[Federal Register Volume 64, Number 128 (Tuesday, July 6, 1999)]
[Rules and Regulations]
[Pages 36243-36248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16932]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-005-ROP; FRL-6371-2]


Approval and Promulgation of Implementation Plans; Phoenix, 
Arizona Ozone Nonattainment Area, Revision to the 15 Percent Rate of 
Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making minor changes to its 1998 15 percent rate of 
progress federal implementation plan (1998 FIP) for the metropolitan 
Phoenix (Arizona) ozone nonattainment area. The 1998 FIP contains a 
demonstration that the Phoenix metropolitan area has in place 
sufficient measures to meet the 15 percent rate of progress (ROP) 
requirement in the Clean Air Act. This action does not alter the basic 
conclusion in the 1998 FIP that the Phoenix metropolitan area has met 
the 15 percent ROP requirement as soon as practicable.

EFFECTIVE DATE: August 5, 1999.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning 
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, California 94105. (415) 744-1248, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction and Background Information

    EPA is making minor changes to its 1998 15 percent rate of progress 
federal implementation plan (1998 15 percent ROP FIP or 1998 FIP) for 
the metropolitan Phoenix (Arizona) ozone nonattainment area. We 
proposed this action on March 26, 1999 at 64 FR 14659 (Reference 1).
    Specifically, we are changing the control strategy (that is, the 
list of control measures) that makes up the basis for the 15 percent 
ROP demonstration for the Phoenix area by deleting the National 
Architectural Coatings Rule and adding phase II of Arizona's Clean 
Burning Gasoline (CBG) program to the control strategy in the 1998 FIP. 
Neither of these changes affects our basic conclusion in the 1998 15 
percent ROP FIP that the Phoenix metropolitan area has in place 
sufficient measures to meet the 15 percent rate of progress requirement 
in CAA section 182(b)(1) as soon as practicable. Therefore, we are not 
making any changes to the language in the Code of Federal Regulations 
noting that we have determined that the Phoenix area has demonstrated 
the 15 percent ROP. See 40 CFR 52.123(g). We are making these changes 
under our federal planning authority in CAA section 110(c).
    We are also clarifying that the transportation conformity budget 
for the Phoenix ozone nonattainment area is 87.1 metric tons of VOC per 
ozone season average day.
    We describe in detail the Clean Air Act's 15 percent ROP 
requirement, the 1998 FIP, and our proposed revisions to the 15 percent 
plan and the transportation conformity budget in the proposal and in 
the Technical Support Document (TSD) for this action (Reference 2). We 
also discuss in the proposal and the TSD our interpretation of the CAA 
section 172(c)(9) requirement for contingency measures and our policies 
for implementing this requirement. We will not repeat this information 
here. Readers interested in this information should consult the 
proposal and the TSD. We devote the majority of this preamble to 
summarizing our responses to the most significant comments received on 
the proposal.

[[Page 36244]]

II. Summary of EPA's Response to Comments Received on the Proposal

    We received three comment letters on the proposal. The Arizona 
Department of Environmental Quality (ADEQ) supported the revisions to 
the 15 percent ROP FIP as well as our interpretation of the Clean Air 
Act's contingency measure requirement. No response to ADEQ's letter is 
necessary.
    The Maricopa Association of Governments (MAG) requested that we 
clarify certain issues regarding the revised transportation conformity 
budget. We have made the requested clarifications in the section on the 
conformity budget later in this preamble and discuss them more fully in 
section VI.B. of the TSD.
    Finally, the Arizona Center for Law in the Public Interest (ACLPI) 
commented on the proposed revisions to the 15 percent ROP demonstration 
and our interpretation of the contingency measure requirement. A 
summary of our responses to ACLPI's most significant comments follows. 
We provide our complete responses to all of ACLPI's comments in section 
VI.A. of the TSD.

