29230 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Colombia; Cedula No. 16471549

(Colombia) (individual) [SDNT]

BUENDIA CUELLAR, Luis Alfonso, c/o

GALAPAGOS S.A., Cali, Colombia;

Cedula No. 6044411 (Colombia)

(individual) [SDNT]

CAICEDO VERGARA, Nohemy,(a.k.a.

CAICEDO VERGARA, Nohemi), Km. 4 El

Pinal, Buenaventura, Colombia; c/o

INDUSTRIA DE PESCA SOBRE EL

PACIFICO S.A., Buenaventura,

Colombia; Cedula No. 31375185

(Colombia) (individual) [SDNT]

DELGADO GUTIERREZ, Luis Alvaro, c/o

TAURA S.A., Cali, Colombia; Cedula No.

16718474 (Colombia) (individual)

[SDNT]

DUQUE BOTERO, Jorge Alirio, Calle 5 No.

5A–49, Buenaventura, Colombia; c/o

INDUSTRIA DE PESCA SOBRE EL

PACIFICO S.A., Buenaventura,

Colombia; Cedula No. 616084 (Colombia)

(individual) [SDNT]

ECHEVERRY HERRERA, Hernando,(a.k.a.

ECHEVERRI HERRERA, Hernando), c/o

INDUSTRIA DE PESCA SOBRE EL

PACIFICO S.A., Buenaventura,

Colombia; Cedula No. 1625525

(Colombia) (individual) [SDNT]

FOMEQUE BLANCO, Amparo, Mz. 21 Casa

5 Barrio San Fernando, Pereira,

Colombia; c/o INDUSTRIA DE PESCA

SOBRE EL PACIFICO S.A.,

Buenaventura, Colombia; Cedula No.

31206092 (Colombia) (individual)

[SDNT]

FOMEQUE CAMPO, Deicy,(a.k.a. FOMEQUE

CAMPO, Daysy), Avenida 4N No. 10N–

100, Cali, Colombia; c/o INDUSTRIA DE

PESCA SOBRE EL PACIFICO S.A.,

Buenaventura, Colombia; Cedula No.

38650034 (Colombia) (individual)

[SDNT]

GALAPAGOS S.A., Calle 24N No. 6AN–15,

Cali, Colombia; Carrera 115 No. 16B–

121, Cali, Colombia; NIT # 800183712–

2 (Colombia) [SDNT]

GARAVITO, Doris Amelia, c/o GALAPAGOS

S.A., Cali, Colombia; Cedula No.

31233463 (Colombia) (individual)

[SDNT]

GARCIA PIZARRO, Gentil Velez, c/o

GALAPAGOS S.A., Cali, Colombia;

Cedula No. 6616986 (Colombia)

(individual) [SDNT]

GARCIA VARELA, Luis Fernando, c/o

TAURA S.A., Cali, Colombia; Cedula No.

16282923 (Colombia) (individual)

[SDNT]

GILMAN FRANCO, Maria, c/o TAURA S.A.,

Cali, Colombia; Cedula No. 22103099

(Colombia) (individual) [SDNT]

GONGORA ALARCON, Hernando, c/o

TAURA S.A., Cali, Colombia; Cedula No.

19298944 (Colombia) (individual)

[SDNT]

GUZMAN VELASQUEZ, Luz Marcela, c/o

TAURA S.A., Cali, Colombia; Cedula No.

43568327 (Colombia) (individual)

[SDNT]

HERNANDEZ, Oscar, Mz. 21 Casa 5 Barrio

San Fernando, Pereira, Colombia; c/o

TAURA S.A., Cali, Colombia; Cedula No.

6157940 (Colombia) (individual) [SDNT]

HERRAN SAAVEDRA, Victor Hugo, c/o

GALAPAGOS S.A., Cali, Colombia;

Cedula No. 16447166 (Colombia)

(individual) [SDNT]

INDUSTRIA DE PESCA SOBRE EL PACIFICO

S.A., (a.k.a. INPESCA S.A.), Km. 5 El

Pinal, Buenaventura, Colombia; Av.

Simon Bolivar Km. 5 El Pinal,

Buenaventura, Colombia; NIT #

890302172–4 (Colombia) [SDNT]

MORALES CASTRILLON, Victor Hugo, c/o

TAURA S.A., Cali, Colombia; Cedula No.

16620349 (Colombia) (individual)

[SDNT]

MORENO DAZA, Ricardo Alfredo, Carrera

38D No. 4B–57, Cali, Colombia; c/o

GALAPAGOS S.A., Cali, Colombia; c/o

TAURA S.A., Cali, Colombia; Cedula No.

16631400 (Colombia) (individual)

[SDNT]

PATIN ̃ O FOMEQUE, Sonia Daysi,(a.k.a.

PATIO FOMEQUE, Sonia Daicy), Calle 9

Oeste No. 25–106, Cali, Colombia; c/o

INDUSTRIA DE PESCA SOBRE EL

PACIFICO S.A., Buenaventura,

Colombia; Cedula No. 66920533

(Colombia) (individual) [SDNT]

PATIN ̃ O FOMEQUE, Victor Julio, (a.k.a.

PATINO FOMEQUE, Victor Hugo),

Avenida 4N No. 10N–100, Cali,

Colombia; 6 c/o INDUSTRIA DE PESCA

SOBRE EL PACIFICO S.A.,

Buenaventura, Colombia; c/o TAURA

S.A., Cali, Colombia; c/o GALAPAGOS

S.A., Cali, Colombia; DOB 31 Jan 1959;

Cedula No. 16473543

(Colombia)(individual) [SDNT]

PATIN ̃ O NARANJO, Joaquin Gustavo,

Avenida 4N No. 10N–100, Cali,

Colombia; c/o INDUSTRIA DE PESCA

SOBRE EL PACIFICO S.A.,

Buenaventura, Colombia; Cedula No.

