[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Proposed Rules]
[Pages 13452-13458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5352]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-HQ-OAR-2007-0170; FRL-8290-9]
Supplemental Proposed Rulemaking on 8-Hour Ozone Redesignations
for Various Areas in Michigan, Ohio and West Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental proposed rule.
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SUMMARY: On December 22, 2006, the U.S. Court of Appeals for the
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule
for the 8-hour ozone standard. This supplemental proposed rulemaking
sets forth EPA's views on the potential effect of the Court's ruling on
a number of proposed redesignation actions. This rulemaking applies to
eighteen 8-hour ozone nonattainment areas in Michigan, Ohio and West
Virginia, for which EPA has proposed approval of the States'
redesignation requests. For the reasons set forth in the notice, EPA
proposes to find that the Court's ruling does not alter any
requirements relevant to these proposed redesignations that would
prevent EPA from finalizing these redesignations. The EPA believes that
the Court's decision, as it currently stands or as it may be modified
based upon any petition for rehearing that may be filed, imposes no
impediment to moving forward with redesignation of these areas to
attainment, because in either circumstance, redesignation is
appropriate under the relevant redesignation provisions of the Clean
Air Act (CAA) and EPA's longstanding policies regarding redesignation
requests.
DATES: Comments must be received on or before April 6, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0170 by one of the following methods:
www.regulations.gov: Follow the online instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air and Radiation Docket and Information Center,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
Hand Delivery: Environmental Protection Agency, EPA West
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such
deliveries are only accepted during the Docket's
[[Page 13453]]
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0170. The 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://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is 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 http://www.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, avoid any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on
submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., 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 http://www.regulations.gov or in hard copy at the Air and Radiation Docket and
Information Center, EPA/DC, EPA West, Room 3334, 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 Air and Radiation Docket and Information
Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Butch Stackhouse, Air Quality Policy
Division, Office of Air Quality Planning and Standards, State and
Locals Program Group, U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711; telephone number (919) 541-5208; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action applies to you if you are a State that has proposed
areas for redesignation from nonattainment to attainment of the 8-hour
ozone standard, but EPA has not yet finalized such actions. This action
is applicable therefore to the following States: Michigan; Ohio, and
West Virginia. This supplemental proposed rulemaking applies to
eighteen 8-hour ozone nonattainment areas, sixteen of which were
designated nonattainment for the 8-hour ozone standard and classified
under Subpart 1 of Part D of the CAA, and which were previously
designated Unclassifiable/Attainment, or Attainment subject to a CAA
section 175A maintenance plan under the 1-hour standard. EPA has
published proposed rulemakings to redesignate these areas to attainment
for the 8-hour ozone standard. The areas and dates of proposed
rulemakings for these areas are: Parkersburg-Marietta, OH-WV
(Washington County, OH), request submitted on November 17, 2006 and
proposed on January 17, 2007, 72 FR 1956, previously Unclassifiable/
Attainment for the 1-hour standard; Parkersburg-Marietta, OH-WV (Wood
County, WV), request submitted on September 8, 2006 and proposed on
January 12, 2007, 72 FR 1474, previously Attainment subject to a
maintenance plan for the 1-hour standard; Steubenville-Weirton, OH-WV
(Brooke and Hancock Counties, WV) request submitted on August 3, 2006
and proposed on October 2, 2006, 71 FR 57905, previously designated
Unclassifiable/Attainment for the 1-hour standard; Wheeling, OH-WV
