[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Rules and Regulations]
[Pages 56697-56711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21184]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[OAR-2003-0083; FRL-7816-2]


Air Quality Classifications for the 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Clean Air Act (CAA) authorizes EPA to reclassify certain 
ozone nonattainment areas shortly after

[[Page 56698]]

the initial classification for such areas. In the April 30, 2004 
Federal Register action establishing the 8-hour ozone designations and 
classifications, we described this reclassification process and listed 
criteria that we intended to use to evaluate a reclassification 
request. Requests to reclassify ozone nonattainment areas from moderate 
to marginal were submitted by the respective States for the following 
areas: Cass and Muskegon Counties, Michigan; Detroit, Michigan; 
Greensboro, North Carolina; Kent/Queen Anne Counties, Maryland; 
Lancaster, Pennsylvania; LaPorte, Indiana; Memphis, Arkansas/Tennessee; 
and Richmond, Virginia. This rule reclassifies certain areas that are 
designated nonattainment for the 8-hour ozone national ambient air 
quality standard (NAAQS).

DATES: Effective Date: This final rule is effective on November 22, 
2004.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OAR 2003-0083 (Designations). All documents in the docket 
are listed in the EDOCKET index at http://www.epa.gov/edocket. Although 
listed in the index, some information is not publicly available, i.e., 
Confidential Business Information (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 EDOCKET or in hard 
copy at the Docket, EPA/DC, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Office of Air and Radiation Docket and 
Information Center is (202) 566-1742. In addition, we have placed a 
copy of the rule and a variety of materials regarding designations on 
EPA's designation Web site at: http://www.epa.gov/oar/oaqps/glo/designations. Materials relevant to Early Action Compact (EAC) areas 
are on EPA's Web site at: http://www.epa.gov/ttn/naaqs/ozone/eac/wl040218_eac_resources.pdf.

FOR FURTHER INFORMATION CONTACT: Ms. Annie Nikbakht, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency, 
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 
541-5246 or by e-mail at: [email protected]. You may also contact 
Mr. Doug Grano, Office of Air Quality Planning and Standards, U.S. 
Environmental Protection Agency, Mail Code C539-02, Research Triangle 
Park, NC 27711, phone number (919) 541-3292 or by e-mail at: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

    The following is an outline of the preamble.

I. What is the Purpose of this Document?
II. How is Ground-Level Ozone Formed?
III. What are the Health Concerns Addressed by the 8-Hour Ozone 
Standard?
IV. What is the Chronology of Events Leading Up to This Rule?
V. What are the CAA Requirements for Air Quality Classifications?
VI. What are the Requirements for Reclassifying 8-Hour Ozone 
Nonattainment Areas?
VII. What Reclassification Requests Did EPA Receive and What Action 
is EPA Taking on the Requests?
VIII. Does This Action Impact the Deferred Effective Date of 
Nonattainment Designations for the Greensboro EAC Area?
IX. If an Area is Bumped Down to Marginal, then Misses the 
Attainment Date and is Bumped Up from Moderate, What Due Dates 
Apply?
X. Statutory and Executive Order Reviews

I. What Is the Purpose of This Document?

    The purpose of this document is to take action on requests from 
States to reclassify certain areas with respect to the 8-hour ground-
level ozone NAAQS. The EPA is approving the requests for the following 
areas: Cass and Muskegon Counties, Michigan; Detroit, Michigan; 
Greensboro, North Carolina; Kent/Queen Anne Counties, Maryland; 
Lancaster, Pennsylvania; LaPorte, Indiana; Memphis, Arkansas/Tennessee; 
and Richmond, Virginia.

II. How Is Ground-Level Ozone Formed?

    Ground-level ozone (sometimes referred to as smog) is formed by the 
reaction of volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) in the atmosphere in the presence of sunlight. These 
two pollutants, often referred to as ozone precursors, are emitted by 
many types of pollution sources, including on-road and off-road motor 
vehicles and engines, power plants and industrial facilities, and 
smaller sources, collectively referred to as area sources. Ozone is 
predominately a summertime air pollutant. Changing weather patterns 
contribute to yearly differences in ozone concentrations from region to 
region. Ozone and the pollutants that form ozone also can be 
transported into an area from pollution sources found hundreds of miles 
upwind.

III. What Are the Health Concerns Addressed by the 8-Hour Ozone 
Standard?

    During the hot summer months, ground-level ozone reaches unhealthy 
levels in several parts of the country. Ozone is a significant health 
concern, particularly for children and people with asthma and other 
respiratory diseases. Ozone has also been associated with increased 
hospitalizations and emergency room visits for respiratory causes, 
school absences, and reduced activity and productivity because people 
are suffering from ozone-related respiratory symptoms.
    Breathing ozone can trigger a variety of health problems. Ozone can 
irritate the respiratory system, causing coughing, throat irritation, 
an uncomfortable sensation in the chest, and/or pain when breathing 
deeply. Ozone can worsen asthma and possibly other respiratory 
diseases, such as bronchitis and emphysema. When ozone levels are high, 
more people with asthma have attacks that require a doctor's attention 
or the use of additional medication. Ozone can reduce lung function and 
make it more difficult to breathe deeply, and breathing may become more 
rapid and shallow than normal, thereby limiting a person's normal 
activity. In addition, breathing ozone can inflame and damage the 
lining of the lungs, which may lead to permanent changes in lung 
tissue, irreversible reductions in lung function, and a lower quality 
of life if the inflammation occurs repeatedly over a long time period 
(months, years, a lifetime). People who are particularly susceptible to 
the effects of ozone include children and adults who are active 
outdoors, people with respiratory disease, such as asthma, and people 
with unusual sensitivity to ozone. More detailed information on the 
health effects of ozone can be found at the following Web site: http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.

IV. What Is the Chronology of Events Leading Up to This Rule?

    In 1979, EPA promulgated the 0.12 parts per million (ppm) 1-hour 
ozone standard, (44 FR 8202, February 8, 1979). On July 18, 1997, we 
promulgated a revised ozone standard of 0.08 ppm, measured over an 8-
hour period, i.e., the 8-hour standard (62 FR 38856). The 8-hour NAAQS 
rule was challenged by numerous litigants and in

[[Page 56699]]

May 1999, the U.S. Court of Appeals for the DC Circuit issued a 
decision remanding, but not vacating, the 8-hour ozone standard. Among 
other things, the Court recognized that EPA is required to designate 
areas for any new or revised NAAQS in accordance with the CAA and 
addressed a number of other issues, which are not related to 
designations. American Trucking Assoc. v. EPA, 175 F.3d 1027, 1047-48, 
on rehearing 195 F.3d 4 (D.C. Cir., 1999). We sought review of two 
aspects of that decision in the U.S. Supreme Court. In February 2001, 
the Supreme Court upheld our authority to set the NAAQS and remanded 
the case back to the D.C. Circuit for disposition of issues the Court 
did not address in its initial decision. Whitman v. American Trucking 
Assoc., 121 S.Ct. 903, 911-914, 916-919 (2001) (Whitman). In March 
2002, the D.C. Circuit rejected all remaining challenges to the 8-hour 
ozone standard. American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C. 
Cir., 2002).
    The process for designations following promulgation of a NAAQS is 
contained in section 107(d)(1) of the CAA. The CAA defines 
``nonattainment area'' in section 107(d)(1)(A)(i) as an area that is 
violating an ambient standard or is contributing to a nearby area that 
is violating the standard. If an area meets this definition, EPA is 
obligated to designate the area as nonattainment.
    The final rule establishing designations for all areas of the 
country was signed by the EPA Administrator on April 15, 2004 and 
published in the Federal Register on April 30, 2004 (69 FR 23858). That 
rule also sets forth the classifications for certain ozone 
nonattainment areas. Section 181(a) of the CAA provides that areas will 
be classified at the time of designation. For further information on 
designations and classifications, the reader should consult the April 
30, 2004 rulemaking action. Classifications are discussed below.

