[Federal Register Volume 65, Number 136 (Friday, July 14, 2000)]
[Rules and Regulations]
[Pages 43700-43702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17190]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6729-7]


Finding of Failure To Submit a Required State Implementation Plan 
for Carbon Monoxide; Anchorage, AK

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 Anchorage 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 
Anchorage was January 13, 2000. This action triggers the 18-month time 
clock for mandatory application of sanctions and the two-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 July 13, 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 
Anchorage 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 operation 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 Anchorage 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 ``Anchorage Area, Anchorage 
Election District (part), Anchorage 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. Under section 
186(a)(4), Alaska requested and EPA granted a one-year extension of the 
December 31, 1995 attainment deadline (61 FR 33676, June 28, 1996).
    (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 above or below 12.7 ppm. The Anchorage area has a design value 
above 12.7 ppm. 40 CFR 81.302.
    Anchorage exceeded the CO NAAQS three times during calendar year 
1996. On June 12, 1998, EPA made a final finding that the Anchorage CO 
nonattainment area did not attain the CO NAAQS under the CAA-mandated 
attainment date after having received a one-year extension from the 
mandated attainment date of December 31, 1995 for moderate 
nonattainment areas to December 31, 1996. As a result of that finding, 
which went into effect on July 13, 1998, (63 FR 32128, June 12, 1998) 
the Anchorage, Alaska CO nonattainment area was reclassified as 
serious. The State had 18 months or until January 13, 2000 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. Anchorage complied 
with the CO NAAQS in 1997, 1998, and 1999, with one or fewer 
exceedances recorded in each of these years, and no exceedances in the 
year 2000 to date.
    The Alaska Department of Environmental Conservation (ADEC) and the 
Municipality of Anchorage (MOA) have been conducting local research 
aimed at quantifying the impact of motor vehicle cold start emissions 
and warm-up idling on ambient CO in Anchorage. The local research 
program included: (1) A CO saturation monitoring study to better 
characterize the nature of the CO problem in Anchorage's neighborhoods 
and near major roadways; (2) a driver

[[Page 43701]]

idling behavior study to quantify the prevalence and duration of 
extended warm-up idling among Anchorage drivers in the winter months; 
(3) cold weather motor vehicle emission testing to quantify the 
proportion of emissions that occur during cold starts and warm-up 
idles; and (4) a ``real world'' CO emissions inventory that would 
better reflect unique winter season driving behaviors and cold weather 
motor vehicle emissions. MOA and ADEC anticipate that the information 
provided by these studies will be critical to the preparation of a 
credible SIP. Notwithstanding significant efforts to complete its CO 
SIP, the State failed to meet the January 13, 2000 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 
Anchorage. The CAA establishes specific consequences if EPA finds that 
a State has failed to meet certain requirements of the CAA. Of 
particular relevance here is CAA section 179(a)(1), the mandatory 
sanctions provisions. Section 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 January 
13, 2002, 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 
July 13, 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 six 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 January 13, 2002, EPA 
finds that the State has made a complete submittal of a plan addressing 
the serious area CO requirements for Anchorage. 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 July 13, 2002 
(section 110(c)(1) of the Act). EPA encourages the responsible parties 
in Alaska to continue working together on a CO SIP which can eliminate 
the need for potential sanctions and a FIP.

II. Final Action

A. Rule

    Today, EPA is making a finding of failure to submit for the 
Anchorage 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 has 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 notice as a rulemaking, the 
Administrative Procedures Act (APA) applies. Today's notice is 
effective as of July 13, 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 the 
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, which 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 notice 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 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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. Because the 
agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute (see Section II.C in this Federal 
Register action), it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or 
to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Pub. L. 104-4). In addition, this action does not significantly 
or uniquely affect small governments or impose a significant 
intergovernmental mandate, as described in sections 203 and 204 of 
UMRA. This action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This action is not a regulation that 
will 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 (64 FR 43255, August 10, 1999). 
This action also is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant.
    This action does not involve technical standards; thus, 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. The action 
also does not involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994). In issuing this action, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct, as 
required by section 3 of Executive Order 12988 (61 FR 4729,

[[Page 43702]]

February 7, 1996). EPA has complied with Executive Order 12630 (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 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 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 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 July 13, 
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. 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 September 12, 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: June 26, 2000.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 00-17190 Filed 7-13-00; 8:45 am]
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