2730245 (Colombia) (individual) [SDNT]

PINZON CEDIEL, John Jairo, c/o TAURA

S.A., Cali, Colombia; Cedula No.

13542103 (Colombia) (individual)

[SDNT]

RAMIREZ ESCUDERO, Pedro Emilio, Calle

6A No. 48–36, Cali, Colombia; c/o

GALAPAGOS S.A., Cali, Colombia;

Cedula No. 16280602 (Colombia)

(individual) [SDNT]

ROMAN DOMINGUEZ, Erika, c/o TAURA

S.A., Cali, Colombia; Cedula No.

66955540 (Colombia) (individual)

[SDNT]

SARMIENTO MARTINEZ, Diana, c/o

TAURA S.A., Cali, Colombia; Cedula No.

65698369 (Colombia) (individual)

[SDNT]

TAURA S.A., Calle 13 No. 68–06, Of. 204,

Cali, Colombia; Calle 13 No. 68–26, Of.

214, 313 & 314, Cali, Colombia; Carrera

115 No. 16B–121, Cali, Colombia; NIT #

800183713–1 (Colombia) [SDNT]

VILLADA ZUNIGA, Elmer, Calle 15 No. 20–

10, Cali, Colombia; c/o TAURA S.A.,

Cali, Colombia; Cedula No. 14988902

(Colombia) (individual) [SDNT]

ZAMORA RUIZ, Alexander, c/o INPESCA

S.A., Buenaventura, Colombia; Cedula

No. 16498805 (Colombia) (individual)

[SDNT]

2. Appendix A to 31 CFR chapter V

is amended by removing the following

entry:

WITTGREEN, Carlos (a.k.a. Carlos

WITTGREEN Antinori; a.k.a. Carlos

WITTGREEN A.; a.k.a. Carlos Antonio

WITTGREEN), Panama (individual)

[CUBA]

Dated: April 24, 2001.

R. Richard Newcomb,

Director, Office of Foreign Assets Control.

Approved: April 27, 2001.

James Sloan,

Acting Assistant Secretary (Enforcement),

Department of the Treasury.

[FR Doc. 01–13451 Filed 5–23–01; 4:32 pm]

BILLING CODE 4810–25–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[AZ–098–0025; FRL–6989–1]

Determination of Attainment of the 1-

Hour Ozone Standard for the Phoenix

Metropolitan Area, Arizona and

Determination Regarding Applicability

of Certain Clean Air Act Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is determining that the

Phoenix metropolitan serious ozone

nonattainment area has attained the 1-

hour ozone air quality standard by the

deadline required by the Clean Air Act

(CAA), November 15, 1999. Based on

this determination, we also are

determining that the CAA’s

requirements for reasonable further

progress and attainment demonstrations

and for contingency measures for the 1-

hour ozone standard are not applicable

to the area for so long as the Phoenix

metropolitan area continues to attain the

1-hour ozone standard.

EFFECTIVE DATE: June 29, 2001.

FOR FURTHER INFORMATION CONTACT:

Doris Lo, Office of Air Planning (AIR–

2), U.S. Environmental Protection

Agency, Region 9, 75 Hawthorne Street,

San Francisco, California 94105. (415)

744–1287, lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Attainment Finding

A. Response to Comments on the Proposed

Finding of Attainment

B. Attainment Finding for the Phoenix

Area

III. Applicability of Clean Air Act Planning

Requirements

A. EPA’s Policy on the Applicability of

Certain CAA Planning Requirements in

Areas Attaining the 1-Hour Ozone

Standard

B. Response to Comments on EPA’s Policy

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29231

C. Effects of the Determination on the

Phoenix Area and of a Future Violation

on this Determination

D. Effect of the Determination on

Transportation Conformity

IV. Administrative Requirements

I. Background

Under CAA section 181(b)(2)(A), we

must determine within six months of an

area’s applicable attainment date

whether an ozone nonattainment area

has attained the 1-hour ozone standard.

On May 19, 2000 (65 FR 31859), we

proposed to find that the Phoenix

metropolitan serious ozone

nonattainment area had attained the 1-

hour ozone standard by its Clean Air

Act (CAA) mandated attainment date of

November 15, 1999. This proposal was

based on all available, quality-assured

air quality data collected from the

monitoring network, which we

determined met our regulations for state

air quality monitoring networks.

II. Attainment Finding

A. Response to Comments on the

Proposed Finding of Attainment

We received comments on our

proposed attainment finding only from

the Arizona Center for Law in the Public

Interest (ACLPI). These comments

concerned the adequacy of the Phoenix

area ozone monitoring network. We

respond to the most important of these

comments below. Our complete

responses to all comments can be found

in the technical support document

(TSD) for this action.

Comment: ACLPI claims that EPA’s

proposed rulemaking contains no

evidence that Maricopa County

Environmental Services Department

(MCESD) has made changes to its ozone

network in response to the inadequacies

documented by EPA in the past. It also

asserts that the County and the State

have apparently discontinued the use of

certain monitoring sites and states it

found particularly troubling the

discontinuance of the Papago Park

monitor, which recorded the highest

ozone violation in 1995.

Response: We agree that the Maricopa

County ozone monitoring network was

deficient when evaluated by EPA in

1989 and 1992. However, rather than

reviewing all of the past inadequacies

and determining whether the County

addressed each one, we decided that a

more reasonable approach was to

evaluate the ozone monitoring network

operated by MCESD as it existed during

the attainment period 1997–1999. We

have worked successfully with the

MCESD over the past 9 years to improve

its ambient monitoring program. We

have determined that the ozone

monitoring network as designed and

operated during the attainment period,

and at present, meets all applicable

federal regulations. By concluding that

the network meets our monitoring

regulations, we effectively concluded

that MCESD has corrected all past

inadequacies.

