[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Proposed Rules]
[Pages 61310-61315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21313]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 209 / Tuesday, October 30, 2007 /
Proposed Rules
[[Page 61310]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R06-OAR-2007-0969; FRL-8489-1]
Determination of Nonattainment and Reclassification of the
Beaumont/Port Arthur 8-Hour Ozone Nonattainment Area; State of Texas;
Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to find that the Beaumont/Port Arthur (BPA)
marginal 8-hour ozone nonattainment area has failed to attain the 8-
hour ozone national ambient air quality standard (NAAQS or standard) by
June 15, 2007, the attainment deadline set forth in the Clean Air Act
(CAA) and Code of Federal Regulations (CFR) for marginal nonattainment
areas. If EPA finalizes this finding, the BPA area will then be
reclassified, by operation of law, as a moderate 8-hour ozone
nonattainment area. The moderate area attainment date for the BPA area
would then be as expeditiously as practicable, but no later than June
15, 2010. Once reclassified, Texas must submit State Implementation
Plan (SIP) revisions that meet the 8-hour ozone nonattainment
requirements for moderate areas as required by the CAA. In this action,
EPA is also proposing the schedule for the State's submittal of the SIP
revisions required for moderate areas once the area is reclassified.
DATES: Comments must be received on or before November 29, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2007-0969, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0969. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 www.regulations.gov or e-mail.
The 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 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, any form of
encryption, and be free of any defects or viruses.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0969, EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected.
The 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 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, 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.
Docket: All documents in the docket are listed in the
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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas
[[Page 61311]]
75202-2733. The file will be made available by appointment for public
inspection in the Region 6 FOIA Review Room between the hours of 8:30
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or
Mr. Bill Deese at 214-665-7253 to make an appointment. If possible,
please make the appointment at least two working days in advance of
your visit. There will be a 15 cent per page fee for making photocopies
of documents. On the day of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section,
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7247; fax
number 214-665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Is the Background for This Proposed Action?
A. What Are the National Ambient Air Quality Standards?
B. What Is the Standard for 8-Hour Ozone?
C. What Is a SIP and How Does It Relate to the NAAQS for 8-Hour
Ozone?
D. What Is the BPA Nonattainment Area, and What Is Its Current
8-Hour Ozone Nonattainment Classification?
E. What Are the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications?
F. What Happens if the BPA Area Attains the 8-Hour Ozone
Standard at the End of 2007?
II. What Is EPA's Evaluation of the BPA Area's 8-Hour Ozone Data?
III. What Action Is EPA Proposing?
A. Determination of Nonattainment, Reclassification of the BPA
Nonattainment Area and New Attainment Date
B. Proposed Date for Submitting a Revised SIP for the BPA Area
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What Is the Background for This Proposed Action?
A. What Are the National Ambient Air Quality Standards?
The CAA requires EPA to establish a NAAQS for pollutants that ``may
reasonably be anticipated to endanger public health and welfare'' and
to develop a primary and secondary standard for each NAAQS. The primary
standard is designed to protect human health with an adequate margin of
safety and the secondary standard is designed to protect public welfare
and the environment. EPA has set NAAQS for six common air pollutants
referred to as criteria pollutants: Carbon monoxide, lead, nitrogen
dioxide, ozone, particulate matter, and sulfur dioxide. These standards
present state and local governments with the air quality levels they
must meet to comply with the CAA. Also, these standards allow the
American people to assess whether the air quality in their communities
is healthful.
B. What Is the Standard for 8-Hour Ozone?
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. Under EPA regulations at 40
CFR part 50, the 8-hour ozone standard is attained when the 3 -year
average of the annual fourth highest daily maximum 8-hour average
ambient air quality ozone concentrations is less than or equal to 0.08
ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857,
(April 30, 2004) for further information.) Ambient air quality
monitoring data for the 3-year period must meet a data completeness
requirement. The ambient air quality monitoring data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90 percent, and no single year has less
than 75 percent data completeness as determined in Appendix I of part
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I,
``Comparisons with the Primary and Secondary Ozone Standards'' states:
The primary and secondary ozone ambient air quality standards
are met at an ambient air quality monitoring site when the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm. The number of
significant figures in the level of the standard dictates the
rounding convention for comparing the computed 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration with
the level of the standard. The third decimal place of the computed
value is rounded, with values equal to or greater than 5 rounding
up. Thus, a computed 3-year average ozone concentration of 0.085 ppm
is the smallest value that is greater than 0.08 ppm.
