[Federal Register Volume 68, Number 241 (Tuesday, December 16, 2003)]
[Proposed Rules]
[Pages 70108-70119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31109]



[[Page 70107]]

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Part III





Environmental Protection Agency





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40 CFR Part 81



Deferral of Effective Date of Nonattainment Designations for 8-Hour 
Ozone National Ambient Air Quality Standards for Early Action Compact 
Areas; Proposed Rule

  Federal Register / Vol. 68, No. 241 / Tuesday, December 16, 2003 / 
Proposed Rules  

[[Page 70108]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[FRL-7599-7]
RIN 2060-AL85


Deferral of Effective Date of Nonattainment Designations for 8-
Hour Ozone National Ambient Air Quality Standards for Early Action 
Compact Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: The EPA is proposing to defer the effective date of air 
quality designations for certain areas of the country that do not meet 
the 8-hour ozone national ambient air quality standard (NAAQS). Early 
Action Compact (compact) areas have agreed to reduce ground-level ozone 
pollution earlier than the Clean Air Act (CAA) requires. By April 15, 
2004, EPA will designate all areas for the 8-hour ozone NAAQS. The EPA 
is proposing that, when it promulgates the designations in April 2004, 
EPA will issue the first of three deferrals of the effective date of 
the designation for any compact area that is designated nonattainment 
and continues to meet all compact milestones. In this proposal, EPA is 
proposing to defer until September 30, 2005, the effective date of the 
8-hour ozone nonattainment designation for specific areas.
    The EPA believes this program provides an incentive for early 
planning, early implementation, and early reductions of emissions 
leading to expeditious attainment and maintenance of the 8-hour ozone 
standard. In addition, these compact agreements give local areas the 
flexibility to develop their own approach to meeting the 8-hour ozone 
standard, provided the communities control emissions from local sources 
earlier than the CAA would otherwise require. People living in areas 
that realize reductions sooner will enjoy the health benefits of 
cleaner air sooner than might otherwise occur.
    This proposed rule does not propose to establish attainment/
nonattainment designations, nor does it address the principles that 
will be considered in the designation process.

DATES: Comments must be received on or before January 15, 2004. The EPA 
does not intend to grant a request to extend the comment period due to 
the need to complete the designations process by April 2004. If EPA 
receives comments after the close of the comment period, we will make 
every effort to review them.

ADDRESSES: All comments should be submitted to Docket Number OAR 2003-
0090 and a copy to David Cole, EPA. Comments may be submitted 
electronically, by mail, by facsimile, or through hand delivery/
courier. Follow the detailed instructions as provided in unit I.A of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Mr. David Cole, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, Mail Code 
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5565 
or by e-mail at: [email protected] or Ms. Valerie Broadwell, Office of 
Air Quality Planning and Standards, U.S. Environmental Protection 
Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone 
number (919) 541-3310 or by e-mail at: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. The EPA has established an official public docket for 
this action under Docket ID Number OAR 2003-0090. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at the Air and Radiation Docket in the EPA Docket 
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air and Radiation Docket is 
(202) 566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute and which, therefore, is not included in the 
official public docket, will not be available for public viewing in 
EPA's electronic public docket. The EPA's policy is that copyrighted 
material will not be placed in EPA's electronic public docket but will 
be available only in printed, paper form in the official public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in unit I.A.1.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure

[[Page 70109]]

that your comments are submitted within the specified comment period. 
Comments received after the close of the comment period will be marked 
``late.'' The EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. The EPA's policy is that 
EPA will not edit your comment, and any identifying or contact 
information provided in the body of a comment will be included as part 
of the comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. 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.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0090. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OAR-2003-0090. In 
addition, please send a copy of e-mail comments to [email protected]. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the Docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
The E-mail addresses that are automatically captured by EPA's e-mail 
system are included as part of the comment that is placed in the 
official public docket, and made available in EPA's electronic public 
docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in unit I.B.2 below. 
These electronic submissions will be accepted in WordPerfect or ASCII 
file format. Avoid the use of special characters and any form of 
encryption.
    2. By Mail. Send your comments to: Air and Radiation Docket, U.S. 
Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR 2003-0090. 
In addition, please send a copy of your comments to: David Cole, U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Mail Code: C539-02, Research Triangle Park, NC 27711.
    3. By Hand Delivery or Courier. Deliver your comments to: Air and 
Radiation Docket, U.S. Environmental Protection Agency, 1301 
Constitution Avenue, NW., Room B102, Washington, DC 20004, Attention 
Docket ID No. OAR 2003-0090. Such deliveries are only accepted during 
the Docket's normal hours of operation as identified in unit I.A.1. 
Please also deliver a copy of your comments to: David Cole, U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709.
    4. By Facsimile. Fax your comments to: 202-566-1741, Attention 
Docket ID No. OAR 2003-0090; and to: 919-541-0824, Attention: David 
Cole.

C. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

Outline

II. What are the health concerns addressed by the 8-hour ozone 
standard?
III. What is the background on implementation of the 8-hour ozone 
standard?
IV. What actions is EPA taking to designate areas for the 8-hour 
ozone standard?
    A. What is EPA's schedule for designating areas for the 8-hour 
ozone standard?
    B. What action is EPA taking to defer the effective date of the 
nonattainment designation for Early Action Compact areas?
V. What is an Early Action Compact, and what are compact areas 
required to do?
    A. Why was the compact program developed?
    B. What early action protocol did Texas submit to EPA?
    C. What are compact areas required to do?
VI. What areas are participating in the Early Action Compact 
program?
    A. What progress are compact areas making toward completing 
their milestones?
    B. How will EPA address compact areas attaining the 8-hour ozone 
standard in April 2004?
    C. What is the air quality of the compact areas?
VII. What are the impacts of this action?
    A. What are the regulatory effects of this action?
    B. What are the consequences of compacts for local areas?
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

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

    Ground-level ozone pollution is formed by the reaction of volatile 
organic compounds (VOC) and nitrogen oxides (NOX) in the 
atmosphere in the presence of sunlight. These two pollutants, often 
referred to as ozone precursors, are emitted by many types of pollution 
sources, including on-road and off-road motor vehicles and engines, 
power plants and industrial facilities, and smaller ``area'' sources.

