[Federal Register Volume 68, Number 188 (Monday, September 29, 2003)]
[Proposed Rules]
[Pages 55920-55925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24557]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-082-0065; FRL-7564-8]


Approval and Promulgation of Implementation Plans; Arizona--
Maricopa County Ozone, PM-10 and CO Nonattainment Areas; Approval of 
Revisions to Maricopa County Area Cleaner Burning Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to approve revisions to the Arizona Cleaner Burning 
Gasoline (CBG) program currently approved in the State implementation 
plan (SIP). Specifically, we propose to approve revisions that, among 
other changes, replace Arizona's interim CBG program with a permanent 
program, amend the wintertime CBG program to limit the types of 
gasoline that may be supplied, and remove the minimum oxygen content 
requirement for summertime gasoline.

DATES: Written comments on this proposal must be submitted to EPA at 
the address below by October 29, 2003.

ADDRESSES: Comments on this proposal should be mailed or e-mailed to: 
Wienke Tax, Office of Air Planning (AIR-2), EPA Region 9, 75 Hawthorne 
Street, San Francisco, CA 94105-3901. Telephone (520) 622-1622, or 
[email protected]. Comments may also be submitted via http://www.regulations.gov. We prefer to receive comments electronically if 
possible.
    A copy of this document, the EPA technical support document 
(TSD),\1\ and other material relevant to this proposed action are 
available for public inspection at EPA's Region 9 office during normal 
business hours. Due to increased security, please call 24 hours ahead 
of your visit so that we can arrange to have someone meet you.

    \1\ See ``Technical Support Document, Notice of Proposed 
Rulemaking on Arizona State Implementation Plan, Arizona Cleaner 
Burning Gasoline SIP Revisions'', August 2003.

Environmental Protection Agency, Region 9, Air Division, Air Planning 
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Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901.

    A copy of the docket is also available for inspection at the 
address listed below:

Arizona Department of Environmental Quality Library, 1110 West 
Washington Street, First Floor, Phoenix, Arizona 85007, (602) 771-4335.

Electronic Availability

    This document and the TSD are also available as electronic files on 
EPA's Region 9 Web Page at http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, 
(AIR-2), EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105-
3901. (520) 622-1622, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'' and 
``our'' refer to U.S. EPA.

Table of Contents

I. Summary of Today's Proposal
II. Background to Today's Proposal
    A. Air Quality in the Maricopa County Area
    B. What Is ``Cleaner Burning Gasoline''?
    C. Description of Arizona's Changes to the CBG Program
III. CAA Requirements for SIP Approval of State Fuel Measures
IV. The CBG Program's Compliance with CAA SIP Approval Requirements
    A. General SIP Requirements
    B. Section 110(l): Interference with Attainment or Reasonable 
Further Progress
    C. Findings under Section 211(c)(4)
V. Summary Statement About Proposed Approval
VI. Statutory and Executive Order Review

I. Summary of Today's Proposal

    We propose to approve revisions to the Arizona CBG program that the 
Arizona Department of Environmental Quality (ADEQ) and the State 
legislature have adopted since EPA approval of the interim CBG program 
in 1998. ADEQ has submitted these changes to EPA for approval into the 
SIP in four separate SIP submittals: SIP Revision, Arizona Cleaner 
Burning Gasoline Permanent Rules--Maricopa County Ozone Nonattainment 
Area, February 1999 (``CBG Permanent Rules''), State Implementation 
Plan Revision for the Cleaner Burning Gasoline Program in the Maricopa 
County Ozone Nonattainment Area, March 2001 (``Summertime Minimum 
Oxygen Content Removal''), Arizona Cleaner Burning Gasoline Rule to 
Revise the State Implementation Plan for the Maricopa County Carbon 
Monoxide, Ozone, and PM10 Nonattainment Areas, August 2001 (``CBG 
Wintertime Rules''),