A. Comments on the Revisions to the 15 Percent ROP Demonstration

    Comment: ACLPI contends that we have failed to propose additional 
control measures to make up the shortfall in the 15 percent ROP 
demonstration as we said we would do in our motion for voluntary remand 
in Aspegren v. Browner, No. 98-70824, a petition to review certain 
aspects of the 1998 FIP. ACLPI filed the petition on behalf of several 
Phoenix area residents in the U.S. Court of Appeals for the Ninth 
Circuit.
    Response: The control strategy in the 1998 FIP included three 
proposed national rules for various categories of consumer and 
commercial products. When issued in September, 1998, the final rules 
resulted in slightly fewer emission reductions than we had estimated in 
the 1998 FIP.
    In our motion for voluntary remand we stated that we would consider 
the effect of the final national rules on the 15 percent ROP 
demonstration for Phoenix, determine if additional control measures are 
needed to assure expeditious attainment of the 15 percent ROP goal in 
the area, and promulgate additional measures only if we determined that 
additional measures were needed. See Aspegren, paragraph 10, Motion for 
Voluntary Remand, October 29, 1998. As discussed below, we have done 
exactly that. Furthermore, the statement in our motion merely restates 
our Clean Air Act obligation under section 110(c) of the Act to 
demonstrate that the Phoenix area continues to meet, as expeditiously 
as practicable, the requirements of section 182(b)(1)(a) for a 15 
percent ROP. That obligation, and moreover our authority, for this 
action are limited to making this demonstration and are not affected by 
statements of intent in our motion for voluntary remand.
    We have evaluated the effect of the final national rules on the 15 
percent ROP demonstration for the Phoenix area and determined that 
these rules result in a loss of 1 metric ton per day from the 15 
percent ROP plan as of April 1, 1999. We have replaced these lost 
emission reductions in the ROP analysis by revising the control 
strategy in the 15 percent ROP plan to include emission reductions from 
the second phase of Arizona's Cleaner Burning Gasoline (CBG) program. 
The second phase of the CBG program did not go into effect until May 1, 
1999, one month after the demonstration date in the 1998 FIP. Thus, 
with this revision, the demonstration date for the 15 percent ROP goal 
moves from April 1 to the CBG-phase II start date of May 1, 1999.
    Even though there is now a shortfall as of the old April 1 
demonstration date, the Clean Air Act does not require us to promulgate 
additional measures if we can still show that the 15 percent ROP goal 
is being met as expeditiously as practicable. We have, in fact, shown 
that May 1, 1999 is the most expeditious date by which the 15 percent 
ROP goal can now be met in the Phoenix area and that all the control 
measures necessary to meet this goal are already in place. See the 
proposal at page 14661. We, therefore, have met our Clean Air Act 
obligation.
    Comment: ACLPI notes that in our revised FIP proposal we are giving 
additional credit to Arizona's CBG rule and claims that we stated in 
our 1998 FIP proposal that if we approved the CBG program in lieu of 
the federal reformulated gasoline program (RFG) we would give it the 
same amount of credit. ACLPI quotes language from the proposal (at page 
3690) in which we stated that emission reductions from an approved CBG 
program that exceeded those from federal RFG ``may be used by the State 
in any future rate-of-progress demonstrations.'' ACLPI claims that we 
do not explain this policy reversal to credit the CBG program with more 
emission reductions and that failure to provide an explanation is 
arbitrary, capricious and an abuse of discretion.
    Response: We fully explain in the proposal for this rule the source 
of the additional reductions from the State's CBG program. See the 
proposal at page 14661. To summarize, in the 1998 FIP, we only credited 
phase I of the two-phased federal reformulated gasoline (RFG) program 
in the 15 percent ROP demonstration. See table 5 on page 3690 of the 
proposed 1998 FIP (Reference 3). Arizona's CBG program is also a two-
phased program. Phase I of the State program was implemented last year, 
and for the purposes of the 1998 FIP, we considered it equivalent to 
phase I of the federal RFG program.
    The second phase of the CBG program is similar to the more 
stringent phase II federal RFG program--a program we did not credit in 
the 1998 FIP. When phase II CBG went into effect on May 1, 1999, it 
generated an additional 2 metric tons per day (mtpd) in reductions over 
the reductions from phase I of the State program. Since we did not 
credit phase II of either the federal or State program in the 1998 FIP, 
this 2 mtpd reduction is new to the 15 percent ROP plan and does not 
duplicate reductions already accounted for in the plan. More simply, 
these are new reductions from a new program which first went into place 
in May, 1999.
    The statement from the 1998 FIP proposal that ACLPI quotes was not 
a policy statement; rather it was simply intended to indicate to the 
State and others that any excess emission reduction credits could be 
used in future ROP demonstrations. As such, it is not a policy 
declaration from which we need to explain a deviation as required by 
the Court in the case cited by ACLPI (Western States Petroleum Ass'n. 
v. EPA, 87 F.3d 280 (9th Cir. 1996)). Further, it is still true that 
any excess reductions can be applied to future ROP demonstration.
    Comment: ACLPI claims that we still fail to make the ``as soon as 
possible'' showing by refusing to consider other control measures that 
could be implemented to achieve the 15 percent milestone before May 1, 
1999. ACLPI also notes that the issue will be moot by the time we 
finalize the proposed revisions to the FIP because May 1, 1999 will 
have passed.
    Response: Contrary to ACLPI's claim, we did make the ``as soon as 
practicable'' demonstration in the proposed revision to the FIP. Our 
demonstration was simple because less than two months separated the 
proposal in mid-March, 1999 and the revised demonstration date of May 
1, 1999. As we stated in the proposal at page 14661, ``[t]his time 
period is so short that we cannot complete this rulemaking prior to May 
1, 1999 and still provide an adequate period for the public to comment 
and then for sources to comply with any new rules.'' Based on