V. What Are the CAA Requirements for Air Quality Classifications?

    The CAA contains two sets of provisions-subpart 1 and subpart 2-
that address planning and control requirements for ozone nonattainment 
areas. Both are found in title I, part D. Subpart 1 (which we refer to 
as ``basic'' nonattainment) contains general, less prescriptive, 
requirements for nonattainment areas. Subpart 2 (which we refer to as 
``classified'' nonattainment) provides more specific requirements for 
ozone nonattainment areas.\1\ Some areas are subject only to the 
provisions of subpart 1. Other areas are subject to the provisions of 
subpart 2.\2\ Subpart 2 areas are classified based on each area's 
design value. Control requirements are linked to each classification. 
Areas with more serious ozone pollution are subject to more prescribed 
requirements. Under our 8-hour ozone implementation rule, signed on 
April 15, 2004, an area was classified under subpart 2 based on its 8-
hour design value \3\ if it had a 1-hour design value at or above 0.121 
ppm (69 FR 23954 and 40 CFR 51.902). All other areas are covered under 
subpart 1.
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    \1\ State Implementation Plans; General Preamble for the 
Implementation of Title I of the CAA Amendments of 1990; Proposed 
Rule.'' April 16, 1992 (57 FR 13498 at 13501 and 13510).
    \2\ Areas subject to subpart 2 are also subject to subpart 1 
requirements that are not pre-empted by a more specific mandate 
under subpart 2.
    \3\ For the 1-hour ozone NAAQS, design value is defined at 40 
CFR 51.900(c). For the 8-hour ozone NAAQS, design value is defined 
at 40 CFR 51.900(d).
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    Any area with a 1-hour ozone design value (based on the most recent 
3 years of data) that meets or exceeds the statutory level of 0.121 ppm 
that Congress specified in Table 1 of section 181 is classified under 
subpart 2 and is subject to the control obligations associated with its 
classification.\4\ Subpart 2 areas were classified as marginal, 
moderate, serious, or severe based on the area's 8-hour design value 
calculated using the most recent 3 years of data.\5\ As described in 
the Phase 1 implementation rule, since Table 1 is based on 1-hour 
design values, we promulgated in that rule a regulation translating the 
thresholds in Table 1 of section 181 from 1-hour values to 8-hour 
values. (See Table 1, below, ``Classification for 8-Hour Ozone NAAQS'' 
from 40 CFR 51.903.)
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    \4\ In the Phase 2 implementation rule, we will address the 
control obligations that apply to areas under both subpart 1 and 
subpart 2.
    \5\ At this time, there are no areas with design values in the 
extreme classification for the 8-hour ozone standard.

                                 Table 1.--Classification for 8-Hour Ozone NAAQS
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                                                                                            Maximum period for
                                                                                           attainment in state
                                                                          8-hour design     plans (years after
             Area class                                                    value (ppm       effective date of
                                                                             ozone)           nonattainment
                                                                                          designation for 8-hour
                                                                                                  NAAQS)
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Marginal............................  from.............................           0.085                        3
                                      up to *..........................           0.092
Moderate............................  from.............................           0.092                        6
                                      up to *..........................           0.107
Serious.............................  from.............................           0.107                        9
                                      up to *..........................           0.120
Severe-15...........................  from.............................           0.120                       15
                                      up to *..........................           0.127
Severe-17...........................  from.............................           0.127                       17
                                      up to *..........................           0.187
Extreme.............................  equal to or above................           0.187                      20
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* But not including.


[[Page 56700]]

VI. What Are the Requirements for Reclassifying 8-Hour Ozone 
Nonattainment Areas?

    Under section 181(a)(4), an ozone nonattainment area may be 
reclassified ``if an area classified under paragraph (1) (Table 1) 
would have been classified in another category if the design value in 
the area were 5 percent greater or 5 percent less than the level on 
which such classification was based.'' The EPA previously described 
criteria to implement the section 181(a)(4) provisions in a final rule 
designating and classifying areas for the 1-hour ozone standard 
published on November 6, 1991 (56 FR 56698). As stated in that final 
rule, the provisions of section 181(a)(4) set out general criteria and 
grant the Administrator broad discretion in making or determining not 
to make, a reclassification. As part of the 1991 action, EPA developed 
more specific criteria to evaluate whether it is appropriate to 
reclassify a particular area. The EPA also described these criteria in 
the April 30, 2004 final rule. The general and specific criteria are as 
follows:
    General: The EPA may consider the number of exceedances of the 
national primary ambient air quality standard for ozone in the area, 
the level of pollution transport between the area and other affected 
areas, including both intrastate and interstate transport, and the mix 
of sources and air pollutants in the area.
    Request by State: The EPA does not intend to exercise its authority 
to bump down areas on EPA's own initiative. Rather, EPA intends to rely 
on the State to submit a request for a bump down. A Tribe may also 
submit such a request and, in the case of a multi-state nonattainment 
area, all affected States must submit the reclassification request.
    Discontinuity: A five percent reclassification must not result in 
an illogical or excessive discontinuity relative to surrounding areas. 
In particular, in light of the area-wide nature of ozone formation, a 
reclassification should not create a ``donut hole'' where an area of 
one classification is surrounded by areas of higher classification.
    Attainment: Evidence should be available that the proposed area 
would be able to attain by the earlier date specified by the lower 
classification in the case of a bump down.
    Emissions reductions: Evidence should be available that the area 
would be very likely to achieve the appropriate total percent emission 
reduction necessary in order to attain in the shorter time period for a 
bump down.
    Trends: Near- and long-term trends in emissions and air quality 
should support a reclassification. Historical air quality data should 
indicate substantial air quality improvement for a bump down. Growth 
projections and emission trends should support a bump down. In 
addition, we will consider whether vehicle miles traveled and other 
indicators of emissions are increasing at higher than normal rates.
    Years of data: For the 8-hour ozone standard, the 2001-2003 period 
is central to determining classification. Data from 2004 may be used to 
corroborate a bump down request but should not be the sole foundation 
for the bump down request.
    Limitations on Bump Downs: An area may only be reclassified to the 
next lower classification. An area cannot present data from other years 
as justification to be reclassified to an even lower classification. In 
addition, section 181(a)(4) does not permit moving areas from subpart 2 
into subpart 1.
    In 1991, EPA approved reclassifications when the area met the first 
requirement (a request by the State to EPA) and at least some of the 
other criteria and did not violate any of the criteria (emissions, 
reductions, trends, etc.). In our April 30, 2004 final rule on 
designations and classifications, we stated our intention to use this 
method and these criteria once again to evaluate reclassification 
requests under section 181(a)(4), with minor changes described in that 
action. In that action, we also described how we applied these criteria 
in 1991. For additional information, see section 5, ``Areas requesting 
a 5% downshift per Sec.  181(a)(4) and EPA's response to those 
requests,'' of the Technical Support Document, October 1991, for the 
1991 rule. [Docket A-90-42A.]
    The April 30, 2004 action invited States to submit the 
reclassification requests within 30 days of the effective date of the 
designations and classifications. The effective date was June 15 which 
means that reclassification requests were to be submitted by July 15, 
2004. This relatively short timeframe is necessary because section 
181(a)(4) only authorizes the Administrator to make such 
reclassifications within 90 days after the initial classification, 
September 15, 2004.
    As described in the April 30, 2004 action, an ozone nonattainment 
area may also request reclassification under section 181(a)(4) to the 
next higher classification. While no State requested a reclassification 
upward during this time period, EPA notes that a State may make a 
request for a higher classification at any time under section 
181(b)(3). This provision directs EPA to grant a State's request for a 
higher classification and to publish notice of the request and EPA's 
approval.