[[Page 70110]]

    In 1979, we promulgated the 0.12 ppm (parts per million) 1-hour 
ozone standard, (44 FR 8202, February 8, 1979). On July 18, 1997, we 
promulgated a revised standard of 0.08 ppm, measured over an 8-hour 
period, i.e., the 8-hour standard (62 FR 38856). In general, the 8-hour 
standard is more protective of public health and more stringent than 
the 1-hour standard, and there are more areas that do not meet the 8-
hour standard than there are areas that do not meet the 1-hour 
standard.
    Ozone can irritate the respiratory system, causing coughing, throat 
irritation, and/or uncomfortable sensation in the chest. Ozone can 
reduce lung function and make it more difficult to breathe deeply, and 
breathing may become more rapid and shallow than normal, thereby 
limiting a person's normal activity. Ozone also can aggravate asthma, 
leading to more asthma attacks that require a doctor's attention and/or 
the use of additional medication. In addition, ozone can inflame and 
damage the lining of the lungs, which may lead to permanent changes in 
lung tissue, irreversible reductions in lung function, and a lower 
quality of life if the inflammation occurs repeatedly over a long time 
period (months, years, a lifetime). People who are particularly 
susceptible to the effects of ozone include children and adults who are 
active outdoors, people with respiratory disease, such as asthma, and 
people with unusual sensitivity to ozone.
    More detailed information on health effects of ozone can be found 
at the following web site: http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.

III. What Is the Background on Implementation of the 8-hour Ozone 
Standard?

    This action proposes an option that provides incentives for certain 
areas taking voluntary, early actions for reducing ozone for 
implementing the 8-hour ozone NAAQS. The option was discussed in EPA's 
June 2, 2003 proposed rulemaking (68 FR 32859) for implementing that 
standard. This section presents background information on the June 2, 
2003 proposal.
    On July 18, 1997, we revised the ozone NAAQS (62 FR 38856) by 
promulgating an ozone standard of .08 ppm as measured over an 8-hour 
period. At that time, we indicated that we believed that the 8-hour 
ozone NAAQS should be implemented under the less detailed requirements 
of subpart 1 of part D of title I of the CAA rather than the more 
detailed requirements of subpart 2. Various industry groups and States 
challenged EPA's final rule promulgating the 8-hour ozone NAAQS in the 
U.S. Court of Appeals for the District of Columbia Circuit.\1\ In May 
1999, the Court of Appeals remanded the ozone standard to EPA on the 
basis that our interpretation of our authority under the standard-
setting provisions of the CAA resulted in an unconstitutional 
delegation of authority. American Trucking Assns., Inc., v. EPA, 175 
F.3d 1027, 1034-1040 (ATA I) aff'd, 195 F.3d 4 (D.C. Cir., 1999)(ATA 
II). In addition, the Court held that the CAA clearly provided for 
implementation of a revised ozone standard under subpart 2, not subpart 
1. Id. at 1048-1050.\2\ We sought review of these two issues in the 
U.S. Supreme Court. In February 2001, the Supreme Court held that EPA's 
action in setting the NAAQS was not an unconstitutional delegation of 
authority. Whitman v. American Trucking Assoc., 121 S.Ct. 903, 911-914 
(2001) (Whitman). In addition, the Supreme Court held that the D.C. 
Circuit incorrectly determined that the CAA was clear in requiring 
implementation only under subpart 2, but determined that our 
implementation approach, which did not provide a role for subpart 2 in 
implementing the 8-hour NAAQS, was unreasonable. Id. at 916-919. The 
Court also identified some elements of the CAA's classification scheme 
under subpart 2 that are ``ill-fitted'' to the revised standard and 
remanded the implementation strategy to EPA to develop a reasonable 
approach for implementation. Id. Because the D.C. Circuit had not 
addressed all of the issues raised in the underlying case, the court 
remanded the case to the D.C. Circuit for disposition of those issues. 
Id. at 919. On March 26, 2002, the D.C. Circuit rejected all remaining 
challenges to the ozone and fine particle (PM2.5) standards. 
American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C. Cir. 2002) (ATA 
III).
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    \1\ On July 18, 1997, we also promulgated a revised particulate 
matter (PM) standard (62 FR 38652). Litigation on the PM standard 
paralleled the litigation on the ozone standard and the court issued 
one opinion addressing both challenges. However, issues regarding 
implementation of the revised PM NAAQS were not litigated.
    \2\ The Court addressed a number of other issues, which are not 
relevant here.
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    In response to the Court's remand, we proposed the 8-hour ozone 
implementation rule on June 2, 2003 (68 FR 32802). We plan to issue a 
final rule on an implementation approach in the near future.

IV. What Actions Is EPA Taking To Designate Areas for the 8-Hour Ozone 
Standard?

A. What Is EPA's Schedule for Designating Areas for the 8-Hour Ozone 
Standard?

    Section 107(d) of the CAA establishes a deadline for EPA to 
promulgate designations of areas.\3\ We have entered into a consent 
decree that requires us to promulgate designations on a revised 
schedule.\4\ In a settlement with nine environmental groups, we agreed 
to designate areas for the 8-hour ozone standard by April 15, 2004. 
This deadline provided States and Tribes ample time to update their 
recommendations by July 15, 2003 for nonattainment area boundaries. On 
November 14, 2002, we issued a guidance memorandum outlining the new 
designations schedule, requirements for designating Tribal areas, and 
discussing the impact of the designation schedule on areas that are 
developing Early Action Compacts.\5\
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    \3\ Section 107(d) of the CAA sets forth a schedule for 
designations following the promulgation of a new or revised NAAQS. 
The Transportation Equity Act for the Twenty-first Century (TEA-21) 
revised the deadline to publish nonattainment designations for the 
8-hour ozone NAAQS to provide an additional year (to July 2000), but 
HR 3645 (EPA's appropriation bill in 2000) restricted EPA's 
authority to spend money to designate areas until June 2001 or the 
date of the Supreme Court ruling on the standard, whichever came 
first.
    \4\ American Lung Association v. EPA (D.D.C. No. 1:02CV02239).
    \5\ Memorandum from Jeffrey R. Holmstead, Assistant 
Administrator, to EPA Regional Administrators, ``Schedule for 8-Hour 
Ozone Designations and its Effect on Early Action Compacts,'' 
November 14, 2002. Docket No. OAR-2003-0090-0003.
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B. What Action Is EPA Taking To Defer the Effective Date of 
Nonattainment Designation for Early Action Compact Areas?

