[Federal Register Volume 63, Number 93 (Thursday, May 14, 1998)]
[Rules and Regulations]
[Pages 26720-26722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12853]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-007-FON FRL-6010-3]


Finding of Failure To Submit Required State Implementation Plans 
for Carbon Monoxide; Arizona; Phoenix Carbon Monoxide Nonattainment 
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Under the Clean Air Act (Act), EPA is taking final action to 
find that the State of Arizona has failed to make required State 
Implementation Plan (SIP) submittals for the metropolitan Phoenix 
carbon monoxide (CO) nonattainment area. These required submittals are 
the serious area plan requirements for attainment of the CO national 
ambient air quality standards (NAAQS). The deadline for these 
submittals was February 28, 1998.
    This final action triggers the 18-month time clock for mandatory 
application of sanctions and 2-year time clock for a Federal 
Implementation Plan under the Act. This action is consistent with the 
Act's mechanism for assuring timely SIP submissions.

EFFECTIVE DATE: April 27, 1998.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning 
(AIR-2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San 
Francisco, California, 94105-3901, telephone (415) 744-1248.

SUPPLEMENTARY INFORMATION:

I. Background

A. Serious Area CO Planning Requirements for the Phoenix Metropolitan 
Area

    Under sections 107(d)(1)(C) and 186(a) of the Clean Air Act (Act or 
CAA), the Phoenix metropolitan area was designated nonattainment and 
classified as ``moderate'' for carbon monoxide. The nonattainment 
designation and classification are codified in 40 CFR part 81. See 56 
FR 56694 (November 6, 1991). Moderate CO nonattainment areas were given 
until December 31, 1995 to attain the CO NAAQS.
    The Act provides that moderate areas that the Administrator finds 
have failed to attain by their moderate area deadlines are reclassified 
to serious by operation of law, CAA section 186(b)(2). Reclassified 
areas are then required to submit revised SIPs to address the

[[Page 26721]]

serious area CO requirements. These planning requirements are set forth 
in CAA section 187(b).
    On July 29, 1996, EPA published a final reclassification of the 
metropolitan Phoenix CO nonattainment area to serious (61 FR 39343). 
The reclassification became effective 30 days later on August 28, 1996. 
Under the schedule established by the Administrator pursuant to CAA 
section 187(f) in the reclassification notice, the State of Arizona was 
required to submit a serious area plan addressing the CO NAAQS for the 
area by February 28, 1998, 18 months after the effective date of the 
reclassification.
    These requirements, as they pertain to the Phoenix nonattainment 
area, include:
    (a) A demonstration of attainment of the CO NAAQS as expeditiously 
as practicable but no later than December 31, 2000 including annual 
emission reductions as are necessary to attain the standard by that 
date (CAA sections 187(a)(7) and 186(a)(1));
    (b) A forecast of vehicle miles traveled (VMT) for each year before 
the attainment year and provisions for annual updates of these 
forecasts (CAA section 187(a)(2)(A));
    (c) A comprehensive, accurate, and current inventory of actual 
emissions from all sources (CAA section 187(a)(1));
    (d) Adopted contingency measures (CAA sections 172(c)(9) and 
187(a)(3)), and
    (e) Adopted transportation control measures and strategies to 
offset any growth in CO emissions from growth in VMT or number of 
vehicle trips (CAA sections 187(b)(2)).<SUP>1</SUP>
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    \1\ Serious CO nonattainment areas are also required to adopt 
and implement enhanced vehicle inspection and maintenance programs, 
see CAA section 187(a)(6). Arizona has already made the required 
submission of this program and EPA approved the program on May 8, 
1995 (60 FR 22519).
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B. Consequences of a Failure to Submit Finding

    The Maricopa Association of Governments, the Arizona Department of 
Environmental Quality, and the Maricopa County Environmental Services 
Department have been working on the serious area CO plan since the 
Phoenix area was reclassified in July, 1996. These efforts have 
included development of an emission inventory, regional and ``hotspot'' 
air quality modeling, and evaluation of candidate control measures.
    Notwithstanding the significant efforts by these agencies, the 
State has failed to meet the February 28, 1998 deadline for the 
required SIP submittals; therefore, EPA is required to find that the 
State of Arizona has failed to make the required SIP submittals for the 
Phoenix area CO 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 Arizona has not made the required complete submittals within 18 
months of the effective date of today's 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 complete submittals 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.<SUP>2</SUP> 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).
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    \2\ 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.''
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    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 CO requirements for Phoenix area. In addition, EPA will not 
promulgate a FIP if the State makes the required SIP submittals and EPA 
takes final action to approve the submittals within 2 years of EPA's 
findings (section 110(c)(1) of the Act).

II. Final Action

A. Rule

    EPA is making a finding of failure to submit for the Phoenix CO 
nonattainment area, due to failure of the State to submit SIP revisions 
addressing the Clean Air Act's serious area plan requirements for the 
CO standard.

B. Effective Date under the Administrative Procedures Act

    Because EPA is issuing this action as a rulemaking, the 
Administrative Procedures Act (APA) applies.
    The action will be effective on the date this action is signed, 
April 27, 1998. 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. This action concerns SIP submittals that are already 
overdue and the State and general public are aware of applicable 
provisions of the CAA relating to overdue SIPs. In addition, this 
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 
complete SIP submittals. 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 action is a final agency action but is not subject to the 
notice-and-comment 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 submittals, 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).

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this action 
from review under Executive Order 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must prepare a regulatory flexibility analysis

[[Page 26722]]

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 III.C. 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.

C. Unfunded Mandates Act

    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 findings that Arizona 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.

D. Submission to Congress and the General Accounting Office

    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. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefor in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of April 27, 1998. 
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. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

E. 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.).

F. 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 
July 13, 1998. 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.

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

    Dated: April 27, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 98-12853 Filed 5-13-98; 8:45 am]
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