(Marshall and Ohio counties, WV) request submitted on July 24, 2006 and
proposed on October 2, 2006, 71 FR 57894, previously designated
Unclassifiable/Attainment for the 1-hour standard; Flint (Genesee and
Lapeer Counties), MI request submitted on June 13, 2006 and proposed on
January 8, 2007, 72 FR 699, previously designated Attainment subject to
a maintenance plan for the 1-hour standard (Genesee County) and
Unclassifiable/Attainment (Lapeer County) for the 1-hour standard;
Benton Harbor (Berrien County), MI request submitted on June 13, 2006
and proposed on January 8, 2007, 72 FR 699, previously designated
Unclassifiable/Attainment for the 1-hour standard; Benzie County, MI
request submitted on May 9, 2006 and proposed on December 7, 2006, 70
FR 70915, previously designated Unclassifiable/ Attainment for the 1-
hour standard; Grand Rapids, (Kent and Ottawa Counties), MI request
submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915,
previously designated Attainment subject to a maintenance plan for the
1-hour standard; Huron County, MI request submitted on May 9, 2006 and
proposed on December 7, 2006, 70 FR 70915, previously designated
Unclassifiable/Attainment for the 1-hour standard; Kalamazoo-Battle
Creek (Calhoun, Kalamazoo, and Van Buren Counties), MI request
submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915,
previously designated Unclassifiable/Attainment for the 1-hour
standard; Lansing-East Lansing (Clinton, Eaton, and Ingham counties),
MI request submitted on May 9, 2006 and proposed on December 7, 2006,
70 FR 70915, previously designated Unclassifiable/Attainment for the 1-
hour standard; Mason County, MI request submitted on May 9, 2006 and
proposed on December 7, 2006, 70 FR 70915, previously designated
Unclassifiable/Attainment for the 1-hour standard; Canton-Massillon
(Stark County), OH request submitted on August 24, 2006 and proposed on
December 27, 2006, 71 FR 77678, previously designated Attainment
subject to a maintenance plan for the 1-hour standard; Lima (Allen
County), OH request submitted on August 24, 2006 and proposed on
December 27, 2006, 71 FR 77678, previously designated Unclassifiable/
Attainment for the 1-hour standard; Wheeling, OH-WV (Belmont County,
OH) request submitted on August 24, 2006 and proposed on December 27,
2006, 71 FR 77666, previously designated Unclassifiable/ Attainment for
the 1-hour standard; and Steubenville-Weirton, OH-WV (Jefferson County,
OH) request submitted on October 3, 2006 and proposed on January 8,
2007, 72 FR 711, previously designated Attainment
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subject to a maintenance plan for the 1-hour standard.
This rulemaking also applies to two 8-hour nonattainment areas that
were classified under Subpart 2 for the 8-hour ozone standard. These
areas, Muskegon, (Muskegon county), MI and Cass County, MI, were also
previously designated Attainment subject to a maintenance plan
(Muskegon) and Unclassifiable/Attainment (Cass County) for the 1-hour
standard. The request was submitted on June 13, 2006 and proposed
rulemakings for these areas on January 8, 2007, 72 FR 699.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and provide substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and clearly label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: Attention: Mr. Roberto Morales,
U.S. Environmental Protection Agency, OAQPS Document Control Officer,
109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711.
The EPA will disclose information identified as CBI only to the extent
allowed by the procedures set forth in 40 CFR part 2. If no claim of
confidentiality accompanies a submission when it is received by the
EPA, the information may be made available to the public without
further notice to the commenter.
C. Where Can I Obtain Additional Information?
In addition to being available in the docket, an electronic copy of
this proposed rule is also available on the World Wide Web. Following
signature by the EPA Acting Assistant Administrator for Air and
Radiation, a copy of this proposed rule will be posted on the EPA's
http://www.epa.gov/ozonedesignations/.
D. How Is This Preamble Organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does This Action Apply To Me?
B. What Should I Consider as I Prepare My Comments for EPA?
C. Where Can I Obtain Additional Information?
D. How Is This Preamble Organized?
II. What is the Background for This Action?
III. What are EPA's Views on the Potential Effect of the Court's
Ruling on the Proposed Redesignation Actions Identified in This
Action?
