[Federal Register Volume 67, Number 213 (Monday, November 4, 2002)]
[Rules and Regulations]
[Pages 67113-67117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27828]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL--200302; FRL-7403-5]


Determination of Attainment of 1-hour Ozone Standard as of 
November 15, 1993, for the Birmingham, AL, Marginal Ozone Nonattainment 
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the determination that the Birmingham, 
Alabama, marginal ozone nonattainment area attained the 1-hour ozone 
National Ambient Air Quality Standard by November 15, 1993, the date 
required by the Clean Air Act to be used for making this determination.

DATES: This final rule is effective on December 4, 2002.

ADDRESSES: Copies of documents relative to this action are available at 
the following address for inspection during normal business hours: 
Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The interested 
persons wanting to examine these documents should make an appointment 
at least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Response to Comments
IV. Final Action
V. Administrative Requirements

I. Today's Action

    In this final rulemaking, Environmental Protection Agency (EPA) is 
responding to comments made on EPA's proposed rulemaking published 
August 21, 2002 (67 FR 54159). In the August 21, 2002, Federal Register 
notice, EPA proposed to determine that the Birmingham marginal ozone 
nonattainment area (hereinafter referred to as the Birmingham area) 
attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS) 
by November 15, 1993, the date required by the Clean Air Act (CAA) to 
be used for making this determination since it is Birmingham's 
attainment date.

II. Background

    On August 21, 2002, EPA published a proposed rule to determine that 
the Birmingham marginal ozone nonattainment area (hereinafter referred 
to as the Birmingham area) attained the 1-hour ozone National Ambient 
Air Quality Standard (NAAQS) by November 15, 1993, the date required by 
the Clean Air Act (CAA). The Birmingham area is comprised of Jefferson 
and Shelby Counties. On July, 10, 2002, the United States District 
Court for the District of Columbia concluded that EPA failed to 
exercise its non-discretionary duty to make a final attainment 
determination for the Birmingham area by May 15, 1994. The Court 
required that EPA make a formal attainment determination within 120 
days from date of opinion. Sierra Club v. Whitman, No. 00-2206 (D.D.C. 
July 10, 2002). Therefore, in response to the Court's order, EPA is 
publishing this rule.

III. Response to Comments

What Comments Did We (EPA) Receive and What Are Our Responses?

    EPA received adverse comments from one commenter regarding the 
proposed determination that Birmingham attained the 1-hour ozone 
standard as of November 15, 1993. The commenter, Earthjustice, 
submitted the comments on behalf of the Sierra Club Alabama Chapter, 
the Sierra Club Cahaba Group, the Alabama Environmental Council, and 
Alabama Physicians for Social Responsibility. They raised a number of 
policy and legal issues that EPA has considered and is responding to 
below.
    Comment 1: According to the commenter, ``EPA's proposal flies in 
the face of the Clean Air Act's mandate to protect * * * people from 
the health threats posed by smog.''
    Response: EPA is not failing to protect the people of Birmingham 
from the health threats posed by ozone. As described below in response 
to Comment 5, EPA has already taken steps to require the State of 
Alabama to deal with Birmingham's ozone problems and the State has 
taken the necessary steps and adopted additional significant control 
measures that will be implemented no later than the spring of next 
year. Furthermore, the State has demonstrated that those additional 
measures will lead to attainment of the 1-hour ozone standard in 
Birmingham by November of next year, which is the date for attainment 
that EPA determined was as expeditiously as practicable. That EPA 
disagrees with the commenter about the precise statutory mechanism to 
utilize in achieving attainment of the 1-hour ozone standard in 
Birmingham does not mean that EPA is not acting to fulfill the 
objective of the Clean Air Act of achieving attainment of the ozone 
standard as expeditiously as practicable. To the contrary, EPA has 
already acted to fulfill that objective and is protecting the people of 
Birmingham from ozone pollution.
    Comment 2: The commenter asserts that EPA proposed to find that the 
Birmingham area ``has attained'' the 1-hour ozone standard ``solely on 
the basis of air quality data in the 1991-93 period,'' even though 
Birmingham has violated the standard since then and continues to do so. 
The commenter concludes that Birmingham has not attained the ozone 
NAAQS and that for ``EPA to assert otherwise, based on air quality 
conditions ten years or more ago, defies reality.''
    Response: The pertinent statutory provision of the Clean Air Act 
clearly and explicitly establishes the criteria to be applied in 
determining whether a 1-hour ozone nonattainment area classified under 
subpart 2 of part D of Title I of the Clean Air Act has failed to 
attain the 1-hour standard and must be reclassified by operation of 
law. Section 181(b)(2)(A) provides that: ``Within 6 months following 
the applicable attainment date (including any extension thereof) for an 
ozone nonattainment area, the Administrator shall determine, based on 
the area's design value (as of the attainment date), whether the area 
attained the standard by that date. * * * [A]ny area that the

