Federal Register, Volume 64 Issue 73 (Friday, April 16, 1999)

[Federal Register Volume 64, Number 73 (Friday, April 16, 1999)]
[Proposed Rules]
[Pages 18864-18870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9470]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[TX-81-1-7350; FRL-6324-3]

Clean Air Act Reclassification or Eligibility for Extension of
Attainment Date, Texas; Beaumont/Port Arthur Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

[[Page 18865]]

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We propose to find that the Beaumont/Port Arthur moderate
ozone nonattainment area has failed to attain the one-hour ozone
National Ambient Air Quality Standard (NAAQS). This proposed finding is
based on the requirements of the Federal Clean Air Act (the Act), and
our review of monitored air quality data from the area. If we take
final action on this proposed finding, the area would be reclassified
as a serious ozone nonattainment area. Alternatively, we are proposing
to extend the area's attainment date, if Texas, by November 15, 1999,
submits a SIP that meets EPA's July 1998 transport policy. If Texas
submits a SIP meeting these requirements, we will issue a supplemental
proposal to extend the area's attainment date, as appropriate.

DATES: We must receive comments on or before May 17, 1999.

ADDRESSES: All comments should be addressed to: Lt. Mick Cote, EPA
Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.
Copies of the Beaumont/Port Arthur monitored air quality data
analyses, guidance on extension of attainment dates in downwind
transport areas, our technical support document, and other relevant
documents used in support of this proposal, are available at the
following addresses for inspection during normal business hours:
Environmental Protection Agency, Air Planning Section, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202; Texas Natural Resource
Conservation Commission, 12124 Park 35 Circle, Austin, Texas 78753.
Please contact the appropriate office at least 24 hours in advance.

FOR FURTHER INFORMATION: Lt. Mick Cote at (214) 665-7219.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action are we taking today?
II. What are the National Ambient Air Quality Standards?
III. What is the NAAQS for ozone?
IV. What is the Beaumont/Port Arthur ozone nonattainment area?
V. Why is the Beaumont/Port Arthur area currently classified as
moderate?
VI. Why is EPA proposing to reclassify the Beaumont/Port Arthur
area?
VII. Has air quality improved in the Beaumont/Port Arthur area in
recent years?
VIII. What would a reclassification mean for Beaumont/Port Arthur?
IX. Can an extension of the attainment date be granted based on 1996
air quality data?
X. What is EPA's new policy regarding extension of attainment dates
for downwind transport areas?
XI. What does the July 1998 Transport policy require Texas to do?
XII. Can Beaumont/Port Arthur qualify for an attainment date
extension under the transport policy?
XIII. When will EPA make a final decision on whether to bump-up or
grant an extension for the Beaumont/Port Arthur area?
XIV. If the Beaumont/Port Arthur area is reclassified, what would
its new schedule be?
XV. Administrative Requirements.

I. What Action Are We Taking Today?

We are proposing to find pursuant to section 181(b)(2) of the Clean
Air Act that the Beaumont/Port Arthur area has failed to attain the
ozone one-hour NAAQS by the date prescribed under the Act for moderate
ozone nonattainment areas, or November 15, 1996. If we finalize this
finding, the Beaumont/Port Arthur area will be reclassified from
moderate nonattainment to serious nonattainment.
Alternatively, we are proposing to extend the attainment date,
providing that Texas meets the criteria of our July 16, 1998 transport
policy, Guidance on Extension of Attainment Dates for Downwind
Transport Areas. If Texas submits a SIP by November 15, 1999, that
meets the July 1998 transport policy, we will issue a supplemental
proposal in a Federal Register notice to extend the Beaumont/Port
Arthur area's attainment date as appropriate. If Texas does not submit
by November 15, 1999, a SIP that meets the July 1998 transport policy,
or fails to submit a SIP by this date, we would finalize this proposed
finding of failure to attain, and the Beaumont/Port Arthur area would
be reclassified as a serious ozone nonattainment area.

II. What Are the National Ambient Air Quality Standards?

We have set NAAQS for six air pollutants: Carbon Monoxide (CO),
Lead (Pb), Nitrogen Dioxide (NO2), Ozone (O3),
Particulate matter (PM), and Sulfur Dioxide (SO2). The Act
requires us to set these NAAQS at levels that protect public health and
welfare with an adequate margin of safety. These NAAQS provide
information to the American people about whether the air in their
community is healthful. Also, the NAAQS present state and local
governments with the minimum pollutant concentrations allowed to
achieve clean air.
For several pollutants, there are two types of NAAQS--primary and
secondary. Primary NAAQS protect against adverse health effects;
secondary NAAQS protect against welfare effects, such as damage to farm
crops and vegetation and damage to buildings. Because different
pollutants have varying effects, the form of NAAQS also varies. Some
pollutants have NAAQS for both long-term and short-term averaging
times. The short-term NAAQS are designed to protect against acute, or
short-term, health effects, while the long-term NAAQS were established
to protect against chronic health effects.