    At the time we designate areas in April 2004, we plan to take final 
action to defer the effective date of the nonattainment designation on 
a rolling basis for participating compact areas that are monitoring a 
violation of the 8-hour ozone standard, provided all terms of the 
agreement continue to be met, including timely completion of all 
compact milestones and reports. In today's rule, we are proposing to 
establish the first of three deferred effective dates. At the same time 
we designate all areas either attainment or nonattainment, we will take 
final action determining whether to defer until September 30, 2005, the 
effective date of the nonattainment designation for the 8-hour ozone 
standard for compact areas that are violating the standard, provided

[[Page 70111]]

these areas continue to meet all compact milestones, which are 
described in section V of this proposal.
    Prior to the time the first deferral expires, EPA intends to take 
further action to propose and, as appropriate, promulgate a second 
deferred effective date of the nonattainment designation for those 
areas that continue to fulfill all compact obligations. Finally, prior 
to the time the second deferral expires, EPA would propose and, as 
appropriate, promulgate a third deferral for those areas that continue 
to meet all compact milestones.

V. What Is an Early Action Compact, and What Are Compact Areas Required 
To Do?

A. Why Was the Compact Program Developed?

    As discussed in the proposed 8-hour implementation rule, State, 
local and Tribal air pollution control agencies have continued to 
express a need for added flexibility in implementing the 8-hour ozone 
NAAQS, including incentives for taking action sooner than the CAA 
requires for reducing ground-level ozone. The compact program permits 
local areas to make decisions that will achieve reductions in VOC and 
NOX emissions sooner than otherwise is mandated by the CAA. 
Early planning and early implementation of control measures that 
improves air quality will likely accelerate protection of public 
health. We issued our policy on early planning on November 14, 2002, as 
described in section IV of this action.

B. What Early Action Protocol Did Texas Submit to EPA?

    In March 2002, the Texas Commission on Environmental Quality (TCEQ) 
encouraged EPA to consider incentives for early planning towards 
achieving the 8-hour ozone NAAQS. The TCEQ submitted to EPA the 
Protocol for Early Action Compacts Designed to Achieve and Maintain the 
8-hour Ozone Standard (Protocol). The Protocol was designed to achieve 
NOX and VOC emissions reductions for the 8-hour ozone NAAQS 
sooner than would otherwise be required under the CAA. The TCEQ 
recommended that the Protocol be formalized by ``Early Action Compact'' 
agreements primarily developed by local, State and Federal (EPA) 
officials. The principles of the compacts, as described in the 
Protocol, are the following:
    1. Early planning, implementation, and emissions reductions leading 
to expeditious attainment and maintenance of the 8-hour ozone standard;
    2. Local control of the measures employed, with broad-based public 
input;
    3. State support to ensure technical integrity of the early action 
plan;
    4. Formal incorporation of the early action plan into the State 
implementation plan (SIP);
    5. Designation of all areas as attainment or nonattainment in April 
2004, but, for compact areas, deferral of the effective date of the 
nonattainment designation and/or designation requirements so long as 
all compact terms and milestones continue to be met; and
    6. Safeguards to return areas to traditional SIP attainment 
requirements should compact terms be unfulfilled (e.g., if the area 
fails to attain in 2007), with appropriate credit given for reduction 
measures already implemented.
    In a letter dated June 19, 2002, from Gregg Cooke, Administrator, 
Region 6, to Robert Huston, Chairman, TCEQ, EPA endorsed the principles 
outlined in the Protocol. The Protocol was subsequently revised on 
December 11, 2002, based on comments from EPA.
    The Protocol specifies certain components that compacts are 
addressing, including the development of local air quality plans and 
the following elements:
    1. Completion of emissions inventories and modeling (based on most 
recent Agency guidance) to support selection of local control measures;
    2. Adoption of control strategies that demonstrate attainment and 
that are submitted as a revision to the SIP;
    3. Completion of a component to address emissions growth at least 5 
years beyond December 31, 2007, ensuring that the area will remain in 
attainment of the 8-hour ozone standard during that period;
    4. Public involvement in all stages of planning and implementation, 
including public education programs and a process that ensures 
stakeholder involvement and public participation in planning local 
strategies and reviewing air quality plans; and
    5. Semiannual reports detailing progress toward completion of 
compact milestones.

C. What Are Compact Areas Required To Do?

    The Protocol and Agency guidance (EPA memorandum dated November 14, 
2002, described in section IV, and EPA memorandum dated April 4, 2003 
\6\ establish what compact areas are required to do. To be eligible for 
a compact, these areas must be attaining the 1-hour ozone standard 
(including maintenance areas for the 1-hour ozone standard, to the 
extent such areas continue to maintain that standard) and be designated 
attainment for that standard at the time the compact was entered into. 
These areas, however, may be approaching or monitoring exceedances of 
the 8-hour ozone standard.\7\ A compact area must be attaining the 8-
hour ozone standard by December 31, 2007, based on the most recent 3 
years of air quality monitoring data.
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    \6\ Memorandum from Lydia N. Wegman, Director, Air Quality 
Strategies and Standards Division, ``Early Action Compacts (EACs): 
The June 16, 2003 Submission and Other Clarifications,'' April 4, 
2003. Docket No. OAR-2003-0090-0002.
    \7\ One-hour ozone maintenance areas are areas that were 
previously designated nonattainment for the 1-hour ozone standard, 
but were redesignated to attainment pursuant to section 107(d)(3)(E) 
and subject to the requirements of section 175A of the CAA.
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    The EPA's November 14, 2002, memorandum specified that compacts 
must be completed, submitted to EPA and signed by local, State and EPA 
officials by December 31, 2002. We intend to honor the commitments 
established in these agreements, provided these areas meet all 
components of the Protocol and Agency guidance and schedules. No 
additional areas were allowed to enter into compacts after December 31, 
2002.
    The Protocol describes the process by which compact areas are 
required to select control strategies based on SIP-quality modeling 
that shows attainment of the 8-hour ozone standard no later than 
December 31, 2007, through implementation of control strategies. The 
EPA specified that all compact areas must submit a local plan by March 
31, 2004 that will include measures that are specific, quantified, and 
permanent and that, if approved into the SIP by EPA, will be federally 
enforceable. The March 31, 2004 submission must also include specific 
implementation dates for the local controls, as well as detailed 
documentation supporting the selection of measures. Controls must be 
implemented no later than December 31, 2005, which is at least 16\1/2\ 
months earlier than required by the CAA. Reports are required every 6 
months to describe progress toward completion of milestones. In June 
2006 compact areas must submit a report to EPA that describes 
implementation of measures that was required by the end of December 
2005, as well as an assessment of reductions in emissions and air 
quality.