[[Page 36245]]

this reasoning, we concluded that there are no other measures available 
for the Phoenix area that could meaningfully advance the date by which 
the 15 percent ROP is demonstrated. See the proposal at page 14662.
    ACLPI fails to identify the ``other control measures that could be 
implemented to achieve the 15 percent milestone before May 1, 1999'' 
that it claims we are refusing to consider. Without this specific 
information, we are unable to determine the validity of their claim and 
cannot further respond to their comment. We believe, however, that we 
have considered all practicable and available controls and found none 
that could have advanced the May 1 demonstration date.
    We agree with ACLPI that the issue is now moot because the May 1 
date has passed.

B. ACLPI's Comments on the Section 172(c)(9) Contingency Measures

    Comment: ACLPI disputes our position that the contingency measure 
requirement only pertains to nonattainment area plans as a whole and 
not specifically to the 15 percent ROP provision of the nonattainment 
plan. ACLPI states that our position ignores the plain language of the 
Act that section 172(c) applies to all nonattainment plan provisions.
    Response: In the proposal and TSD, we respond to similar assertions 
made by ACLPI in its brief for the Aspegren petitioners. Please see 
page 14662 of the proposal and pages 20-22 of the TSD. We add the 
following to our previous response.
    We do not agree that the contingency measure requirement in section 
172(c)(9) pertains specifically to the 15 percent ROP requirement. We 
believe a better reading of the Act is that contingency measures are 
required as part of the overall nonattainment plan and not as a feature 
of each component part of that plan, such as the 15 percent ROP plan.
    Under the CAA, a nonattainment plan is a compendium of elements 
that together provide for progress toward and expeditious attainment of 
the air quality standards in an area. Within an area's nonattainment 
plan, the section 172(c)(9) contingency measures serve as the first 
remedial step in addressing a failure of the area actually to make the 
required progress or to attain by the required date. Thus, we believe 
that a failure in any plan element that results in an area not making 
the required progress or not attaining triggers the contingency 
measures. In contrast, tying the contingency measures to a failure in a 
specific provision of the nonattainment plan--e.g., the 15 percent ROP 
provision--would too narrowly limit the conditions for their 
implementation, thereby weakening their remedial role in assuring an 
area's overall progress toward and expeditious attainment of the air 
quality standards.
    A requirement for inclusion of contingency measures in the 15 
percent ROP plan would make sense if a disapproval of the plan under 
section 182(b)(1)(A) for failure to provide for a 15 percent ROP 
triggered the contingency measures. It does not. The consequences of a 
15 percent ROP plan disapproval are sanctions under section 179(a) and 
FIPs under section 110(c) unless the state revises the plan to make it 
approvable.
    A requirement to include contingency measures in ROP plans would 
also make sense if the only way to ensure that states developed and 
submitted adequate contingency measures were to incorporate the 
requirement into another nonattainment area provision. Contingency 
measures, however, are a required submittal directly under the Act, and 
a state's failure to submit approvable contingency measures is by 
itself subject to the Act's sanctions and FIP provisions.
    Contrary to ACLPI's contention, our position is supported by the 
plain language of section 172(c)(9). While the other subsections in 
