[Federal Register Volume 65, Number 64 (Monday, April 3, 2000)]
[Rules and Regulations]
[Pages 17444-17445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6566-5]


Finding of Failure To Submit a Required State Implementation Plan 
for Carbon Monoxide; Fairbanks, Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Finding of Failure to Submit.

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SUMMARY: EPA is taking final action in making a finding, under the 
Clean Air Act (CAA or Act), that Alaska failed to make a carbon 
monoxide (CO) nonattainment area State Implementation Plan (SIP) 
submittal required for Fairbanks under the Act. Under certain 
provisions of the Act, states are required to submit SIPs providing 
for, among other things, reasonable further progress and attainment of 
the CO National Ambient Air Quality Standards (NAAQS) in areas 
classified as serious. The deadline for submittal of this plan for 
Fairbanks was October 1, 1999. This action triggers the 18-month time 
clock for mandatory application of sanctions and 2-year time clock for 
a Federal Implementation Plan (FIP) under the Act. This action is 
consistent with the CAA mechanism for assuring SIP submissions.

EFFECTIVE DATE: This action is effective as of April 3, 2000.

ADDRESSES: Written comments should be addressed to: Ms. Debra Suzuki, 
Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, 
Washington 98101.

FOR FURTHER INFORMATION CONTACT: John Pavitt, U.S. EPA, Region 10, 
Alaska Operations Office, 222 W. 7th Avenue, #19, Anchorage, Alaska, 
99513-7588, Telephone (907) 271-5083.

SUPPLEMENTARY INFORMATION:

I. Background

    The CAA Amendments of 1990 were enacted on November 15, 1990. Under 
Section 107(d)(1)(c) of the amended CAA, each CO area designated 
nonattainment prior to enactment of the 1990 Amendments, such as the 
Fairbanks area, was designated nonattainment by operation of law upon 
enactment of the 1990 Amendments. Under section 186(a) of the Act, each 
CO area designated nonattainment under section 107(d) was also 
classified by operations of law as either ``moderate'' or ``serious'' 
depending on the severity of the area's air quality problem. CO areas 
with design values between 9.1 and 16.4 parts per million (ppm), such 
as the Fairbanks area, were classified as moderate. These nonattainment 
designations and classifications were codified in 40 CFR part 81. See 
56 FR 56846 (November 6, 1991).
    (1) The CO nonattainment area is the ``Fairbanks Area, Fairbanks 
Election District (part), Fairbanks nonattainment area boundary.'' 40 
CFR 81.302.
    States containing areas that were classified as moderate 
nonattainment by operation of law under section 107(d) were required to 
submit SIPs designed to attain the CO NAAQS as expeditiously as 
practicable but no later than December 31, 1995.
    (2) The moderate area SIP requirements are set forth in section 
187(a) of the Act and differ depending on whether the area's design 
value is below or above 12.7 ppm. The Fairbanks area has a design value 
below 12.7 ppm. 40 CFR 81.302.
    On February 27, 1998 EPA made a final finding that the Fairbanks CO 
nonattainment area did not attain the CO NAAQS under the CAA mandated 
attainment date of December 31, 1995 for moderate nonattainment. As a 
result of that finding, which went into effect on March 30, 1998, (63 
FR 9945 February 27, 1998) the Fairbanks, Alaska CO nonattainment area 
was reclassified as serious. The State had 18 months or until October 
1, 1999 to submit a new State Implementation Plan (SIP) demonstrating 
attainment of the CO NAAQS as expeditiously as practicable but no later 
than December 31, 2000, the CAA attainment date for serious areas. The 
Fairbanks area continues to exceed the CO standard with three 
exceedances in 1997, three in 1998, two in 1999 and, based upon 
preliminary review of the data, at least one in 2000. Notwithstanding 
significant efforts by the Alaska Department of Environmental 
Conservation to complete their CO SIP, the state has failed to meet the 
October 1, 1999 deadline for the required SIP submission. EPA is 
therefore compelled to find that the State of Alaska has failed to make 
the required SIP submission for Fairbanks. The CAA established specific 
consequences if EPA finds that a State has failed to meet certain 
requirements of the CAA. Of particular relevance here is CAA section 
179(a)(1), the mandatory sanctions provisions. Sections 179(a) sets 
forth four findings that form the basis for applications of a sanction. 
The first finding, that a State has failed to submit a plan required 
under the CAA, is the finding relevant to this rulemaking.
    If Alaska has not made the required complete submittal by October 
3, 2001, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset 
sanction identified in CAA section 179(b) will be applied in the 
affected area. If the State has still not made a complete submission by 
April 3, 2002, then the highway funding sanction will apply in the 
affected area, in accordance with 40 CFR 52.31. In addition, CAA 
section 110(c) provides that EPA must promulgate a Federal 
Implementation Plan (FIP).
    (3) In a 1994 rulemaking, EPA established the Agency's selection of 
the sequence of these two sanctions: the offset sanction under section 
179(b)(2) shall apply at 18 months, followed 6 months later by the 
highway sanction under section 179(b)(1) of the Act. EPA does not 
choose to deviate from this presumptive sequence in this instance. For 
more details on the timing and implementation of the sanctions, see 59 
FR 39832 (August 4, 1994), promulgating 40 CFR 52.31, ``Selection of 
sequence of mandatory sanctions for findings made pursuant to section 
179 of the Clean Air Act.''
    The sanctions will not take effect if, before October 3, 2001, EPA 
finds that the State has made a complete submittal of a plan addressing 
the serious area CO requirements for Fairbanks. In addition, EPA will 
not promulgate a FIP if the State makes the required SIP submittal and 
EPA takes final action to approve the submittal before April 3, 2002, 
(section 110(c)(1) of the Act). EPA encourages the responsible parties 
in Alaska to continue working together on the CO Plan which can 
eliminate the need for potential sanctions and FIP.