[[Page 70112]]

    Table 1 describes the milestones and submissions that compact areas 
are required to complete in order to continue eligibility for a 
deferral of the effective date of nonattainment designation for the 8-
hour ozone standard.

                Table 1.--Early Action Compact Milestones
------------------------------------------------------------------------
          Submittal date                      Compact milestone
------------------------------------------------------------------------
December 31, 2002.................  Submit Compact for EPA signature.
June 16, 2003.....................  Submit preliminary list and
                                     description of potential local
                                     control measures under
                                     consideration.
March 31, 2004....................  Submit complete local plan to State
                                     (includes specific, quantified and
                                     permanent control measures to be
                                     adopted).
December 31, 2004.................  State submits adopted local measures
                                     to EPA as a SIP revision that, when
                                     approved, will be federally
                                     enforceable.
2005 Ozone Season (or no later      Implement SIP control measures.
 than December 31, 2005).
June 30, 2006.....................  State reports on implementation of
                                     measures and assessment of air
                                     quality improvement and reductions
                                     in NOX and VOC emissions to date.
December 31, 2007.................  Area attains 8-hour ozone NAAQS.
------------------------------------------------------------------------

    According to the Protocol, EPA would recognize the local area's 
commitment to early, voluntary action by designating the compact areas 
violating the 8-hour NAAQS as nonattainment in April 2004 (at the time 
of national designations for all areas), but deferring the effective 
date of the nonattainment designation, so long as all terms and 
milestones of the Compact continue to be met. A copy of the revised 
Protocol is available in the docket for this proposed rulemaking.\8\
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    \8\ The Texas Protocol was submitted to EPA in March 2002 for 
review and was revised in December 2002 based on the Agency's 
comments concerning the need for additional milestones and other 
clarifications. Docket No. OAR-2003-0090-0004.
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VI. What Areas Are Participating in the Early Action Compact Program?

    We have entered into compacts with 33 communities. A list of these 
areas is presented in Table 2.

            Table 2.--8-Hour Ozone Early Action Compact Areas
------------------------------------------------------------------------
 
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Appalachian (Greenville-Spartanburg-Anderson Area), SC.
Austin-San Marcos Area, TX.
Berkeley-Charleston-Dorchester (Charleston Area), SC.
Catawba (York-Chester-Lancaster-Union Counties), SC--part of Charlotte-
 Gastonia-Rock Hill Area.
Central Midlands (Columbia area), SC.
Chattanooga Area, TN-GA.
Denver Area, CO.
Fayetteville Area, NC.
Haywood County (near Memphis), TN.
Knoxville Area, TN.
Low Country (Beaufort area), SC.
Lower Savannah-Augusta (Augusta-Aiken area), GA-SC.
Memphis Area, TN-AR-MS.
Mountain Area of NC (Asheville area), NC.
Nashville Area, TN.
Northeast Texas Area (Longview-Marshall-Tyler Area), TX.
Northern Shenandoah Valley Region (Winchester/Frederick County), VA.
Oklahoma City Area, OK.
Pee Dee (Florence Area), SC.
Putnam County (Central TN, between Nashville and Knoxville), TN.
Roanoke Area, VA.
San Antonio Area, TX.
San Juan County (Farmington Area), NM.
Santee Lynches (Sumter Area), SC.
Shreveport-Bossier City Area, LA.
The Eastern Pan Handle Region (Martinsburg Area), WV.
Triad Area (Greensboro-Winston Salem-High Point), NC.
Tri-Cities Area (Johnson City-Kingsport-Bristol Area), TN.
Tulsa Area, OK.
Unifour Area (Hickory-Morganton-Lenoir Area), NC.
Upper Savannah (Abbeville-Greenwood Area), SC.
Waccamaw (Myrtle Beach Area), SC.
Washington County (West of Washington, DC), MD.
------------------------------------------------------------------------


[[Page 70113]]

A. What Progress Are Compact Areas Making Toward Completing Their 
Milestones?

    Compact areas are continuing to make good progress toward timely 
completion of their milestones. All 33 communities met the June 16, 
2003 milestone, which required areas to submit a list and description 
of local control measures each area is considering for adoption and 
implementation. In addition, all 33 compact areas submitted the June 
30, 2003 progress report. The June 16 submissions contained many 
innovative measures that EPA believes have the potential to reduce air 
pollution, while at the same time, produce additional benefits for 
these communities. For example, many compact areas are considering 
electrified truck stops to replace the need for engine idling during 
truck loading or unloading. A number of other areas are considering the 
addition of cetane additives to fuel for increased fuel efficiency. San 
Antonio's list of measures includes a walking school bus program. Under 
this program, parents rotate the responsibility of walking groups of 
students to school in lieu of going by bus or by car. The Center for 
Disease Control reports that lack of exercise is one of the primary 
reasons why childhood obesity has reached epidemic proportions in the 
U.S. In addition to reducing vehicle miles traveled (VMT), thus 
decreasing mobile source emissions, a walking school bus program 
provides children with another opportunity to get physical exercise.
    Stakeholders for the Austin, Texas compact are exploring an 
expedited permitting process for ``mixed use, transit-oriented, infill 
development.'' Mixing land uses can reduce VMT in several ways, 
including trip lengths, mode choice and vehicle ownership. In a recent 
study, EPA has concluded that by encouraging people to walk, bike, and 
use transit rather than drive, mixed-use development patterns reduce 
VMT, thereby decreasing automobile emissions and improving regional air 
quality.\9\
---------------------------------------------------------------------------