section 172(c) begin with ``such plan provisions shall * * *'', section 
172(c)(9) begins with ``such plan shall. * * *'' (emphasis added). 
``Such plan'' refers to the overall nonattainment plan rather than an 
individual element or provision of it. This difference in language 
between the contingency measures requirement and the other requirements 
in section 172(c) emphasizes that the contingency measures serve to 
backstop the entire nonattainment plan and not just particular elements 
of it.
    Moreover, our position is supported by the trigger for implementing 
contingency measures in section 172(c)(9) itself. The section 172(c)(9) 
contingency measures are not triggered by failures of the ROP or 
attainment plan to actually provide RFP or attainment; they are 
triggered by the failure of an area to actually make reasonable further 
progress or to attain by its required deadline.
    This distinction between a plan's failure and an area's failure is 
not trivial. To determine if a plan succeeded or failed, one only 
reviews the current status of the measures and assumptions in that 
plan. In other words, the plan is evaluated in isolation without regard 
to other factors that may influence emissions and air quality in an 
area, such as economic and population growth and sources violating air 
quality rules.
    In contrast, to determine if an area succeeded or failed to meet 
its ROP milestone, one determines if current emissions in the area are 
at or below the ROP target level. See General Preamble at page 13509. 
To do this, one looks at the current status of all in-place, real, 
permanent and enforceable controls--even those not relied on in or 
anticipated by the 15 percent ROP plan--and current socio-economic data 
to calculate a whole new inventory of actual emissions. In other words, 
all factors that influence emissions in an area are taken into account. 
The original ROP plan is referenced only to obtain the target emissions 
level. See the General Preamble at pages 13504 and 13518 (Reference 5).
    The determination of whether an area attained or failed to attain 
is even more simple; only ambient air quality data is examined. The 
status of the attainment demonstration plan is not reviewed at all. See 
General Preamble at page 13506.
    Because the trigger for implementing contingency measures in 
section 172(c)(9) is thus independent of the success or failure of any 
particular plan provision, it follows that the contingency measures are 
also independent of any particular plan provision. They are elements of 
the overall nonattainment plan, serving its purpose of ``eliminating or 
reducing the severity and number of violations of the national ambient 
air quality standards and achieving expeditious attainment of these 
standards.'' Section 176(c)(1)(A) of the Clean Air Act.
    We emphasize that the above discussion addresses only the 
circumstances for triggering contingency measures. Under the Act, 
states are required to implement the non-contingent provisions of their 
SIPs regardless of whether they meet a milestone or attain. If a state 
determines that a SIP measure is no longer needed to meet the Act's 
requirements, it must request and EPA must approve a SIP revision, 
consistent with section 110(l), to remove the measure before the state 
is relieved of its statutory obligation to implement it.
    Comment: ACLPI continues to claim that EPA's guidance documents 
clearly recognize that contingency measures must be included in a 15 
percent ROP plan submittal and asserts that our ``attempt to 
reinterpret our guidance is unpersuasive.'' ACLPI provides, as an 
example, our explanation in the proposal that the term ``rate-of-
progress plan'' in the EPA document Guidance for Growth Factors 
(Reference 4) is a