[[Page 67114]]

Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law * * *'' (Emphasis added.) Thus, 
section 181(b)(2) clearly directs EPA to determine whether an area 
attained the ozone standard by its attainment date based on the area's 
design value as of that date. The only areas subject to mandatory 
reclassification under section 181(b)(2) are those that the 
Administrator finds have ``not attained the standard by that date.'' 
Whether or not Birmingham is attaining the ozone standard today or, for 
that matter, any date after its November 15, 1993 attainment date, is 
simply irrelevant to the determination of whether Birmingham had 
attained as of November 15, 1993. EPA is not purporting to determine 
that the Birmingham area ``has attained'' the standard in the sense 
that the area came into attainment and continues to be in attainment 
today; EPA is simply following the words of the statute to determine 
whether the Birmingham area attained the standard as of its November 
15, 1993 attainment date. The fact that Birmingham violated the 
standard after November 15, 1993, does not, and cannot, detract from 
the conclusion that Birmingham ``attained the standard by'' its 
attainment date. Contrary to the suggestion of the commenter, the Act 
simply does not call for EPA, when acting pursuant to section 
181(b)(2)(A), to determine whether an area is still attaining the 
standard after its attainment date. In contrast, in determining which 
classification an area being reclassified should receive, section 
181(b)(2)(A)(ii) clearly and explicitly requires EPA to determine the 
design value of an area as of the time of the Federal Register notice 
identifying an area as having failed to attain by its attainment date. 
Clearly, Congress knew how to distinguish between directing EPA to make 
one determination as of the area's attainment date and a second 
determination as of the date of the Federal Register notice announcing 
the first determination. The commenter, however, advances an 
interpretation of the Act that it asserts EPA is compelled to follow 
that conflates one provision of a statute setting forth one criterion 
with another provision setting forth a different criterion. The 
validity and reasonableness of EPA's interpretation is supported by the 
1998 decision of the U.S. District Court for the Northern District of 
Alabama in Vahle v. Browner (Memorandum Opinion, dated Sept. 4, 1998) 
concerning the reclassification of Birmingham. In that case, the 
plaintiff, just like the commenter, argued that section 181(b)(2) 
``should be interpreted so as to require the EPA to reclassify an area 
that ``backslides'' into nonattainment after its attainment date.'' The 
court ruled, however, that ``the clear wording of the statute prevents 
such interpretation. The statute provides that the determination shall 
be `whether the area attained the standard by that date.' 42 U.S.C. 
7511(b)(2)(A) (emphasis added). There can be no question that the date 
referred to is the attainment date established in 42 U.S.C. 7511(a)(1), 
November 15, 1993, in the case of the Jefferson/Shelby area. Therefore, 
the statute is not remotely subject to the interpretation suggested by 
the plaintiff.'' (Memorandum Opinion at 5-6.) EPA's interpretation is 
clearly a reasonable one.
    Comment 3: The commenter claims that EPA's proposed action is based 
on a ``crabbed reading'' of the Clean Air Act. The commenter asserts 
that EPA's reading of the language of section 181(b)(2)(A) of the Act 
to limit the pertinent data to that for the 1991-93 period ``improperly 
ignores subsequent language in the same subsection requiring 
reclassification of any area that `the Administrator finds has not 
attained the standard by that date.' Thus, the issue is whether the 
Administrator can currently `find' that the area `has attained' the 
standard--not whether the area `was' meeting the standard at some time 
in the past. Here, EPA cannot possibly find that the Birmingham area 
`has attained' the standard by the attainment date, because that area 
continues to violate the standard.'' The commenter further asserts 
that, in the context of redesignations to attainment, EPA stated that 
the statutory phrase ``has attained'' means that an area must be 
attaining the standard at the time of redesignation to attainment. 
According to the commenter, the ``very same analysis applies here. EPA 
must reclassify any area that the Administrator finds `has not' (in the 
present tense) attained the standard.''
    Response: As explained more fully in response to Comment 2, EPA's 
reading of the Act is fully consistent with its language and with the 
opinion in the Vahle case, which rejected the view espoused by the 
commenter as an interpretation to which the Act is ``not remotely 
subject.'' As for the commenter's reference to redesignations to 
attainment, the statutory language that is pertinent to that issue 
differs from the language of section 181(b)(2)(A) regarding 
reclassifications. Section 107(d)(3)(e) prohibits EPA from 
redesignating an area from nonattainment to attainment unless it 
determines that the area ``has attained'' the standard. In contrast to 
the reclassification provision, which specifies the attainment date as 
the point of reference for making the attainment determination, section 
107(d)(3)(E) sets no date to use for making that determination. 
Furthermore, in light of the fact that an attainment area is defined in 
section 107(d)(1) as an area that ``meets'' the standard it is clear 
that for EPA to take an action affirmatively designating an area as 
attainment it must be meeting the standard at the time of the decision 
to designate it as attainment. Section 181(b)(2)(A), however, expressly 
directs EPA to determine whether an area attained as of a specified 
date in the past, its attainment date.
    Comment 4: The commenter asserts that language in section 
181(b)(2)(A) expressly stating that EPA's determination of attainment 
is to be based on the area's design value as of the attainment date, 
``[b]y its terms * * * only applies to attainment determinations made 
within 6 months of the attainment date.'' The commenter states that 
``nowhere did Congress suggest that EPA could ignore post-attainment 
date violations if the agency delayed its attainment determination 
substantially beyond the 6-month window.'' The commenter also argues 
that even if EPA's reading of the first sentence of section 
181(b)(2)(A) were correct ``the second sentence of that subsection 
plainly requires reclassification to take place where the Administrator 
finds that the area ``has not attained'' by that date. Thus, even if 
EPA finds that the area was meeting the standard on November 15, 1993, 
the second sentence of section 181(b)(2)(A) still requires 
reclassification because, as EPA itself has found (and as the data 
unequivocally shows), the area ``has not attained.' ''
    Response: EPA does not believe that Congress intended for the 
language regarding determining attainment as of the attainment date not 
to apply when an attainment determination occurs more than six months 
after the attainment date. There is no statutory language supporting 
the commenter's reading that eliminates this language from the Act when 
EPA takes action more than six months after an area's design value. 
Furthermore, contrary to the commenter's assertion, the second sentence 
of section 181(b)(2)(A) does not somehow override the language of the 
first sentence and require reclassification if an area slips back into 
nonattainment after its attainment date. Rather, the second sentence 
reinforces the validity of EPA's view of the