    \9\ ``Our Built and Natural Environments'' (EPA 231-R-01-002, 
January 2001).
---------------------------------------------------------------------------

    The EPA believes that these types of long-term, land use changes 
can reduce air pollution well into the future, as well as produce 
multiple benefits that go beyond cleaner air. Such additional effects 
include an increase in mobility for all segments of the population, an 
increase in physical activity and an improved quality of life. These 
are the kinds of measures that EPA would like to see more areas 
explore, but for which the CAA provides no real incentives. Based on 
the many innovative and creative measures contained in the June 16, 
2003 submission, we believe that the Early Action Compact program can 
provide such an incentive.

B. How Will EPA Address Compact Areas Attaining the 8-Hour Ozone 
Standard in April 2004?

    Compact areas that are not violating the 8-hour ozone standard 
using 2001-2003 ozone monitoring data will be designated attainment at 
the time we designate areas in April 2004. In most cases, compact areas 
that would not be in violation of the 8-hour standard when designations 
are made in April 2004 would have ozone design values near 85 parts per 
billion (ppb), and therefore, are at risk for violating the 8-hour 
ozone standard in subsequent ozone seasons (e.g., 2004-2006). We 
encourage compact areas designated attainment for the 8-hour standard 
based on 2001-2003 data to continue to develop clean air plans and to 
remain committed to the compact program to ensure air quality remains 
clean. Should an area participating in the program that is designated 
attainment in April 2004 subsequently violate the 8-hour ozone standard 
during the term of the compact, EPA would not commit to redesignate the 
area to nonattainment for so long as the area continues to comply with 
the compact requirements and meet all compact milestones. The EPA would 
not permit any extension of the compact requirement to attain the 
standard by December 2007 for any compact area that violates the 
standard after 8-hour ozone designations in April 2004, whether the 
area was designated attainment or nonattainment with a deferral of the 
effective date of the designation.

C. What Is the Air Quality of the Compact Areas?

    A total of 146 counties are covered by compacts. Sixty-four of 
these counties have ozone monitors and 82 counties do not. Table 3 
below summarizes 2000-2002 air quality data that are available for the 
146 counties participating in the program. However, in April 2004, EPA 
will designate areas based on 2001-2003 data; therefore, the air 
quality status of some compact areas may change for the purpose of 
designating areas for the 8-hour ozone standard.

                  Table 3.--2000-2002 Ozone Air Quality Data for Early Action Compact Counties
----------------------------------------------------------------------------------------------------------------
                                                                                         2000-2002 Ozone design
           State                     Compact area                     County                value, ppb ozone
----------------------------------------------------------------------------------------------------------------
                                                  EPA Region 3
----------------------------------------------------------------------------------------------------------------
VA........................  Northern Shenandoah Valley      Winchester City..........  .........................
                             Region. (This area is not a
                             MSA.) Adjacent to Washington-
                             Baltimore MSA.
                                                            Frederick County.........  85
VA........................  Roanoke Area (part of Roanoke   Roanoke County*..........  87
                             MSA).
                                                            Botetourt County*........  .........................
                                                            Roanoke City*............  .........................
                                                            Salem City*..............  .........................
MD........................  Washington County (west of      Washington County*.......  87
                             Washington, DC--part of
                             Washington-Baltimore CMSA).
WV........................  The Eastern Pan Handle Region   Berkeley County*.........  .........................
                             (Martinsburg area--part of
                             Washington-Baltimore MSA).
                                                            Jefferson County*........  .........................
----------------------------------------------------------------------------------------------------------------
                                                  EPA Region 4
----------------------------------------------------------------------------------------------------------------
NC........................  Mountain Area of Western NC     Buncombe County*.........  85
                             (Asheville MSA + additional
                             counties).

[[Page 70114]]

 
                                                            Haywood County...........  87
                                                            Henderson County.........  .........................
                                                            Madison County*..........  .........................
                                                            Transylvania County......  .........................
NC........................  Unifour (Hickory-Morganton-     Catawba County*..........  .........................
                             Lenoir MSA).
                                                            Alexander County*........  91
                                                            Burke County*............  .........................
                                                            Caldwell County*.........  86
NC........................  Triad (Greensboro-Winston       Surry County.............  .........................
                             Salem--High Point MSA +
                             additional counties).
                                                            Yadkin County*...........  .........................
                                                            Randolph County*.........  .........................
                                                            Forsyth County*..........  94
                                                            Davie County*............  95
                                                            Alamance County*.........  .........................
                                                            Caswell County...........  91
                                                            Davidson County*.........  .........................
                                                            Stokes County*...........  .........................
                                                            Guilford County*.........  93
                                                            Rockingham County........  90
NC........................  Fayetteville (Fayetteville      Cumberland County*.......  87
                             MSA).
SC........................  Appalachian--A (Greenville-     Cherokee County*.........  87
                             Spartanburg-Anderson MSA +
                             additional counties).
                                                            Spartanburg County*......  90
                                                            Greenville County*.......  .........................
                                                            Pickens County*..........  85
                                                            Anderson County*.........  88
                                                            Oconee County............  87**/84
SC........................  Catawba--B (part of Charlotte-  York County*.............  84
                             Gastonia-Rock Hill MSA).
                                                            Chester County...........  84
                                                            Lancaster County.........  .........................
                                                            Union County.............  81
SC........................  Pee Dee--C (Florence MSA +      Florence County*.........  .........................
                             additional counties).
                                                            Chesterfield County......  .........................
                                                            Darlington County........  86
                                                            Dillon County............  .........................
                                                            Marion County............  .........................
                                                            Marlboro County..........  .........................
SC........................  Waccamaw--D (Myrtle Beach MSA   Williamsburg County......  73
                             + additional counties).
                                                            Georgetown County........  .........................
                                                            Horry County*............  .........................
SC........................  Santee Lynches--E (Sumter MSA   Clarenton County.........  .........................
                             + additional counties).
                                                            Lee County...............  .........................
                                                            Sumter County*...........  .........................
                                                            Kershaw County...........  .........................
SC........................  Berkeley-Charleston-            Dorchester County*.......  .........................
                             Dorchester--F (Charleston-
                             North Charleston MSA).
                                                            Berkeley County*.........  81**75
                                                            Charleston County*.......  77**/74
SC........................  Low Country--G (Beaufort area/  Beaufort County..........  .........................
                             not a MSA).
                                                            Colleton County..........  80
                                                            Hampton County...........  .........................
                                                            Jasper County............  .........................
SC/GA.....................  Lower Savannah-Augusta (part    Aiken County, SC.........  83
                             of Augusta-Aiken MSA +
                             additional counties).
                                                            Orangeburg County, SC....  .........................
                                                            Barnwell County, SC......  83
                                                            Calhoun County, SC.......  .........................
                                                            Allendale County, SC.....  .........................
                                                            Bamberg County, SC.......  .........................
                                                            Richmond County, GA*.....  87
                                                            Columbia County, GA*.....  .........................
SC........................  Central Midlands--I (Columbia   Richland County*.........  93
                             MSA + additional counties).
                                                            Lexington County*........  .........................
                                                            Newberry County..........  .........................
                                                            Fairfield County.........  .........................
SC........................  Upper Savannah--(Abbeville-     Abbeville County.........  .........................
                             Greenwood area/not a MSA).
                                                            Edgefield County* (in      83
                                                             Augusta-Aiken MSA).
                                                            Laurens County...........  .........................