[[Page 55921]]

and Supplement to Cleaner Burning Gasoline Program State Implementation 
Plan Revision, September 2001 (``Technical Supplement'').\2\ EPA is 
proposing to approve the current CBG rule, as codified in Arizona 
Administrative Code, Title 20, Chapter 2, Article 7, on March 31, 2001 
and sections 49-541 (as codified on August 9, 2001), 41-2124 (D) and 
(K) (as codified on April 28, 2000), 41-2123 (as codified on August 6, 
1999), 41-2113(B)(4) (as codified on August 21, 1998), 41-2115 (as 
codified on July 18, 2000), and 41-2066(A)(2) (as codified on April 20, 
2001) of the Arizona Revised Statutes. The key changes from the interim 
CBG program approved into the SIP in 1998 are described in the 
following section.
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    \2\ In accordance with section 110(k)(1)(B), these SIP 
submittals were deemed complete by operation of law six months after 
submittal.
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    This preamble describes our proposed actions on the Arizona CBG 
gasoline program and provides a summary of our evaluation of the 
program. Our detailed evaluation of the program can be found in the TSD 
that accompanies this proposal.

II. Background to Today's Proposal

A. Air Quality in the Maricopa County Area

    The Arizona CBG program, as currently approved in the SIP, applies 
in Maricopa County. As revised, the program will apply in Maricopa 
County and portions of Yavapai and Pinal counties that are part of 
``Area A'' as defined in Arizona Revised Statutes (ARS) Sec.  49-541, 
which generally represents the nonattainment area in and around 
Maricopa County.\3\ The Maricopa County nonattainment area is located 
in the eastern portion of Maricopa County and encompasses the cities of 
Phoenix, Mesa, Scottsdale, Tempe, Chandler, Glendale, and 17 other 
jurisdictions and considerable unincorporated County lands. The area is 
home to approximately 3 million people.
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    \3\ As further explained herein, the nonattainment areas vary 
slightly according to the specific nonattainment pollutant. This 
notice generally refers to all of these areas collectively as the 
Maricopa County area or nonattainment area.
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    The area violated both the annual and 24-hour PM-10 standards as 
well as the one-hour ozone and 8-hour CO standard. In 1990, the area 
was classified a moderate nonattainment area for ozone, CO, and PM-10. 
In 1996, because of continuing violations of both PM-10 standards, the 
area was reclassified to serious for PM-10 and required to submit a 
serious area plan by December 10, 1997 showing attainment no later than 
December 31, 2001. The moderate area ozone attainment deadline was 
November 15, 1996. On November 6, 1997, the area was reclassified to 
serious for ozone effective December 8, 1997 with an attainment 
deadline of no later than November 15, 1999. Due to continuing 
exceedances of the CO standard, the Maricopa County area was 
redesignated as serious for CO effective August 28, 1996. The 
nonattainment areas for ozone and CO are the same, and are slightly 
smaller than the PM-10 nonattainment area.

B. What Is ``Cleaner Burning Gasoline''?

    The State CBG fuel program establishes limits on the properties and 
emission standards for gasoline sold in portions of the State in and 
around Maricopa County. These standards help reduce emissions of 
volatile organic compounds (VOCs), oxides of nitrogen (NOX), 
carbon monoxide (CO) and particulate matter (PM).
    ADEQ first adopted interim CBG regulations on September 12, 1997. 
The regulations were adopted as interim measures, in accordance with 
State legislation (HB 2307), as a quick means to replace federal 
reformulated gasoline (RFG), which had been in effect in the Maricopa 
County ozone nonattainment area during the summer of 1997.
    The interim CBG regulations specified three types of gasoline which 
roughly corresponded to Phase I federal RFG (``CBG Type 3''), Phase 2 
California Air Resources Board (CARB) RFG (``CBG Type 2'') and Phase II 
federal RFG (``CBG Type 1''). For 1998, gasoline suppliers to the 
covered area had the option of meeting the requirements for either CBG 
Type 2 or Type 3. For 1999 and beyond, suppliers were required to 
provide CBG Type 1 or Type 2. The interim regulations include year-
round limits on sulfur, aromatics, olefins, and distillation 
properties, and seasonal limits on Reid vapor pressure (RVP), oxygen 
content, and VOC and NOX performance. The area covered by 
the interim rule is all of Maricopa County.
    ADEQ submitted the interim CBG rule for approval as a revision to 
the ozone plan for the Maricopa County ozone nonattainment area on 
September 12, 1997, and as a revision to the State PM-10 plan on 
January 21, 1998. EPA approved the interim CBG rule SIP revisions on 
February 10, 1998 (63 FR 6653). In accordance with section 211(c)(4)(C) 
of the Act, EPA found that the fuel controls were necessary for the 
Phoenix area to attain the PM-10 and ozone national ambient air quality 
standards (NAAQS). Id. at 6656.