The issue of whether or not the

County and/or State has discontinued

the operation of certain sites is not as

important as whether the remaining

network is designed and operated in a

manner that allows the determination

that the data collected are representative

of ozone air quality in the Phoenix area.

We have concluded that the network is

sufficient to serve that purpose.

The Papago Park ozone monitor is

still operating but has been renamed

‘‘Emergency Management.’’ Papago Park

was the name given to the site by the

Arizona Department of Environmental

Quality (ADEQ) which initially operated

the site. When the County took over the

site, it was renamed Emergency

Management. The site has been in

continuous operation since it was

established in 1990.

Comment: ACLPI asserts that EPA

acknowledged that the ozone network in

Phoenix still fails to meet all of the

design requirements of 40 CFR part 58

in that the network does not meet the

third monitoring objective,

‘‘determining the impact on ambient

pollution levels of significant sources or

source categories,’’ which can be met by

monitoring emissions from significant

sources of nitrogen oxides (NOX) and

volatile organic compounds (VOC).

Response: We stand by our position

that in designing an ozone monitoring

network—that is, a monitoring network

that measures the concentration of the

chemical compound ‘‘ozone’’ (O3)—an

agency cannot meet the third

monitoring objective of assessing the

impact of major sources or source

categories since ozone is not emitted by

any type of source. Ozone is formed in

an atmospheric, photochemical reaction

between NOX and VOC. Precursor

emissions from a source are transported

well downwind before they react to

form ozone. In an urban setting,

emissions from large point sources mix

with emissions from area and mobile

sources as they are transported

downwind and form ozone. In this

setting, it is impossible to monitor

specifically for ozone formed from a

single source’s precursor emissions.

For areas designated as transitional,

marginal, and/or moderate ozone

nonattainment areas, there is no

requirement to monitor for the chemical

precursors of ozone. Once an area is

designated or reclassified to serious or

above, the state is required to institute

a photochemical assessment monitoring

(PAMS) program under CAA section

182(c)(1) and its implementing

regulations. PAMS programs require the

seasonal monitoring of VOC and NOX at

certain locations in urban

nonattainment areas such as downwind

of the area’s central business district

(type 2 site) and in the downwind

area(s) where maximum ozone

concentrations are expected to occur

(type 3 site).

When we reclassified the Phoenix

area as serious in 1997, the design and

deployment of a PAMS network became

a requirement for the area. ADEQ has

begun the implementation of the area’s

PAMS network and has deployed a type

2 site and is in the process of installing

a type 3 site at this time. ADEQ’s

implementation schedule is generally

consistent with our PAMS regulations.

These sites are appropriately located to

meet the PAMS siting requirements. The

requirement for operating a PAMS

network remains even though we are

making a finding that the Phoenix area

has attained the 1-hour ozone NAAQS.

Data from the PAMS network, however,

are not and cannot be used in making

a determination of whether or not an

area has met the ozone NAAQS because

the network only monitors for ozone

precursors and not for ozone itself.

Comment: ACLPI asserts that

Maricopa County’s monitoring network

is inadequate because the County fails

to operate all of its SLAMS sites yearround, stating that EPA regulations

require states to monitor ozone at

NAMS and SLAMS sites throughout the

ozone season and that the ozone season

in Arizona runs from January through

December citing 40 CFR part 58,

appendix D. ACLPI also claims that

despite these regulations, more than half

of the County’s SLAMS sites operate

only between April 1 and October 31.

While exceedances of the 1-hour ozone

standard may be rare during the winter

months, they can occur. Consequently,

there is no assurance that these

exceedances would be captured by one

of the annually operating sites due to

wide spatial and temporal differences in

ozone concentrations.

Response: We disagree with ACLPI’s

assertion that the ozone monitoring

network is inadequate because a portion

of the monitoring sites operates on a

seasonal basis. Our regulations at 40

CFR 58.25 allow states to make

modifications to their SLAMS network

with the approval of EPA. The County

made this modification to its operating

schedule with the full concurrence of

EPA Region 9 (see letter to Ben Davis,

Air Quality AIRS Program Coordinator,

29232 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

1See generally 57 FR 13506 (April 16, 1992) and

Memorandum from D. Kent Berry, Acting Director,

Air Quality Management Division, EPA, to Regional

Air Office Directors; ‘‘Procedures for Processing

Bump Ups and Extensions for Marginal Ozone

Nonattainment Areas,’’ February 3, 1994 (Berry

memorandum). While explicitly applicable only to

marginal areas, the general procedures for

evaluating attainment in this memorandum apply to

the Phoenix area in spite of its serious classification

because the finding of attainment is being made

pursuant to the same Clean Air Act requirements

in section 181(b)(2).

2We have also explained at length in other

actions our rationale for the reasonableness of this

interpretation of the Act and incorporate those

explanations by reference here. See 61 FR 20458

(May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60

FR 36723 (July 18, 1995) (Salt Lake and Davis

Counties, Utah); 60 FR 37366 (July 20, 1995) and

61 FR 31832–33 (June 21, 1996) (Grand Rapids, MI).

Our interpretation has also been upheld by the

United States Court of Appeals for the 10th Circuit

in Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996).

3Serious Area Ozone State Implementation Plan

for Maricopa County; submitted to EPA by the

Arizona Department of Environmental Quality on

December 14, 2000,

4Although section 182(b)(1) (moderate areas) and

(c)(2)(B) (serious areas) contain the term

‘‘reasonable further progress,’’ EPA often uses the

terms ‘‘rate of progress’’ and ‘‘reasonable further

progress’’ interchangeably.