III. What Is the NAAQS for Ozone?

The NAAQS for ozone is expressed in two forms, which are referred
to as the one-hour and 8-hour standards. Table 1 summarizes the ozone
NAAQS.

Table 1.--Summary of Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
Standard Value Type Method of compliance
----------------------------------------------------------------------------------------------------------------
One-hour............... 0.12 ppm.............. Primary and Secondary.................. Must not be exceeded
on average more than
one day per year over
any three-year
period.
8-hour................. 0.08 ppm.............. Primary and Secondary.................. The 3-year average of
the annual fourth-
highest daily maximum
8-hour average ozone
concentration
measured at each
monitor within an
area.
----------------------------------------------------------------------------------------------------------------

The one-hour ozone NAAQS of 0.12 parts per million has existed
since 1979. The 8-hour ozone NAAQS was promulgated by EPA on July 18,
1997 (62 FR 38856). The one-hour ozone NAAQS continues to apply for
existing nonattainment areas until these areas attain the one-hour
ozone NAAQS (40 CFR 50.9(b)). It is the classification of the Beaumont/
Port Arthur area relative to the one-hour ozone NAAQS that is addressed
in this document.

[[Page 18866]]

IV. What Is the Beaumont/Port Arthur Ozone Nonattainment Area?

The Beaumont/Port Arthur moderate ozone nonattainment area is
located in Southeast Texas, and consists of Hardin, Jefferson, and
Orange Counties.

V. Why Is the Beaumont/Port Arthur Area Currently Classified as
Moderate?

Each ozone area designated nonattainment for the one-hour ozone
standard prior to enactment of the 1990 Act Amendments was designated
nonattainment by operation of law upon enactment of the 1990
Amendments. Under section 181(a) of the Act, each ozone area designated
nonattainment under section 107(d) was also classified by operation of
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or
``extreme,'' depending on the severity of the area's air quality
problem. The design value for an area is represented by the fourth
highest one-hour daily monitored ozone level in a given three-year
period. Table 2 provides the design value ranges for each nonattainment
classification. Ozone nonattainment areas with design values between
0.138 and 0.160 parts per million (ppm), such as the Beaumont/Port
Arthur area, were classified as moderate.¹ These
nonattainment designations and classifications were codified in 40 CFR
part 81 (see 56 FR 56694, November 6, 1991).
---------------------------------------------------------------------------

\1\ The Beaumont/Port Arthur area (the area) was classified as a
serious ozone nonattainment area by EPA on November 6, 1991 (56 FR
56694). However, we corrected the ozone design value from 0.160 ppm
to 0.158 ppm. Pursuant to section 110(k)(6) of the Act, which allows
us to correct our actions, we corrected the classification of the
area from serious to moderate (61 FR 14496, April 2, 1996).

Table 2.--Ozone Nonattainment Classifications
------------------------------------------------------------------------
Attainment
Area class Design value (ppm) date
------------------------------------------------------------------------
Marginal..................... 0.121 up to 0.138............ 11/15/93
Moderate..................... 0.138 up to 0.160............ 11/15/96
Serious...................... 0.160 up to 0.180............ 11/15/99
Severe....................... 0.180 up to 0.280............ 11/15/05
Extreme...................... 0.280 and above.............. 11/15/10
------------------------------------------------------------------------

States containing areas that were classified as moderate
nonattainment were required to submit SIPs which required control
measures to reduce emissions, and to provide for attainment of the
ozone standard no later than November 15, 1996. Moderate area SIP
requirements are found primarily in section 182(b) of the Act.