[[Page 67115]]

straightforward language of the first sentence by stating that 
``[e]xcept for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law * * *'' (Emphasis added.) EPA is 
finding that Birmingham attained by ``that date,'' its November 15, 
1993 attainment date, and, consequently, no reclassification occurs 
regardless of whether the area slipped back into nonattainment after 
that date. See also Responses to Comments 2 and 3.
    Comment 5: According to the commenter, EPA's approach is ``wholly 
inconsistent with the Act's structure and purpose. To accept EPA's 
reading, one must conclude that Congress did not care about unhealthful 
air after 1993, and meant to forever exempt such areas from 
reclassification even if their air pollution problems had not actually 
been cured.'' The commenter further contends that there is no 
``plausible basis for denying to Birmingham residents the same level of 
air quality protection mandated for'' other cities.
    Response: EPA's approach is not only consistent with the express 
language of section 181(b)(2), it is consistent with the Clean Air 
Act's structure and purpose. Moreover, accepting EPA's reading of this 
provision does not mean that either Congress or EPA does not care about 
unhealthful air in Birmingham after 1993 and does not deny to the 
residents of Birmingham the same level of air quality protection that 
is afforded to the other residents of the United States. This comment 
would be accurate only if Congress precluded EPA from dealing with air 
quality problems in areas such as Birmingham. Congress has not done so, 
however, and EPA has exercised its authority available under other 
provisions of the Clean Air Act to require that steps be taken to 
improve air quality in Birmingham. In fact, EPA undertook a rulemaking 
action to require the State of Alabama to submit a SIP revision to 
provide for attainment of the 1-hour ozone standard in Birmingham. EPA 
took final action on this rulemaking on October 19, 2000. 65 FR 64352 
(Oct. 27, 2000). The State of Alabama submitted a SIP revision to 
provide for attainment based on photochemical grid modeling (which is 
only required by the Clean Air Act for ozone nonattainment areas 
classified as serious or higher) on November 1, 2000. The attainment 
demonstration relied upon additional fuel controls and controls on 
emission controls on two major power plants and demonstrated that 
attainment would occur by November 15, 2003, on the basis of these 
additional control measures, which are to be implemented by May 2003. 
EPA approved that SIP submission on October 24, 2001. 66 FR 56223 (Nov. 
7, 2001). Consequently, even though EPA is not reclassifying Birmingham 
as the commenter desires, EPA and the State of Alabama have taken steps 
to rectify the problems with Birmingham's SIP and to achieve attainment 
of the 1-hour ozone standard as expeditiously as practicable, thereby 
affording Birmingham's citizens the health protections of that air 
quality standard.
    Comment 6: The commenter claims that in Whitman v. American 
Trucking Ass'ns, ``the Supreme Court soundly rejected the very sort of 
evasion of the Act's reclassification provisions that EPA is proposing 
here.'' According to the commenter, that decision held ``that EPA could 
not construe the Act in a way that renders Subpart 2 ``abruptly 
obsolete'' * * * Yet that is precisely what the Agency proposes here.'' 
In the view of the commenter, EPA's reliance on other provisions of the 
Act, such as section 110, is an approach that ``effectively nullifies 
the Subpart 2 reclassification provisions as to the affected area'' and 
claims that such an approach ``was squarely rejected by the Supreme 
Court in Whitman.''
    Response:The Supreme Court's decision in Whitman v. American 