C. What Is a SIP and How Does It Relate to the NAAQS for 8-Hour Ozone?
Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that state air quality
meet the NAAQS established by EPA. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the Federally-enforceable SIP. Each Federally-
approved SIP protects air quality primarily by addressing air pollution
at its point of origin. They may contain state regulations or other
enforceable documents and supporting information such as emission
inventories, monitoring networks, and modeling demonstrations.
D. What Is the BPA Nonattainment Area, and What Is Its Current 8-Hour
Ozone Nonattainment Classification?
The BPA 8-hour ozone nonattainment area consists of Hardin,
Jefferson, and Orange Counties. For areas subject to Subpart 2 of the
CAA, such as the BPA nonattainment area, the maximum period for
attainment runs from the effective date of designations and
classifications for the 8-hour ozone NAAQS and will be the same periods
as provided in Table 1 of CAA Section 181(a): Marginal--3 years;
Moderate--6 years; Serious--9 years, Severe--15 or 17 years; and
Extreme--20 years. The Phase I Ozone Implementation Rule (April 30,
2004, 69 FR 23951) provides the classification scheme for the 8-hour
ozone NAAQS (40 CFR 51.903). The effective date of designations and
classifications for the 8-hour ozone NAAQS was June 15, 2004 (April 30,
2004, 69 FR 23858).
The BPA area was designated nonattainment for the 8-hour ozone
standard on April 30, 2004, and classified ``marginal'' based on a
design value of 0.091 ppm, with an attainment date of June 15, 2007
(April 30, 2004, 69 FR 23858). The design value of an area, which
characterizes the severity of the air quality concern, is represented
by the annual fourth-highest daily maximum 8-hour average ozone
concentration measured at each monitor averaged over any three-year
period.
E. What Are the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications?
Section 181(b)(2) prescribes the process for making determinations
upon failure of an ozone nonattainment area to attain by its attainment
date, and for reclassification of an ozone nonattainment area. Section
181(b)(2)(A) of the Act requires that EPA determine, based on the
area's design value (as of the attainment date), whether the area
attained the ozone standard by that date. For marginal, moderate, and
serious areas, if EPA finds that the nonattainment area has failed to
attain the ozone standard by the applicable attainment date, the area
must be reclassified by operation of law
[[Page 61312]]
to the higher of (1) the next higher classification for the area, or
(2) the classification applicable to the area's design value as
determined at the time of the required Federal Register notice. Section
181(b)(2)(B) requires EPA to publish in the Federal Register a notice
identifying any area that has failed to attain by its attainment date
and the resulting reclassification. Different circumstances apply to
severe and extreme areas.
F. What Happens if the BPA Area Attains the 8-Hour Ozone Standard at
the End of 2007?
The BPA area may attain the 8-hour ozone standard at the end of
2007, based on data from 2005, 2006 and 2007. If EPA determines, after
notice and comment rulemaking, that the area has attained the standard
at the end of 2007, the requirement to submit SIPs related to
attainment of the standard shall be suspended until such time as (1)
the area is redesignated to attainment, at which time the requirements
no longer apply; or (2) EPA determines that the area has violated the
8-hour ozone NAAQS (40 CFR 51.918). Other requirements not related to
attainment would remain in force.
II. What Is EPA's Evaluation of the BPA Area's 8-Hour Ozone Data?
EPA makes attainment determinations for ozone nonattainment areas
using available quality-assured air quality data. Quality-assured air
quality data from sites in the BPA area is presented in Table 1. For
the BPA ozone nonattainment area, the attainment determination is based
on 2004-2006 air quality data. The area has a design value of 0.085
ppm. Therefore, pursuant to section 181(b)(2) of the CAA, the BPA
nonattainment area did not attain the 8-hour ozone NAAQS by the June
15, 2007, deadline for marginal areas.
Table 1.--BPA Area Fourth Highest 8-Hour Ozone Concentrations And Design Values (ppm) \1\
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4th Highest daily max Design value 3
Site --------------------------------- year average
2004 2005 2006 (2004-2006)
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Beaumont (48-245-0009)........................................ 0.082 0.081 0.085 0.082
Port Arthur West (48-245-0011)................................ 0.080 0.079 0.085 0.081
Sabine Pass (48-245-0101)..................................... 0.091 0.082 0.084 0.085
Hamshire (48-245-0022)........................................ 0.084 0.080 0.078 0.080
West Orange (48-361-1001)..................................... 0.078 0.078 0.078 0.078
Mauriceville (48-361-1100).................................... 0.066 0.076 0.071 0.071
Jefferson Co. Airport (48-245-0018)........................... 0.084 0.083 0.084 0.083
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\1\Unlike for the 1-hour ozone standard, design value calculations for the 8-hour ozone standard are based on a
rolling three-year average of the annual 4th highest values (40 CFR part 50, Appendix I).