A. Areas Classified Under Subpart 1
B. Areas Classified Under Subpart 2: Muskegon and Cass County,
MI
IV. What Action is EPA proposing?
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
II. What Is the Background for This Action?
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. E.P.A., 472 F.3d 882 (DC Cir. December 22,
2006). The Court held that certain provisions of EPA's Phase 1 Rule
were inconsistent with the requirements of the CAA. The Court rejected
EPA's reasons for implementing the 8-hour ozone standard in
nonattainment areas under subpart 1 in lieu of subpart 2 of Title I,
part D of the CAA. The Court also held that EPA improperly failed to
retain four measures required for 1-hour nonattainment areas in the
anti-backsliding provisions of the regulations: (1) Nonattainment area
New Source Review (NSR) requirements based on an area's 1-hour
nonattainment classification; (2) Section 185 penalty fees for severe
or extreme nonattainment areas; (3) measures to be implemented pursuant
to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an
area not making reasonable further progress toward attainment of the 1-
hour NAAQS, or for failure to attain that NAAQS; (4) and the
requirement to demonstrate that certain types of projects meet certain
conformity requirements. The Court upheld EPA's authority to revoke the
1-hour standard provided there were adequate anti-backsliding
provisions. The Court has established March 22, 2007, as the date by
which any rehearing petitions must be filed.
III. What Are EPA's Views on the Potential Effect of the Court's Ruling
on the Proposed Redesignation Actions Identified in This Action?
This action sets forth EPA's views on the potential effect of the
Court's ruling on the proposed redesignation actions that are the
subject of this document. For the reasons set forth below, EPA does not
believe that the Court's ruling alters any requirements relevant to
these proposed redesignations and does not prevent EPA from finalizing
these redesignations. The EPA believes that the Court's decision, as it
currently stands or as it may be modified based
[[Page 13455]]
upon any petition for rehearing that may be filed, imposes no
impediment to moving forward with redesignation of these areas to
attainment, because in either circumstance, redesignation is
appropriate under the relevant redesignation provisions of the CAA and
longstanding policies regarding redesignation requests.
A. Areas Classified Under Subpart 1
1. Possible Subpart 2 Requirements
With respect to the 16 8-hour nonattainment areas EPA classified
under Subpart 1 at the time of designation, EPA notes that the Court's
ruling rejected EPA's reasons for classifying areas under subpart 1 for
the 8-hour standard and remanded that matter to the Agency.
Consequently, it is possible that these areas could, during a remand to
EPA, be reclassified under Subpart 2. Although any future decision by
EPA to classify these areas under subpart 2 might trigger additional
future requirements for such areas, EPA believes that this does not
mean that redesignation of the areas that are the subject of this
notice cannot now go forward. This belief is based upon: (1) EPA's
longstanding policy of evaluating redesignation requests in accordance
with only the requirements due at the time the request was submitted;
(2) consideration of the inequity of applying retroactively any
requirements that might be applied in the future and, (3) with respect
to certain of the areas that are the subject of this notice, the fact
that the redesignation requests preceded even the earliest possible due
dates of any requirements for Subpart 2 areas.
First, at the time the redesignation requests for the 16 Subpart 1
areas that are the subject of this notice were submitted, the areas
were classified under Subpart 1 and were obligated to meet the Subpart
1 requirements. Under EPA's longstanding interpretation of section
107(d)(3)(E) of the CAA, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant
State Implementation plan (SIP) requirements that came due prior to the
submittal of a complete redesignation request. September 4, 1992
Calcagni memorandum (``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' Memorandum from John Calcagni,
Director, Air Quality Management Division); See also Michael Shapiro
Memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (March 7,
1995) (redesignation of Detroit-Ann Arbor). Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004). See, e.g., also 68 FR 25424, 25427 (May 12,
2003) (redesignation of St. Louis). At the time the redesignation
requests were submitted, the 16 areas were not classified under Subpart
2 and no Subpart 2 requirements were applicable for purposes of
redesignation.
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted, but which might later become applicable. The DC Circuit has
recognized the inequity in such retroactive rulemaking, See Sierra Club
v. Whitman 285 F. 3d 63 (DC Cir. 2002), in which the DC Circuit upheld
a District Court's ruling refusing to make retroactive an EPA
determination of nonattainment that was past the statutory due date.
Such a determination would have resulted in the imposition of
additional requirements on the area. The Court stated: ``Although EPA
failed to make the nonattainment determination within the statutory
timeframe, Sierra Club's proposed solution only makes the situation
worse. Retroactive relief would likely impose large costs on the
States, which would face fines and suits for not implementing air
pollution prevention plans in 1997, even though they were not on notice
at the time.'' Id. at 68. Similarly, here it would be unfair to
penalize the areas included in this notice by applying to them for
purposes of redesignation any additional SIP requirements under Subpart
2 that were not in effect at the time they submitted their
redesignation requests, but that might apply in the future.