VI. Why Is EPA Proposing To Reclassify the Beaumont/Port Arthur
Area?

Section 181(b)(2) of the Act provides that we determine, within 6
months following the applicable attainment date, whether an ozone
nonattainment area has attained the one-hour ozone standard. If we find
that the nonattainment area has failed to attain the one-hour ozone
standard by the applicable attainment date, then we are to publish a
notice in the Federal Register identifying the area that we have
determined has failed to attain, and the appropriate reclassification.
In the case of Beaumont/Port Arthur, we have yet to make the
determination as described above.
We make attainment determinations for ozone nonattainment areas
using quality-assured air quality data. In the case of the Beaumont/
Port Arthur area, the attainment determination is based on 1994-1996
air quality data. The data show that for 1994-1996 four monitoring
sites averaged more than one exceedance day per year. We propose to
determine that the Beaumont/Port Arthur area's air quality has not met
the one-hour ozone NAAQS by November 15, 1996, based upon all quality-
assured air quality data available to us for the years 1994-1996.
Our data includes all data available from the State and local/
national air monitoring (SLAM/NAMS) network as submitted to our
Aerometric Information Retrieval System, and all data available to us
from special purpose monitoring (SPM) sites that meet our monitor
siting criteria (40 CFR 58.13). Our policy on the use of ozone SPM data
is described in the August 22, 1997, Memorandum from John Seitz,
Director, Office of Air Quality Planning and Standards, to Regional Air
Directors, entitled, Agency Policy on the Use of Ozone Special Purpose
Monitoring Data.
Table 3 lists the number of recorded exceedances of the one-hour
ozone standard at each SLAMS/SPM monitoring site in the Beaumont/Port
Arthur area for the period 1994 through 1998, and each monitor's design
value for that period. A complete listing of the ozone exceedances at
each monitor as well as EPA's calculations of the design values can be
found in the technical support document.

Table 3: Ozone Exceedances in the Beaumont/Port Arthur Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Site Design Value (ppm)
Site Type 1994 1995 1996 1997 1998 -----------------------------
94-96 95-97 96-98
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beaumont....................................... SLAMS 1 5 0 3 3 0.128 0.133 0.133
Port Arthur.................................... SLAMS 0 5 0 0 0 0.139 0.139 0.118
West Orange.................................... SLAMS 1 0 0 2 1 0.12 0.121 0.122
Sabine......................................... SPM 2 1 7 2 ....... 0.157 0.157 ........
Mauriceville................................... SPM 0 0 0 2 ....... 0.109 0.104 ........
Jefferson Co. Airport.......................... SPM 2 6 0 2 ....... 0.139 0.139 ........
--------------------------------------------------------------------------------------------------------------------------------------------------------
--We do not have any data for 1998 from the three SPMs. However, data from the SLAMS sites alone indicates continued violation of the one-hour ozone
NAAQS. Although our decision to propose reclassification does not depend on the SPM data for 1998, we have requested it from the State.

If we finalize this proposed action, the new classification will be
the higher of the next higher classification or the classification
appropriate to the design value at the time the notice of
reclassification is published. The next highest classification for the
Beaumont/Port Arthur area is serious. The design value of the Beaumont/
Port Arthur area at the time of the proposed finding of failure to
attain is based on air quality monitoring data from 1996 through 1998.
This design value is .133 ppm. This design value correlates with a
marginal classification, as taken from Table 2. Since the next higher
classification is greater than what the current design value indicates,
the correct classification would be serious nonattainment under the
statutory scheme.

[[Page 18867]]

VII. Has Air Quality Improved in the Beaumont/Port Arthur Area in
Recent Years?

The air quality in the Beaumont/Port Arthur area has not improved
in recent years. Two of the three SLAMS monitors listed in Table 3 have
design values that have increased since 1994. Likewise, two of the
three SPM monitors listed in Table 3 have design values that have
increased between 1994 and 1997.

VIII. What Would a Reclassification Mean for Beaumont/Port Arthur?

The Beaumont/Port Arthur area would need to reach the ozone NAAQS
as expeditiously as practicable, but no later than November 15, 1999.
Texas would also need to submit SIP revisions addressing the serious
area requirements for the one-hour ozone standard in section 182(c) of
the Act. The requirements for serious ozone nonattainment areas
include, but are not limited to, the following:²
---------------------------------------------------------------------------

\2\ An enhanced vehicle Inspection and Maintenance (I/M) program
would normally be listed as a requirement for a serious ozone
nonattainment area. However, the Federal I/M Flexibility Amendments
of 1995 determined that urbanized areas with populations less than
200,000 for 1990 (such as Beaumont/Port Arthur) are not mandated to
participate in the I/M program (60 FR 48033, September 18, 1995).
---------------------------------------------------------------------------

1. Attainment and Reasonable Further Progress demonstrations.
2. Clean-fuel vehicle programs.
3. A 50 ton-per-year major source threshold.
4. More stringent new source review requirements.
5. An enhanced monitoring program.
6. Transportation Control Measures.
7. Contingency provisions.