Trucking Ass'ns, 431 U.S. 537, 121 S.Ct. 903 (2001), did not grapple 
with the issue presented in this rulemaking. At issue in Whitman was 
the implementation regime for the revised ozone standard, the 8-hour 
ozone standard promulgated by EPA in 1997. There, the Court dealt with 
the issue of ``whether Subpart 1[of Part D] alone (as the agency 
determined), or rather Subpart 2 or some combination of Subparts 1 and 
2, controls the implementation of the revised ozone NAAQS in 
nonattainment areas.'' The Court ruled that EPA could not establish an 
implementation program for a new ozone NAAQS that eliminated subpart 2 
but left it to the Agency to resolve ambiguities in the Clean Air Act 
concerning how subparts 1 and 2 interact with respect to the 
implementation of revised ozone standards. The Court did not deal with 
an issue of how a particular provision of subpart 2 should be 
interpreted and implemented, which is the issue in this rulemaking. In 
this rulemaking EPA is not seeking to supplant the provisions of 
subpart 2, it is merely applying those provisions in a way consistent 
with their language and a prior court decision interpreting the 
provisions at issue. The fact that EPA disagrees with the commenter's 
suggested interpretation of section 181(b)(2)(A) does not mean that EPA 
is effectively nullifying that provision, which, in EPA's review, 
provides for the reclassification of areas that fail to attain as of 
their attainment date.
    Comment 7: The commenter also claims that EPA's reading of the 
Clean Air Act leads to absurd results because an area that was 
violating the standard on November 15, 1993, would be subject to more 
stringent requirements than Birmingham even if its air were cleaner 
than Birmingham's after 1993. Another absurd result that EPA's approach 
leads to in the eyes of the commenter is the possibility that 
Birmingham would remain classified as marginal, while other areas with 
better air quality could be reclassifed up to severe status ``solely 
because they happened to be in violation on November 15, 1993.''
    Response: EPA's approach does not lead to absurd results. EPA's 
approach merely follows the language of the statute and gives full 
force and effect to the clearly expressed intent of Congress. If EPA's 
approach meant that nothing could be done to address air quality 
problems in Birmingham because the area was not reclassified, then 
there might be legitimate questions that could be raised about the 
validity of such an approach, which would mean that the fundamental 
objective of attainment of the ozone standard could not be achieved. 
That is not the case, however. As described above in response to 
Comment 5, EPA exercised its statutory authority to issue a SIP call to 
the State of Alabama requiring an attainment demonstration for 
Birmingham. The State then submitted that SIP, which was based on 
photochemical modeling and which contained significant additional 
control measures. EPA approved that SIP and the SIP for Birmingham now 
provides for attainment of the 1-hour ozone standard next year. Also, 
the Clean Air Act clearly contemplates that areas that once achieved 
attainment of the ozone standard may be categorized differently than 
areas that have not achieved attainment even if an area that was once 
clean violates the standard again. Section 175A(d), which applies to 
areas that were once designated nonattainment but are seeking 
redesignation to attainment after attaining a standard, requires that 
such areas submit SIP revisions containing contingency provisions ``to 
assure that the State will promptly correct any violation of the 
standard which occurs after the redesignation of the area as an 
attainment area.'' Neither section 175A nor any other provision of the 
Act establishes a mandatory duty for EPA to

[[Page 67116]]

redesignate an attainment area back to nonattainment status after a 
violation, although such action by EPA is authorized by section 
107(d)(3)(A). This is the case even though such an area could have air 
quality worse at some point than another area that had remained 
designated nonattainment and may have even been classified at a higher 
level than the area that had been redesignated to attainment. Clearly, 
Congress expected that there would be areas that had been redesignated 
to attainment that were in fact violating a standard but did not 
require that such areas be redesignated to nonattainment. Instead of 
compelling EPA to change their designation status, Congress required 
such areas to have provisions in their SIPs to address the air quality 
problems (the contingency measures). Thus, Congress clearly expected 
that two areas could be in different categories (one attainment and one 
nonattainment) even though the area designated attainment might have 
worse air quality than the area designated nonattainment. Congress also 
expected that the area designated attainment would have SIP provisions 
designed to address the air quality problems. EPA is treating 
Birmingham in an analogous fashion. EPA does not view Birmingham, 
having attained the standard by its attainment date, as being subject 
to the mandatory reclassification provisions of section 181(b)(2); EPA, 
however, did require the State of Alabama to revise the Birmingham SIP 
to address the air quality problems Birmingham was experiencing and it 
has done so.
    Comment 8: The commenter asserts that EPA has relied on post-
attainment date conditions in making attainment and reclassification 
determinations under the Act and that it is arbitrary, capricious, and 
contrary to law for the Agency to find areas in attainment and waive 
reclassification, but refuse to consider post-attainment date 
conditions to find areas in nonattainment. The commenter offers two 
examples of this. One is where EPA decided not to reclassify Kent & 
Queen Anne's County in Maryland from marginal to moderate when it had 
come into attainment of the 1-hour ozone standard a year after its 
attainment date, and the second was EPA's decision not to reclassify 
the Liberty Borough, Pennsylvania PM-10 area from moderate to serious 
when it had attained by the time of EPA's decision.
    Response: The fact that EPA did not reclassify certain other areas 
that were in violation as of their attainment dates but attained 
shortly thereafter does not compel the result that EPA reclassify areas 
that did attain by their attainment date on the basis of post-
attainment date information. In the first situation, where an area 
attains after its attainment date, the purpose of the reclassification 
has been fulfilled because the area achieved attainment of the standard 
(albeit somewhat late). In the second situation, for the reasons 
explained in response to other comments, the language of the Act 
requires that only areas that failed to attain as of their attainment 
date be reclassified. That EPA may not have acted to reclassify all 
such areas does not lead to the conclusion that EPA must now consider 
post-attainment date information in every case and make 
reclassification decisions on the basis of such data.
    Comment 9: The commenter asserts that since EPA has elsewhere 
recognized that a nonattainment area with clean air can fall back into 
nonattainment and must be subject to the enforcement of the Act's 
nonattainment area requirements. Citing EPA's ``clean data'' policy, 
the commenter argues that the post-attainment deadline violations in 
Birmingham ``compel an EPA finding of nonattainment and 
reclassification.''
    Response: As explained elsewhere in the responses to comments, the 
post-attainment deadline violations in Birmingham do not compel a 
finding of nonattainment and reclassification. In addition, the ``clean 
data policy'' to which the commenter refers is not relevant to the 
reclassification provisions of the Act and does not compel such a 
finding or action. The ``clean data'' policy concerns other provisions 
of the Act, such as the attainment demonstration and reasonable further 
progress requirements, and sets forth EPA's view that the SIP 
submission requirements contained in those provisions may be suspended 
for so long as the purpose of those provisions is being achieved, i.e., 
for so long as the area is attaining the standard. Under that policy, 
if an area violates the standard during the period in which the 
requirements are suspended, the requirements are to be reimposed. This 
simply does not involve the reclassification provisions and their 
attendant requirements to impose additional requirements on areas that 
fail to attain by their attainment dates.
    Comment 10: Even if the attainment status of Birmingham as of 
November 15, 1993, were the only relevant issue, the commenter asserts 
that the ``post-1993 data strongly suggests that the area was not in 
fact in attainment on that date.'' The commenter claims that the only 
monitor in Shelby County recorded 2 exceedances in 1993 and two other 
monitored readings of .124 ppm--``barely within the NAAQS, and within 
only because of EPA's `rounding' convention.'' The commenter asks EPA 
to determine whether the actual values were .1245 or higher, which the 
commenter states would mean they should have been reported as .125, 
indicating a violation. The commenter asserts that, based on the post-
1993 monitored violations and the ``limited size'' of the Birmingham 
monitoring network, ``it is highly unlikely that the area was in fact 
`in attainment' as of November 15, 1993.'' Citing a statement made by 
EPA in 1997 that Birmingham is subject to ozone exceedances ``whenever 
meteorological conditions are conducive to ozone formation,'' the 
commenter claims that EPA ``cannot rationally find that the Birmingham 
area was in fact `in attainment' as of November 15, 1993.''
    Response: EPA does not believe that the post-1993 data suggests 
that the Birmingham area was not attaining as of November 15, 1993. 
First, that data was affected by emissions levels in those years and 
meteorological conditions that occurred in the post-1993 period, which 
may or may not have been present in the 1991-93 period when the area 
attained. Thus, the fact that exceedances occurred in 1995 or 1996 does 
not suggest that unmonitored exceedances were occurring in the 1991-93 
period. Second, the Birmingham monitoring network is not insufficient. 
The area's monitoring network met or exceeded the requirements of EPA's 
regulatory requirements for National Air Monitoring Stations (NAMS) and 
for State and Local Air Monitoring Stations (SLAMS) (contained in 40 
CFR part 58 Appendix D). Third, as EPA has explained elsewhere, the 
``rounding convention'' referred to by the commenter was established by 
EPA in guidance issued in 1977 and 1979, guidance that was carried 
forward by Congress in 1990 when it enacted section 193 of the Clean 
Air Act. Moreover, the rounding convention is perfectly consistent with 
the standard as defined in 40 CFR 50.9, which defines the 1-hour ozone 
standard as 0.12 parts per million (ppm), not .120 ppm or 120 parts per 
billion. Since the one-hour ozone standard is specified as two 
significant digits, the appropriate data handling convention is to 
round to two decimal places. See 67 FR 5152, 5160 (Feb. 4, 2002). 
Finally, EPA did examine the 1993 data as requested by the commenter 
and determined that 1-hour ozone data is stored to three decimal places 
in AIRS-AQS.