Third, even if a future Subpart 2 classification were applied to
these areas retroactively, for many of the Subpart 1 areas subject to
this notice, the Subpart 2 requirements would still not be considered
applicable for purposes of redesignation. As set forth above, the
applicable requirements for purposes of redesignation are only those
that became due prior to submission of the redesignation request. In
the case of eight of the areas subject to this rulemaking,\1\ the
submission of the redesignation request preceded even the earliest
possible due date of requirements for areas classified under Subpart 2
effective June 2004. These requests were all submitted before the
earliest such submission date, which was June 15, 2006, for the
emissions statement requirement under section 182(a)(3)(B) and
emissions inventories under section 182(a)(1). Thus for this additional
reason alone these additional Subpart 2 requirements would not be
applicable for purposes of evaluating redesignation requests for these
areas. In addition, to the extent that areas had complied with the
emissions statement requirement for the 1-hour standard under section
182(a)(3)(B), this could also be considered to satisfy the requirement
under the 8-hour standard.
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\1\ Benzie County, MI, Grand Rapids, MI, Huron County, MI,
Kalamazoo-Battle Creek, MI, Lansing-East Lansing, MI, Benton Harbor,
MI, Mason County, MI, Flint, MI.
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2. Requirements Under the 1-Hour Standard
With respect to the Court's ruling regarding EPA's revocation of
the 1-hour standard, all of the Subpart 1 areas that are the subject of
the pending redesignation actions were designated attainment or
unclassifiable/ attainment or attainment subject to a maintenance plan
for the 1-hour standard. Those areas designated attainment or
unclassifiable/attainment were never designated nonattainment for the
1-hour standard. Thus, the provisions at issue in the antibacksliding
portion of the Court's decision never applied to these areas and would
not apply. For those areas designated attainment subject to a CAA
section 175A maintenance plan for the 1-hour standard, the Court's
ruling could be interpreted to require continuation of certain
conformity requirements, such as the requirement to submit a
transportation conformity SIP that addresses the 1-hour standard.\2\
EPA approved conformity SIPs for those subpart 1 areas in Michigan and
Ohio that were attainment subject to a maintenance plan for the 1-hour
standard.\3\
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\2\ CAA section 176(c)(4)(E) currently requires States to submit
revisions to their SIPs to reflect certain Federal criteria and
procedures for determining transportation conformity. Transportation
conformity SIPs are different from the motor vehicle emissions
budgets that are established in control strategy SIPs and
maintenance plans.
\3\ Grand Rapids (MI), the Genesee County portion of Flint (MI),
Canton-Massillon (OH), the Ohio portion of Steubenville-Weirton (OH)
EPA approved Michigan's conformity SIP on December 18, 1996 (61 FR
66609), and Ohio's on May 30, 2000 (65 FR 34395).
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Moreover, under longstanding EPA policy, EPA interprets the
conformity SIP requirements as not being applicable requirements for
purposes of evaluating a redesignation request under section 107(d).
See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), (upholding this
interpretation). See also 60 FR 62748 (Dec. 7. 1995) (Tampa, FL
redesignation). This is because state conformity rules are still
required after redesignation and Federal conformity rules apply where
State rules have not been approved. 40 CFR 93.151 and 40
[[Page 13456]]
CFR 51.390. Thus the decision in South Coast should not alter
requirements for these areas that would preclude EPA from finalizing
its proposed redesignations.
B. Areas Classified Under Subpart 2: Muskegon and Cass County, MI
1. Subpart 2 Requirements
The two 8-hour nonattainment areas listed above are classified
under subpart 2 for the 8-hour standard. We do not believe that any
part of the Court's opinion could require that these subpart 2
classifications be changed upon remand to EPA. However, even assuming
that they may (and Muskegon and Cass County would be subject to a
different classification under a classification scheme created in a
future rule in response to the court's decision) that would not prevent
EPA from finalizing the proposed redesignation for these areas. For the
same reasons set forth above with respect to the applicability of
Subpart 2 requirements to areas that were classified Subpart 1 at the
time of submission of redesignation requests, any additional
requirements that might apply based on that different classification
would not be applicable for purposes of evaluating their redesignation
requests.