VII. What Reclassification Requests Did EPA Receive and What Action Is 
EPA Taking on the Requests?

    This section describes each reclassification request received by 
EPA and the results of EPA's evaluation of each request. As described 
below, EPA evaluated the requests with respect to the criteria 
described in section IV of this notice. More detailed information is 
available in EPA's Technical Support Document for Five Percent 
Reclassifications, September 2004, which contains the requests, 
supporting documentation, and EPA's evaluation.

Cass County, Michigan

    The EPA designated this area as a moderate ozone nonattainment on 
April 15, 2004 based on its 8-hour ozone value of 93 parts per billion 
(ppb). On July 15, 2004 the Michigan Department of Environmental 
Quality submitted a request to reclassify Cass County from moderate 
ozone nonattainment to marginal ozone nonattainment. Cass County has 
small population and very low emissions. Reclassification to marginal 
will not result in a discontinuity since all of the counties 
immediately bordering Cass County are either designated as attainment 
or are subpart 1 nonattainment.
    The Lake Michigan Air Directors Consortium (LADCo) used modeling 
results performed to support the 1-hour ozone attainment demonstration 
for the Lake Michigan area and applied 8-hour ozone metrics. As noted 
in Michigan's petition, the LADCo modeling was designed to assess 1-
hour ozone and, as such, there are some limitations with using it to 
assess 8-hour ozone. On the other hand, it should be noted that three 
of the four modeled episodes are representative periods for high 8-hour 
ozone and basecase model performance for 8-hour ozone was found to be 
as good as (or better than) that for 1-hour ozone. The local scale 
LADCo modeling indicates that Cass County will be in attainment (81 
ppb) in 2007. Additionally, regional scale modeling from the proposed 
Clean Air Interstate Rule (CAIR) indicates the area will be in 
attainment (83 ppb) in 2010.
    The emissions trend is expected to significantly decrease due to 
the implementation of various regional rules, including the 
NOX SIP Call (63 FR 57356) and rules contained in 1-hour 
ozone attainment plans in the Lake Michigan area. The trend in the 4th

[[Page 56701]]

highest values for ozone from 2002, 2003 and 2004 show a decrease from 
103 ppb, to 89 ppb and, 74 ppb, respectively. Further, it can be 
expected that ozone values will continue at these lower levels due to 
the implementation of national and regional rules.
    In summary, the following factors support the request for 
reclassification to marginal for Cass County: The design value of 93 
ppb meets our criteria to qualify for consideration of bump down, local 
and regional modeling analyses indicate air quality will be improving 
over the next several years and support attainment by the marginal area 
attainment date, a short term trends analysis shows ozone values 
decreasing, and additional reductions from regional and national 
regulations will continue this trend in lowering ambient ozone values. 
Thus, the reclassification request for Cass County meets all of the 
criteria (request, discontinuity, attainment, emission reductions, 
trends, and data) EPA established (69 FR 23863). Therefore, EPA is 
approving the reclassification request for Cass County.

Detroit-Ann Arbor, Michigan

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour values (design value is 97 ppb). On July 15, 2004, the Michigan 
Department of Environmental Quality (MDEQ) submitted a request to 
reclassify Detroit-Ann Arbor (Southeast Michigan) area from moderate to 
marginal ozone nonattainment. The Southeast Michigan Council of 
Governments (SEMCoG)is the lead local planning agency for the Detroit-
Ann Arbor area. The MDEQ and SEMCoG worked jointly to prepare the 
reclassification request. Reclassification will not create a 
discontinuity since all adjacent nonattainment areas to the Detroit-Ann 
Arbor area are subpart 1 nonattainment.
    Under section 181(a)(4), an ozone nonattainment area may be 
reclassified ``if an area classified under paragraph (1) (Table 1) 
would have been classified in another category if the design value in 
the area were 5 percent greater or 5 percent less than the level on 
which such classification was based.'' In the April 30, 2004 notice, we 
indicated that an area with a moderate design value of 96 ppb (or less) 
would be eligible to request a bump down because five percent less than 
96 ppb is 91 ppb, a marginal design value. In their petition, Michigan 
requested EPA to use a rounding convention that would allow the ``5 
percent'' calculation to be a factor of up to 5.49 percent. After 
reviewing the methodology for handling of percentages in EPA's 
``Guideline on Data Handling Conventions For the 8-Hour Ozone NAAQS'' 
(December 1998), EPA believes values up to 5.4% are acceptable for the 
bump down calculation. The Guideline indicates percent values are 
rounded up for the purpose of determining data completeness 
(specifically the Guideline states, 74.5% is 75% and 89.5 is 90%). 
Since there is nothing in the Guideline to suggest this percentage 
rounding convention is inappropriate for other calculations involving 
ambient air quality data, EPA believes it is acceptable for the bump 
down calculation. Using 0.054 as 5% and 97 ppb (moderate) as the design 
value, then (0.054) * 97 = 91.8, which is a marginal value. Thus, the 
area is eligible to request a bump down.
    Modeling by LADCo to support the 1-hour ozone attainment 
demonstration for the Lake Michigan area was applied to 8-hour ozone 
metrics. This modeling indicates that the Detroit-Ann Arbor area may be 
very close to attainment (85 ppb) in 2007. However, as noted in 
Michigan's petition, the LADCO subregional modeling was designed to 
assess 1-hour ozone and, as such, there are some limitations with using 
it to assess 8-hour ozone. For example, the episodes and modeling 
domain were selected for the Lake Michigan region and may not 
accurately represent other cities in the modeling domain, such as 
Detroit. On the other hand, it should be noted that three of the four 
modeled episodes are representative periods for high 8-hour ozone and 
basecase model performance for 8-hour ozone was found to be as good as 
(or better than) that for 1-hour ozone. Additional, regional scale, 
CAIR modeling (January 2004 proposal) indicates the area will be in 
attainment (84 ppb) by 2010. The CAIR modeling, however, was not 
designed to provide results for years prior to 2010. In summary, EPA 
believes the LADCo and CAIR modeling analyses are not conclusive with 
respect to the area's attainment status in 2007. Although neither 
analysis is as comprehensive an assessment as would be expected with a 
SIP attainment demonstration, they do provide support for a decision to 
reclassify the area. Both modeling analyses indicate air quality will 
be improving over the next several years. Further decreases can be 
expected once MDEQ and SEMCoG have selected control measures for the 
area and these measures are implemented.
    Emissions reductions are already occurring in various sectors 
throughout the area. VOC and NOX from on-road mobile sources 
will decline by 40% and 37%, respectively, between 2002 and 2007, even 
after accounting for increasing levels of travel. This trend will 
continue to 2010, reaching reductions of 54% for both pollutants. Point 
sources' emissions of NOX will decline from implementation 
of the NOX SIP Call between 2004 and 2007. Additionally, 
MDEQ and SEMCoG have committed to evaluating a list of measures 
including vehicle inspection and maintenance, lower emitting fuels, 
degreasing, architectural and industrial maintenance coatings, 
consumer/commercial products, tighter VOC RACT rules, and gas can 
replacement. The process for choosing appropriate control measures for 
the area will be completed by June 2005. MDEQ and SEMCoG have also 
committed to an aggressive schedule to implement controls that will 
help the area attain by 2007.
    While a long-term trends analysis for the Detroit-Ann Arbor area 
does not show a declining trend in ozone values, that can be attributed 
to the abnormally high values experienced in the area in June 2003. The 
maximum concentration in 2004, to date, is 83 ppb, which may mark the 
beginning of at least a short term air quality trend downward. It can 
be expected that ozone values will decrease due to the declines in 
NOX and VOC emissions described in the preceding paragraph.
    In summary, the following factors support the request for downward 
revision to the 8-hour ozone classification for Detroit-Ann Arbor area: 
the design value of 97 ppb meets our criteria to qualify for 
consideration of bump down, local and regional modeling analyses 
indicate air quality will be improving over the next several years, 
regional and national regulations will continue this trend in lowering 
ambient ozone values, the State and local agencies responsible for air 
quality planning have committed to an aggressive schedule to identify 
and implement controls that will help the area attain by the marginal 
attainment date of June 15, 2007. Thus, the request meets certain 
criteria EPA established (request, discontinuity, emission reductions, 
and data) and does not violate any of the criteria (attainment and 
trends). Therefore, EPA is approving the reclassification request for 
the Detroit-Ann Arbor area.

Greensboro, North Carolina

    The Greensboro area was designated nonattainment for the 8-hour 
ozone standard on April 15, 2004 and classified moderate based on a 
design value of 93 ppb. The State of North Carolina presented a 
petition to EPA, Region 4, requesting downward reclassification of the 
Greensboro/Winston-Salem/High Point (Triad)

[[Page 56702]]

ozone nonattainment area from moderate to marginal for the 8-hour 
standard. The petition was presented to EPA July 14, 2004. 
Reclassification of the Greensboro area to marginal will not create a 
discontinuity since surrounding areas would include higher and lower 
classifications (the Charlotte area is designated moderate and the 
Raleigh area is subpart 1 nonattainment).
    Local photochemical grid modeling, developed under the Early Action 
Compact (EAC) program, demonstrates attainment by 2007 for the Triad 
area which includes the Greensboro area. The modeling was developed 
according to EPA's draft 8-hour ozone modeling guidance and was used to 
support a deferral of the effective date for the nonattainment area. 
Updated local modeling data included in the June 2004 EAC progress 
report were referenced to support the attainment criteria of the 
reclassification petition. In addition, CAIR modeling analyses (January 
2004) show that Greensboro is expected to continue to be in compliance 
with the 8-hour ozone standard in 2010.
    Expected emissions reductions are detailed in the petition and the 
EAC progress report submittals and include, for example, an inspection 
and maintenance program phasing in between July 2002 and 2005. 
Emissions data demonstrate a decrease in NOX emissions of 
about 382 tons per day between 2000 and 2007. Beyond 2007, further 
NOX emissions reductions are expected due to the Federal, 
State and local control measures. VOC emissions will decrease by 20 
tons per day between 2000 and 2007 with additional future reductions 
expected. An aggressive control program is being implemented throughout 
the State that affects stationary and mobile sources. Since 1998, 
monitored ozone levels at the Greensboro area monitors have steadily 
decreased and support reclassification.
    In summary, the reclassification request for Greensboro meets all 
of the criteria EPA established (69 FR 23863), including request by the 
State, supporting trends in emissions and air quality, and modeling 
evidence that the area would be able to attain by the earlier date 
(2007). The EPA is approving the reclassification request for 
Greensboro because the request meets all of the criteria EPA 
established.

Kent/Queen Anne Counties, Maryland

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour ozone values (design value is 95 ppb). On July 15, 2004 the 
Maryland Department of the Environment submitted a request to 
reclassify Kent and Queen Anne's Counties from moderate to marginal 
ozone nonattainment. Kent and Queen Anne's Counties, MD are located on 
Maryland's eastern shore. Reclassification of Kent and Queen Anne's 
Counties will not create a discontinuity since there would be no area 
of one classification surrounded by areas of a higher classification. 
All of the other counties immediately bordering Kent and Queen Anne's 
Counties are either designated as attainment or moderate nonattainment.
    Maryland submitted a modeling study that was performed as part of 
an earlier effort related to the Early Action Compact (EAC) program. 
This modeling was performed in accordance with EPA guidance. Initially, 
however, Maryland had applied the relative reduction factor (RRF) to 
the wrong ozone design value year. This was remedied by applying the 
RRF to the larger of the 2000 or 2003 ozone design value. When this 
correction was made, a value of 82.3 ppb was obtained, demonstrating 
that these counties should attain the ozone standard by 2007. The EPA's 
January 2004 CAIR modeling projects nonattainment for Kent County, MD 
in the 2010 attainment year (86 ppb). Because EPA guidance indicates 
that smaller scale modeling is generally more appropriate for 
attainment demonstrations, EPA believes that the local scale air 
quality modeling (EAC modeling) which projects attainment in 2007 
should carry more weight. In summary, both modeling analyses indicate 
air quality will be improving over the next several years and EPA 
believes the EAC modeling analysis strongly indicates the area will 
attain the ozone standard by 2007.
    The emissions trend is expected to decrease due to the 
implementation of various regional rules, including the NOX 
SIP Call and regional rules contained in 1-hour ozone attainment plans 
in the Baltimore and Washington D.C. area. In addition, because the 
state of Maryland is located in the statutorily-established Ozone 
Transport Region (OTR), Kent and Queen Anne's Counties have been 
implementing several moderate nonattainment area level emission. 
Moderate area OTR controls include RACT, NSR, and Stage II comparable 
measures. Queen Anne's county, being part of the 1990 Baltimore 
Metropolitan Statistical Area (MSA) was also required under the OTR 
requirements, to implement a high enhanced I/M program and has been 
doing so.
    The 17-year ozone air quality trends in Kent county (Queen Anne's 
does not have an ozone monitor) are relatively flat. The last two years 
of complete data, however, may mark the beginning of at least a short 
term air quality trend downward. The 4th highest values for ozone from 
2002 and 2003 are 103 and 86 ppb, respectively. Further, it can be 
expected that ozone values will decline due to the implementation of 
national and regional rules relative to ozone levels in recent years.
    In summary, the following factors support the request for 
reclassification to marginal for Kent and Queen Anne's Counties: the 
design value of 95 ppb meets our criteria to qualify for consideration 
of bump down, local modeling provides strong evidence that the area 
will attain by 2007, additional reductions from regional and national 
regulations should lower ambient ozone values. Thus, the request meets 
certain criteria EPA established (request, discontinuity, emission 
reductions, attainment, and data) and does not violate any of the 
criteria (trends). Therefore, EPA is approving the reclassification 
request for Kent and Queen Anne's Counties.

Lancaster, Pennsylvania

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour ozone values (design value is 92 ppb). On July 9, 2004 the 
Pennsylvania Department of Environmental Protection submitted a request 
to reclassify Lancaster County from moderate to marginal ozone 
nonattainment. Lancaster, PA is a single county 8 hour ozone 
nonattainment area located immediately west of the Philadelphia 
moderate 8 hour ozone nonattainment area and immediately north of the 
Baltimore moderate 8 hour ozone nonattainment area. The counties 
adjacent to and surrounding Lancaster on its west and north are 
designated subpart 1 (``basic'') 8 hour ozone nonattainment areas. 
Reclassification of Lancaster County will not create a discontinuity 
since there would be no area of one classification surrounded by areas 
of a higher classification.
    The EPA's January 2004 CAIR modeling projects attainment for 
Lancaster County, PA in the 2010 attainment year (83 ppb). No local air 
quality modeling is available. The EPA believes the CAIR modeling 
analysis is not conclusive with respect to Lancaster's attainment 
status in 2007; the analysis is not as comprehensive an assessment as 
would be expected with a SIP attainment demonstration. However the CAIR 
analysis provides support for a decision to reclassify the area since 
it indicates air quality will be improving over the next several years.

[[Page 56703]]

    The emissions trend is expected to decrease due to the 
implementation of various regional rules, including the NOX 
SIP Call and rules contained in 1-hour ozone attainment plans in the 
Baltimore, Philadelphia and Washington, DC areas. In addition, because 
the state of Pennsylvania is located in the statutorily-established 
Ozone Transport Region (OTR), Lancaster County has been implementing 
moderate nonattainment area level emission controls. Moderate area OTR 
controls include RACT, NSR, and Stage II comparable measures. In 
addition, Lancaster has an OTR enhanced I/M program that became state 
law in November 2003 and has been implemented since February 2004.
    The area's design value is 92 ppb, just one ppb above the marginal 
classification design value based on 2001-2003 data. The 17-year ozone 
air quality trends in Lancaster County are relatively flat. The short-
term trend in the 4th highest 8-hour ozone value over the last 3 years 
is downward (97, 96, and 83 ppb). Further, it can be expected that 
ozone values will decline due to the implementation of national and 
regional rules relative to ozone levels in recent years.
    In summary, the following factors support the request for 
reclassification to marginal for Lancaster County: the design value of 
92 ppb meets our criteria to qualify for consideration of bump down, 
CAIR modeling indicates air quality will be improving over the next 
several years, and additional reductions from regional and national 
regulations should lower ambient ozone values. Thus, the request meets 
certain criteria EPA established (request, discontinuity, emission 
reductions, and data) and does not violate any of the criteria 
(attainment and trends). Therefore, EPA is approving the 
reclassification request for Lancaster County.

LaPorte, Indiana

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour ozone values (design value is 93 ppb). On July 15, 2004 the 
Indiana Department of Environmental Management submitted a request to 
reclassify LaPorte County from moderate to marginal ozone 
nonattainment. LaPorte County is highly impacted by transport due to 
the Lake Michigan ozone phenomenon. LaPorte County has few major 
sources. Reclassification of LaPorte County to marginal will not result 
in a discontinuity since the only area that is adjacent to Laporte 
County that has a higher classification is the Chicago-Gary moderate 
nonattainment area. All of the other counties immediately bordering 
LaPorte County are either designated as attainment or are subpart 1 
nonattainment.
    Modeling by LADCo to support the 1-hour ozone attainment 
demonstration for the Lake Michigan area was applied to 8-hour ozone 
metrics. As noted in Michigan's petition, the LADCo modeling was 
designed to assess 1-hour ozone and, as such, there are some 
limitations with using it to assess 8-hour ozone. On the other hand, it 
should be noted that three of the four modeled episodes are 
representative periods for high 8-hour ozone and basecase model 
performance for 8-hour ozone was found to be as good as (or better 
than) that for 1-hour ozone. The local scale LADCo modeling indicates 
that air quality is expected to improve (from 93 to 89 ppb) in LaPorte 
County, but may not reach attainment in 2007. Since this modeling was 
performed before the Heavy Duty Engine rule was proposed, it does not 
reflect emission reductions from that national program. Use of a more 
recent emission inventory and base design value would likely result in 
lower predicted concentrations. Additional, regional scale, modeling 
from the CAIR proposal indicates the area will be in attainment (84 
ppb) by 2010. The CAIR modeling, however, was not designed to provide 
results for years prior to 2010. In summary, EPA believes the LADCo and 
CAIR modeling analyses are not conclusive with respect to LaPorte's 
attainment status in 2007. Although neither analysis is as 
comprehensive an assessment as would be expected with a SIP attainment 
demonstration, they do provide support for a decision to reclassify the 
area. Both modeling analyses indicate air quality will be improving 
over the next several years.
    The emissions trend is expected to significantly decrease due to 
the implementation of various regional rules, including the 
NOX SIP Call and rules contained in 1-hour ozone attainment 
plans in the Lake Michigan area. The trend in the 4th highest values 
for ozone from 2002, 2003 and 2004 show a large decrease at both the 
Michigan City and the City of LaPorte monitors from 107/100 ppb in 
2002, to 82/84 ppb and, most recently, 68/71 ppb. Further, it can be 
expected that ozone values will continue at these lower levels due to 
the implementation of national and regional rules.
    In summary, the following factors support the request for downward 
revision to the 8-hour ozone classification for LaPorte County: The 
design value of 93 ppb meets our criteria to qualify for consideration 
of bump down, local modeling shows that the area will be close to 
attainment in 2007, proposed CAIR modeling shows the area will attain 
by 2010, a short term trends analysis shows large decreases in ozone 
values and additional reductions from regional and national regulations 
will support this trend in low ambient ozone values. Thus, the request 
meets certain criteria EPA established (request, discontinuity, 
emission reductions, trends, and data) and does not violate any of the 
criteria (attainment). Therefore, EPA is approving the reclassification 
request for LaPorte County.

Memphis, Arkansas/Tennessee

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour ozone values (design value is 92 ppb). The States of Tennessee 
and Arkansas submitted the petition by the date required. The 
petitioners have emphasized that the States of Tennessee and Arkansas, 
along with the local governments of Shelby and Crittenden Counties, 
have produced a plan of action which will result in real ozone 
reductions and attainment by 2007 through an exhaustive collaborative 
effort. Reclassification of the Memphis area will not create a 
discontinuity since there would be no area of one classification 
surrounded by an area of a higher classification.
    The modeling submitted showed attainment when using a methodology 
for adjusting meteorology. The appropriateness of this method is under 
review by EPA. EPA's evaluation of the modeling submitted without a 
meteorology adjustment and other assumptions shows the design value 
declining to 88 ppb by 2007, which makes notable progress toward 
attainment. Also, EPA's CAIR modeling shows the area should have a 
design value of 86 ppb by 2010, which also shows notable progress 
towards attainment. In addition, the CAIR modeling does not include any 
local controls expected prior to 2007. Therefore, local controls could 
be expected to further lower the CAIR 2010 design value. Both modeling 
analyses indicate more reductions are needed beyond those relied on in 
the local modeling in order to attain by 2007. Additional controls 
beyond those modeled have been identified in the petition.
    Attainment is expected because of the combination of measures to be 
implemented and potential measures listed in the petition along with 
the commitment of the areas to implement additional measures as needed 
to

[[Page 56704]]

achieve attainment As strong support for adequate emission reductions 
being implemented, Arkansas is conducting a study with limited 
additional modeling which should identify the sources affecting the 
monitors more precisely. Arkansas, Tennessee and the Memphis-Shelby 
County local agency are committed to assess the results of the study 
and implement additional controls beyond those modeled or identified in 
the reclassification petition by 2006, if required by the study 
results. This commitment is made by the Governors, State, and Local 
officials of both States as signatories to the petition. In addition, 
the State of Tennessee and the City of Memphis/Shelby County have 
submitted letters reinforcing the commitments to adopt and implement 
additional measures as the modeling and study results might identify.
    The petition lists 19 emission reduction measures for potential 
implementation at the state and local level. These measures, when 
combined with potential Federal measures expected during the period, 
could bring the area into attainment by 2007. Tennessee is considering 
measures such as NOX Reasonably Available Control Technology 
rules for stationary sources, expanded Stage I vapor recovery, 
emissions inspections, and anti-tampering measures. Memphis-Shelby 
county is considering measures such as diesel engine idling limits, 
reduced speed limits, controlled burning restrictions, and On Board 
Diagnostic II emission testing. Arkansas is considering measures such 
as Stage I vapor recovery, truck stop electrification, and replacement/
retrofit construction equipment engines. The EPA has provided Arkansas 
with $100,000 in funds to implement truck stop electrification in 
Crittenden County.
    The area's design value is 92 ppb, one ppb above the marginal 
classification design value based on 2001-2003 data. The area has not 
had any exceedences at the Crittenden County monitor in 2004 through 
September 10; the 4th highest monitor value is 78 ppb. If this value 
remains the 4th highest for 2004, the design value will decline to 87, 
well within the marginal range and only 3 ppb above the attainment 
level. Also, with the monitor values already established for 2002 and 
2003 for the Shelby County monitors, the 2004 data, to date, are 
indicating attainment. The design value trends for the two Shelby 
County monitors have declined since 2000.
    The emissions from ozone precursors VOC and NOX from 
stationary sources in Shelby County, TN have declined significantly 
since 1993. Emissions estimates in the Memphis Early Action compact 
March 31, 2004 submittal, indicate that emissions should decrease by 
28% for NOX and 19% for VOCs from 2001 to 2007. Tennessee is 
included in the NOX SIP Call region and pursuant to the 
State plan adopted to meet the SIP Call, the Tennessee Valley Authority 
(TVA) Allen Power Plant will reduce NOX emissions by 57.5 
tons per day (tpd). We anticipate the 2004 and 2005 design values will 
show air quality improvements from these measures. Thus, the air 
quality and emissions trends support reclassification.
    In summary, the data, analysis, and commitments presented in the 
petition support the likelihood of attainment of the 8-hour ozone 
standard by 2007 and support the request for downward revision to the 
8-hour ozone classification for the Memphis area. Specifically, the 
Request by States criteria is satisfied since the petition was 
submitted by the governors of Tennessee and Arkansas; the Discontinuity 
criteria is satisfied since there would be no area of one 
classification surrounded by one or more areas of a higher 
classification; the Attainment criteria is not failed since the 
modeling shows notable progress toward attainment; the Emissions 
Reductions criteria is satisfied because of the emission reductions 
available and the commitment by the state and local agencies to adopt 
and implement any controls necessary to attain the 8-hour standard 
based on a comprehensive study of sources contributing to 
nonattainment; the Trends criteria is satisfied since the downward 
trends in air quality monitor and emissions data over the time period 
to attainment are strong indicators of progress towards attainment; and 
the Years of Data criteria is satisfied since the years chosen (2001-
2003) are consistent with the time period used for the designations for 
the 8-hour ozone standard. Thus, the request meets certain criteria EPA 
established (request, discontinuity, emission reductions, trends, and 
data) and does not violate any of the criteria (attainment). Therefore, 
EPA is approving the reclassification request for Memphis.

Muskegon County, Michigan

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour values (design value is 95 ppb). On July 15, 2004 MDEQ submitted 
a request to reclassify Cass County from moderate ozone nonattainment 
to marginal ozone nonattainment. Muskegon County is highly impacted by 
transport due to the Lake Michigan ozone phenomenon. Muskegon County 
has few major sources. Reclassification of Muskegon County to marginal 
will not result in a discontinuity since all of the counties 
immediately bordering Muskegon County are either designated as 
attainment or are subpart 1 nonattainment.
    Modeling by LADCo to support the 1-hour ozone attainment 
demonstration for the Lake Michigan area was applied to 8-hour ozone 
metrics. As noted in Michigan's petition, the LADCo modeling was 
designed to assess 1-hour ozone and, as such, there are some 
limitations with using it to assess 8-hour ozone. On the other hand, it 
should be noted that three of the four modeled episodes are 
representative periods for high 8-hour ozone and basecase model 
performance for 8-hour ozone was found to be as good as (or better 
than) that for 1-hour ozone. The local scale LADCo modeling indicates 
that Muskegon County will be near attainment (86 ppb) in 2007. Since 
this modeling was performed before the Heavy Duty Engine rule was 
proposed, it does not reflect emission reductions from that national 
program. Use of a more recent emission inventory and base design value 
would likely result in lower predicted concentrations. Additional, 
regional scale, modeling from the January 2004 CAIR proposal indicates 
the area will be in attainment (82 ppb) by 2010. The CAIR modeling, 
however, was not designed to provide results for years prior to 2010. 
The EPA believes the LADCo and CAIR modeling analyses are not 
conclusive with respect to Muskegon's attainment status in 2007. 
Although neither analysis is as comprehensive an assessment as would be 
expected with a SIP attainment demonstration, they do provide support 
for a decision to reclassify the area. Both modeling analyses indicate 
air quality will be improving over the next several years.
    The emissions trend is expected to significantly decrease due to 
the implementation of various regional rules, including the 
NOX SIP Call and rules contained in 1-hour ozone attainment 
plans in the Lake Michigan area. The trend in the 4th highest values 
for ozone from 2002, 2003 and 2004 show a decrease from 96 ppb, to 94 
ppb and, most recently, 70 ppb. Further, it can be expected that ozone 
values will continue at these lower levels due to the implementation of 
national and regional rules.
    In summary, the following factors support the request for downward 
revision to the 8-hour ozone classification for Muskegon County: the 
design value of 95 ppb meets our

[[Page 56705]]

criteria to qualify for consideration of bump down, local and regional 
modeling analyses indicate air quality will be improving over the next 
several years, a short term trends analysis shows ozone values 
decreasing and additional reductions from regional and national 
regulations will continue this trend in lowering ambient ozone values. 
Thus, the request meets certain criteria EPA established (request, 
discontinuity, emission reductions, trends, and data) and does not 
violate any of the criteria (attainment). Therefore, EPA is approving 
the reclassification request for Muskegon County.

Richmond, Virginia

    The EPA designated this area as moderate on April 15, 2004 due to 
8-hour ozone values (design value is 94 ppb). On July 12, 2004 the 
Virginia Department of the Environmental Quality submitted a request to 
reclassify Richmond from moderate to marginal ozone nonattainment. The 
Richmond, VA moderate ozone nonattainment area consists of five 
counties (Charles City, Chesterfield, Hanover, Henrico, and Prince 
George) and four independent cities (Colonial Heights, Hopewell, 
Petersburg, and Richmond). This area is adjacent to the southeast edge 
of the Washington D.C. moderate 8-hour ozone nonattainment area. To the 
northeast of Richmond, and across the Chesapeake Bay, is the 
Philadelphia moderate 8-hour ozone nonattainment area. Richmond is also 
adjacent to and located to the northwest of the Norfolk-Virginia Beach, 
VA subpart 1 8-hour ozone nonattainment area. Reclassification of the 
Richmond area will not create a discontinuity since there would be no 
area of one classification surrounded by areas of a higher 
classification.
    The modeling performed by Virginia for demonstrating attainment in 
Richmond by 2007 was based on modeling conducted for the Roanoke, VA 
EAC. While not optimized for the Richmond area, this modeling can be 
used to indicate whether Richmond might attain by 2007. The EAC 
modeling projects attainment in the Richmond area in 2007. The highest 
of these projected design values is 84.1 ppb for the Hanover monitor. 
In addition, EPA's January 2004 CAIR modeling projects Richmond's ozone 
concentrations to be well below the ozone standard in 2010 (77 ppb). 
Although neither analysis is as comprehensive an assessment as would be 
expected with a SIP attainment demonstration, together they provide 
support that the Richmond area will attain the ozone standard by 2007.
    On August 30, 2004, the Director of Virginia's Department of 
Environmental Quality submitted a letter to EPA (followed up by a 
letter on September 2, 2004 from the VA Air Director) committing to 
adopt additional emission control measures to reduce ozone levels. 
Several of these measures are already in place in the smaller 1-hour 
Richmond ozone nonattainment area or in the northern Virginia 
(Washington DC) 1-hour ozone nonattainment area. This letter stated 
that control measures such as reformulated gasoline, stage I, and 
existing source RACT regulations would be extended into the larger 
Richmond 8-hour ozone nonattainment area. The northern Virginia control 
measures (solvent cleaning, architectural and maintenance coatings, 
motor vehicle refinishing, and portable fuel containers) would be 
studied and the process of adoption for the Richmond 8-hour ozone 
nonattainment area would commence. Therefore, the emissions trend is 
expected to decrease due to the implementation of various local, 
regional, and national rules.
    The ozone air quality trends in the Richmond area are relatively 
flat. It can be expected that ozone values will decline due to the 
implementation of local, regional, and national rules relative to ozone 
levels in recent years.
    In summary, the following factors support the request for 
reclassification to marginal for the Richmond area: the design value of 
94 ppb meets our criteria to qualify for consideration of bump down, 
local and regional modeling together with declining emissions from 
local, regional and national regulations support the conclusion that 
Richmond is likely to attain by 2007. Thus, the request meets certain 
criteria EPA established (request, discontinuity, emission reductions, 
attainment, and data) and does not violate any of the criteria 
(trends). Therefore, EPA is approving the reclassification request for 
the Richmond area.

VIII. Does This Action Impact the Deferred Effective Date of 
Nonattainment Designations for the Greensboro EAC Area?

    As long as the Greensboro area continues to meet the milestones and 
submissions that compact areas are required to complete, the area would 
continue to be eligible for a deferred effective date of the 
nonattainment designation for the 8-hour ozone standard. The effective 
date of the 8-hour ozone nonattainment designation for the compact area 
counties listed in 40 CFR part 81 remains deferred until September 30, 
2005. Additional information on EACs is contained in the April 30, 2004 
final rule (69 FR 23864-23876).

IX. If an Area is Bumped Down to Marginal, Then Misses the Attainment 
Date and is Bumped Up to Moderate, What Due Dates Apply?

    Within 6 months following the applicable attainment date [including 
any extension thereof pursuant to section 181(a)(5)] for an ozone 
nonattainment area, the Administrator is required to determine, based 
on the area's design value (as of the attainment date), whether the 
area attained the standard by that date. Any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law to the higher of (i) the next higher 
classification for the area, or (ii) the classification applicable to 
the area's design value as of the attainment date.
    Section 182(i) of the CAA specifies that the deadlines provided 
under the requirements of section 182 remain applicable, except that 
the Administrator ``may adjust any applicable deadlines (other than 
attainment dates) to the extent such adjustment is necessary or 
appropriate to assure consistency among the required submissions.'' All 
required controls and emissions reductions must be implemented or 
achieved on a schedule that facilitates attainment by the attainment 
date.
    In previous rulemaking actions, EPA has provided 12-18 months for 
States to submit required SIP revisions.\6\ However, States should plan 
to adopt controls as soon as possible because the determination of 
whether the area attains the NAAQS by the attainment deadline must be 
based on air quality during the preceeding three ozone seasons. That 
is, the determination of whether a moderate area attains the NAAQS by 
June 15, 2010 will be based on air quality during the 2007-2009 period. 
Thus, the sooner the moderate-area controls are implemented, the more 
likely the area will reach attainment by the 2010 attainment date.
---------------------------------------------------------------------------

    \6\ See notices under the heading ``1-Hour Ozone Federal 
Register Notices Changes to a Higher Classification'' at http://www.epa.gov/oar/oaqps/greenbk/ofr2rpt2.html.
---------------------------------------------------------------------------

X. Statutory and Executive Order Reviews

    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate and classify areas. The CAA then specifies requirements 
for areas based on whether such areas are attaining or not attaining 
the NAAQS

[[Page 56706]]

and their classification, if any. In this final rule, we reclassify 
certain areas designated nonattainment.

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (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 entitlements, 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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is not a ``significant regulatory action'' 
because none of the above factors applies. As such, this final rule was 
not formally submitted to OMB for review.

B. Paperwork Reduction Act

    This final action to reclassify nine ozone nonattainment areas from 
moderate to marginal does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR 121.); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    This rule is not subject to the RFA because it was not subject to 
notice and comment rulemaking requirements. After considering the 
economic impacts of today's final rule on small entities, I certify 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's final action does not include a Federal mandate within the 
meaning of UMRA that may result in expenditures of $100 million or more 
in any 1 year by either State, local, or Tribal governments in the 
aggregate or to the private sector, and therefore, is not subject to 
the requirements of sections 202 and 205 of the UMRA. It does not 
create any additional requirements beyond those of the 8-hour National 
Ambient Air Quality Standards (NAAQS) for Ozone (62 FR 38894; July 18, 
1997), therefore, no UMRA analysis is needed. This rule reclassifies 
certain areas with respect to the 8-hour ozone standard. The CAA 
requires States to develop plans, including control measures, based on 
their designations and classifications.
    The EPA believes that any new controls imposed as a result of this 
action will not cost in the aggregate $100 million or more annually. 
Thus, this Federal action will not impose mandates that will require 
expenditures of $100 million or more in the aggregate in any 1 year. 
Nonetheless, EPA carried out consultations with governmental entities 
affected by this rule, including States and local air pollution control 
agencies.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The CAA establishes the scheme 
whereby States take the lead in developing plans to meet the NAAQS. 
This rule will not modify the relationship of the States and EPA for 
purposes of developing programs to implement the NAAQS. Thus, Executive 
Order 13132 does not apply to this rule.

