Approval and Promulgation of Air Quality Implementation Plans; Maryland; Metropolitan Washington D.C. 1-Hour Ozone Attainment Plan, Rescinding of Earlier Rules Resulting in Removal of Sanctions and Federal Implementation Clocks, 40946-40949 [05-13980]

Download as PDF 40946 Federal Register / Vol. 70, No. 135 / Friday, July 15, 2005 / Proposed Rules require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction, from further environmental documentation. A preliminary ‘‘Environmental Analysis Check List’’ is available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. VerDate jul<14>2003 16:12 Jul 14, 2005 Jkt 205001 2. Add § 165.1122 to read as follows: § 165.1122 San Diego Bay, Mission Bay and their Approaches—Regulated navigation area. (a) Regulated navigation area. The following area is a regulated navigation area (RNA): All waters of San Diego Bay, Mission Bay, and their approaches encompassed by a line commencing at Point La Jolla (32°51′06″ N, 117°16′42″ W); thence proceeding seaward on a line bearing 255° T to the outermost extent of the territorial seas; thence proceeding southerly along the outermost extent of the territorial seas to the intersection of the maritime boundary with Mexico; thence proceeding easterly, along the maritime boundary with Mexico to its intersection with the California coast; thence proceeding northerly, along the shoreline of the California coast—and including the inland waters of San Diego Bay and Mission Bay, California, shoreward of the COLREGS Demarcation Line—back to the point of origin. All coordinates reference 1983 North American Datum (NAD 83). (b) Definitions. As used in this section— COLREGS Demarcation Line means the line described at 33 CFR Sections 80.1104 or 80.1106. Public vessel means a vessel that is owned or demise-(bareboat) chartered by the government of the United States, by a State or local government, or by the government of a foreign country and that is not engaged in commercial service. Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water other than a public vessel. (c) Applicability. This section applies to all vessels of 100 gross tons (GT) or more, including tug and barge combinations of 100 GT or more (combined), operating within the RNA, with the exception of public vessels, vessels not intending to cross the COLREGS Demarcation Line and enter San Diego Bay or Mission Bay, and any vessels exercising rights under principles of international law, including innocent passage or force majeure, within the area of this RNA. Vessels operating properly installed, operational, type approved AIS as denoted in 33 CFR 164.46 are exempted from making requests as required from this regulation. (d) Regulations. (1) Port Security Requirements. No vessel to which this rule applies may enter, depart or move within San Diego Bay or Mission Bay unless it complies with the following requirements: PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 (i) Obtain permission to enter San Diego Bay or Mission Bay from the Captain of the Port or designated representative immediately upon entering the RNA. However, to avoid potential delays, we recommend seeking permission 30 minutes prior to entering the RNA. (ii) Follow all instructions issued by the Captain of the Port or designated representative. (iii) Obtain permission for any departure from or movement within the RNA from the Captain of the Port or designated representative prior to getting underway. (iv) Follow all instructions issued by the Captain of the Port or designated representative. (v) Reports may be made by telephone at 619–278–7033 (select option 2) or via VHF–FM radiotelephone on channel 16 (156.800 Mhz). The call sign for radiotelephone requests to the Captain of the Port or designated representative is ‘‘Coast Guard Sector San Diego.’’ (2) For purposes of the port security requirements in paragraph (d)(1) of this section, the Captain of the Port or designated representative means any official designated by the Captain of the Port, including but not limited to commissioned, warrant, and petty officers of the U.S. Coast Guard, and any U.S. Coast Guard patrol vessel. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. (e) Waivers. (1) The Captain of the Port or designated representative may, upon request, waive any regulation in this section. Dated: June 16, 2005. K.J. Eldridge, Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard District. [FR Doc. 05–13958 Filed 7–14–05; 8:45 am] BILLING CODE 4910–15–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [RME No. R03–OAR–2004–MD–0010; FRL– 7939–3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Metropolitan Washington D.C. 1-Hour Ozone Attainment Plan, Rescinding of Earlier Rules Resulting in Removal of Sanctions and Federal Implementation Clocks Environmental Protection Agency (EPA). AGENCY: E:\FR\FM\15JYP1.SGM 15JYP1 Federal Register / Vol. 70, No. 135 / Friday, July 15, 2005 / Proposed Rules ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Maryland. This SIP revision is Maryland’s attainment plan for the Metropolitan Washington, D.C. severe 1hour ozone nonattainment area (the Washington area). Concurrently, EPA is proposing to rescind its earlier final rule which disapproved and granted a protective finding for Maryland’s 1-hour ozone attainment plan for the Washington area. EPA is also proposing to rescind its earlier rule finding that the State of Maryland failed to submit one required element of a severe 1-hour ozone attainment plan, namely that for a penalty fee program. The intended effect of this action is to approve Maryland’s 1-hour ozone attainment plan for the Washington area and to rescind earlier final rules due to changes in federal requirements. Upon final approval of these actions, the sanctions and Federal Implementation Plan (FIP) clocks, commenced by the two earlier rules, will be removed. These final actions are being taken under the Clean Air Act (CAA or the Act). DATES: Written comments must be received on or before August 15, 2005. ADDRESSES: Submit your comments, identified by Regional Material in EDocket (RME) ID Number R03–OAR– 2004–MD–0010 by one of the following methods: A. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments. B. Agency Website: http:// docket.epa.gov/rmepub/ RME, EPA’s electronic public docket and comment system, is EPA’s preferred method for receiving comments. Follow the on-line instructions for submitting comments. C. E-mail: campbell.dave@epa.gov. D. Mail: R03–OAR–2004–MD–0010, David Campbell, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. E. Hand Delivery: At the previouslylisted EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to RME ID No. R03–OAR–2004–MD–0010. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at http:// docket.epa.gov/rmepub/, including any personal information provided, unless VerDate jul<14>2003 16:12 Jul 14, 2005 Jkt 205001 the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through RME, regulations.gov or e-mail. The EPA RME and the Federal regulations.gov websites are an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the RME index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly available, i.e., CBI 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 in RME or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814–2179, or by e-mail at cripps.christopher@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On January 24, 2003 (68 FR 3410), EPA promulgated a final rule reclassifying the Washington area from serious to severe nonattainment for the 1-hour ozone national ambient air quality standard (NAAQS). That final PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 40947 rule established a deadline of March 1, 2004, by which time the District of Columbia, Maryland and Virginia were required to submit revisions to their respective SIPs to meet the additional requirements of severe ozone nonattainment areas found in section 182(d) of the CAA. Maryland did not submit the SIP revision required by section 182(d)(3) of the Act to implement the penalty fee provisions specified in section 185 of the Act. Therefore, on May 21, 2004 (69 FR 29236), EPA published a final rule, pursuant to section 179(a) of the CAA, finding that the State of Maryland had failed to submit a required SIP element, namely the section 185 penalty fee SIP revision for the Washington area. This rule commenced the 18-month and 24month clocks for the imposition of the Act’s section 179(a) sanctions, and the 24-month clock for the promulgation of a FIP for the missing SIP element. On May 13, 2005 (70 FR 25719), EPA published a final rule disapproving Maryland’s 1-hour ozone attainment plan for the Washington area. On May 13, 2005 (70 FR 25688), EPA also published a final rule approving all of the other SIP elements required of a severe 1-hour ozone nonattainment area’s attainment plan, submitted by Maryland for the Washington area, including but not limited to all control measures, needed to fully satisfy the emissions reductions relevant to attainment of the 1-hour National Ambient Air Quality Standard (NAAQS) for ozone. Thus, the only basis for EPA’s disapproval of Maryland’s 1-hour ozone attainment plan for the Washington area was the lack of the fee program required