Approval and Promulgation of Implementation Plans; North Carolina: Charlotte, Raleigh-Durham, and Winston-Salem Areas Second 10-Year Maintenance Plan for the Carbon Monoxide National Ambient Air Quality Standard; Clarification

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; clarification.

SUMMARY:

EPA is clarifying its approval of revisions to the North Carolina State Implementation Plan (SIP), published in the Federal Register on March 24, 2006. Specifically, EPA is clarifying that its March 24, 2006, approval of the North Carolina carbon monoxide (CO) second 10-year maintenance plan for the Charlotte, Raleigh-Durham, and Winston-Salem areas included final approval of the movement of the oxygenated fuel program from the North Carolina Raleigh-Durham CO maintenance plan to the contingency plan.

DATES:

This action is effective June 19, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2005-NC-0002. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can also be reached via electronic mail at Lakeman.sean@epa.gov.

SUPPLEMENTARY INFORMATION:

I. EPA's Action

In September 1995, EPA redesignated Raleigh-Durham, North Carolina to attainment for the carbon monoxide National Ambient Air Quality Standard (CO NAAQS) and approved the initial 10-year maintenance plan for the area (60 FR 39258). The initial 10-year maintenance plan included the use of a 2.0% oxygenated fuel program. Subsequently, on October 19, 1995, North Carolina submitted a proposed SIP revision requesting that the oxygenated fuel program for the Raleigh-Durham CO maintenance area be moved from the maintenance plan to the contingency measures portion of the plan. The request was based on a revised vehicle miles traveled (VMT) analysis which demonstrated that the CO NAAQS could be maintained without the continued use of the oxygenated fuel program. EPA analyzed this request and proposed to approve the revision in 1995 (60 FR 56127, November 7, 1995). EPA received no comments on its proposed action.

As required by section 175A(b) of the Clean Air Act (CAA), North Carolina submitted another SIP revision in March 2005 providing for the second 10-year maintenance plan for CO for the Raleigh-Durham area, as well as for the Charlotte and Winston-Salem CO maintenance areas. The second 10-year maintenance plan included a new carbon monoxide emission inventory for 2000 and also established new motor vehicle emission budgets (MVEBs) for CO for 2015. The plan also provided for the oxygenated fuel program for the Raleigh-Durham CO area as a contingency measure rather than as a maintenance plan component. On March 24, 2006, (71 FR 14817) EPA approved, through a direct final rulemaking, the second 10-year CO maintenance plan for the Raleigh-Durham, Charlotte, and Winston-Salem CO maintenance areas. EPA received no comments on the March 2006 direct final rulemaking and it became effective in May 2006.

The March 2006 direct final rulemaking, however, did not explicitly reference any final action by EPA on the movement of the oxygenated fuel program for the Raleigh-Durham area from the maintenance plan to the contingency measures portion of the plan. While not explicitly referenced, it was EPA's intent to take such final action in the March 2006 rulemaking. Therefore, today, EPA is clarifying that in its March 2006 approval of the second 10-year maintenance plan for the Raleigh-Durham CO maintenance area, EPA intended to finalize its 1995 proposed approval of the movement of the oxygenated fuel program for the Raleigh-Durham area from the maintenance plan to the contingency measures portion of the plan.

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action are unnecessary because today's clarification of EPA's March 24, 2006, rule approving the second 10-year maintenance plan for the Raleigh-Durham CO maintenance area has no substantive impact on that approval and the clarification makes no substantive difference to EPA's analysis as set out in that rule. In addition, EPA can identify no particular reason why the public would be interested in being notified of this clarification since the opportunity to comment on the action to move the oxygenated fuel program for the Raleigh-Durham area from the maintenance plan to the contingency measures portion of the plan was previously provided and no comments were received.

EPA also finds that there is good cause under APA section 553(d)(3) for this clarification to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” (5 U.S.C. 553(d)(3)). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3), is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule simply clarifies that in EPA's March 2006 approval of the second 10-year maintenance plan for the Raleigh-Durham CO maintenance area, EPA intended to finalize its 1995 proposed approval of the movement of the oxygenated fuel program for the Raleigh-Durham area from the maintenance plan to the contingency measures portion of the plan. For these reasons, EPA finds good cause under APA section 553(d)(3), for this clarification to become effective on the date of publication of this action.

II. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely provides clarification that in EPA's March 24, 2006, approval of the second 10-year maintenance plan for the Raleigh-Durham CO maintenance area, EPA intended to finalize its 1995 proposed approval of the movement of the oxygenated fuel program for the Raleigh-Durham area from the maintenance plan to the contingency measures portion of the plan. This clarification has no substantive impact on EPA's March 24, 2006, approval and it imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,) Because this clarification does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This clarification also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely clarifies an approved state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This action also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. 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. 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 20, 2007. 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
• Reporting and recordkeeping requirements
• Ozone

40 CFR part 52, is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart II—North Carolina

2. In § 52.1770 (c), table 1 is amended under subchapter 2D by revising the entries for “Sect .1301”, “Sect .1302” and “Sect .1304” to read as follows: