[Federal Register Volume 71, Number 58 (Monday, March 27, 2006)]
[Proposed Rules]
[Pages 15098-15105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2909]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2003-0079; FRL-8049-4]
RIN 2060-AN26


Implementation of the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1: Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of public hearing; reopening comment 
period.

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SUMMARY: The EPA is requesting comment on the overwhelming transport 
classification for 8-hour ozone nonattainment areas as requested in a 
petition for reconsideration of EPA's final rule to implement the 8-
hour ozone national ambient air quality standard (NAAQS or standard). 
We are requesting comment on the draft guidance document entitled 
``Criteria For Assessing Whether an Ozone Nonattainment Area is 
Affected by Overwhelming Transport,'' and we are reopening the comment 
period on our proposed rule regarding how the Clean Air Act (CAA) 
section 172 requirements would apply to an area that might receive an 
overwhelming transport classification. In the Phase 1 Rule to Implement 
the 8-Hour Ozone NAAQS we stated that we were considering the comments 
we received on the issue of applicable requirements for these subpart 1 
areas and would address them when we issued guidance on assessing 
overwhelming transport. Consequently, today's action takes comment on 
the overwhelming transport guidance and on the applicable requirements 
that would apply to areas receiving the overwhelming transport 
classification. In addition, EPA is holding a public hearing on April 
12, 2006.

DATES: Comments must be received on or before May 12, 2006 on both the 
proposed rule and reopening on the June 2, 2003 proposal. A public 
hearing will be held in Research Triangle Park, North Carolina, on 
April 12, 2006, and will convene at 10 a.m. and will end when those 
preregistered to provide testimony have done so and when others in 
attendance at that time have had an opportunity to do so. Because of 
the need to resolve the issues in this document in a timely manner, EPA 
will not grant requests for extensions of the public comment period. 
For additional information on the public hearing, see the ADDRESSEES 
section of this preamble.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0079, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2003-0079.
     Fax: The fax number of the Air Docket is (202) 566-1741. 
Attention Docket ID No. EPA-HQ-OAR-2003-0079.

[[Page 15099]]

     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2003-0079, Environmental Protection Agency, 
Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2003-0079, Environmental Protection Agency, 
1301 Constitution Avenue, NW., Room B102, Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0079. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
on-line at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be confidential business information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The Federal http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through http://www.regulations.gov, your e-mail address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.govindex. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center (Air 
Docket), EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the fax number 
is (202) 566-1749.
    Public Hearing. A public hearing will be held on April 12, 2006, 
beginning at 10 a.m. and ending when those preregistered to provide 
testimony have done so and when others in attendance at that time have 
had an opportunity to do so. The public hearing will be held at the 
Environmental Protection Agency, Building C, Room C111A, 109 T.W. 
Alexander Drive, Research Triangle Park, North Carolina 27709. Persons 
wishing to speak at the public hearing need to contact: Ms. Pamela 
Long, at telephone number (919) 541-0641 or by e-mail at 
[email protected]. Oral testimony may be limited to 3 to 5 minutes 
depending on the number of people who sign up to speak. Commenters may 
also supplement their oral testimony with written comments. The hearing 
will be limited to the subject matter of this document. The public 
hearing schedule, including the list of speakers, will be posted on 
EPA's Web site at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr. A 
verbatim transcript of the hearing and written statements will be made 
available for copying during normal working hours at the EPA Docket 
Center (Air Docket) at the address listed above for inspection of 
documents.

FOR FURTHER INFORMATION CONTACT: For general information: Mr. John 
Silvasi, Office of Air Quality Planning and Standards, U.S. 
Environmental Protection Agency, Mail Code C539-02, Research Triangle 
Park, NC 27711, phone number (919) 541-5666, fax number (919) 541-0824 
or by e-mail at [email protected] or Ms. Denise Gerth, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency, 
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 
541-5550, fax number (919) 541-0824 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

Outline

I. General Information
II. Background
III. Today's Action
    A. Invitation for Comment on Draft Guidance on Criteria for 
Assessing Whether an Ozone Nonattainment Area Is Affected by 
Overwhelming Transport
    B. Proposed Requirements That Apply to Subpart 1 Ozone Areas 
that Receive the Overwhelming Transport Classification
    1. General Background
    2. Requirements for RACT/RACM
    3. Attainment Demonstration
    4. Reasonable Further Progress
    5. Contingency Measures
IV. 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. Background