C. Description of Arizona's Changes to the CBG Program

    Since 1997, ADEQ has adopted several amendments to its CBG rule in 
order to make it a permanent rule and to reflect changes made by the 
State legislature to the fuel provisions of the ARS. Most of these 
changes involve the removal of SIP-approved requirements and options. 
The ``CBG Permanent Rules'' include the following key changes from the 
interim rules currently approved in the SIP:
    [sbull] The standards for CBG Type 3, which was only available as 
an option in 1998, have been removed along with references to this fuel 
option.\4\
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    \4\ This change was included in ADEQ's February 1999 ``CBG 
Permanent Rules'' submittal and reflects changes to the Arizona 
Revised Statutes by HB 2307.
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    [sbull] Summertime minimum oxygen content standards for Type 1 
gasoline have been removed by specifying a 0.0% minimum oxygen content 
for April 1 through November 1 in Table 1 of the rule.\5\
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    \5\ Additionally, the third footnote to Table 2 of the interim 
rule was removed. This footnote had provided that CBG Type 2 
produced in accordance with the non-averaging option must comply 
with a per gallon minimum oxygen content requirement of 1.8% by 
weight from April 1 through October 31. For additional information, 
see ADEQ's March 2001 ``Summertime Minimum Oxygen Content Removal'' 
submittal. These changes reflect amendments to the Arizona Revised 
Statutes by SB 1504.
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    [sbull] The option of supplying CBG Type 1 during the winter fuel 
season (November 2 through March 31) was removed by including 
wintertime fuel specifications that limit suppliers to CBG Type 2 
beginning in 2000. With this change, requirements for wintertime 
NOX surveys were removed because CBG Type 2 (CARB Phase 2 
RFG) does not include a NOX performance standard.
    [sbull] The option to provide non-ethanol oxygenated fuel during 
the winter has been removed by amending the wintertime oxygen content 
provisions to require fuel containing 10% ethanol, unless the use of a 
non-ethanol oxygenate is approved by the Director of ADEQ.\6\
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    \6\ This change was also included in ADEQ's August 2001 ``CBG 
Wintertime Rules'' submittal implementing changes to the Arizona 
Revised Statutes by HB 2347. Should ADEQ waive the 10 percent 
ethanol requirement, the regulations require a minimum oxygen 
content of 2.7 percent by weight for non-ethanol blends. Arizona 
Administrative Code (AAC) R20-2-751(A)(7)(a)(i). Thus winter fuel 
will continue to contain oxygen in the range of 2.7 to 3.5 percent 
by weight. See letter from Nancy Wrona, ADEQ and J. Art Macias, 
ADWM, to Jack Broadbent, EPA, August 12, 2003.
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    [sbull] NOX performance standards for CBG Type 1 and 
summer survey requirements were amended to conform with changes made by 
EPA to the