[[Page 36246]]

compact reference to all the submittals due on November 15, 1993 and 
not just the 15 percent ROP plans. ACLPI also claims that we have 
ignored that this guidance document specifically defines the term 
``rate-of-progress plan'' as that part of the SIP revision due November 
15, 1993 ``which describes * * * how the areas will achieve an actual 
[VOC] emissions reduction of at least 15 percent.''
    Response: The first paragraph of the Executive Summary in the 
Guidance for Growth Factors contains a short definition of ``rate-of-
progress plan.'' The full definition of the term is in Appendix A to 
the document. In Appendix A, the rate-of-progress plan is defined as 
``the portion of the SIP revision due by November 15, 1993, that 
describes how moderate and above ozone nonattainment areas plan to 
achieve the 15 percent VOC emissions reduction.'' (Emphasis added). 
This definition goes on to note that ``[a]ll moderate intrastate areas 
that choose to utilize the EKMA [air quality model], are also required 
to include their attainment demonstration in this SIP revision.''
    This definition makes clear that the ROP plan is only a portion of 
a larger SIP revision due by November 15, 1993. It is also clear that 
another part of that SIP revision, separate from the ROP plan, is the 
attainment demonstration for certain moderate nonattainment areas.
    With this definition in mind, we return to the Executive Summary. 
As noted by ACLPI in its comments, the attainment demonstration is also 
distinguished here from the rate-of-progress plan. However, right after 
this distinction is made, the following statement is made:

    States must submit their fully adopted rate-of-progress plans to 
EPA by November, 1993. Moderate ozone nonattainment areas not using 
[the Urban Airshed Model] must include an attainment demonstration 
in their fully adopted rate-of-progress plans.

(Emphasis added).
    As a distinct requirement, these attainment demonstrations, cannot 
logically be in the ROP plans. Therefore, the term ``rate-of-progress 
plan'' as used in this statement cannot have the meaning given to it 
just a few paragraphs before in the Executive Summary and in Appendix 
A. The only meaning that does make sense here is the one we have 
suggested: it is a compact reference to all the submittals due on 
November 15, 1993.
    Knowing that the exact meaning of the term ``rate-of-progress 
plan'' in the Guidance for Growth Factors is dependent on the context, 
we now evaluate the statement that ACLPI claims proves we consider 
contingency measures as a required element of 15 percent ROP plans. 
This statement is from the last paragraph of the Executive Summary of 
the Guidance for Growth Factors: 