IX. Can an Extension of the Attainment Date Be Granted Based on
1996 Air Quality Data?

Two mechanisms exist for the Beaumont/Port Arthur area to obtain an
extension of its attainment date. First, a State may request, and at
our discretion we may grant, up to two one-year attainment date
extensions. We may grant an extension under section 181(a)(5) of the
Act only if:
1. The State has complied with the requirements and commitments
pertaining to the applicable implementation plan for the area.
2. The area has measured no more than one exceedance of the ozone
NAAQS at any monitoring site in the nonattainment area in the year in
which attainment is required.
On January 9, 1997, the Governor of the State of Texas submitted a
request for a one-year extension of the attainment date for the
Beaumont/Port Arthur area. The request was based on the absence of
exceedances from SLAMS data in the area in 1996. However, the area had
more than one exceedance at the Sabine SPM monitor in 1996, and
numerous exceedances at SLAMS and SPM sites in 1997. Since the 1996 and
1997 data show that the area failed to attain, and Texas has not
submitted a plan providing for attainment, we are exercising our
discretion to not grant a section 181(a)(5) extension. However, Texas
has another mechanism available for obtaining an extension. This
mechanism is discussed below.

X. What Is EPA's New Policy Regarding Extension of Attainment Dates
for Downwind Transport Areas?

A number of areas in the country that have been classified as
moderate or serious are affected by pollutants that have traveled
downwind from other areas. For these downwind areas, transport of
pollutants from upwind areas has interfered with their ability to meet
the ozone standard by the dates prescribed by the Act. As a result,
many of these areas, such as Beaumont/Port Arthur, find themselves
facing the prospect of being reclassified, or ``bumped up,'' to a
higher classification for failing to meet the ozone standard by the
specified date.
On July 16, 1998, in consideration of these factors and the
realization that many areas are unable to meet the mandated attainment
dates due to transport ³, we issued a policy memorandum
entitled Guidance on Extension of Air Quality Attainment Dates for
Downwind Transport Areas. This policy outlines the criteria by which
the attainment date for an area may be extended.
---------------------------------------------------------------------------

\3\ Through a two-year effort known as the Ozone Transport
Assessment Group (OTAG), the EPA worked in partnership with the 37
easternmost states and the District of Columbia, industry
representatives, academia, and environmental groups to develop
recommended strategies to address transport of ozone-forming
pollutants across state boundaries.
On November 7, 1997, the EPA acted on OTAG's recommendations and
issued a proposal (the proposed NOx SIP call, 62 FR 60318) requiring
22 states and the District of Columbia to submit state plans
addressing the regional transport of ozone. These state plans, or
SIPS, will decrease the transport of ozone across state boundaries
in the eastern half of the United States by reducing emissions of
nitrogen oxides (a precursor to ozone formation known as NOx). The
EPA took final action on the NOx SIP call on October 27, 1998 (63 FR
57356). The EPA expects the final NOx SIP call will assist many
areas in attaining the 1-hour ozone standard.
---------------------------------------------------------------------------

Our July 1998 transport policy offers another opportunity for Texas
to request an extension of the attainment date for the Beaumont/Port
Arthur area. This policy draws on other provisions of the Act to
authorize attainment date extensions for downwind transport areas.

XI. What Does the July 1998 Transport Policy Require Texas To Do?

This transport policy outlines the steps Texas will need to take in
order for us to consider extending the Beaumont/Port Arthur area's
attainment date. The steps we believe Texas will need to take include:
1. Demonstrate that the Beaumont/Port Arthur Area's air quality is
affected by transport from (a) an upwind area in Texas with a later
attainment date, or (b) an upwind area in another State, which
significantly contributes to Beaumont/Port Arthur's continued ozone
nonattainment.
2. Submit to us an approvable attainment demonstration by November
15, 1999. This demonstration must show that the Beaumont/Port Arthur
area will attain as expeditiously as practicable, but no later than the
attainment date of the upwind area.
3. Submit any additional local control measures needed for
expeditious attainment. Any additional measures must be adopted prior
to November 15, 1999.
4. Submit proof that all applicable local control measures required
under the moderate classification have been adopted and implemented. In
addition, submit any necessary changes to the State's existing rules
for control of emissions from industrial wastewater and Synthetic
Organic Chemical Industry batch processing operations. Some changes may
be needed to ensure that these rules meet our Reasonably Available
Control Technology requirements. Any necessary changes must be adopted
prior to November 15, 1999.
5. Provide that all newly adopted control measures will be
implemented as expeditiously as practical. All measures must be
implemented no later than the date that the upwind reductions needed
for attainment will be achieved.
We contemplate that when we act to approve an area's attainment
demonstration, we will, as necessary, extend that area's attainment
date to a date appropriate for that area in light of the schedule for
achieving the necessary upwind reductions. The area would no longer be
subject to reclassification or ``bump-up'' for failure to attain by its
original attainment date under section 181(b)(2).