[[Page 70115]]

 
                                                            Saluda County............  .........................
                                                            Greenwood County.........  .........................
TN/GA.....................  Chattanooga (Chattanooga MSA +  Hamilton County, TN*.....  93
                             additional county).
                                                            Meigs County, TN*........  93
                                                            Marion County, TN*.......  .........................
                                                            Walker County, GA*.......
                                                            Catoosa County, GA*......  .........................
TN........................  Knoxville (Knoxville MSA +      Knox County*.............  96
                             additional counties).
                                                            Anderson County*.........  92
                                                            Union County*............  .........................
                                                            Loudon County*...........  .........................
                                                            Blount County*...........  94
                                                            Sevier County*...........  98
                                                            Jefferson County.........  95
TN........................  Nashville (Nashville MSA).....  Davidson County*.........  80
                                                            Rutherford County*.......  84
                                                            Williamson County*.......  87
                                                            Wilson County*...........  85
                                                            Sumner County*...........  88
                                                            Robertson County*........  .........................
                                                            Cheatham County*.........  .........................
                                                            Dickson County*..........  .........................
TN/AR/MS..................  Memphis (Memphis MSA).........  Shelby County, TN*.......  90
                                                            Tipton County, TN*.......  .........................
                                                            Fayette County, TN*......  .........................
                                                            DeSoto County, MS*.......  86
                                                            Crittenden County, AR*...  94
TN........................  Haywood County (near Memphis)-- Haywood County...........  86
                             adjacent to Memphis MSA and
                             Jackson MSA.
TN........................  Putnam County (central TN,      Putnam County............  86
                             between Nashville and
                             Knoxville)--not a MSA.
TN........................  Johnson City-Kingsport-Bristol  Sullivan County, TN*.....  92
                             Area--portion of the Johnson
                             City-Kingsport-Bristol MSA +
                             additional county.
                                                            Hawkins County, TN*......  .........................
                                                            Washington County, TN*...  .........................
                                                            Unicoi County, TN*.......  .........................
                                                            Carter County, TN*.......  .........................
                                                            Johnson County, TN.......
----------------------------------------------------------------------------------------------------------------
                                                  EPA Region 6
----------------------------------------------------------------------------------------------------------------
TX........................  Austin/San Marcos (Austin-San   Travis County*...........  85
                             Marcos MSA).
                                                            Williamson County*.......  .........................
                                                            Hays County*.............  .........................
                                                            Bastrop County*..........  .........................
                                                            Caldwell County*.........  .........................
TX........................  Northeast Texas (Longview-      Gregg County* (Longview    88
                             Marshall & Tyler MSAs +         MSA).
                             additional county).
                                                            Harrison County*           .........................
                                                             (Longview MSA).
                                                            Rusk County..............  .........................
                                                            Smith County* (Tyler MSA)  84
                                                            Upshur County* (Longview   .........................
                                                             MSA).
TX........................  San Antonio (San Antonio MSA).  Bexar County*............  86
                                                            Wilson County*...........  .........................
                                                            Comal County*............  .........................
                                                            Guadalupe County*........  .........................
OK........................  Oklahoma City (Oklahoma City    Canadian County*.........  .........................
                             MSA).
                                                            Cleveland County*........  77
                                                            Logan County*............  .........................
                                                            McClain County*..........  79
                                                            Oklahoma County*.........  82
                                                            Pottawatomie County*.....  .........................
OK........................  Tulsa (part of Tulsa MSA).....  Tulsa County*............  87
                                                            Creek County* (part).....  .........................
                                                            Osage County* (part).....  .........................
                                                            Rogers County* (part)....  .........................
                                                            Wagoner County* (part)...  .........................
LA........................  Shreveport-Bossier City         Bossier Parish*..........  84
                             (Shreveport-Bossier City MSA).
                                                            Caddo Parish*............  79
                                                            Webster Parish*..........  .........................