under section 185 of the Act. Implicit in EPA’s approval of all elements necessary for Maryland to have an approved plan for attainment of the 1hour ozone NAAQS, other than the then-legally required section 185 penalty fee program, is the notion that once this single deficiency is corrected, EPA has an obligation to fully approve Maryland’s 1-hour attainment plan for the Washington area. See 110(k)(3) of the Act (‘‘the Administrator shall approve such submittal as a whole if it meets all the applicable requirements * * *’’). EPA is undertaking this rulemaking in fulfillment of its statutory obligation. On May 26, 2005 (70 FR 30592), EPA issued a final rule which retained an April 30, 2004 (69 FR 23951) final rule establishing that once the 1-hour ozone NAAQS is revoked for an area, the section 185 penalty fee program in SIPs will not be triggered for a failure of an area to attain the 1-hour ozone NAAQS by its 1-hour attainment date, and, that E:\FR\FM\15JYP1.SGM 15JYP1 40948 Federal Register / Vol. 70, No. 135 / Friday, July 15, 2005 / Proposed Rules States are no longer obligated to include the section 185 penalty fee program in their SIPs for nonattainment that had been classified as severe or extreme under the 1-hour ozone NAAQS but are not so classified under the 8-hour NAAQS for ozone. That May 26, 2005 final rule was effective June 27, 2005. The 1-hour ozone NAAQS set forth in 40 CFR 50.9(a) will no longer apply to an area one year after the effective date of the designation of that area for the 8hour ozone NAAQS pursuant to section 107 of the Act. (See 40 CFR 50.9(b); 69 FR at 23996, April 30, 2004.) The Washington area was designated nonattainment for the 8-hour ozone NAAQS effective June 15, 2004. (See 70 FR 23858, April 30, 2004.) The Washington area is not designated as extreme or severe under the 8-hour ozone standard. Therefore, the 1-hour ozone NAAQS set forth in 40 CFR 50.9(a) and the requirement for a section 185 penalty fee SIP revision no longer apply in the Washington area after June 15, 2005. EPA believes that there is no legal basis to require Maryland to adopt and submit a SIP revision consisting of a section 185 penalty fee program, and have EPA approve such a SIP revision before it can approve Maryland’s 1-hour ozone attainment plan for the Washington area. Because the section 185 penalty fee program is no longer a SIP element required for the Washington area under part D of Title I of the Act, EPA has no authority to subject Maryland to the sanctions established in section 179 of the Act due to its failure to submit the section 185 penalty fee SIP revision. The purpose of EPA’s May 21, 2004 final rule (69 FR 29236) was to initiate the sanctions process for the failure to submit the then required section 185 penalty fee SIP revision. EPA concludes it lacks the necessary authority, and no longer has a legal basis for that May 21, 2004 final rule (69 FR 29236). II. Proposed Action EPA is proposing to approve Maryland’s attainment plan for the Metropolitan Washington, DC severe 1hour ozone nonattainment area. Concurrently, EPA is proposing to rescind its earlier final rule which disapproved and granted a protective finding for Maryland’s 1-hour ozone attainment plan for the Washington area. EPA is also proposing to rescind its earlier rule finding that the State of Maryland failed to submit a required element of a severe 1-hour ozone attainment plan for a penalty fee program. As explained herein, the 1hour ozone NAAQS no longer applies to VerDate jul<14>2003 16:12 Jul 14, 2005 Jkt 205001 the Washington area and there is no legal basis for EPA to require that Maryland have a section 185 penalty fee program in its SIP for the Washington area. Currently, the sanctions and FIP clocks commenced by the effective date of the May 21, 2004 (69 FR 29236) final rule finding that Maryland failed to submit the then-required section 185 penalty fee SIP element would mean that the 2:1 offset sanction would be imposed in the Maryland portion of the Washington area in December of 2005, and the highway funding sanction in June of 2006. The sanctions and FIP clocks commenced by the effective date of the May 13, 2005 (70 FR 25719) final rule disapproving Maryland’s 1-hour ozone attainment plan for the Washington area solely for its lack of the then-required section 185 penalty fee SIP element would mean that these mandatory sanctions would be imposed in the Maryland portion of the Washington area in December 2006 and June 2007, respectively. By proposing to rescind both its May 21, 2004 (69 FR 29236) final rule finding that Maryland failed to submit the then required section 185 penalty fee SIP element, and its May 13, 2005 (70 FR 25719) final rule disapproving Maryland’s 1-hour ozone attainment plan for the Washington area solely for its lack of the then-required section 185 penalty fee SIP element, EPA is also proposing to remove the sanctions and FIP clocks commenced by those two final rules. Interested parties are invited to submit comments on this proposed action. Please note, however, that this proposed action neither re-opens nor solicits comment upon any of EPA’s final rules referenced in this document, or issues/comments already addressed therein. III. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 Fed. Reg. 28355 (May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law, does not impose any additional enforceable duty beyond that required by state law, and relieves sources of an additional burden potentially placed on them by the sanction provisions of the Act, 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 proposed rule also does 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), nor will it 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), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (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 Clean Air Act. 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 Clean Air Act. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the E:\FR\FM\15JYP1.SGM 15JYP1 40949 Federal Register / Vol. 70, No. 135 / Friday, July 15, 2005 / Proposed Rules ‘‘Attorney General’s Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings’’ issued under the executive order. This proposed rule to approve Maryland’s 1-hour ozone attainment plan for the Washington area, rescind two earlier final rules, and thereby remove sanctions and FIP clocks does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: July 8, 2005. Richard J. Kampf, Acting Regional Administrator, Region III. [FR Doc. 05–13980 Filed 7–14–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 [AMS–FRL–7937–2] RIN 2060–AN19 Control of Emissions of Air Pollution From Diesel Fuel Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: EPA is proposing to correct, amend, and revise certain provisions of the Highway Diesel Rule adopted on January 18, 2001 (66 FR 5002), and the Nonroad Diesel Rule on June 29, 2004 (69 FR 38958). First, it proposes minor corrections to clarify the regulations governing compliance with the diesel fuel standards. These minor corrections focus primarily on the Nonroad Rule, however, some may affect provisions contained in the Highway Rule that were overlooked at the time the Nonroad Rule was finalized. Second, it proposes amending the designate and track provisions to account for companies within the fuel distribution system that perform more than one function related to fuel production and/ or distribution. This would alleviate the problem of inaccurate volume balances due to a company performing multiple functions. Finally, with respect to the generation of fuel credits, it proposes revising the regulatory text to allow refiners better access to early highway VerDate jul<14>2003 16:12 Jul 14, 2005 Jkt 205001 diesel fuel credits. The intention of this amendment is to help ensure a smooth transition to ultra low-sulfur diesel fuel nationwide. We are publishing in the ‘‘Rules and Regulations’’ section of today’s Federal Register a direct final rule that will correct several typographical errors, modify the designate and track regulations to account for companies that perform more than one function, and provide increased incentive for early compliance with the ultra lowsulfur diesel fuel requirements without further EPA action unless we receive adverse comment. We have explained our reasons for today’s action in detail in the preamble to the direct final rule. If we receive adverse comment, we will withdraw the direct final rule prior to its effective date, and will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. DATES: Written comments must be received by August 15, 2005. As explained in section II of the direct final rule, we do not expect to hold a public hearing, however, requests for a public hearing must be received by August 1, 2005. If we receive a request for a public hearing, we will publish information related to the timing and location of the hearing and the timing of a new deadline for public comments. ADDRESSES: Comments: All comments and materials relevant to this action should be submitted to Public Docket No. OAR–2005–0134 by the date indicated under DATES above. Materials relevant to this rulemaking are in Public Docket at the following address: EPA Docket Center (EPA/DC), Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, except on government holidays. You can reach the Air Docket by telephone at (202) 566–1742 and by facsimile at (202) 566–1741. You may be charged a reasonable fee for photocopying docket materials, as provided in 40 CFR part 2. FOR FURTHER INFORMATION CONTACT: Tia Sutton, U.S. EPA, National Vehicle and Fuels Emission Laboratory, Assessment and Standards Division, 2000 Traverwood, Ann Arbor, MI 48105; telephone (734) 214–4018, fax (734) 214–4816, e-mail sutton.tia@epa.gov or Emily Green, see address above; telephone (734) 214–4639, fax (734) 214–4816, e-mail green.emilya@epa.gov. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 SUPPLEMENTARY INFORMATION: I. General Information A. Regulated Entities This action will affect companies and persons that produce, import, distribute, or sell highway and/or nonroad diesel fuel. Affected Categories and entities include the following: Category NAICS code a Examples of potentially affected entities Industry ..... Industry ..... 324110 422710 Industry ..... 484220 Petroleum refiners. Diesel fuel marketers and distributors. Diesel fuel carriers. a North American Industry Classification System (NAICS) This list is not intended to be exhaustive, but rather provides a guide regarding entities likely to be affected by this action. To determine whether particular activities may be affected by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT. B. How Can I Get Copies of This Document and Send Comments? See the direct final rule EPA has published in the ‘‘Rules and Regulations’’ section of today’s Federal Register for information about accessing these documents. The direct final rule also includes detailed instructions for sending comments to EPA. II. Summary of Rule On January 18, 2004, we published the final Highway Rule (66 FR 5002) which is a comprehensive national program to greatly reduce emissions from diesel engines by integrating engine and fuel controls as a system to gain the greatest air quality benefits. Subsequently, we adopted the Nonroad Rule (69 FR 38958) on June 29, 2004 to amend the Highway Rule to include Nonroad equipment and fuel to further the goal of decreasing harmful emissions. After promulgation of these rules, we discovered several typographical errors and it also became evident that several additions or deletions were necessary to clarify portions of the regulations. This rule would correct those errors and serve to clarify the regulations to facilitate compliance. Along with these minor clarifications, this rule would modify the text of the designate and track provisions to include provisions for companies that perform more than one function in the fuel system. For example, as these provisions are currently written, fuel E:\FR\FM\15JYP1.SGM 15JYP1

Agencies

[Federal Register Volume 70, Number 135 (Friday, July 15, 2005)]
[Proposed Rules]
[Pages 40946-40949]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13980]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME No. R03-OAR-2004-MD-0010; FRL-7939-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Metropolitan Washington D.C. 1-Hour Ozone Attainment Plan, 
Rescinding of Earlier Rules Resulting in Removal of Sanctions and 
Federal Implementation Clocks

AGENCY: Environmental Protection Agency (EPA).

[[Page 40947]]


ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Maryland. This SIP revision is 
Maryland's attainment plan for the Metropolitan Washington, D.C. severe 
1-hour ozone nonattainment area (the Washington area). Concurrently, 
EPA is proposing to rescind its earlier final rule which disapproved 
and granted a protective finding for Maryland's 1-hour ozone attainment 
plan for the Washington area. EPA is also proposing to rescind its 
earlier rule finding that the State of Maryland failed to submit one 
required element of a severe 1-hour ozone attainment plan, namely that 
for a penalty fee program. The intended effect of this action is to 
approve Maryland's 1-hour ozone attainment plan for the Washington area 
and to rescind earlier final rules due to changes in federal 
requirements. Upon final approval of these actions, the sanctions and 
Federal Implementation Plan (FIP) clocks, commenced by the two earlier 
rules, will be removed. These final actions are being taken under the 
Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before August 15, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-MD-0010 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Website: http://docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: campbell.dave@epa.gov.