MCESD, from John R. Kennedy, Chief,

Technical Support Office, Air Division,

U.S. EPA Region 9, November 2, 1999).

Moreover, we believe that the

monitoring network, even with the

seasonal monitors shut down, still

provides for adequate spatial coverage

of the Phoenix nonattainment area

during the winter months. During the

five months (November through March)

the County shuts down eight sites—less

than half of the ozone monitoring

sites—leaving functional the remaining

ozone network of ten sites operated by

the County as well as a number of

special purpose monitoring sites

operated by ADEQ. The sites that are

operated seasonally are generally the

sites recording the lowest ozone

concentrations.

Regarding the possibility of

exceedances of the 1-hour ozone

standard during the November to March

period, we have reviewed ozone data for

the Phoenix area during the period 1980

through 1999. In these 19 years, the

Phoenix area has had only one

exceedance in the month of April, three

in the month of October, and none in

the months of November, December,

January, February and March. The vast

majority of ozone exceedances in the

Phoenix area occur in the months of

June, July, August, and September when

the full network is in operation.

We do agree with ACLPI’s statement

that ozone air monitoring serves other

purposes besides recording

exceedances. We believe that portion of

the network that operates year round

provides adequate data for any other

assessment purpose.

B. Attainment Finding for the Phoenix

Area

The 1-hour ozone NAAQS is 0.12

parts per million (ppm) not to be

exceeded on average more than one day

per year over any three-year period. 40

CFR 50.9 and appendix H. We

determine if an area has attained the 1-

hour standard by calculating, at each

monitor, the average number of days

over the standard per year during the

preceding three-year period.1 We use all

available, quality assured monitoring

data. Under CAA section 181(b)(2)(A),

we must base our determination of

attainment or failure to attain on the

area’s design value as of its applicable

attainment deadline, which for the

Phoenix metropolitan area was

November 15, 1999. (See section III.C.

for a discussion of air quality data after

November 15, 1999 and consequences of

future violations.)

The design value for the Phoenix

metropolitan ozone nonattainment area

for the 1997 to 1999 period was 0.113

ppm. The Phoenix metropolitan area

did not record any exceedances of the

1-hour ozone standard at any

monitoring site during the 1997 to 1999

period, so the average number of days

over the standard at each monitor in the

area for that three-year period was zero.

The complete documentation of the

monitoring data and design value

calculation can be found in the TSD.

Because the area’s design value was

below the 0.12 ppm 1-hour ozone

standard and the area averaged less than

1 exceedance per year at each monitor

for the 1997 to 1999 period, we find that

the Phoenix metropolitan area attained

the 1-hour ozone standard by its Clean

Air Act mandated attainment deadline

of November 15, 1999.

III. Applicability of Clean Air Act

Planning Requirements

A. EPA’s Policy on the Applicability of

Certain CAA Planning Requirements in

Areas Attaining the 1-Hour Ozone

Standard

CAA section 182(c) requires states

with serious ozone nonattainment areas

to comply with the Act’s serious area

SIP requirements. Three of these

requirements are tied to the attainment

demonstration. They are as follows:

1. A demonstration that this plan will

result in emission reductions of ozone

precursors of at least 3 percent per year

from 1996 to 1999 (this provision is

known as the 9 percent rate of progress

(ROP) plan), CAA section 182(c)(2)(B);

2. A demonstration that the plan will

result in attainment of the 1-hour ozone

standard as expeditiously as practicable

but not later than November 15, 1999,

CAA section 182(c)(2)(A);

3. Contingency measures that will be

undertaken if the area fails to make

reasonable further progress, meet a rate

of progress milestone, or to attain the

standard by the applicable attainment

date, CAA sections 172(c)(9) and

182(c)(9).

We believe that it is reasonable to

interpret the CAA to not require these

provisions for serious ozone

nonattainment areas that are determined

to be meeting the 1-hour ozone

standard. We discuss our reasoning in

the memorandum from John S. Seitz,

Director, OAQPS, EPA, to Regional Air

Directors, entitled ‘‘Reasonable Further

Progress, Attainment Demonstrations,

and Related Requirements for Ozone

Nonattainment Areas Meeting the

Ozone National Ambient Air Quality

Standard,’’ May 10, 1995 (Seitz memo),

in the proposal for this action and below

in our response to comments.2

There are a number of other SIP

requirements for serious ozone

nonattainment areas that are not tied to

whether the area has attained the 1-hour

standard. These elements include an

emission inventory of ozone precursors,

reasonably available control technology

for major sources and certain other

sources; an enhanced motor vehicle

inspection and maintenance program,

and an enhanced ambient monitoring

program. Arizona has already adopted

and submitted these elements to us.3

B. Response to Comments on EPA’s

Policy

ACLPI also commented on the

proposed determination regarding the

applicability of certain CAA planning

requirements to the Phoenix area. We

respond to the most significant of these

comments below. Our full response to

all comments can be found in the TSD.

Comment: ACLPI claims that EPA has

illegally exempted the Phoenix area

from the 9 percent rate of progress

(ROP) 4 demonstration, attainment

demonstration and contingency measure

requirements of the CAA. To support

this contention, ACLPI makes two

arguments:

(1) that, taken together, sections

172(c) and 182(c) require that a plan

revision for a serious ozone

nonattainment area include an

attainment demonstration (sections

172(c)(1) and 182(c)(2)(A)), a 9 percent

ROP demonstration (sections 172(c)(2)

and 182(c)(2)(B)), and contingency

measures (section 172(c)(9)); and

(2) that the May 10, 1995 policy

memorandum on which EPA relies to

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29233

exempt the Phoenix area from these

requirements flatly contradicts the CAA

in that the Act contains no exceptions

from its planning requirements for areas

that are potentially eligible for

redesignation based on monitoring data

but have not yet met the redesignation

requirements of sections 107(d)(3) and

175A. ACLPI contends that under

section 175A of the Act until a

nonattainment area is redesignated and

a maintenance plan is approved, the

requirements of part D ‘‘shall continue

in force and effect with respect to such

area.’’ (ACLPI acknowledges that the

United States Court of Appeals for the

10th Circuit has upheld the May 10,

1995 memorandum but states that the

case was incorrectly decided.)