[[Page 17445]]

II. Final Action

A. Finding of Failure to Submit

    Today, EPA is making a finding of failure to submit for the 
Fairbanks CO nonattainment area, due to failure of the State to submit 
a SIP revision addressing the serious area CO requirements of the CAA.

B. Effective Date Under the Administrative Procedures Act

    EPA has issued this action as a rulemaking because the Agency has 
treated this type of action as rulemaking in the past. However, EPA 
believes that it would have the authority to issue this action in an 
informal adjudication, and is considering which administrative process-
rulemaking or informal adjudication-is appropriate for future actions 
of this kind. Because EPA is issuing this action as a rulemaking, the 
Administrative Procedures Act (APA) applies. Today's action is 
effective as of April 3, 2000. Under the APA, 5 U.S.C. 553 (d)(3), 
agency rulemaking may take effect before 30 days after the date of 
publication in the Federal Register if an agency has good cause to 
mandate an earlier effective date. Today's action concerns a SIP 
submission that is already overdue and the State is aware of applicable 
provisions of the CAA relating to overdue SIPs. In addition, today's 
action simply starts a ``clock'' that will not result in sanctions for 
18 months, and that the State may ``turn off'' through the submission 
of a complete SIP submittal. These reasons support an effective date 
prior to 30 days after the date of publication.

C. Notice-and-Comment Under the Administrative Procedures Act

    This document is a final agency action, but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit regarding SIP submissions, Congress did not intend 
such findings to be subject to notice-and-comment rulemaking. However, 
to the extent such findings are subject to notice-and-comment 
rulemaking, EPA invokes the good cause exception pursuant to the APA, 5 
U.S.C. 553(d)(3). Notice and comment are unnecessary because no EPA 
judgment is involved in making a nonsubstantive finding of failure to 
submit SIPs required by the CAA. Furthermore, providing notice and 
comment would be impracticable because of the limited time provided 
under the statute for making such determinations. Finally, notice and 
comment would be contrary to the public interest because it would 
divert Agency resources from the critical substantive review of 
submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59 
FR 39832, 39853 (August 4, 1994).

III. Administrative Requirements

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this notice, 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 (53 FR 8859, March 15, 
1988) by examining the takings implications of the action 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 action 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 Office of Management and Budget 
(OMB) has exempted this regulatory action from Executive Order 12866, 
entitled ``Regulatory Planning and Review.''
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefore in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date of April 3, 2000. 
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). This rule is 
effective as of April 3, 2000.
    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 June 2, 2000. 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, Carbon monoxide, 
Intergovernmental relations.

    Dated: March 20, 2000.
Jane Moore,
Acting Regional Administrator, Region 10.
[FR Doc. 00-7628 Filed 3-31-00; 8:45 am]
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