[[Page 55922]]

federal RFG regulations in December 1997 (62 FR 68196).\7\
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    \7\ See ADEQ's August 2001 ``CBG Wintertime Rules'' submittal.
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    [sbull] The area subject to the program was redefined to include 
all of Maricopa County as well as some western portions of Pinal County 
and a small part of southern Yavapai County.\8\
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    \8\ The definition of the covered area has been changed in 
several statutory and regulatory revisions. The final definition 
submitted for EPA approval is described in ADEQ's August 2001 ``CBG 
Wintertime Rules'' submittal and reflects statutory changes made by 
HB 2189.
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III. CAA Requirements for SIP Approval of State Fuel Measures

    In determining the approvability of any SIP revision, we must 
evaluate the proposed revision for consistency with the requirements of 
the CAA and EPA regulations, as found in CAA section 110 and Title I, 
Part D and 40 CFR Part 51 (Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans). Section 110(a)(2) contains the 
general requirements for SIPs (e.g., enforceable emissions limits,\9\ 
ambient monitoring, permitting of new sources, adequate funding).
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    \9\ Approvable regulations must include clear indications of 
what constitutes a violation, who is liable, and what defenses are 
available. In addition, penalties must be large enough to both 
ensure that any economic benefit due to noncompliance would be 
limited and include an additional penalty for deterrence.
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    Of particular relevance for today's action, where EPA is 
considering revisions to requirements currently approved into the SIP, 
is the requirement of section 110(l). Section 110(l) allows revisions 
to a SIP as long as the revisions do not interfere with any applicable 
requirement of the Act, including requirements concerning attainment 
and reasonable further progress. Thus, revisions to SIPs must meet the 
general requirements applicable to all SIPs including: reasonable 
notice and public hearing; necessary assurances that the implementing 
agencies have adequate personnel, funding, and authority under section 
110(a)(2)(E)(i) and 40 CFR 51.280; and a description of enforcement 
methods as required by 40 CFR 51.111. In addition, EPA will consider 
the effect of these proposed SIP revisions on the ability of the State 
to attain the NAAQS and demonstrate reasonable further progress.
    For SIP revisions addressing certain fuel measures, an additional 
statutory requirement may apply. CAA section 211(c)(4)(A) generally 
prohibits state regulation of a motor vehicle fuel characteristic or 
component for which EPA has adopted a control or prohibition under 
section 211(c)(1), unless the state control is identical to the federal 
control. Section 211(c)(4)(C), however, provides an exception to this 
preemption if EPA approves the state requirements in a SIP.

IV. The CBG Program's Compliance With CAA SIP Approval Requirements

    The following sections present a condensed discussion of our 
evaluation of the Arizona CBG program's compliance with applicable CAA 
requirements for fuels programs. Our complete evaluation is found in 
the TSD for this proposal. We encourage anyone wishing to comment on 
this proposal to review the TSD along with today's Federal Register 
notice. A copy of the TSD can be downloaded from our Web site or 
obtained by calling or writing the contact person listed above.

A. General SIP Requirements

    Reasonable Notice and Public Hearing. Sections 110(a)(2) and 110(l) 
require that SIP measures be adopted by the State after reasonable 
notice and public hearing. The revisions to the CBG rule contained in 
the various State SIP submittals all followed reasonable notice and a 
public hearing. A public hearing for the ``CBG Permanent Rules'' was 
held on December 11, 1997. A public hearing for the ``CBG Wintertime 
Rules'' was held on June 8, 1999. A public hearing for the ``Summertime 
Minimum Oxygen Content Removal'' submittal was held on November 20, 
2000.
    Enforceable Emission Limits and Program for Enforcement. Section 
110(a)(2)(A) and (C) require that measures adopted into the SIP be 
enforceable and that the State have a program for enforcing the 
measures. In addition, section 110(a)(2)(E) requires that the State 
provide necessary assurances that it has adequate personnel, funding, 
and authority to implement the rules. The CBG rules, as revised, 
contain an extensive description of the standards and what would 
constitute a violation, recordkeeping and reporting requirements, the 
enforcement methods to be used, and the fines to be imposed for 
noncompliance.
    For the most part, the enforcement provisions of the revised CBG 
rule are the same as the interim rule. The most notable change is the 
deletion the requirement for wintertime NOX surveys and the 
increase of summertime NOX and VOC surveys. The State 
deleted the wintertime NOX survey requirement because, after 
November 15, 2000, only CBG Type 2 (similar to CARB Phase 2 RFG) could 
be sold in the Maricopa County nonattainment area in the wintertime, 
and there are no NOX performance standards for this 
gasoline. Consistent with EPA's December 31, 1997 final revisions to 
the federal RFG program (62 FR 68196), however, the revised rules 
increase the number of gasoline quality surveys during the summer 
wherever CBG is sold. We conclude that the CBG program continues to be 
enforceable with these revisions.
    The February 1999 ``CBG Permanent Rules'' submittal contains 
assurances that ADEQ and the Arizona Department of Weights and Measures 
(ADWM) have adequate personnel, funding, and authority to implement the 
rules. These assurances have not changed with the subsequent 
submittals. We have concluded that the provisions contained in the 
revised CBG rules confer on the State the requisite authority to 
enforce compliance.

B. Section 110(l): Interference With Attainment or Reasonable Further 
Progress

    Section 110(l) prohibits EPA from approving a SIP revision if the 
revision would interfere with any applicable requirement of the Act 
including requirements concerning attainment and reasonable further 
progress (RFP). In applying section 110(l) to a particular SIP 
revision, we need not focus solely on the SIP revision's impact on 
emissions; rather, we may look at whether the entire SIP still provides 
for expeditious attainment of the NAAQS. We believe Arizona's CBG 
program, as modified, will continue to reduce ozone, PM-10 and 
wintertime CO concentrations, and, along with the other SIP measures, 
will be consistent with the Maricopa County area's continued or planned 
attainment of the ozone, PM-10 and CO NAAQS.
    Ozone. In April 2001, EPA determined that the Phoenix area had 
attained the 1-hour ozone standard by its statutory deadline of 
November 15, 1999. See 66 FR 29230 (May 30, 2001). The area has 
continued in attainment since 1999 with no recorded exceedances of the 
1-hour ozone standard and an overall downward trend in ozone levels. 
See Letter from Nancy Wrona, ADEQ, to Colleen McKaughan, EPA, June 12, 
2002.
    Because the area attained the ozone NAAQS, Arizona was not required 
to submit a serious area attainment demonstration;\10\ therefore, there 
is no

[[Page 55923]]

