[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Rules and Regulations]
[Pages 49262-49263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23819]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY23-2-156; FRL-5607-2]


Interim Final Determination That State Has Corrected a Deficiency 
Leading to Sanctions; State of New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: In the proposed rules section of this Federal Register, the 
Environmental Protection Agency (EPA) has proposed to approve the State 
Implementation Plan revision submitted by the State of New York for the 
purpose of meeting the requirement to submit the heavy duty vehicle 
portion of the Clean Fuel Fleet program (CFFP), part of the CFFP 
requirements mandated by the Clean Air Act. Based on the proposed 
conditional approval, EPA is making an interim final determination by 
this action that New York has corrected the deficiency for which a 
sanctions clock began on March 7, 1995. By this action EPA defers 
application of the emission offset sanction previously scheduled to be 
imposed on September 7, 1996 and defer the application of the highway 
funds sanction, scheduled to be imposed on March 7, 1997. Although this 
action is effective upon signature, EPA will take comment and will 
publish a final determination, taking into consideration any comments 
received on this interim final determination and the related proposed 
SIP approval.

EFFECTIVE DATE: This action is effective August 29, 1996.

ADDRESSES: Comments should be sent to: Ronald Borsellino, Chief, Air 
Programs Branch, Environmental Protection Agency, Region II Office, 290 
Broadway, New York, New York 10007-1866.
    The State submittal and EPA's analysis for that submittal, which 
are the basis for this action, are available for public review at the 
above address.

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 15, 1994 and August 9, 1994 the State submitted a State 
Implementation Plan (SIP) revision intended to fulfill Clean Fuel Fleet 
program requirements under the Clean Air Act. EPA partially disapproved 
the 1994 submittals on January 6, 1995 (60 FR 2022). EPA's disapproval 
action started an 18-month clock for the application of one sanction 
(emissions offsets), followed by a second sanction (withholding of 
highway funds) 6 months later under section 179 of the Clean Air Act, 
and a 24-month clock for the promulgation of a Federal implementation 
plan under section 110(c)(1) of the Clean Air Act. The State 
subsequently submitted a request to EPA for review of its proposed, and 
emergency adopted, heavy duty CFFP on August 9, 1996. In the proposed 
rules section of this Federal Register, EPA has proposed conditional 
approval of the State of New York's submittal of its heavy duty Clean 
Fuel Fleet SIP revision.

II. EPA Action

    Based on the proposed conditional approval set forth in the 
proposed rules section of this Federal Register, EPA believes that the 
State, with full adoption of its heavy duty CFFP regulation, will have 
corrected the original disapproval deficiency that started the sanction 
clock. Therefore, EPA is taking this interim, final action, finding 
that the State has corrected the disapproval deficiency. This interim 
final action is effective upon signature. While this action does not 
stop the sanctions clocks that started for this area on March 7, 1995, 
it will defer the application of the emissions offsets sanction and the 
application of the highway funds sanction. See 59 FR 39832 (Aug. 4, 
1994) codified at 40 CFR 52.31. If EPA takes final action fully 
approving the State's submittal, such action will stop the sanctions 
clock and will permanently lift any applied, stayed or deferred 
sanctions.
    At this time, EPA is also providing the public with an opportunity 
to comment on this final action. If, based on the comments on this 
action and the comments on EPA's proposed approval of the State's 
submittal, EPA determines that the State's submittal is not approvable 
and this final action was inappropriate, EPA will take further action 
to disapprove the State's revision and to find that the State has not 
corrected the original disapproval deficiency. Such action will 
reinstate the sanctions consequences as described in the sanctions 
rule. See 59 FR 39832.

III. Administrative Requirements

    Because EPA has preliminarily determined that the State has an 
approvable plan, relief from sanctions should be provided as quickly as 
possible. Therefore, EPA invokes the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect. See 5 U.S.C. 553(b)(B). See 59 
FR 39832 at 39850, (August 4, 1994). As previously noted, by this 
action EPA is providing the public with a chance to comment on EPA's 
determination after the effective date and EPA will consider any 
comments received in determining whether to reverse such action. The 
EPA believes that notice-and-comment rulemaking before the effective 
date of this action is impracticable and contrary

[[Page 49263]]

to the public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it believes the State 
has corrected the deficiency that started the sanctions. Therefore, it 
is not in the public interest to initially apply sanctions or to keep 
applied sanctions in place when the State has proposed and emergency 
adopted a measure which will correct the deficiency that triggered the 
sanctions clock, provided it is not substantially changed prior to full 
adoption. Moreover, it would be impracticable to go through notice-and-
comment rulemaking on a finding that the State has corrected the 
deficiency prior to the rulemaking approving the State's submittal. 
Therefore, EPA believes that it is necessary to use the interim final 
rulemaking process to temporarily stay or defer sanctions while EPA 
completes its rulemaking process on the approvability of the State's 
submittal. In addition, EPA invokes the good cause exception to the 30-
day notice requirement of the APA because the purpose of this notice is 
to relieve a restriction. See 5 U.S.C. 553(d)(1). For a complete 
analysis of the application of the good cause exception, the reader is 
referred to the Federal Register cited above, in which EPA adopted the 
rule being applied here.
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    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 economic 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.
    This action temporarily relieves sources of an additional burden 
potentially placed on them by the sanctions provisions of the Clean Air 
Act. Therefore, I certify that this action will not have a significant 
impact on a substantial number of small entities.
    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 
annual costs of $100 million or more to the private sector, or to a 
State, local and/or tribal government(s) in the aggregate. The EPA must 
also develop a plan with regard to small governments that would be 
significantly or uniquely affected by the rule.
    Because this interim final determination is estimated to result in 
the expenditure by State, local and tribal governments or the private 
sector of less than $100 million in any one year, EPA has not prepared 
a budgetary impact statement or specifically addressed the selection of 
the least costly, most cost effective, or least burdensome alternative 
because small governments will not be significantly or uniquely 
affected by this rule, EPA is not required to develop a plan for small 
governments. Further, this final determination only defers the 
imposition of sanctions; it imposes no new requirements.
    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 this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Reporting and recordkeeping requirements, 
Ozone, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 29, 1996.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 96-23819 Filed 9-18-96; 8:45 am]
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