Response: We proposed to find that

these Clean Air Act requirements are

not applicable to the Phoenix area

because the area has attained the 1-hour

ozone standard as demonstrated by

three consecutive years without a

violation. In the proposal for today’s

action, we discuss our determination

that the Phoenix area attained the 1-

hour ozone standard by its statutory

deadline of November 15, 1999. See 65

FR 31859, 31861. This determination is

documented in section II of the TSD.

The statutory basis for finding that

these planning requirements are not

applicable is described in the proposal

and in the Seitz memo. See 65 FR

31859, 31861–31863; Seitz memo at 2–

5.

Contrary to ACLPI’s assertion, we are

not granting the Phoenix area an

exemption from any applicable

requirements under part D. Rather, we

have interpreted the requirements of

sections 182(c)(2)(A) and (B) and

172(c)(9) as not being applicable once

an area has attained the standard, as

long as it continues to do so. (See

section III.C. below.) This is not a

waiver of requirements that by their

terms clearly apply; it is a determination

that certain requirements are written so

as to be operative only if the area is not

attaining the standard. Our

interpretation is consistent both with

the CAA’s goal of achieving and

maintaining clean air, and with the

concomitant policy goal of avoiding

costly and unnecessary emission

reductions.

As discussed further below, the plain

language of CAA sections 182(c)(2)(A)

and (B) and 172(c)(9) does not clearly

require attainment, reasonable further

progress or contingency measure plans

for areas that are designated

nonattainment but that have already

attained, and continue to attain, the

national ozone standard. However, the

very purpose of these plans is to bring

areas that are violating the national

ambient air quality standard for ozone

into attainment. Consistent with this

purpose, we interpret these

requirements as inapplicable to an area

that has attained the standard, but only

for so long as the area remains in

attainment. The requirements will again

apply if such an area violates the

standard. Thus, our interpretation is

strictly limited to circumstances in

which no further emission reductions

are required for attainment.

The language of CAA sections

182(c)(2)(A) and (B) is ambiguous as to

whether VOC reductions are required

for serious nonattainment areas that

have already attained the ozone

NAAQS, but that have not yet been

redesignated to attainment status. While

the lead-in sentence to these two

requirements states that ‘‘* * * the

State shall submit a revision to the

applicable implementation plan * * *,’’

subsection (c)(2)(A) calls for a

demonstration that the plan will

provide for attainment of the NAAQS

‘‘by the applicable attainment date.’’

Subsection (c)(2)(B) provides that the 9

percent plan ‘‘will result in VOC

emissions reductions * * * until the

attainment date.’’ Thus, the language of

sections 182(c)(2)(A) and (B) as a whole

begs the question of whether any

reductions are required for areas that are

already in attainment and therefore

need no reductions in VOC emissions to

achieve the ozone NAAQS by the

attainment date.

Section 182(c)(2)(B) is entitled

‘‘Reasonable Further Progress

demonstration.’’ The term ‘‘reasonable

further progress’’ is defined as ‘‘such

annual incremental reductions in

emissions of the relevant air pollutant as

are required by this part or may

reasonably be required by [EPA] for the

purpose of ensuring attainment of the

applicable [NAAQS] by the applicable

date.’’ CAA section 171(1). This

definition applies for the purposes of

part D of title I of the CAA, which

includes section 182(c). Thus, the term

‘‘reasonable further progress’’ requires

only such reductions in emissions as are

necessary to attain the NAAQS by the

attainment date and no more.

Accordingly, our interpretation of

section 182(c)(2)(B) is consistent with

the statutory definition of ‘‘reasonable

further progress.’’ Moreover, our

interpretation is tightly bound to the

purpose of section 182(c)(2)(B) because

we interpret that section’s requirements

to be applicable to areas that lapse back

into violation prior to redesignation,

and which therefore need additional

progress towards attainment.

Furthermore, our interpretation of the

requirements of section 182(c)(2)(B) is

consistent with our interpretation of the

general reasonable further progress

requirements of CAA section 172. In the

General Preamble interpreting certain

provisions of part I of the CAA

Amendments of 1990, we explained that

the reasonable further progress

requirements of CAA section 172(c)(2)

do not apply when ‘‘evaluating a request

for redesignation to attainment, since, at

a minimum, the air quality data for the

area must show that the area has already

attained [the NAAQS] * * * [and] RFP

towards attainment will, therefore, have

no meaning at that point.’’ 57 FR at

13564. This interpretation of the

requirements of section 172(c) was

made shortly after the CAA

Amendments of 1990 and we have

consistently adhered to this

interpretation. See 60 FR at 30190

(noting consistency of interpretation).

As with the RFP requirement, if an

area has in fact monitored attainment of

the standard, we believe there is no

need for an area to make a further

submission containing additional

measures to achieve attainment. Thus

the attainment demonstration

requirement in section 182(c)(2)(A)

would no longer apply under these

circumstances. Seitz memo at 3.