plan against which to judge whether the proposed revisions are 
consistent with the area's formal plan to attain the standard by its 
applicable statutory deadline. However, because the area has attained 
the ozone standard in 1999--and has continued to achieve attainment--
under the interim CBG program, we can compare the revised CBG program 
to the interim CBG program for the purposes of our analysis under 
section 110(l).\11\
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    \10\ See Memorandum, John S. Seitz, Director, OAQPS, EPA, to 
Regional Air Directors, ``Reasonable Further Progress, Attainment 
Demonstrations, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard,'' May 
10, 1995.
    \11\ See Hall v. EPA, 273 F.3d 1146, 1160 n.11 (9th Cir. 2001) 
(noting ``no relaxation'' test would ``clearly be appropriate in 
areas that achieved attainment under preexisting rules'').
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    For purposes of ozone attainment, the most substantial change to 
the CBG program in these proposed revisions is the removal of the two 
percent minimum oxygen requirement for summertime CBG. This change, 
however, is not a relaxation in the SIP because the SIP-approved 
regulations already allowed the use of non-oxygenated CBG (CBG Type 2 
produced under the averaging option) during the summer control period. 
Thus, the fuel options allowed under the revised State rules will be no 
less stringent than those allowed under the current SIP.
    While we find on the face of the regulations that section 110(l) is 
satisfied and there will be no relaxation in the SIP, we have worked 
with ADEQ to assess the changes in emissions and ozone concentrations 
likely to occur as a result of these changes to the CBG program. 
Arizona's technical analysis supporting the March 2001 ``Summertime 
Minimum Oxygen Content Removal'' submittal indicated that the removal 
of the minimum oxygen content requirement could result in increases in 
VOC and CO emissions and a decrease in NOX emissions as 
compared to the emissions from gasoline provided to the area during the 
period of 1997 to 1999 (the period in which the area first attained the 
ozone NAAQS). These changes in emissions are not likely to interfere 
with requirements for attainment because the projected emissions 
changes are relatively small, and Phoenix has had a general downward 
trend in ambient ozone concentrations from 1996 to 2002, allowing a 
buffer for small changes in emissions without necessarily jeopardizing 
attainment.
    To confirm this conclusion, we reevaluated ADEQ's emissions 
modeling and used these results to assess the impact these emission 
changes may have on ambient ozone concentrations. Our modeling 
generated speciated emissions estimates likely to result from the 
changes to the CBG requirements. We provided these speciated emissions 
estimates to the State and the State performed modeling using the Urban 
Airshed Model (UAM). The modeling predicted a four percent reduction in 
peak ozone for the types of non-oxygenated gasoline likely to be 
supplied to the area under the revised rules. The modification to 
Arizona's summertime gasoline program, therefore, will not interfere 
with requirements related to attainment and maintenance of the ozone 
NAAQS in the Maricopa County area.\12\
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    \12\ These reductions in peak 1-hour ozone concentrations should 
also ensure the fuel changes will not interfere with achievement of 
the 8-hour ozone NAAQS.
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    In 2001, we determined the area had attained the 1-hour ozone 
standard and therefore the RFP requirements of 182(c)(2)(B) for serious 
ozone nonattainment areas no longer applied to the Maricopa County 
area. 66 FR 29230 (May 30, 2001). As a result, there is no continuing 
obligation for the State to show further VOC reductions. The revisions 
therefore do not need to be evaluated against these RFP requirements to 
satisfy section 110(l).\13\
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    \13\ We need not resolve whether 110(l) requires EPA to evaluate 
the consistency of SIP revisions with past RFP demonstrations once 
EPA finds the area has attained the ozone NAAQS because, since 
adoption of the 1999 15 percent Rate of Progress Plan (ROP), 
additional VOC controls have become effective in the Maricopa County 
area to offset any potential changes in VOC emissions resulting from 
the proposed revisions. For additional discussion, please refer to 
the TSD.
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    Carbon monoxide. For CO attainment, we propose to conclude that the 
revisions to the CBG program are consistent with the area's plan for 
attainment. In March, 2001, Arizona submitted a revised serious 
nonattainment area CO plan for the Phoenix area. This plan relied in 
part on the CBG program being proposed for approval today to 
demonstrate both progress toward and attainment of the CO standard in 
the area. See Revised MAG 1999 Serious Area Carbon Monoxide Plan for 
the Maricopa County Nonattainment Area, Maricopa Association of 
Governments, March 2001, Chapter 9.\14\ Therefore, these revisions to 
the CBG program are consistent with and support the development of the 
Phoenix area's plan for meeting the Act's attainment and RFP 
requirements.
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    \14\ ADEQ estimates that the revisions to the wintertime program 
will provide a further reduction in total CO emissions of around 33 
metric tons per day over those achieved by the program as 
implemented prior to 1999. See ``Wintertime CBG'' Submittal, 
Enclosure 3.
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    Particulate Matter. As with CO, the proposed revisions are 
consistent with the area's plan for attaining the NAAQS and satisfying 
RFP. EPA approved the Maricopa County PM-10 Serious Area Plan on July 
25, 2002. 67 FR 48718. The area's PM-10 plan includes CBG as an on-road 
mobile source control measure to meet Best Available Control Measure 
(BACM) and Most Stringent Measure (MSM) requirements. The plan reflects 
the statutory revisions to the interim CBG program being proposed in 
today's action. See, e.g., EPA, Technical Support Document for Approval 
of the Serious Area PM-10 State Implementation Plan, at 122-23 (Jan. 
14, 2002).\15\ Because the revisions to the interim CBG program are 
assumed in the demonstration of attainment and RFP for PM-10, we 
conclude the proposed revisions satisfy the requirements of 110(l).\16\
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    \15\ We note that the 1998 approval of the interim Arizona CBG 
program claimed PM-10 reductions from the program's NOX 
performance standard (63 FR 6653) and the proposed revisions do not 
change these NOX performance standards. ADEQ claims 
additional PM-10 emission reductions will be achieved by the 
proposed revisions to the wintertime oxygen content requirement. In 
the Background Information Document supporting ADEQ's August 2001 
``CBG Wintertime Rule'' submittal, ADEQ claims the change to a 3.5 
percent oxygen content requirement will reduce PM-10 emissions by 
2.1 metric tons per day.
    \16\ With respect to PM2.5, EPA AIRS data indicates that the 
Phoenix area has not violated the 24-hour or annual PM2.5 NAAQS 
through 2002, and is not expected to be nonattainment for PM2.5.
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C. Findings Under Section 211(c)(4)