[[Page 56707]]

    Although Executive Order 13132 does not apply to this rule, EPA 
discussed the reclassification process with representatives of State 
and local air pollution control agencies and Tribal governments. This 
rule is not subject to notice and comment and, therefore, no proposed 
rulemaking was prepared which specifically solicited comment on the 
reclassifications. However, we provided notification of the 
reclassification process and our criteria in the April 30, 2004 Federal 
Register action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
``Tribal implications'' as specified in Executive Order 13175. This 
rule concerns the reclassification of certain areas for the 8-hour 
ozone standard. The CAA provides for States to develop plans to 
regulate emissions of air pollutants within their jurisdictions. The 
Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and 
implement CAA programs such as programs to attain and maintain the 8-
hour ozone NAAQS, but it leaves to the discretion of the Tribe whether 
to develop these programs and which programs, or appropriate elements 
of a program, they will adopt.
    This final rule does not have Tribal implications as defined by 
Executive Order 13175. It does not have a substantial direct effect on 
one or more Indian Tribes, since no Tribe has implemented a CAA program 
to attain the 8-hour ozone NAAQS at this time. Furthermore, this rule 
does not affect the relationship or distribution of power and 
responsibilities between the Federal government and Indian Tribes. The 
CAA and the TAR establish the relationship of the Federal government 
and Tribes in developing plans to attain the NAAQS, and this rule does 
nothing to modify that relationship. Because this rule does not have 
Tribal implications, Executive Order 13175 does not apply. Although 
Executive Order 13175 does not apply to this rule, EPA did outreach to 
Tribal representatives regarding the reclassifications.

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The final rule is not subject to Executive Order 13045 because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health risks or safety risks addressed by this rule 
present a disproportionate risk to children. Nonetheless, we have 
evaluated the environmental health or safety effects of the 8-hour 
ozone NAAQS on children. The results of this risk assessment are 
contained in the National Ambient Air Quality Standards for Ozone, 
Final Rule (62 FR 38855-38896; specifically, 62 FR 38854, 62 FR 38860 
and 62 FR 38865).

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

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

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

J. Congressional Review Act

    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. The 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).

K. Judicial Review

    Sections 172(a)(1)(B) and 181(a)(3) provide that classification 
determinations ``shall not be subject to judicial review until the 
Administrator takes final action'' approving or disapproving a SIP 
revision or triggering sanctions under section 179 with respect to a 
SIP revision required for an area's classification. Thus, any petitions 
for review of a classification decision made in this action must be 
filed within 60 days of publication of a final EPA action triggering 
sanctions with respect to a SIP submission required for the area's 
classification or approving or disapproving a SIP required for the 
area's classification. Since such challenge would be brought in 
conjunction with EPA's action regarding a SIP submission, a petition 
for review challenging the classification decision should be brought in 
the United States Court of Appeals for the appropriate circuit.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National Parks, 
Wilderness areas.

    Dated: September 15, 2004.
Michael O. Leavitt,
Administrator.

0
For the reasons set forth in the preamble, 40 CFR part 81, subpart C is 
amended as follows:

[[Page 56708]]

PART 81--DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

PART 81--[AMENDED]

0
2. In Sec.  81.304, the table entitled ``Arkansas-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Crittenden County'' 
to read as follows:


Sec.  81.304  Arkansas.

* * * * *

                                                            Arkansas-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Memphis,TN-AR: (AQCR 018 Metropolitan
 Memphis Interstate)
    Crittenden County..................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.


0
3. In Sec.  81.315, the table entitled ``Indiana-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``La Porte County'' to 
read as follows:


Sec.  81.315  Indiana.

* * * * *

                                                             Indiana-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
La Porte Co., IN:
    La Porte County....................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.


0
4. In Sec.  81.321, the table entitled ``Maryland-Ozone (8-Hour 
Standard)'' is amended by revising the entries for ``Kent and Queen 
Anne's Counties'' to read as follows:


Sec.  81.321  Maryland.

* * * * *

                                                            Maryland-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Kent and Queen Anne's Cos., MD:
    Kent County........................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Queen Anne's County................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.


0
5. In Sec.  81.323, the table entitled ``Michigan-Ozone (8-Hour 
Standard)'' is amended by revising the entries for ``Cass, Lenawee, 
Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, Wayne, and 
Muskegon Counties' to read as follows:


Sec.  81.323  Michigan.

* * * * *

[[Page 56709]]



                                                            Michigan-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Cass County, MI:
    Cass County........................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
Detroit-Ann Arbor, MI:
    Lenawee County.....................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Livingston County..................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Macomb County......................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Monroe County......................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Oakland County.....................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    St. Clair County...................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Washtenaw County...................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
    Wayne County.......................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
 
                                                                      * * * * * * *
Muskegon, MI:
    Muskegon County....................        \(2)\   Nonattainment............................        \(2)\   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.


0
6. In Sec.  81.334, the table entitled ``North Carolina-Ozone (8-Hour 
Standard)'' is amended by revising the entries for ``Alamance, Caswell, 
Davidson, Davie, Forsyth, Guilford, Randolph, and Rockingham Counties' 
to read as follows:


Sec.  81.334  North Carolina.

* * * * *

                                                         North Carolina-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Greensboro-Winston-Salem-High Point,
 NC:
    Alamance County....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Caswell County.....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Davidson County....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Davie County.......................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Forsyth County.....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Guilford County....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Randolph County....................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Rockingham County..................  (\2\) (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Early Action Compact Area, effective date deferred until September 30, 2005.
\3\ November 22, 2004.


0
7. In Sec.  81.339, the table entitled ``Pennsylvania-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Lancaster County'' 
to read as follows:


Sec.  81.339  Pennsylvania.

* * * * *

                                                          Pennsylvania-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation \a\                                      Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Lancaster, PA:
    Lancaster County...................        (\2\)   Nonattainment............................        (\2\)   Subpart 2/Marginal
 

[[Page 56710]]

 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.


0
8. In Sec.  81.343, the table entitled ``Tennessee-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Shelby County'' to 
read as follows:


Sec.  81.343  Tennessee.

* * * * *

                                                            Tennessee-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation a                                       Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                            Date\1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Memphis,TN-AR:
    Shelby County......................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.


0
9. In Sec.  81.347, the table entitled ``Virginia-Ozone (8-Hour 
Standard)'' is amended by revising the entries for ``Charles City 
County, Chesterfield County, Colonial Heights City, Hanover County, 
Henrico County, Hopewell City, Petersburg City, Prince George County, 
and Richmond City'' to read as follows:


Sec.  81.347  Virginia.

* * * * *

                                                            Virginia-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation a                                       Category/classification
            Designated area             ----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Richmond-Petersburg, VA:
    Charles City County................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Chesterfield County................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Colonial Heights City..............        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Hanover County.....................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Henrico County.....................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Hopewell City......................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Petersburg City....................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Prince George County...............        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
    Richmond City......................        (\3\)   Nonattainment............................        (\3\)   Subpart 2/Marginal
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.


[[Page 56711]]

[FR Doc. 04-21184 Filed 9-21-04; 8:45 am]
BILLING CODE 6560-50-P