Under Sections 172(a)(2)(C) and 181(a)(5) of the CAA, an area can
qualify for up to 2 one-year extensions of its attainment date based on
the number of exceedances in the attainment year and if the State has
complied with all requirements and commitments pertaining to the area
in the applicable implementation plan. For the 8-hour standard, if an
area's fourth highest daily maximum 8-hour average value in the
attainment year is 0.084 ppm or less (40 CFR 51.907), the area is
eligible for up to 2 one-year attainment date extensions. The
attainment year is the year immediately preceding the nonattainment
area's attainment date. For BPA the attainment year is 2006. In 2006,
the area's fourth highest daily maximum 8-hour average was 0.085 ppm.
Based on this information, the BPA area currently does not qualify for
a 1-year extension of the attainment date.
Section 181(b)(2)(A) of the CAA provides that, when EPA finds that
an area failed to attain by the applicable date, the area is
reclassified by operation of law to the higher of: The next higher
classification or the classification applicable to the area's ozone
design value at the time of the required notice under Section
181(b)(2)(B). Section 181(b)(2)(B) requires EPA to publish a notice in
the Federal Register identifying the reclassification status of an area
that has failed to attain the standard by its attainment date. The
classification that would be applicable to the BPA area's ozone design
value at the time of today's notice is ``marginal'' because the area's
2006 calculated design value, based on quality-assured ozone monitoring
data from 2004-2006, is 0.085 ppm. By contrast, the next higher
classification for the BPA area is ``moderate''. Because ``moderate''
is a higher nonattainment classification than ``marginal'' under the
CAA statutory scheme, upon the effective date of a final rulemaking,
the BPA area will be reclassified by operation of law as ``moderate'',
for failing to attain the standard by the marginal area applicable
attainment date of June 15, 2007.
III. What Action Is EPA Proposing?
A. Determination of Nonattainment, Reclassification of the BPA
Nonattainment Area and New Attainment Date
Pursuant to section 181(b)(2), EPA is proposing to find that the
BPA area has failed to attain the 8-hour ozone NAAQS by the June 15,
2007, attainment deadline prescribed under the CAA for marginal ozone
nonattainment areas. If EPA finalizes this finding and it takes effect,
the area shall be reclassified by operation of law from marginal
nonattainment to moderate nonattainment. Moderate areas are required to
attain the standard ``as expeditiously as practicable'' but no later
than 6 years after designation or June 15, 2010. The ``as expeditiously
as practicable'' attainment date will be determined as part of the
action on the required SIP submittal demonstrating attainment of the 8-
hour ozone standard. EPA is proposing a schedule by which Texas will
submit the SIP revisions necessary for the proposed reclassification to
moderate nonattainment of the 8-hour ozone standard.
B. Proposed Date for Submitting a Revised SIP for the BPA Area
EPA must address the schedule by which Texas is required to submit
a revised SIP. When an area is reclassified, EPA has the authority
under section 182(i) of the Act to adjust the Act's submittal deadlines
for any new SIP revisions that are required as a result of the
reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment
area, the State must provide for implementation of all control measures
needed for attainment
[[Page 61313]]
no later than the beginning of the attainment year ozone season. The
attainment year ozone season is the ozone season immediately preceding
a nonattainment area's attainment date, in this case 2009 (40 CFR
51.900(g)). The ozone season is the ozone monitoring season as defined
in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (October 17,
2006, 71 FR 61236). For the purposes of this reclassification for the
BPA area, January 1st is the beginning of the ozone monitoring season.
As a result EPA proposes that the required SIP revision be submitted by
Texas as expeditiously as practicable, but no later than January 1,
2009. This timeline also calls for implementation of applicable
controls no later than January 1, 2009.
A revised SIP must include the following moderate area
requirements: (1) An attainment demonstration (40 CFR 51.908), (2)
provisions for reasonably available control technology and reasonably
available control measures (40 CFR 51.912), (3) reasonable further
progress reductions in volatile organic compound (VOC) and nitrogen
oxide (NOX) emissions (40 CFR 51.910), and (4) contingency
measures to be implemented in the event of failure to meet a milestone
or attain the standard (CAA 172(c)(9)).\2\ See also the requirements
for moderate ozone nonattainment areas set forth in CAA section 182(b).