[[Page 70116]]

 
NM........................  San Juan County (Farmington     San Juan County..........  76
                             area--not a MSA, but a
                             southeast segment is adjacent
                             to Albuquerque MSA).
----------------------------------------------------------------------------------------------------------------
                                                  EPA Region 8
----------------------------------------------------------------------------------------------------------------
CO........................  Denver (part of Denver-Boulder- Denver County*...........  72
                             Greeley MSA).
                                                            Boulder County*            73
                                                             (excluding Rocky Mtn
                                                             National Park).
                                                            Jefferson County*........  83
                                                            Douglas County*..........  80
                                                            City/County of             .........................
                                                             Broomfield* (a new
                                                             county downtown).
                                                            Adams* and Arapahoe*       64, 76
                                                             Counties (the part west
                                                             of Kiowa Creek)
                                                             (excludes extreme
                                                             eastern portions of
                                                             counties).
----------------------------------------------------------------------------------------------------------------
Note: The air quality information in this table is based on 2000-2002 data from monitors (where available)
  located in each county of a compact area. Ozone designations in April 2004 will be based on 2001-2003 data.
  The boundaries of these compact areas will not necessarily correspond to the boundaries for the 8-hour ozone
  nonattainment areas that will be designated in April 2004. An ozone design value of 85 ppb or greater
  indicates a violation of the 8-hour ozone standard. A single asterisk following a county name means that
  county is included in a Consolidated/Metropolitan Statistical Area (C/MSA). In a few counties, higher
  historical design values (indicated by double asterisks) are also listed when 2000-2002 design values are not
  complete at a monitoring site. A blank in the last column means either no monitor is located in the county or
  the monitor(s) in the county have recorded less than 3 years of data.

VII. What Are the Impacts of This Action?

    This section discusses the effect of this proposed rule on compact 
areas, including the regulatory effects and the consequences of 
participation in these compacts.

A. What Are the Regulatory Effects of This Action?

    Since the effective date of the nonattainment designation would be 
deferred for compact areas that are violating the 8-hour standard, all 
CAA requirements for the 8-hour standard that would apply to an area 
designated nonattainment for that standard, such as new source review 
(NSR) and transportation conformity, would not apply during the 
deferral period.
    In April 2004, the Agency will designate areas as nonattainment 
based on 2001-2003 air quality monitoring data. However, based on 2000-
2002 data, we do know that of those compact areas that are violating 
the 8-hour ozone standard, most are very close to the standard. We 
believe many of these areas, if their nonattainment designations were 
not deferred, would be classified under subpart 1 of the CAA, if EPA 
adopted its preferred classification scheme described in the June 2, 
2003 proposed rule to implement the 8-hour ozone standard (68 FR 
32866). Table 4 is a summary of the requirements that would apply if 
compact areas do not receive a deferred nonattainment effective date 
and instead become classified under subpart 1. Providing information 
about subpart 1 requirements in this notice does not imply that we have 
decided not to adopt our proposed classification option 1, which would 
have placed all areas under subpart 2.

 
           Table 4.--Subpart 1 Nonattainment Area Requirements
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Achieve attainment as expeditiously as practicable, but no later than 5
 years after designation. EPA may grant an additional 5-year extension
 under certain circumstances.
Reasonable Further Progress (RFP).
Reasonably Available Control Measures requirement.
Attainment demonstration.
Major source definition of 100 tons per year or more for NSR and
 Reasonably Available Control Technology.
NSR offset ratio of greater than 1 to 1.
NSR permit program.
Emissions inventory.
Transportation conformity.
Contingency measures to take effect in the event of failure to show RFP
 or to attain.
------------------------------------------------------------------------

    Conversely, with a deferred effective date, a compact area would 
not be subject to the requirements listed above, as long as the area 
continues to meet all of its milestones as described in Section V, 
Table 1, of this notice.\10\
---------------------------------------------------------------------------

    \10\ Note that compact areas that have maintenance plans for any 
other NAAQS, including the ozone 1-hour standard, are still subject 
to the requirements in the maintenance plan, such as contingency 
measures. In addition, transportation conformity would continue to 
apply for such areas for the 1-hour standard and any other 
applicable standards.
---------------------------------------------------------------------------

B. What Are the Consequences of Compacts for Local Areas?

    In addition to the benefit of early reductions, there are other

[[Page 70117]]

consequences associated with participating in these compacts, some of 
which are noted below.
    1. Compacts give local areas the flexibility to develop their own 
approach to meeting the 8-hour ozone standard, provided the communities 
control emissions from local sources earlier than the CAA would 
otherwise require, consistent with timelines in the Protocol.
    2. If all terms of the agreement are met, EPA would defer the 
effective date of the nonattainment designation for compact areas.
    3. People living in areas that realize reductions sooner will enjoy 
the health benefits of cleaner air sooner than might otherwise occur.
    4. Reductions in emissions from pollution control measures that are 
implemented as part of a compact are creditable toward air quality 
planning goals, to the extent credit is allowed by EPA guidance and the 
CAA.
    5. Success of compacts depends on active and sustained 
participation by all stakeholders.
    6. Compact areas (as well as non-compact areas) that are 
maintenance areas for the 1-hour ozone standard would still be subject 
to transportation conformity requirements for the 1-hour standard while 
the maintenance plan for the area is still in force under section 175A 
of the CAA. (Note that EPA has proposed that when it revokes the 1-hour 
ozone standard, transportation conformity under the 1-hour standard 
would no longer apply to 1-hour maintenance areas.)
    7. Compact areas in the Ozone Transport Region are still subject to 
nonattainment NSR in accordance with section 184(b)(2) of the CAA for 
so long as the 1-hour ozone NAAQS continues to apply.
    8. Because they are not considered nonattainment for the 8-hour 
ozone NAAQS until the effective date, compact areas are not eligible 
for Congestion Mitigation and Air Quality Improvement Program (CMAQ) 
funds for purposes of the 8-hour ozone NAAQS.
    9. Compact areas have an aggressive, accelerated program of 
milestones to meet. If an area misses a milestone, its nonattainment 
designation will take effect, and as such, will be subject to all of 
the requirements for nonattainment areas.

VIII. Statutory and Executive Order Reviews

    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate areas as attaining or not attaining that NAAQS. The CAA 
then specifies requirements for areas based on whether such areas are 
attaining or not attaining the NAAQS. This proposed rule provides 
flexibility for areas that have entered into a compact and take early 
action to achieve emissions reductions necessary to attain the 8-hour 
ozone standard. This action proposes to defer the effective date of the 
nonattainment designation for these areas and would allow these areas 
to adopt control requirements agreed to by the affected localities.

