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

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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