[[Page 18868]]

XII. Can Beaumont/Port Arthur Qualify for an Attainment Date
Extension Under the Transport Policy?

It is premature to say whether or not the Beaumont/Port Arthur area
will qualify for an attainment date extension under the July 1998
transport policy. We believe that the area may be affected by upwind
transport. However, before the Beaumont/Port Arthur area can qualify
for an attainment date extension under the July 1998 transport policy,
all the criteria specified in the transport policy must be met.
In October 1998, we notified the Governor of Texas of the
availability of the July 1998 transport policy. We also requested that
the Governor respond to us with a letter committing Texas to meet the
requirements necessary to qualify for an attainment date extension
under the July 1998 transport policy by November 15, 1999. We received
the Governor's commitment letter on December 21, 1998.
We are aware that local representatives are working closely with
the TNRCC to meet the requirements of the July 1998 transport policy,
and to improve the area's air quality. Their efforts have already
resulted in the implementation of rules for oxides of nitrogen in the
Beaumont/Port Arthur area.

XIII. When Will EPA Make a Final Decision on Whether To Bump-Up or
Grant an Extension for the Beaumont/Port Arthur area?

We will review Texas' proposed SIP submittal during the State's
public comment period. If we receive it by November 15, 1999, we will
publish a document in the Federal Register to address the approvability
of the SIP submittal. If we propose approval, we would also propose to
extend the attainment date for the Beaumont/Port Arthur area to an
appropriate expeditious date. However, if Texas fails to meet the
requirements of the extension policy by November 15, 1999, we will
finalize the finding of failure to attain, and the Beaumont/Port Arthur
area will be reclassified to Serious nonattainment.

XIV. If the Beaumont/Port Arthur Area Is Reclassified, What Would
Its New Schedule Be?

If the Beaumont/Port Arthur area is reclassified, Texas would be
required to submit a SIP that adopts the serious area requirements.
Under section 181(a)(1) of the Act, the new attainment deadline for
moderate ozone nonattainment areas reclassified to serious under
section 181(b)(2) would be as expeditious as practicable but no later
than the date applicable to the new classification, i.e., November 15,
1999. However, for the reasons given above, we do not expect to take
final action on this proposed finding until after November 15, 1999.
This will allow Texas adequate time to make a demonstration that an
extension of the attainment date, instead of a reclassification, would
be appropriate under the transport policy. As a practical matter, there
would likely be insufficient time for Texas to submit a new attainment
demonstration and actually demonstrate attainment of the one-hour ozone
NAAQS by November 15, 1999.
If the Beaumont/Port Arthur area is reclassified, and if we do not
act until after its November submittal, it will plainly be too late for
the area to demonstrate attainment by a date that will have already
passed. We believe that the impossibility of meeting the November 15,
1999, deadline for serious areas requires us to establish a new
attainment date in the event that the area is reclassified to serious.
November 15, 1999, is a date that is impossible to set as a date
for the area to attain and for Texas to have made a SIP submission.
Since it is impossible, the principles underlying what we do for areas
that must submit 15 percent plans after the deadline for submission has
passed should apply here. Consistent with what we have done with
respect to setting new applicable deadlines for those plans, we believe
that a deadline that is expeditious as possible would be appropriate.
Section 182(i) states that the Administrator may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency for submission of the
new requirements applicable to an area which has been reclassified.
Where an attainment date has already passed or is otherwise impossible
to meet, we believe that the Administrator may also adjust an
attainment date to assure fair and equitable treatment consistent with
the provisions in section 182(i), notwithstanding the parenthetical
clause.
We also note another provision of the Act in section 110(k)(5)
pertaining to findings of SIP inadequacy that allows the Administrator
to adjust attainment dates when such have passed. Although this latter
provision is not directly applicable to a reclassification, we believe
that the provision illustrates a recognition by Congress of limited
instances in which it becomes necessary to adjust attainment dates,
particularly where it is otherwise impossible to meet the statutory
date. For the Beaumont/Port Arthur area, we are proposing to construct
a schedule consistent with recent reclassifications of other areas.
We have recently reclassified other moderate ozone nonattainment
areas, including Santa Barbara, California; Phoenix, Arizona; and
Dallas-Fort Worth, Texas. In these cases, the new attainment date is
November 15, 1999. The most recent reclassification was for the Dallas-
Fort Worth area. We published the notice reclassifying this area on
February 18, 1998, thereby providing approximately 21 months for the
area to attain the standard. We concluded that 21 months was an
adequate period for a moderate attainment area to attain the standard
where the new attainment date had not yet lapsed, but where there was
less time remaining than the Act had contemplated. If we finalize this
proposed reclassification, we suggest an attainment date with a similar
time frame, and which would allow Texas an opportunity to make
submissions to meet the serious area requirements and implement
measures to attain the standard.
Applying this approach to the Beaumont/Port Arthur area would
result in a new attainment date 21 months from publication of the final
reclassification notice. We welcome any comments on the appropriateness
of this proposed time frame, and whether a shorter or later attainment
date would be more appropriate.
If we reclassify the Beaumont/Port Arthur area, we must also
address the schedule by which Texas will be required to submit a SIP
revision meeting the serious area requirements. We propose to have
Texas submit this SIP within one year after a final action on the
reclassification is taken. If the submission shows that the area can
attain the ozone NAAQS sooner than the attainment date established in
the final reclassification notice, we would adjust the attainment date
to reflect the earlier date, consistent with the requirement in section
181(a)(1) that the NAAQS be attained as expeditiously as practicable.
We solicit comments on this proposed schedule.