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is not a ``significant regulatory action'' 
because none of the above factors applies. As such, this proposed rule 
was not formally submitted to OMB for review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the Agency certifies the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR 121.); (2) a 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. 
Rather, this rule would defer the effective date of the nonattainment 
designation for areas that implement control measures and achieve 
emissions reductions earlier than otherwise required by the CAA in 
order to attain the 8-hour ozone NAAQS. In addition, States and local 
areas that have entered into compacts with EPA have the flexibility to 
decide what to regulate in their communities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the

[[Page 70118]]

Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any 1 year. Today's rule is not subject to the requirements 
of sections 202 and 205 of the UMRA.
    The CAA requires States to develop plans, including control 
measures, based on their designations and classifications. In this 
rule, EPA is deferring the effective date of nonattainment designations 
for certain areas that have entered into compacts with us. This rule is 
not establishing a specific requirement for States to submit SIPs, nor 
does it impose any regulatory requirements. However, even if this rule 
did establish such a requirement, it is questionable whether a 
requirement to submit a SIP revision would constitute a Federal mandate 
in any case. The obligation for a State to submit a SIP that arises out 
of section 110 and part D of the CAA is not legally enforceable by a 
court of law, and at most is a condition for continued receipt of 
highway funds. Therefore, it is possible to view an action requiring 
such a submittal as not creating any enforceable duty within the 
meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if 
it did, the duty could be viewed as falling within the exception for a 
condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA 
(2 U.S.C. 658(5)(a)(i)(I)).
    In the proposal, EPA has determined that this rule contains no 
regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments. Nonetheless, EPA carried out 
consultations with governmental entities affected by this rule, 
including States and local air pollution control agencies.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This 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. Finally, the CAA establishes the 
scheme whereby States take the lead in developing plans to meet the 
NAAQS. This proposed rule would not modify the relationship of the 
States and EPA for purposes of developing programs to implement the 
NAAQS. Thus, Executive Order 13132 does not apply to this proposed 
rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA discussed the compact program with representatives of State 
and local air pollution control agencies, as well as the Clean Air Act 
Advisory Committee, which is also composed of State and local 
representatives.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 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 proposed rule does not 
have ``Tribal implications'' as specified in Executive Order 13175.
    This proposed rule concerns the deferral of the effective date of 
nonattainment designation of the 8-hour ozone standard in compact areas 
that do not meet that standard, but continue to meet compact 
milestones. The CAA provides for States and Tribes to develop plans to 
regulate emissions of air pollutants within their jurisdictions. Early 
Action Compact areas that would be affected by this proposed rule would 
be required to develop and submit local plans for adoption and 
implementation of the 8-hour ozone standard earlier than the CAA 
requires. These plans would be submitted to EPA as SIP revisions in 
December 2004 rather than in April 2007. The Tribal Authority Rule 
(TAR) gives Tribes the opportunity to develop and implement CAA 
programs such as the 8-hour ozone NAAQS, but it leaves to the 
discretion of the Tribe whether to develop these programs and which 
programs, or appropriate elements of a program, they will adopt.
    This proposed rule does not have Tribal implications as defined by 
Executive Order 13175. It does not have a substantial direct effect on 
one or more Indian Tribes, since no Tribe has implemented a CAA program 
to attain the 8-hour ozone NAAQS at this time or has participated in a 
compact. Furthermore, this proposed rule does not affect the 
relationship or distribution of power and responsibilities between the 
Federal government and Indian Tribes. The CAA and the TAR establish the 
relationship of the Federal government and Tribes in developing plans 
to attain the NAAQS, and this proposed rule does nothing to modify that 
relationship. Because this proposed rule does not have Tribal 
implications, Executive Order 13175 does not apply.
    Although Executive Order 13175 does not apply to this proposed 
rule, EPA did outreach to Tribal representatives to inform them about 
the compact program, its impact on designations, and this proposed 
rule. The EPA supports a national ``Tribal Designations and 
Implementation Work Group'' which provides an open forum for all Tribes 
to voice concerns to EPA about the designation and implementation 
process for the 8-hour ozone standard. These discussions have given EPA 
valuable information about Tribal concerns regarding designations and 
implementation of the 8-hour ozone NAAQS. The EPA has encouraged Tribes 
to participate in the national public meetings held to take comment on 
early approaches to the proposed rule. Several Tribes made public 
comments at the April 2002 public meeting in Tempe, Arizona. The EPA 
specifically solicits additional comment on this proposed rule from 
Tribes.

[[Page 70119]]

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The proposed rule is not subject to Executive Order 13045 because 
the Agency does not have reason to believe the environmental health 
risks or safety risks addressed by this rule present a disproportionate 
risk to children. Nonetheless, we have evaluated the environmental 
health or safety effects of the 8-hour ozone NAAQS on children. The 
results of this evaluation are contained in 40 CFR part 50, NAAQS for 
Ozone, Final Rule (62 FR 38855-38896; specifically, 62 FR 38854, 62 FR 
38860 and 62 FR 38865).

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

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions That Significantly Affect 
Energy Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) 
because it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.
    Information on the methodology and data regarding the assessment of 
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost, 
Emission Reduction, Energy, and Economic Impact Assessment of the 
Proposed Rule Establishing the Implementation Framework for the 8-Hour, 
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the 
Innovative Strategies and Economics Group, Office of Air Quality 
Planning and Standards, Research Triangle Park, N.C. April 24, 2003.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Pub. L. 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 proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any VCS.
    The EPA will encourage States that have compact areas to consider 
the use of such standards, where appropriate, in the development of 
their SIPs.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionate high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations.
    The EPA believes that this proposed rule should not raise any 
environmental justice issues. The health and environmental risks 
associated with ozone were considered in the establishment of the 8-
hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with 
an adequate margin of safety.

List of Subjects in 40 CFR Part 81

    Air pollution control, Environmental protection.

    Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 
42 U.S.C. 7601(a)(1).

    Dated: November 11, 2003.
Jeffrey R. Holmstead,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 03-31109 Filed 12-15-03; 8:45 am]
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