    D. Mail: R03-OAR-2004-MD-0010, David Campbell, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to RME ID No. R03-OAR-2004-MD-
0010. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov websites are an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI 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 in RME 
or in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Maryland Department of the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by e-mail at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 24, 2003 (68 FR 3410), EPA promulgated a final rule 
reclassifying the Washington area from serious to severe nonattainment 
for the 1-hour ozone national ambient air quality standard (NAAQS). 
That final rule established a deadline of March 1, 2004, by which time 
the District of Columbia, Maryland and Virginia were required to submit 
revisions to their respective SIPs to meet the additional requirements 
of severe ozone nonattainment areas found in section 182(d) of the CAA. 
Maryland did not submit the SIP revision required by section 182(d)(3) 
of the Act to implement the penalty fee provisions specified in section 
185 of the Act. Therefore, on May 21, 2004 (69 FR 29236), EPA published 
a final rule, pursuant to section 179(a) of the CAA, finding that the 
State of Maryland had failed to submit a required SIP element, namely 
the section 185 penalty fee SIP revision for the Washington area. This 
rule commenced the 18-month and 24-month clocks for the imposition of 
the Act's section 179(a) sanctions, and the 24-month clock for the 
promulgation of a FIP for the missing SIP element.
    On May 13, 2005 (70 FR 25719), EPA published a final rule 
disapproving Maryland's 1-hour ozone attainment plan for the Washington 
area. On May 13, 2005 (70 FR 25688), EPA also published a final rule 
approving all of the other SIP elements required of a severe 1-hour 
ozone nonattainment area's attainment plan, submitted by Maryland for 
the Washington area, including but not limited to all control measures, 
needed to fully satisfy the emissions reductions relevant to attainment 
of the 1-hour National Ambient Air Quality Standard (NAAQS) for ozone. 
Thus, the only basis for EPA's disapproval of Maryland's 1-hour ozone 
attainment plan for the Washington area was the lack of the fee program 
required under section 185 of the Act. Implicit in EPA's approval of 
all elements necessary for Maryland to have an approved plan for 
attainment of the 1-hour ozone NAAQS, other than the then-legally 
required section 185 penalty fee program, is the notion that once this 
single deficiency is corrected, EPA has an obligation to fully approve 
Maryland's 1-hour attainment plan for the Washington area. See 
110(k)(3) of the Act (``the Administrator shall approve such submittal 
as a whole if it meets all the applicable requirements * * *''). EPA is 
undertaking this rulemaking in fulfillment of its statutory obligation.
    On May 26, 2005 (70 FR 30592), EPA issued a final rule which 
retained an April 30, 2004 (69 FR 23951) final rule establishing that 
once the 1-hour ozone NAAQS is revoked for an area, the section 185 
penalty fee program in SIPs will not be triggered for a failure of an 
area to attain the 1-hour ozone NAAQS by its 1-hour attainment date, 
and, that

[[Page 40948]]

States are no longer obligated to include the section 185 penalty fee 
program in their SIPs for nonattainment that had been classified as 
severe or extreme under the 1-hour ozone NAAQS but are not so 
classified under the 8-hour NAAQS for ozone. That May 26, 2005 final 
rule was effective June 27, 2005.
    The 1-hour ozone NAAQS set forth in 40 CFR 50.9(a) will no longer 
apply to an area one year after the effective date of the designation 
of that area for the 8-hour ozone NAAQS pursuant to section 107 of the 
Act. (See 40 CFR 50.9(b); 69 FR at 23996, April 30, 2004.) The 
Washington area was designated nonattainment for the 8-hour ozone NAAQS 
effective June 15, 2004. (See 70 FR 23858, April 30, 2004.) The 
Washington area is not designated as extreme or severe under the 8-hour 
ozone standard. Therefore, the 1-hour ozone NAAQS set forth in 40 CFR 
50.9(a) and the requirement for a section 185 penalty fee SIP revision 
no longer apply in the Washington area after June 15, 2005.