    In our approval of the CBG interim rule and Arizona's 211(c)(4)(C) 
waiver request (63 FR 6653 (Feb. 10, 1998)), we approved CBG Types 2 
and 3 for 1998 and CBG Types 1 and 2 for 1999 and beyond, finding these 
fuel requirements necessary to achieve the NAAQS in the Maricopa County 
area. The proposed revisions to the CBG rule would not add new fuel 
requirements to the SIP. The revisions remove currently SIP-approved 
requirements and compliance options. We do not read section 
211(c)(4)(A) of the Act to prevent States from making changes to SIP-
approved fuel programs where these changes would not have changed EPA's 
original assessment of the necessity of the State fuel controls. 
Because we find Arizona's changes to the CBG program are therefore 
within the scope of the previous finding, we conclude that a new 
finding under 211(c)(4)(C) is not required by the Act.

[[Page 55924]]

VI. Summary Statement About Proposed Approval

    We have evaluated the submitted SIP revisions and have determined 
that they are consistent with the CAA and EPA regulations. Therefore, 
we are proposing to approve the Arizona CBG program into the Arizona 
SIP under section 110(k)(3) of the CAA as meeting the requirements of 
section 110(a) and Part D to address ozone, CO and PM-10 nonattainment 
in the Maricopa County area.
    Specifically, we propose to approve the following elements of the 
CBG program: AAC R20-2-701, R20-2-716, R20-2-750 through 762, and Title 
20, Chap. 2, Art. 7, Tables 1 and 2 (Mar. 31, 2001); and ARS Sec. Sec.  
49-541 (as codified on August 9, 2001), 41-2124(D) and (K) (as codified 
on April 28, 2000), 41-2123 (as codified on August 6, 1999), 41-
2113(B)(4) (as codified on August 21, 1998), 41-2115 (as codified on 
July 18, 2000), and 41-2066(A)(2) (as codified on April 20, 2001).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to a state implementation plan shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

V. Statutory and Executive Order Review

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). Because the proposed action 
does not involve information collection by EPA, the Paperwork Reduction 
Act does not apply.

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 SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action proposes to 
approve pre-existing requirements under State or local law, and imposes 
no new requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    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, because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. While state fuel 
controls are preempted in certain circumstances, these issues are not 
raised by this proposed SIP revision. Thus, the requirements of section 
6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not

[[Page 55925]]

have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental regulations, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 4, 2003.
Wayne Nastri,
Regional Administrator, Region 9.
[FR Doc. 03-24557 Filed 9-26-03; 8:45 am]
BILLING CODE 6560-50-P