    In the Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard (NAAQS or

[[Page 15100]]

standard)--Phase 1 Rule--(April 30, 2004; 69 FR 23951), we established 
an ``overwhelming transport area'' (OTA) classification for certain 
areas that were not subject to classification under subpart 2 of part D 
of the CAA and were thus subject only to subpart 1 (subpart 1 ozone 
areas). We established three criteria that subpart 1 ozone areas must 
meet to receive the overwhelming transport classification:
     The area meets the criteria as specified for rural 
transport areas under section 182(h) of the CAA;
     Transport of ozone and/or precursors into the area is so 
overwhelming that the contribution of local emissions to observed 8-
hour ozone concentration above the level of the NAAQS is relatively 
minor; and
     The Administrator finds that sources of volatile organic 
compounds (VOC) and, where the Administrator determines relevant, 
nitrogen oxides (NOX) emissions within the area do not make 
a significant contribution to the ozone concentrations measured in 
other areas.
    In the preamble of the Phase 1 Rule, we explained that an area will 
be classified as an OTA upon full approval of an analysis that 
demonstrates that the nonattainment problem in the area is due to 
``overwhelming transport.'' We indicated that we would issue guidance 
more fully explaining how to assess whether an area was affected by 
overwhelming transport. We indicated that the existing guidance on 
overwhelming transport needed to be updated and that we were retracting 
that guidance.
    On June 29, 2004, Earthjustice filed a Petition for Reconsideration 
(Petition) on behalf of several environmental organizations, seeking 
reconsideration of certain specified aspects of the Phase 1 Rule. We 
responded to the Petition in letters dated September 23, 2004 and 
January 10, 2005 granting some aspects of their Petition and denying 
others. In the January 10, 2005 letter, we granted reconsideration of 
the overwhelming transport classification because the overwhelming 
transport guidance was not publicly available during the comment period 
on the Phase 1 Rule. We also stated that we would request public 
comments on our draft revision of the overwhelming transport guidance 
and simultaneously reopen the comment period of the June 2, 2003 (68 FR 
32802) proposed rule to implement the 8-hour ozone NAAQS. Specifically, 
we are reopening the comment period on section VI.4. of the June 2, 
2003 proposed rule (68 FR 32813) that addresses the provisions that 
would apply to OTAs.
    Today, we are providing additional information and soliciting 
comment on issues related to the overwhelming transport classification. 
We are soliciting comment on the following three issues, which are 
described in more detail in section III of this preamble: (1) 
Overwhelming transport classification; (2) the overwhelming transport 
guidance, which provides more detail on the analyses that can be used 
to show whether an area meets the second and third eligibility 
criteria; and (3) the control requirements that apply under subpart 1 
to an area that receives the OTA classification.

III. Today's Action

A. Invitation for Comment on Draft Guidance on Criteria for Assessing 
Whether an Ozone Nonattainment Area Is Affected by Overwhelming 
Transport

Criteria for Determining Overwhelming Transport
    a. Background. The Phase 1 Rule established Sec.  51.904(a), in 
which we created an overwhelming transport classification that would be 
available to subpart 1 ozone areas that demonstrate: (1) They meet the 
definition of a rural transport area in section 182(h); (2) they are 
significantly affected by overwhelming transport from one or more 
upwind areas; and (3) their emissions do not significantly affect a 
downwind area.
    Qualifying areas under the current rule are those that meet that 
part of the definition of a rural transport area in section 182(h) that 
requires that an area not be in or adjacent to a C/MSA.\1\ We are aware 
of only seven subpart 1 ozone areas that could potentially qualify 
under the portion of Sec.  51.904(a)(1) which requires that the area 
not be in or adjacent to a C/MSA:
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    \1\ CSMA means either Consolidated Metropolitan Statistical Area 
or Metropolitan Statistical Area as defined by the Office of 
Management and Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548).
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    1. Hancock, Knox, Lincoln and Waldo Counties, Maine;
    2. Essex County, New York (Whiteface Mountain);
    3. Murray County, Georgia (Chattahoochee National Forest);
    4. Benzie County, Michigan;
    5. Door County, Wisconsin;
    6. Huron County, Michigan; and
    7. Mason County, Michigan.
    The EPA's June 2, 2003 proposal referenced an EPA guidance document 
that States should use when developing their demonstration that 
contribution of sources in one or more other areas are an overwhelming 
cause of air quality violations in the area relating to the 
overwhelming transport classification. However, at the time we issued 
the final Phase 1 Rule, we noted that the overwhelming transport 
guidance needed to be updated and that we would address the control 
requirements applicable to OTAs in the Phase 2 Rule. In the Phase 2 
Rule that we issued on November 29, 2005 (70 FR 71612), we stated that 
we granted reconsideration of the overwhelming transport classification 
on January 10, 2005 and intended to publish a proposed rule on the 
overwhelming transport classification in the future. As a result, we 
did not take final action on the control requirements applicable to 
OTAs in the Phase 2 Rule but stated that we planned to address them in 
the proposed rule on the overwhelming transport classification. Today's 
action takes comment on both the overwhelming transport guidance and 
the control requirements applicable to areas that receive the 
overwhelming transport classification. As noted above, the Petition 
stated that the provision for an overwhelming transport classification 
in the Phase 1 Rule relies on guidance that was not publicly available 
during the comment period and that the guidance was still unavailable 
at the time the Petition was submitted.
    b. Request for Comment. On January 10, 2005, we granted the 
Petition on this issue and are now soliciting comment on the 
overwhelming transport classification as well as the draft guidance 
document, ``Criteria For Assessing Whether an Ozone Nonattainment Area 
is Affected by Overwhelming Transport,'' which is found at the 
following Internet Web site: http://www.epa.gov/ttn/scram/. This draft 
guidance outlines EPA's recommended approach for demonstrating that an 
area should receive the OTA classification.
    As described in the draft guidance, the Phase 1 Rule established 
three criteria an area must meet for the area to be classified as an 
OTA [Sec.  51.904(a)]. Two of these criteria are the focus of the 
overwhelming transport guidance. The two criteria concern: (1) Whether 
an area is being affected by overwhelming transport; and (2) whether 
the area is significantly contributing to another nonattainment area. 
Analyses for both of these criteria will involve assembling emissions, 
air quality, meteorological, and/or photochemical grid modeling data; 
and making an informed decision regarding contribution based on the 
results of the composite set of analyses. This aggregation of data is 
generally referred to as ``weight of evidence'' and is discussed in 
detail in EPA modeling

[[Page 15101]]

guidance on 8-hour ozone attainment demonstrations.\2\ The end product 
of this weight of evidence determination is a document which describes 
analyses performed, data bases used, key assumptions and outcomes of 
each analysis, and why a State believes that the evidence, viewed as a 
whole, supports a conclusion that the area is overwhelmingly affected 
by transport and does not significantly contribute to downwind 
problems.
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    \2\ Guidance on the Use of Models and Other Analyses in 
Attainment Demonstrations for the 8-Hour Ozone NAAQS (EPA-454-05-
002, October 2005). http://www.epa.gov/scram001/guidance/guide/8-hour-o3-guidance-final-version[1]pdf.
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    It is expected that an area petitioning for an OTA classification 
would complete a full analysis consisting of evidence from multiple 
forms of weight of evidence analyses as described within this guidance. 
For an area to be classified as an OTA, the large majority of the tests 
identified in the ``Criteria for Assessing Whether an Ozone 
Nonattainment Area is Affected by Overwhelming Transport'' would have 
to meet the criteria of Sec.  51.904(a)(2) and (3).

B. Proposed Requirements That Apply to Subpart 1 Ozone Areas That 
Receive the Overwhelming Transport Classification

1. General Background
    Subpart 1 ozone areas are subject to the requirements of section 
172(c) of the CAA. The plan provisions required to be submitted under 
section 172(c) include reasonably available control technology (RACT) 
and reasonably available control measure (RACM) plans, attainment 
demonstrations, reasonable further progress (RFP) plans, emission 
inventories, new source review (NSR) plans, and contingency measures. 
In the June 2, 2003 proposal (68 FR 32814), we proposed that a subpart 
1 ozone area classified as an OTA would be treated similar to an area 
classified as marginal under subpart 2 for purposes of emission control 
requirements. We are reopening the comment period on a number of these 
proposed requirements, as described below, and we are also providing 
additional detail regarding these requirements.
    We are not proposing that areas classified as overwhelming 
transport be treated differently than other subpart 1 areas for 
purposes of NSR, conformity and emissions inventory requirements. Thus, 
this proposal does not address these requirements.
2. Requirements for RACT/RACM
    a. Background. Section 172(c)(1) of the CAA requires implementation 
of all RACT/RACM as expeditiously as practicable. For subpart 1 ozone 
areas, we proposed on June 2, 2003 an option interpreting RACT for 
ozone nonattainment areas for the 8-hour NAAQS similar to the Agency's 
interpretation for pollutants other than ozone (68 FR 32838). Under 
this option, for the 8-hour ozone NAAQS, if the area is able to 
demonstrate attainment of the standard as expeditiously as practicable 
with emission control measures in the SIP, then RACT will be met, and 
additional measures would not be required as being reasonably 
available. However, we did not directly propose RACT requirements for 
OTA areas and only proposed that ``* * * the area would be treated 
similar to areas classified marginal under subpart 2 for purposes of 
emission control requirements.''
    b. Request for Comment. We are reopening the comment period, with 
respect to OTAs only, on the proposed approach described above for the 
RACT/RACM requirements. Section 172(c)(1) establishes the requirements 
for subpart 1 and RACT is included as a subset of RACM. Our long-
standing interpretation of the RACM provision is that areas need only 
submit such RACM as will contribute to timely attainment and meet RFP, 
and that measures which might be available but would not advance 
attainment or contribute to RFP need not be considered RACM. This 
interpretation has been upheld in several recent court cases. See 
Sierra Club v. EPA, 294 F.39 155, 162 (DC Cir., 2002) (concerning the 
Metropolitan Washington, DC, attainment demonstration) and Sierra Club 
v. EPA, No. 01-60537 (5th Cir., 2002) (concerning the Beaumont 
attainment demonstration). Since subpart 1 RACT is a subset of RACM, 
these cases also support a conclusion that, where we are dealing only 
with section 172 RACT, it is reasonable to require only such RACT as 
will meet RFP and advance attainment. Consistent with our 
interpretation of RACM, EPA believes RACT would be met by control 
measures in a SIP demonstrating attainment of the standard as 
expeditiously as practicable and meeting RFP. Additionally, this 
approach has the benefit of providing States with flexibility to 
determine which control strategies are the most effective in reaching 
attainment as expeditiously as practicable. Specifically, we are 
proposing that a State would be considered to meet the RACT/RACM 
requirements for an OTA by submitting an attainment demonstration SIP 
demonstrating that the area will attain as expeditiously as 
practicable.
3. Attainment Demonstration
    a. Background. Section 172(c)(1) of the CAA requires subpart 1 
ozone areas to submit plan provisions that provide for attainment of 
the NAAQS. General requirements for an attainment demonstration are 
contained in 40 CFR 51.112. The June 2, 2003 proposal did not propose 
requirements for the attainment demonstration for OTAs, but only 
proposed that ``* * * the area would be treated similar to areas 
classified marginal under subpart 2 for purposes of emission control 
requirements'' and marginal areas are not required to submit attainment 
demonstrations (see CAA section 182(a), last paragraph prior to 
paragraph (b)).
    b. Request for Comment. The proposal noted that regional scale 
modeling for national rules, such as the NOX SIP Call and 
Tier II motor vehicle tailpipe standards, projects major ozone benefits 
for the 3-year period of 2004-2006. In addition, subsequent modeling 
used to support the Clean Air Interstate Rule (CAIR) indicates that 
regional control measures will be sufficient to bring many areas into 
attainment no later than 2010. As described in section VI.B.1, of the 
Air Quality Modeling Technical Support Document for the final CAIR, we 
project that all of the potential OTAs would be attainment for the 8-
hour ozone standard under the assumptions in the 2010 base case. Thus, 
we anticipate all OTAs will be in attainment by 2010 without adopting 
additional local controls.
    We believe that an OTA should not be required to perform the 
detailed photochemical grid modeling needed to develop an attainment 
demonstration where there is existing modeling that shows that the area 
will attain in the short term. It would not be reasonable to require 
these areas to expend the amount of resources needed to perform a 
complex modeling analysis. Since attainment in the OTA is dependent on 
control measures chosen and adopted by the upwind nonattainment areas, 
an attainment demonstration specific to an OTA would be redundant. We 
anticipate that OTAs will be included in State, regional or national 
modeling analyses conducted by other, upwind nonattainment areas or by 
EPA. Where such modeling exists, it could be used to demonstrate 
attainment of an OTA. The demonstration must include modeling results 
and analyses that the State is relying on to support its claim.

[[Page 15102]]

Such modeling should be consistent with EPA guidance and should be 
applicable and appropriate for the area.\3\ Because it is impossible 
for an OTA to demonstrate attainment on its own due to their nature, 
the attainment demonstration for the area must rely, to a significant 
extent, on control of sources outside the OTA. Consequently, as noted 
in the Phase 2 ozone implementation rule, we intend to determine on a 
case-by-case basis whether the area submitting an attainment 
demonstration that is upwind of an OTA needs to commit to submit a mid-
course review (MCR). Such a MCR would serve the purpose of determining 
whether the OTA area is on track to attain the 8-hour standard by its 
attainment date as well as whether the upwind area is on track.
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    \3\ If an assessment indicates that a regional modeling analysis 
is not applicable to a particular nonattainment area, additional 
local modeling would be required.
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    We therefore propose that a State must submit a modeled 
demonstration of attainment that addresses the OTA and shows that the 
OTA will attain as expeditiously as practicable, but the State may rely 
on prior modeling. We propose that no additional modeled attainment 
demonstration would need to be developed for OTAs where (1) Upwind 
areas complete attainment demonstrations with modeling domains 
including the OTA or (2) regional or national modeling exists that is 
appropriate for use in the area shows that the OTA attains as 
expeditiously as practicable.
    In the Phase 1 Rule, we provided that we would approve an 
attainment date consistent with the attainment date timing provision of 
section 172(a)(2)(A) at the time we approve an attainment demonstration 
for the area [Sec.  51.904(b)]. We believe the section 172(a)(2)(A) 
provisions that allow an area to have an attainment date up to 10 years 
following designation (based on the severity of the nonattainment and 
the availability and feasibility of controls) would allow consideration 
for OTAs of the attainment dates of upwind nonattainment areas that 
contribute to the downwind area's problem, and the implementation 
schedules for controls in upwind areas that contribute.
4. Reasonable Further Progress
    a. Background. Section 172(c)(2) of the CAA requires subpart 1 
ozone areas to submit plan provisions which require RFP. The June 2, 
2003 proposal did not discuss the requirement for RFP specifically for 
OTAs. However, we did propose that, generally, OTAs would be treated 
similar to areas classified as marginal under subpart 2 for purposes of 
emission control requirements.\4\
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    \4\ Areas classified marginal under subpart 2 are not subject to 
RFP requirements.
---------------------------------------------------------------------------

    b. Request for Comment. Similar to the approach followed in the 
final Phase 2 Rule for subpart 1 areas with attainment dates within 5 
years after designation, we propose that an OTA with an approved 
attainment demonstration would be considered to have met the RFP 
obligation with the measures that will bring the area into attainment 
by the area's attainment date. That is, RFP is met by demonstrating the 
area could attain the standard as expeditiously as practicable. 
However, an OTA's attainment date will depend on when controls in 
upwind areas will be implemented. Thus, an OTA may have an attainment 
date that is later than 6 years after designation. Because an OTA will 
have little control over the emissions reductions needed for 
attainment, we are proposing that regardless of the OTA's attainment 
date, RFP will be met so long as the area demonstrates attainment as 
expeditiously as practicable. We request additional comment on this 
position.
5. Contingency Measures
    a. Background. Under the CAA, subpart 1 ozone areas must include in 
their SIPs contingency measures consistent with section 172(c)(9). The 
general requirements for nonattainment plans under section 172(c)(9) 
specify that each plan must contain additional measures that will take 
effect without further action by the State or EPA if an area either 
fails to meet a RFP milestone or to attain the 8-hour ozone standard by 
the applicable date. Contingency measures must accompany the attainment 
demonstration SIP. All subpart 1 ozone areas and subpart 2 areas other 
than marginal areas need contingency measures. The June 2, 2003 
proposal did not discuss the requirement for contingency measures 
specifically for OTAs. However, we did propose that ``* * * the area 
would be treated similar to areas classified marginal under subpart 2 
for purposes of emission control requirements'' and marginal areas are 
not required to submit contingency measures (see CAA section 182(a), 
last paragraph prior to paragraph (b)).
    b. Request for Comment. By definition [Sec.  51.904(a)(2)], the 
contribution of local emissions to observed ozone concentrations in the 
OTA is relatively minor. Thus, the effect of local control measures, 
including contingency measures from sources in the OTA, would also be 
minor. The EPA believes more effective contingency measures will be 
contained in the upwind areas' SIPs. Because upwind areas contribute 
overwhelmingly to nonattainment in the downwind OTA, we believe that 
OTAs may rely on contingency measures adopted by the upwind 
contributing areas; however, such contingency measures must be 
structured to be triggered by a failure in the OTA itself to make 
reasonable RFP or attain the standard by the applicable date.

