must remodel to

determine affirmatively the creditable

reductions from RFG and Tier I in

accordance with EPA guidance.

(4) Maryland must submit a SIP

revision amending the 15% plan with a

determination using appropriate

documentation methodologies and

credit calculations that the 64.2 TPD

reduction, supported through creditable

emission measures in the submittal,

satisfies Maryland’s 15% ROP

requirement for the Baltimore area.

[FR Doc. 97–26533 Filed 10–8–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 285

[I.D. 100297A]

Atlantic Tuna Fisheries; Atlantic

Bluefin Tuna General Category

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure.

SUMMARY: NMFS has determined that

the 1997 Atlantic bluefin tuna (ABT)

October–December period General

category subquota will be attained by

October 5, 1997. Therefore, the General

category fishery for October–December

will be closed effective at 11:30 p.m. on

October 5, 1997. This action is being

taken to prevent overharvest of the

adjusted 141 metric tons (mt) subquota

for the October–December period.

DATES: Effective 11:30 p.m. local time

on October 5, 1997, through December

31, 1997.

FOR FURTHER INFORMATION CONTACT:

Sarah McLaughlin, 301–713–2347, or

Pat Scida, 508–281–9260.

SUPPLEMENTARY INFORMATION:

Regulations implemented under the

authority of the Atlantic Tunas

Convention Act (16 U.S.C. 971 et seq.)

governing the harvest of ABT by persons

and vessels subject to U.S. jurisdiction

are found at 50 CFR part 285. Section

285.22 subdivides the U.S. quota

recommended by the International

Commission for the Conservation of

Atlantic Tunas (ICCAT) among the

various domestic fishing categories.

General Category Closure

NMFS is required, under

§ 285.20(b)(1), to monitor the catch and

landing statistics and, on the basis of

these statistics, to project a date when

the catch of ABT will equal the quota

and publish a Federal Register

announcement to close the applicable

fishery.

Implementing regulations for the

Atlantic tuna fisheries at 50 CFR 285.22

provide for a subquota of 72 mt of large

medium and giant ABT to be harvested

from the regulatory area by vessels

permitted in the General category

during the period beginning October 1

and ending December 31. Due to an

overharvest of 1 mt in the September

period subquota, and the transfer of 70

mt from other categories (13 mt from the

Reserve, 3 mt from the Incidental

Longline North quota, and 54 mt from

the Incidental Longline South quota) (62

FR 51608, October 2, 1997), the OctoberDecember period subquota was adjusted

to 141 mt. The October–December

subquota is divided into a coastwide

subquota of 131 mt and a 10 mt setaside for the traditional fall New York

Bight fishery area, defined as the waters

south and west of a straight line

originating at a point on the southern

shore of Long Island at 72°27′ W. long.

(Shinnecock Inlet) and running SSE