    In addition, this document describes the requirements for 
contingency measures that must be included in the rate-of-progress 
plans for moderate and above ozone nonattainment areas, and provides 
examples of possible contingency measures.
    Read together with the very similar statement on attainment 
demonstrations discussed above, the clause ``included in the rate-of-
progress plans'' is clearly intended to mean ``a part of the overall 
set of plans submitted at the same time as the rate-of-progress plans'' 
that is, submitted by November 15, 1993. Given this reading, this 
statement becomes consistent with every other piece of EPA guidance on 
the section 172(c)(9) contingency measures for ozone nonattainment 
areas: they were a separate and distinct part of the overall SIP 
submittal due in November, 1993.
    EPA's basic guidance on ozone contingency measures is found in the 
General Preamble at page 13510 and in Chapter 9 of Guidance for Growth 
Factors. A close reading of this guidance discloses that the primary 
connection made between the requirement in section 182(b)(1)(A) for 15 
percent ROP plans and the requirement in section 172(c)(9) for 
contingency measures is the identical submittal date. This guidance is 
clear that we consider the contingency measures to be a separate 
statutory requirement that we can act on independently from the 15 
percent ROP plan.
    EPA's purpose in issuing guidance is to provide the states and the 
general public with advance notice of how it will generally interpret 
the Act's requirements. See General Preamble at 13498. We actually 
apply these interpretations at the time we act on SIP revisions (or 
promulgate FIPs). Therefore, if there is any question about the meaning 
of EPA's guidance on 15 percent ROP plans and contingency measures, it 
can best be answered by reviewing just how we have applied the guidance 
in actual rulemakings on 15 percent ROP plans.
    Nationally, we have taken final action on 32 separate 15 percent 
ROP plans (including the Phoenix FIP) in 24 different rulemakings. See 
Appendix B to the TSD for a complete listing. In 16 of these 
rulemakings (two-thirds of the total), we acted on the 15 percent ROP 
plans without concurrently acting on the contingency measures. If we 
considered the 15 percent ROP plan and the contingency measures 
elements of the same requirement, then we could not have acted on 
either without acting on both.
    In the other 8 rulemakings, we did act on the contingency measures 
concurrently with the 15 percent plan. In many of these instances, the 
State voluntarily chose to use the excess emission reductions in its 15 
percent ROP plan to satisfy its contingency measure requirement. For 
these rulemakings, we did look at the merits of the ROP plan, most 
specifically, at the claim of excess emission reductions, to determine 
the approvability of the contingency measures. Conversely, we did not 
look at the approvability of the contingency measures to determine the 
approvability of the 15 percent ROP plan. In all the other cases, we 
treated the contingency measures and the 15 percent ROP plans as 
strictly separate requirements and did not link the approvability of 
one to the presence or approvability of the other.
    ACLPI dismisses this rulemaking record as ``utterly irrelevant'' 
and not negating our previous actions with respect to Arizona or the 
clear import of our guidance. We have already discussed our guidance 
and the fact that it does not require contingency measures in complete 
and approvable 15 percent plans. Since the guidance at issue is 
guidance applicable to every 15 percent plan in the country, the fact 
that we have consistently applied it to the same effect is clearly 
relevant to determining the appropriate interpretation of our guidance. 
Equally, neither of our two final actions on Arizona's 15 percent ROP 
plans--the 1998 FIP and today's action--have included contingency 
measures.

III. The New Transportation Conformity Budget For VOCS

    Under EPA's conformity rule, we identify a transportation 
conformity budget whenever we approve any control strategy plan, such 
as the 15 percent ROP plan, into the SIP. See 40 CFR 93.118(e)(4)(iii). 
This requirement also applies when we promulgate a control strategy in 
a FIP as we are doing today.
    We are identifying a transportation conformity budget for the 
Phoenix ozone nonattainment area of 87.1 metric tons of VOC per ozone 
season average day. The analysis supporting identification of this 
budget can be found in section V.B. of the TSD. This budget is for 1996 
and reflects all on-road mobile source control measures that are 
included in the 15 percent ROP control strategy.

[[Page 36247]]

    After the effective date of this action, all transportation actions 
taken in the Phoenix ozone nonattainment area that are required to show 
conformity to a budget under Clean Air Act section 176(c) and EPA's 
conformity rule in 40 CFR part 93 must conform to the budget 
established by this rule. This transportation conformity budget is 
based in part on a number of SIP-approved transportation control 
measures (TCMs)(including the Arizona's vehicle emission inspection 
program and the Cleaner Burning Gasoline program). Any future ozone 
conformity determinations must also demonstrate the expeditious 
implementation of these TCMs as well as any other SIP-approved TCMs for 
ozone.
    Once effective, the transportation conformity budget established by 
this rule will be the only approved and applicable transportation 
conformity budget for ozone in the Phoenix nonattainment area. Previous 
ozone budgets, whether submitted by Arizona or promulgated by EPA in 
the 1998 FIP, will no longer be valid for transportation conformity 
determinations because we have not found any State-submitted budgets to 
be adequate for use under our conformity rule and because we are 
replacing the budget in the 1998 FIP.

IV. Statement of Final Action

    Under our authority in CAA section 110(c) and for the reasons 
discussed in the March 26, 1999 proposal, EPA determines that the 
Phoenix metropolitan area has in place sufficient control measures to 
meet the 15 percent rate of progress requirement in CAA section 
182(b)(1)(A) as soon as practicable. This determination is based on our 
analysis of the effect of the control measures listed in Table 2 of the 
proposal on emissions in the Phoenix area.
    Consistent with CAA section 176(c) and 40 CFR part 93 and under our 
authority in section 110(c), we are also identifying a transportation 
conformity budget for the Phoenix ozone nonattainment area of 87.1 
metric tons of VOC per ozone season average day.

V. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may: (1) Have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impact of entitlement, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
EPA to prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure of $100 
million or more in any one year by state, local, and tribal 
governments, in aggregate, or by the private sector. Section 203 
requires EPA to establish a plan for obtaining input from and informing 
any small governments that may be significantly or uniquely affected by 
the rule. Section 205 requires that regulatory alternatives be 
considered before promulgating a rule for which a budgetary impact 
statement is prepared. EPA must select the least costly, most cost-
effective, or least burdensome alternative that achieves the rule's 
objectives, unless there is an explanation why this alternative is not 
selected or this alternative is inconsistent with law.
    This rule does not include a Federal mandate and will not result in 
any expenditures by State, local, and tribal governments or the private 
sector. Therefore, 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 with regard to small governments.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions. This rule will not have a significant impact on a 
substantial number of small entities because it simply revises a 
demonstration based on previously established requirements and contains 
no additional requirements applicable to small entities. Therefore, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities.

D. Paperwork Reduction Act

    This rule contains no information requirements subject to the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Applicability of Executive Order 13045: Children's Health Protection

    This rule is not subject to E.O. 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997), because it is not economically significant under E.O. 
12866 and it does not involve decisions on environmental health risks 
or safety risks that may disproportionately affect children.

F. Executive Order 12875: Enhancing Intergovernmental Partnerships

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
This rule does not create a mandate on State, local or tribal 
governments nor impose any enforceable duties on these entities. 
Accordingly, the requirements of

[[Page 36248]]

section 1(a) of Executive Order 12875 do not apply to this rule.

G. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    This action neither creates a mandate nor imposes any enforceable 
duties on tribal governments. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this rule.

H. The National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 
(NTTAA), section 12(d), Public Law 104-113, requires federal agencies 
and departments to use technical standards that are developed or 
adopted by voluntary consensus standards bodies, using such technical 
standards as a means to carry out policy objectives or activities 
determined by the agencies and departments. If use of such technical 
standards is inconsistent with applicable law or otherwise impractical, 
a federal agency or department may elect to use technical standards 
that are not developed or adopted by voluntary consensus standards 
bodies if the head of the agency or department transmits to the Office 
of Management and Budget an explanation of the reasons for using such 
standards.
    This rule does not include any technical standards; therefore, EPA 
is not considering the use of any voluntary consensus standards.

I. 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. 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).

J. Petitions for Judicial Review

    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 September 7, 1999. 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, Intergovernmental 
relations, Ozone.

    Dated: June 28, 1999.
Carol M. Browner,
Administrator.

References

    1. 64 FR 14659-14665 (March 26, 1999); Approval and Promulgation 
of Implementation Plans; Phoenix, Arizona Ozone Nonattainment Area, 
Revisions to the 15 Percent Rate of Progress Plan; Proposed rule.
    2. Air Division, U.S. EPA, Region 9, ``Final Addendum to the 
Technical Support Document for the Notice of Final Rulemaking on the 
Clean Air Act Section 182(b)(1) 15 Percent Rate of Progress 
Requirement for the Phoenix Metropolitan Ozone Nonattainment Area,'' 
June 14, 1999.
    3. 63 FR 3687-3693 (January 26, 1998); Approval and Promulgation 
of Implementation Plans; Phoenix Arizona Ozone Nonattainment Area, 
15 Percent Rate of Progress Plan and 1990 Base Year Emission 
Inventory; Proposed rule.
    4. Guidance for Growth Factors, Projections, and Control 
Strategies for the 15 Percent Rate of Progress Plans, Office of Air 
Quality Planning and Standards, U.S. EPA. EPA-452/R-93-002, March 
1993.
    5. 57 FR 13498 (April 16, 1992). State Implementation Plans; 
General Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990. General Preamble for future proposed rulemakings.

[FR Doc. 99-16932 Filed 7-2-99; 8:45 am]
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