[[Page 67117]]

    Comment 11: The commenter contends that not only must EPA 
reclassify Birmingham as a moderate area, it must reclassify the area 
as severe since the moderate and serious area attainment dates have 
passed and the area is still not attaining the standard.
    Response: For the reasons given in response to the previous 
comments, EPA does not believe that it must reclassify Birmingham as a 
moderate area. Even if it were required to reclassify Birmingham as a 
moderate area at this time, whether it would have to reclassify the 
Birmingham area immediately as severe is open to question. In another 
case where EPA acted to reclassify a moderate ozone area as serious 
after the serious area attainment deadline of 1999 had passed, EPA 
determined that it would be appropriate to reclassify the area as 
serious and establish an attainment date satisfying the principle that 
the attainment date be as expeditiously as practicable even though that 
date post-dated the 1999 attainment date for serious areas. 66 FR 
15578, 15584-85, 15587 (Mar. 19, 2001). In any event, as EPA is not 
reclassifying Birmingham, EPA is not taking any final action with 
respect to what a new classification for Birmingham should be and is 
not resolving that issue on a hypothetical basis.

IV. Final Action

    Pursuant to Section 181(b)(2)(A) of the CAA, EPA is finalizing the 
determination that the Birmingham area has attained the 1-hour NAAQS 
for ozone by November 15, 1993, the date required by section 181(a)(1) 
of the CAA. This determination is based upon three years of complete, 
quality-assured, ambient air monitoring data for the years 1991-1993 
which indicate that Birmingham area attained the 1-hour ozone NAAQS.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply 
to this action since it is simply a determination that Birmingham was 
in attainment of the 1-hour ozone NAAQS as of November 15, 1993. This 
rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 3, 2003. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: October 24, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 02-27828 Filed 11-1-02; 8:45 am]
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