IV. Statutory and Executive Order Reviews

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 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 proposed rule is a ``significant regulatory 
action'' because it raises novel legal or policy issues arising out of 
legal mandates. As such this action will be submitted to OMB for 
review.

B. Paperwork Reduction Act

    The information collection requirements in this rule will be 
addressed along with those covering the Phase 1 Rule (April 30, 2004; 
69 FR 23951) and the Phase 2 Rule (November 29, 2005; 70 FR 71612) 
which will be submitted for approval to OMB under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. The information collection 
requirements are not enforceable until OMB approves them other than to 
the extent required by statute.
    This rule provides an optional framework for the States to develop 
SIPs

[[Page 15103]]

for certain areas (viz., those affected by overwhelming transport of 
ozone and its precursors) to achieve a new or revised NAAQS. This 
framework reflects the requirements prescribed in CAA sections 110 and 
part D, subpart 1 of title I. In that sense, the present final rule 
does not establish any new information collection burden on States. Had 
this rule not been developed, States would still have the legal 
obligation under law to submit nonattainment area SIPs under part D of 
title I of the CAA within specified periods after their nonattainment 
designation for the 8-hour ozone standard, and the SIPs would have to 
meet the requirements of part D; however, without this rule, a few 
States would have less flexibility in planning for the areas noted 
above.
    This rule does not establish requirements that directly affect the 
general public and the public and private sectors, but, rather, 
interprets the statutory requirements that apply to States in preparing 
their SIPs. The SIPs themselves will likely establish requirements that 
directly affect the general public, and the public and private sectors.
    The EPA has not yet projected cost and hour burden for the 
statutory SIP development obligation but has started that effort and 
will shortly prepare an Information Collection Request (ICR) request. 
However, EPA did estimate administrative costs at the time of 
promulgation of the 8-hour ozone standard in 1997. See Chapter 10 of 
U.S. EPA 1997, Regulatory Impact Analyses for the Particulate Matter 
and Ozone National Ambient Air Quality Standards, Innovative Strategies 
and Economics Group, Office of Air Quality Planning and Standards, 
Research Triangle Park, N.C., July 16, 1997. Assessments of some of the 
administrative cost categories identified as a part of the SIP for an 
8-hour standard are already conducted as a result of other provisions 
of the CAA and associated ICRs (e.g. emission inventory preparation, 
air quality monitoring program, conformity assessments, NSR, inspection 
and maintenance program).
    The burden estimates in the ICR for this rule are incremental to 
what is required under other provisions of the CAA and what would be 
required under a 1-hour standard. Burden means the total time, effort, 
or financial resources expended by persons to generate, maintain, 
retain, or disclose or provide information to or for a Federal agency. 
This includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final rule. However, the failure to have an approved ICR for this rule 
does not affect the statutory obligation for the States to submit SIPs 
as required under part D of the CAA.