We likewise determined that section

172(c)(9) does not require a contingency

measure plan for nonattainment areas,

such as Phoenix, which we determine to

have attained the standard prior to

redesignation. The contingency

measures plan is required for an area

that ‘‘fails to make reasonable further

progress, or to attain the [NAAQS] by

the attainment date * * *’’ If, as in the

case of Phoenix, we determine that an

area has attained the standard by its

attainment date, then by definition such

an area is not one to which contingency

measures apply. There is simply no

failure to attain by the attainment date

or make progress for which additional

measures need be contingent. However,

as with sections 182(c)(2)(A) and (B), we

interpret section 172(c)(9)’s

requirements to be applicable to areas

that lapse back into violation prior to

redesignation, and that therefore need

additional progress towards attainment.

Thus, our interpretation ensures that the

purposes of section 172(c)(9)—to

provide for reasonable progress towards,

and the attainment of, clean air—will be

served when necessary.

We also do not agree with ACLPI’s

contention that the Agency is violating

section 175A(c) when it determines that

the RFP, attainment and contingency

measure requirements do not apply to

areas that have attained the NAAQS.

29234 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

Section 175A(c) provides that the

requirements of part D remain in force

and effect for an area until such time as

it is redesignated. Section 175A(c) does

not establish any additional substantive

requirements; rather, it ensures that the

requirements that do apply by virtue of

other Act provisions continue to apply

until an area is redesignated. If,

however, an Act provision does not

apply to an area or does not require that

the particular area in question submit a

SIP revision, section 175A(c) does not

somehow add to the requirements with

which the area must comply. In this

instance, EPA is interpreting the

underlying substantive requirements at

issue so as not to apply to areas for so

long as they continue to attain the

standard. This does not violate section

175A(c); it is an interpretation of the

substance of other provisions of the Act,

a matter that is not affected by section

175A(c). Other requirements that do not

depend on whether the area has attained

the standard, such as VOC RACT

requirements, continue to apply,

however, and section 175A(c) ensures

that they continue to apply until the

area is redesignated.

Finally, in Sierra Club, the Tenth

Circuit Court of Appeals upheld the

Seitz memo as it applies to moderate

ozone nonattainment areas. There,

pending completion of the redesignation

process, and based on three years of air

quality data, EPA found that two Utah

Counties that were designated as

nonattainment for ozone and classified

as moderate had attained the ozone

NAAQS. As a result, EPA determined

that the CAA’s moderate area

requirements for attainment and RFP

demonstrations, and contingency

measures (sections 182(b)(1)(A) and

172(c)(9)) were inapplicable. Finding

that this determination was a logical

extension of EPA’s original, general

interpretation in the General Preamble,

the Court accorded deference to EPA’s

interpretation that once a moderate

ozone nonattainment area has attained

the NAAQS, the moderate area CAA

requirements for RFP, attainment and

contingency measures no longer apply.

Id. at 1556. Although the Phoenix area

is a serious nonattainment area, there is

no doubt that the analogous serious area

provisions serve exactly the same

purpose as the provisions at issue in

Sierra Club for moderate areas. Thus the

Court’s reasoning in that case applies

equally to the Phoenix situation.

Comment: As stated above, ACLPI

claims that the Act specifically requires

that until a nonattainment area is

redesignated and a maintenance plan

approved the requirements of part D

remain in force and effect with respect

to such area, citing CAA section

175A(c). ACLPI argues that ‘‘Congress

determined that in the interest of

protecting public health, EPA should

not be permitted to waive

nonattainment planning requirements

until states could provide sufficient

assurances that the NAAQS would be

permanently maintained’’ and that ‘‘it is

not the place of EPA to second guess

this policy determination.’’

Response: The requirement that states

provide sufficient assurances that the

NAAQS will be permanently

maintained is a criterion for the

redesignation of an area to attainment

under section 107(d)(3)(E) and not for a

finding of attainment under section

181(b)(1). We did not propose to

redesignate the Phoenix area to

attainment. Before we can do that,

Arizona will need to provide, among

other things, sufficient assurances in the

form of an adequate maintenance plan

that the NAAQS will be ‘‘permanently’’

maintained. As we have stated above we

are not waiving these requirements but

are determining that by the language of

the CAA, they do not apply.

Comment: ACLPI also argues that

there is a sound public policy reason for

the Act’s approach because a state’s

monitored compliance with a NAAQS

may reflect only a temporary

improvement in air quality due to

unusually favorable meteorological

conditions rather than ‘‘permanent and

enforceable reductions in emissions’’ of

a pollutant or pollutant precursors.

Response: The requirement to

determine that clean air is the result of

‘‘permanent and enforceable reductions

in emissions’’ is a criterion for the

redesignation of an area to attainment

under section 107(d)(3)(E) and not for a

finding of attainment under section

181(b)(1). We did not propose to

redesignate the Phoenix area to

attainment.

That aside, we believe that the finding

of attainment itself addresses in part the

concern about unusually favorable

meteorological conditions. We have

long recognized that meteorological

conditions have a profound effect on

ambient ozone concentrations. In setting

the current 1-hour ozone standard in

1979, we changed the form of the

standard, i.e., the criterion for

determining attainment, from a

deterministic form ‘‘no more than once

per year’’ to a statistical form ‘‘when the

expected number of days per year is less

than or equal to one’’ over a three-year

period in order to properly account for

the random nature of meteorological

variations. The three-year period for

averaging the expected number of

exceedances was a reasoned balance

between evening out meteorological

effects and properly addressing real

changes in emission levels. See the

proposal and final actions promulgating

the current 1-hour ozone standard at 43

FR 26962, 26968 (June 22, 1978) and 44

FR 8202, 8218 (February 8, 1979).