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\2\ A vehicle inspection and maintenance (I/M) program would
normally be listed as a requirement for an ozone moderate or above
nonattainment area. However, the Federal I/M flexibility Amendments
of 1995 determined the urbanized areas with populations less than
200,000 for 1990 (such as BPA) are not mandated to participate in
the I/M program (60 FR 48027, September 18, 1995).
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As discussed above, the BPA area may attain the 8-hour ozone
standard at the end of 2007, based on data from 2005, 2006 and 2007.
If, after notice and comment rulemaking, EPA determines that the area
does attain the standard at the end of 2007, the requirement to submit
SIPs related to attainment of the standard shall be suspended until
such time as (1) the area is redesignated to attainment, at which time
the requirements no longer apply; or (2) EPA determines that the area
has violated the 8-hour ozone NAAQS (40 CFR 51.918).
IV. Proposed Action
Pursuant to CAA section 181(b)(2), EPA is proposing to find that
the BPA marginal 8-hour ozone nonattainment area has failed to attain
the 8-hour ozone NAAQS by June 15, 2007. If EPA finalizes its proposal,
the area will by operation of law be reclassified as a moderate 8-hour
ozone nonattainment area. Pursuant to section 182(i) of the CAA EPA is
also proposing the schedule for submittal of the SIP revisions required
for moderate areas once the area is reclassified. EPA proposes that the
required SIP revisions be submitted as expeditiously as practicable,
but no later than January 1, 2009.
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 (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. The Agency has
determined that the finding of nonattainment would result in none of
the effects identified in the Executive Order. Under section 181(b)(2)
of the CAA, determinations of nonattainment are based upon air quality
considerations and the resulting reclassifications must occur by
operation of law.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
This proposed action to reclassify the BPA area as a moderate ozone
nonattainment area and to adjust applicable deadlines does not
establish any new information collection burden. 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 may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid Office of Management and Budget (OMB)
control number. The OMB control numbers for EPA's regulations in 40 CFR
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
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 this action 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. Determinations of nonattainment and the
resulting reclassification of nonattainment areas by operation of law
under section 181(b)(2) of the CAA do not in and of themselves create
any new requirements. Instead, this rulemaking only makes a factual
determination, and does not directly regulate any entities. After
considering the economic impacts of today's action 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
one 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
[[Page 61314]]
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 to 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.
This proposed action does not include a Federal mandate within the
meaning of UMRA that may result in expenditures of $100 million or more
in any one 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. Also, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and therefore,
is not subject to the requirements of sections 203. EPA believes, as
discussed previously in this document, that the finding of
nonattainment is a factual determination based upon air quality
considerations and that the resulting reclassification of the area must
occur by operation of law. Thus, EPA believes that the proposed finding
does not constitute a Federal mandate, as defined in section 101 of the
UMRA, because it does not impose an enforceable duty on any entity.
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 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. This action merely proposes to
determine that the BPA area had not attained by its applicable
attainment date, and to reclassify the BPA area as a moderate ozone
nonattainment area and to adjust applicable deadlines. Thus, Executive
Order 13132 does not apply to this rule.
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 action does not have
``Tribal implications'' as specified in Executive Order 13175. This
action merely proposes to determine that the BPA area has not attained
by its applicable attainment date, and to reclassify the BPA area as a
moderate ozone nonattainment area and to adjust applicable deadlines
The Clean Air Act and the Tribal Authority Rule 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. Thus, Executive Order 13175 does not apply to this rule.
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. This action
is not subject to Executive Order 13045 because it is not economically
significant as defined in E.O. 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.
This action merely proposes to determine that the BPA area has not
attained the standard by the applicable attainment date, and to
reclassify the BPA area as a moderate ozone nonattainment area and to
adjust applicable deadlines.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action 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
As noted in the proposed rule, 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
merely proposes to determine that the BPA nonattainment area has not
attained by its applicable attainment date, and to reclassify the BPA
``marginal'' nonattainment area as a ``moderate'' ozone nonattainment
area and to adjust applicable deadlines. Therefore, EPA did not
consider 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, February 16, 1994) establishes
federal executive policy on environmental 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,
[[Page 61315]]
policies, and activities on minority populations and low-income
populations in the United States.
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 protection provided to human health or the
environment. This action merely proposes to determine that the BPA
nonattainment area has not attained by its applicable attainment date,
and to reclassify the BPA nonattainment area as a moderate ozone
nonattainment area and to adjust applicable deadlines.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401, et seq.
Dated: October 22, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E7-21313 Filed 10-29-07; 8:45 am]
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