2. Requirements Under the 1-Hour Standard
With respect to the 1-hour standard, since Cass County was never
designated nonattainment for the 1-hour standard, there are no
outstanding 1-hour nonattainment area requirements that it would be
required to meet under the anti-backsliding requirements.
Muskegon was a maintenance area under the 1-hour standard; thus,
the conformity requirement is the only relevant anti-backsliding
requirement that was at issue before the court. As noted above, EPA
approved Michigan's transportation conformity SIP on December 18, 1996
(61 FR 66609). Also, for the reasons set forth above with respect to
the areas classified under Subpart 1, EPA believes that having an
approved conformity SIP is not an applicable requirement for purposes
of redesignation.
IV. What Action Is EPA Proposing?
Thus, for the reasons discussed above, EPA proposes that the
Court's ruling in South Coast, whether it stands as initially rendered
or is modified based on any petition for rehearing or other further
court proceeding, does not alter any requirements applicable for
purposes of evaluating the redesignation requests for these areas that
would prevent the Agency from finalizing its proposed determinations.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not contain any information collection
requirements subject to OMB review under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. It does not contain any recordkeeping or
reporting requirements.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply, with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency does not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The control numbers for EPA's
regulations are listed in 40 CFR part 9.
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
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (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.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
This proposed rule sets forth EPA's views on the potential effect
of the ruling of the U.S. Court of Appeals for the District of Columbia
Circuit in South Coast Air Quality Management Dist. v. EPA, 472 F.3d.
882 (DC Cir. December 22, 2006) on a number of areas proposed for
redesignation of the 8-hour ozone standard.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
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
[[Page 13457]]
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.
The EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any 1 year. Since this proposed rule does not impose
a mandate upon any source, this rule is not estimated to result in the
expenditure by State, local and Tribal governments or the private
sector of $100 million in any 1 year. Therefore, the Agency has not
prepared a budgetary impact statement or specifically addressed the
selection of the least costly, most cost-effective, or least burdensome
alternative. Because small governments will not be significantly or
uniquely affected by this rule, the Agency is not required to develop a
plan with regard to small governments. Thus, this proposed rule is not
subject to the requirements of sections 202, 203 and 205 of the UMRA.
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 proposed action 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. This proposed action does not
impose any new mandates on State or local governments. Thus, Executive
Order 13132 does not apply to this rule. In the spirit of Executive
Order 13132, and consistent with EPA policy to promote communications
between EPA and State and local governments, EPA specifically solicits
comment on the proposed rule for this action from State and local
officials.
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 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This proposed rule does not have Tribal implications. It will not
have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified in Executive Order 13175.
This action does not have any direct effects on Indian Tribes. Thus,
Executive Order 13175 does not apply to this proposed rule. The EPA
specifically solicits additional comment on this proposed rule from
Tribal officials where there are applicable Tribal lands in the
affected areas.
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 and safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA 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 EPA.
This proposed action is not subject to Executive Order 13045
because it is not economically significant as defined in Executive
Order 12866, and because EPA does not have reason to believe that the
environmental health risks or safety risks addressed by this proposed
rule present a disproportionate risk or safety risk to children. This
proposed rule sets forth EPA's views regarding the potential effect of
a recent Court's ruling, vacating the Phase 1 Ozone Implementation
rule, on previously proposed redesignation actions. Furthermore, at the
time those actions were proposed in the Federal Register, it was
determined that Executive Order 13045 did not apply to those actions.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer Advancement Act of 1995 (``NTTAA''), Public Law
104-113, section 12(d), (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards 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 voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, with explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental
[[Page 13458]]
justice. Its main provision directs Federal agencies, to the greatest
extent practicable and permitted by law, to make environmental justice
part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of health or environmental protection, but instead
merely sets forth EPA's views on the potential effect of the ruling of
the U.S. Court of Appeals for the District of Columbia Circuit in South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir.
December 22, 2006) on a number of areas proposed for redesignation of
the 8-hour ozone standard.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 16, 2007.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E7-5352 Filed 3-21-07; 8:45 am]
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