Moreover, the Phoenix area did not

just barely meet the 1-hour ozone

standard; it met the standard with room

to spare. An area can record up to three

days of air quality above the 1-hour

ozone standard at any one monitor

during a successive three-year period

and still be considered attaining the

standard. The Phoenix area fared much

better than that, recording not a single

day over the standard at any of its 20

ozone monitors from 1997 through

1999. This record of clean air has

carried into a fourth year. During the

2000 ozone season, the Phoenix area

again did not record a single exceedance

of the 1-hour ozone standard. See TSD

at pp. 12–13. The area’s design value,

which is a measure of the severity of an

area’s ozone problem and is used to

establish an area’s initial classification,

was 10 percent below the standard and

a 16 percent drop from its design value

for the preceding three-year (1994–1996)

period.

Furthermore, under EPA’s

redesignation guidance, there are two

aspects to ‘‘permanent and enforceable

emission reductions.’’ One is unusually

favorable meteorology. The other is a

temporary reduction in emission rates

caused by shutdowns or reduced

production due to temporary adverse

economic conditions. See

Memorandum, John Calcagni, Director,

Air Quality Management Division

(OAQPS), to Regional Air Directors,

‘‘Procedures for Processing Requests to

Redesignate Areas to Attainment,’’

September 4, 1992, page 4. ‘‘Adverse’’ is

not a term that could be applied to the

economy of the greater Phoenix area

over the last several years.

In addition, we believe that the

Phoenix area’s record of clean air can be

tied directly to permanent and

enforceable emission reductions. The

area is subject to a comprehensive ozone

control strategy that includes national

on-road motor vehicle standards,

national non-road engine standards,

national consumer product standards,

Arizona’s cleaner burning gasoline and

vehicle emission inspection programs,

and Maricopa County’s industrial and

commercial source rules. This strategy

leaves few, if any, sources of VOC

unregulated.

Comment: ACLPI claims that EPA

implicitly recognizes the possibility that

the Phoenix area may violate the ozone

NAAQS again. However, ACLPI states

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations 29235

that EPA then dismisses this possibility

with the observation that it can require

a SIP revision containing the missing

elements if a violation occurs. ACLPI

asserts that this approach will not help

‘‘those who needlessly suffer from

unhealthy ozone levels that could have

been avoided through compliance with

the Act, noting that SIP revisions take

months, sometimes years to complete.’’

Finally, ACLPI contends that the ‘‘more

responsible policy is the one adopted by

Congress which requires states to adhere

to the Act’s nonattainment planning

requirements until they can demonstrate

that redesignation of an area to

attainment is warranted.’’

Response: The Seitz memo explicitly

addresses the consequences of future

violations of the 1-hour ozone standard.

In the proposal for today’s action, we

merely described this policy as it would

apply to the Phoenix area if the area

were to violate the standard in the

future. While this could be interpreted

as acknowledging the possibility of

future violations in the Phoenix area, it

is not an acknowledgment of the

probability of future violations.

Furthermore, ozone will continue to

be controlled in the Phoenix area in

spite of this finding of attainment and

the concurrent finding that certain CAA

planning requirements no longer apply.

As noted above, the State of Arizona

and the Maricopa County

Environmental Services Department, the

local air pollution control agency, have

adopted a comprehensive ozone control

program for the Phoenix area. All these

existing ozone control measures remain

in place and these agencies remain

obligated to fully implement and

enforce them. Most are SIP-approved or

have been submitted for SIP approval.

See appendix A of the ‘‘Serious Area

Ozone State Implementation Plan for

Maricopa County,’’ submitted to EPA on

December 14, 2000.

In addition, the area will be the

beneficiary of substantial new controls

over the next few years. The two largest

source categories of VOC emissions in

the Phoenix area, in order, are gasolinepowered on-road vehicles and gasolinepowered non-road engines. Several

already adopted state and federal

measures will be implemented over the

next few years that will further reduce

emissions from these categories. These

measures include Arizona’s

implementation of the final, more

stringent cut points for the Vehicle

Emissions Inspection Program (VEI) and

expansion of that program and the

State’s Cleaner Burning Gas (CBG)

program into growing areas that

surround the core Phoenix urbanized

area. Id.

Nationally, we have issued our tier 2

on-road motor vehicle standards

covering both light duty cars and light

duty trucks including sports utility

vehicles. 65 FR 6697 (February 10,

2000). For non-road engines, we have

established emission limitations for new

non-road engines of all types. Many of

these standards have tiered emission

standards that become increasingly

stringent in future years. See, for

example, the tier 2 standards for small

gasoline-powered nonroad engines at 65

FR 24267 (April 25, 2000).

The Phoenix area will also benefit

from national standards on the VOC

content of consumer products required

by CAA section 183(e). These standards

control the VOC content of such

consumer products as paints, hair

sprays, household pesticides, and

miscellaneous other consumer goods. 63

FR 48819 (September 11, 1998). We also

continue to issue maximum available

control technology (MACT) standards

under CAA section 112(d) to reduce

hazardous air pollutants from stationary

sources, most of which target VOC

emissions. 40 CFR part 61.

Finally, we note that under ACLPI’s

construction of the CAA, the Phoenix

area would face the prospect of

mandatory sanctions under CAA section

179(a) for failing to submit the 9 percent

reasonable further progress, attainment

demonstration, and contingency

measures plans. For example, under

ACLPI’s interpretation of CAA section

182(c)(2)(B), Arizona would have to

adopt controls for the Phoenix area that

would reduce VOC emissions by 9

percent despite the fact that the area has

attained and continues to attain the 1-

hour ozone NAAQS. These measures

would impose additional costs upon the

area’s residents although they are

unnecessary for clean air. Thus, ACLPI’s

interpretation would not only require

measures that are not necessary for

attaining the standard, it could also lead

to sanctions for failing to submit these

measures. EPA’s contrary interpretation

would not require unnecessary emission

reductions or sanctions for a state’s

failure to undertake such reductions.

C. Effects of the Determination on the

Phoenix Area and of a Future Violation

on This Determination

During the 2000 ozone season, the

Phoenix area continued its record of

clean air, experiencing no exceedances

of the 1-hour ozone standard. In short,

the area remains in attainment of the 1-

hour ozone standard as of the date of

this final action. Based on our finding

that the Phoenix metropolitan area is

attaining the 1-hour ozone standard, we

are finding that the State of Arizona is

no longer required to submit a 9 percent

ROP plan, an attainment demonstration,

or contingency measures for the area.

The lack of a requirement to submit

these SIP revisions will exist only as

long as the Phoenix metropolitan area

continues to attain the 1-hour ozone

standard. If we subsequently determine

that the Phoenix area has violated the 1-

hour ozone standard (prior to a

redesignation to attainment), the basis

for the determination that the area need

not make these SIP revisions would no

longer exist. Thus, a determination that

an area need not submit these SIP

revisions amounts to no more than a

suspension of the requirements for so

long as the area continues to attain the

standard.

Should the Phoenix metropolitan area

begin to violate the 1-hour standard, we

will notify Arizona that we have

determined that the area is no longer

attaining the 1-hour standard. We also

will provide notice to the public in the

Federal Register. Once we determine

that the area is no longer attaining the

1-hour ozone standard then Arizona

will be required to address the pertinent

SIP requirements within a reasonable

amount of time. We will set the

deadline for the State to submit the

required SIP revisions at the time we

make a nonattainment finding.

Arizona must continue to operate an

appropriate air quality monitoring

network, in accordance with 40 CFR

part 58, to verify the attainment status

of the area. The air quality data relied

upon to determine that the area is

attaining the ozone standard must be

consistent with 40 CFR part 58

requirements and other relevant EPA

guidance.

D. Effect of the Determination on

Transportation Conformity

CAA section 176(c) requires that

federally funded or approved

transportation actions in nonattainment

areas ‘‘conform’’ to the area’s air quality

plans. Conformity ensures that federal

transportation actions do not worsen an

area’s air quality or interfere with its

meeting the air quality standards.

One of the primary tests for

conformity is to show that

transportation plans and improvement

programs will not cause motor vehicle

emissions to rise above the levels

needed for progress toward and

attainment with the air quality

standards. These motor vehicle

emissions levels are set in an area’s

attainment, maintenance, and/or RFP

demonstration and are known as the

‘‘transportation conformity budget.’’

EPA set the current ozone conformity

budget for the Phoenix metropolitan

29236 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations

area in our revised federal 15 percent

ROP plan. 64 FR 36243 (July 6, 1999).

Today’s finding (i.e., that the Phoenix

area has attained the 1-hour ozone

standard and that the State no longer

needs to submit attainment and ROP/

RFP demonstrations) will not affect the

continued applicability of the existing

budget. This budget will remain

applicable until Arizona submits a

maintenance demonstration with a

revised transportation conformity

budget (or until Arizona submits

attainment and RFP/ROP

demonstrations with a revised budget

should the Phoenix area again violate

the 1-hour ozone standard) and we find

the new budget adequate.

IV. Administrative Requirements

This action merely finds that the

Phoenix area has attained a previously

established national ambient air quality

standard based on an objective review of

measured air quality data. It also

determines that certain Clean Air Act

requirements no longer apply to the

Phoenix area because of the attainment

finding. It will not impose any new

regulations, mandates, or additional

enforceable duties on any public,

nongovernmental or private entity.

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.). Under Executive Order 12866,

Regulatory Planning and Review (58 FR

51735, October 4, 1993), this rule is not

a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. It

does not contain any unfunded mandate

or significantly or uniquely affects small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Public Law 104–4). This rule also does

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 rule

will not have substantial direct effects

on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government, as

specified in Executive Order 13132,

Federalism (64 FR 43255, August 10,

1999) because it 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.

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 because it would

be inconsistent with applicable law for

EPA, when determining the attainment

status of an area, to use voluntary

consensus standards in place of

promulgated air quality standards and

monitoring procedures that otherwise

satisfy the provisions of the Clean Air

Act. As required by section 3 of

Executive Order 12988, Civil Justice

Reform (61 FR 4729, February 7, 1996),

in issuing this rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights (53 FR 8859,

March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this 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 July 30, 2001.

Filing a petition for reconsideration

by the Administrator of this final rule

does not affect the finality of this rule

for the purposes of judicial review nor

does it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Ozone, Reporting and

recordkeeping requirements.

Authority: 42 U.S.C. 7401–7671q.

Dated: May 14, 2001.

Laura Yoshii,

Acting Regional Administrator, Region 9.

[FR Doc. 01–13512 Filed 5–29–01; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 93–314 RM–8396]

Radio Broadcasting Services; Cadiz

and Oak Grove, KY

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: At the request of Ham

Broadcasting, Inc. this document sets

aside the action in this proceeding

which substituted Channel 293C3 for

Channel 292A at Cadiz, reallotted

Channel 293C3 to Oak Grove, and

modified the Station WKDZ–FM license

to specify operation on Channel 293C3

at Oak Grove. See 61 FR 31449,

published June 20, 1996. This document

also dismisses an Application for

Review filed by Southern Broadcasting

Corporation directed against that action.

The Station WKDZ–FM license will

specify operation on Channel 293C3 at

Cadiz in accordance with the grant of a

construction permit application (File

No. BPH–20000427ABE). With this

action, the proceeding is terminated.

DATES: Effective May 30, 2001.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Mass Media Bureau,

(202) 418–2177.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order in

MM Docket No. 93–314, adopted May 9,

2001, and released May 11, 2001. The

full text of this decision is available for

inspection and copying during normal

business hours in the FCC’s Reference

Information Center at Portals II, CY–

A257, 445 12th Street, SW.,