XIV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory
action from Executive Order (E.O.) 12866, entitled Regulatory Planning
and Review.

[[Page 18869]]

B. Executive Order 12875

Under E.O. 12875, Enhancing the Intergovernmental Partnership, the
EPA may not issue a regulation that is not required by statute and that
creates a mandate upon a State, local or tribal government, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by those governments, or EPA consults with
those governments. If EPA complies by consulting, E.O. 12875 requires
EPA to provide to the OMB a description of the extent of EPA's prior
consultation with representatives of affected state, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's proposals would not create a mandate on State, local, or
tribal governments. These proposals do not impose any enforceable rules
on any of these entities. The SIP submission requirements are not
judicially enforceable. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to these proposals.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or 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 the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. These proposals are not subject to E.O. 13045
because they are not economically significant regulatory actions as
defined by E.O. 12866. These proposals are not subject to E.O. 13045
because they implement a previously promulgated health or safety-based
Federal standard.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposals would not significantly or uniquely affect the
communities of Indian tribal governments. These proposed actions would
not impose any requirement that affects Indian tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
these proposals.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements, 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 not-for-profit enterprises, and small governmental jurisdictions.
The proposal to reclassify will not have a significant impact on a
substantial number of small entities because a finding of failure to
attain under section 182(b)(2) of the Act, and the establishment of a
SIP submittal schedule for the reclassified area, do not, in and of
themselves, directly impose any new requirements on small entities. See
Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir.
1985)(agency's certification need only consider the rule's impact on
entities subject to requirements of the rule). Instead, this proposal
to reclassify proposes to make a determination and to establish a
schedule for States to submit SIP revisions, and does not propose to
directly regulate any entities.
The alternative proposal to extend the attainment date if Texas
meets the specified criteria does not directly impose any new
requirements on small entities. To the extent that the area must adopt
new regulations, we will review the effect of those actions at the time
the State submits those regulations. Therefore, I certify that these
proposed actions will not have a significant economic impact on a
substantial number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to state, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
Sections 202 and 205 do not apply to today's action because the
proposed determination that the Beaumont/Port Arthur area failed to
reach attainment does not, in-and-of-itself, constitute a Federal
mandate because it does not impose an enforceable duty on any entity.
In addition, the Act does not permit EPA to consider the types of
analyses described in section 202, in determining whether an area has
attained the ozone standard or qualifies for an extension. Finally,
section 203 does not apply to today's proposal because the SIP
submittal schedule and the extension of the attainment date would
affect only the state of Texas, which is not a small government.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Area designations
and

[[Page 18870]]

classifications, National parks, Wilderness areas.

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

Dated: April 6, 1999.
Gregg A. Cooke,
Regional Administrator, Region 6.
[FR Doc. 99-9470 Filed 4-15-99; 8:45 am]
BILLING CODE 6560-50-P