    EPA believes that there is no legal basis to require Maryland to 
adopt and submit a SIP revision consisting of a section 185 penalty fee 
program, and have EPA approve such a SIP revision before it can approve 
Maryland's 1-hour ozone attainment plan for the Washington area. 
Because the section 185 penalty fee program is no longer a SIP element 
required for the Washington area under part D of Title I of the Act, 
EPA has no authority to subject Maryland to the sanctions established 
in section 179 of the Act due to its failure to submit the section 185 
penalty fee SIP revision. The purpose of EPA's May 21, 2004 final rule 
(69 FR 29236) was to initiate the sanctions process for the failure to 
submit the then required section 185 penalty fee SIP revision. EPA 
concludes it lacks the necessary authority, and no longer has a legal 
basis for that May 21, 2004 final rule (69 FR 29236).

II. Proposed Action

    EPA is proposing to approve Maryland's attainment plan for the 
Metropolitan Washington, DC severe 1-hour ozone nonattainment area. 
Concurrently, EPA is proposing to rescind its earlier final rule which 
disapproved and granted a protective finding for Maryland's 1-hour 
ozone attainment plan for the Washington area. EPA is also proposing to 
rescind its earlier rule finding that the State of Maryland failed to 
submit a required element of a severe 1-hour ozone attainment plan for 
a penalty fee program. As explained herein, the 1-hour ozone NAAQS no 
longer applies to the Washington area and there is no legal basis for 
EPA to require that Maryland have a section 185 penalty fee program in 
its SIP for the Washington area. Currently, the sanctions and FIP 
clocks commenced by the effective date of the May 21, 2004 (69 FR 
29236) final rule finding that Maryland failed to submit the then-
required section 185 penalty fee SIP element would mean that the 2:1 
offset sanction would be imposed in the Maryland portion of the 
Washington area in December of 2005, and the highway funding sanction 
in June of 2006. The sanctions and FIP clocks commenced by the 
effective date of the May 13, 2005 (70 FR 25719) final rule 
disapproving Maryland's 1-hour ozone attainment plan for the Washington 
area solely for its lack of the then-required section 185 penalty fee 
SIP element would mean that these mandatory sanctions would be imposed 
in the Maryland portion of the Washington area in December 2006 and 
June 2007, respectively. By proposing to rescind both its May 21, 2004 
(69 FR 29236) final rule finding that Maryland failed to submit the 
then required section 185 penalty fee SIP element, and its May 13, 2005 
(70 FR 25719) final rule disapproving Maryland's 1-hour ozone 
attainment plan for the Washington area solely for its lack of the 
then-required section 185 penalty fee SIP element, EPA is also 
proposing to remove the sanctions and FIP clocks commenced by those two 
final rules.
    Interested parties are invited to submit comments on this proposed 
action. Please note, however, that this proposed action neither re-
opens nor solicits comment upon any of EPA's final rules referenced in 
this document, or issues/comments already addressed therein.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 Fed. Reg. 28355 (May 22, 
2001). This action merely proposes to approve state law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule 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 rule proposes to approve pre-
existing requirements under state law, does not impose any additional 
enforceable duty beyond that required by state law, and relieves 
sources of an additional burden potentially placed on them by the 
sanction provisions of the Act, 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 proposed rule also does 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), nor 
will it 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), because it merely proposes to approve a state rule 
implementing a Federal requirement, and does not alter the relationship 
or the distribution of power and responsibilities established in the 
Clean Air Act. This proposed rule also is not subject to Executive 
Order 13045 (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 
Clean Air Act. 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 Clean Air Act. 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. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this proposed rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the

[[Page 40949]]

``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings'' issued under the executive 
order.
    This proposed rule to approve Maryland's 1-hour ozone attainment 
plan for the Washington area, rescind two earlier final rules, and 
thereby remove sanctions and FIP clocks does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: July 8, 2005.
Richard J. Kampf,
Acting Regional Administrator, Region III.
[FR Doc. 05-13980 Filed 7-14-05; 8:45 am]
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