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 12.201); (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.
    In promulgating the Phase 1 and Phase 2 Rules, we concluded that 
those actions did not have a significant economic impact on a 
substantial number of small entities. For those same reasons, I certify 
that this action 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. We continue to be interested 
in the potential impacts of our proposed rules on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any 1 year. In promulgating the Phase 1 and Phase 2 
Rules, we concluded that it was not subject to the requirements of 
sections 202 and 205 of the UMRA. For those same reasons, our 
reconsideration and reopening of the comment period

[[Page 15104]]

on the proposed rule is not subject to the UMRA.
    The EPA has determined that this proposed rule contains no 
regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed reconsideration 
requests comment on a broader applicability of the overwhelming 
transport classification and reopens the public comment period on the 
proposed rule on how the CAA section 172 requirements would apply. For 
the same reasons stated in the Phase 1 and Phase 2 Rules, Executive 
Order 13132 does not apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on 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.
    The purpose of this proposed rule is to reopen the comment period 
on the proposed rule on how the CAA section 172 requirements would 
apply to such areas. These issues concern the implementation of the 8-
hour ozone standard in areas designated nonattainment for that 
standard. The CAA provides for States and Tribes to develop plans to 
regulate emissions of air pollutants within their jurisdictions. 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 Tribes whether to develop these programs and 
which programs, or appropriate elements of a program, they will adopt.
    For the same reasons stated in the Phase 1 and Phase 2 Rules, 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. 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.
    While the proposed rule would have Tribal implications upon a Tribe 
that is implementing such a plan, it would not impose substantial 
direct costs upon it nor would it preempt Tribal law.
    Although Executive Order 13175 does not apply to this proposed 
rule, EPA contacted Tribal environmental professionals about the 
development of this proposed rule on the ``Tribal Designations and 
Implementation Work Group'' conference call; a subsequent meeting 
summary was sent to over 50 Tribes.

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule addresses one aspect of the Phase 1 Rule that 
the Agency was requested to reconsider and reopens the comment period 
on the proposed rule on how the CAA section 172 requirements would 
apply to such areas. 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 action 
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, National Ambient Air Quality Standards for Ozone, 
Final Rule (July 18, 1997; 62 FR 38855-38896, specifically, 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. This proposed rule affects only 
a small number of relatively rural areas by its very nature. Recent EPA 
modeling projects that all of these areas will attain the 8-hour ozone 
by 2010 without any additional local emission controls.\5\ It does not 
require States or sources to take any particular actions, but merely 
provides an alternate mechanism for States to plan for attainment of 
such areas.
---------------------------------------------------------------------------

    \5\ Technical Support Document for the Final Clean Air 
Interstate Rule Air Quality Modeling, U.S. Environmental Protection 
Agency; Office of Air Quality Planning and Standards, Research 
Triangle Park, NC 27711. March 2005. Appendix E. Average Ambient and 
Projected 2010 and 2015 Base and CAIR Control 8-hour Ozone 
Concentrations. Available at: http://www.epa.gov/cair/pdfs/finaltech02.pdf.
---------------------------------------------------------------------------

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary

[[Page 15105]]

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 the States and Tribes to consider the use of 
such standards, where appropriate, in the development of the 
implementation plans.

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 concluded that the Phase 1 and Phase 2 Rules should not 
raise any environmental justice issues; for the same reasons, this 
proposal 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. The 
proposed rule provides a framework for improving environmental quality 
and reducing health risks for areas that may be designated 
nonattainment.

List of Subjects in 40 CFR Part 51

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Dated: March 21, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
    For the reasons stated in the preamble, Title 40, Chapter I of the 
Code of Federal Regulations, is proposed to be amended as follows:

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart X--Provisions for Implementation of the 8-Hour Ozone 
National Ambient Air Quality Standard

    2. Section 51.919 is added to read as follows:


Sec.  51.919  What requirements apply to overwhelming transport areas 
(OTAs) for modeling and attainment demonstration, reasonable further 
progress, and reasonably available control technology?

    (a) Attainment demonstration. (1) An area classified as an OTA 
under 'Sec.  1.904 must submit an attainment demonstration meeting the 
requirements of Sec.  51.112, which may be based on:
    (i) photochemical grid modeling conducted for the OTA;
    (ii) attainment demonstrations completed by areas upwind of the 
OTA, where the modeling domains include the OTA; or
    (iii) regional or national modeling that demonstrates the area will 
attain the 8-hour standard.
    (2) A mid-course review (MCR) is not required for an area 
classified as an OTA under Sec.  51.904.
    (b) Reasonable further progress (RFP). An area classified as an OTA 
under Sec.  51.904 with an approved attainment demonstration is 
considered to have met the RFP obligation under section 172(c)(2) of 
the CAA with the measures that will bring the area into attainment by 
the attainment date.
    (c) Reasonably available control technology (RACT) and reasonably 
available control measures (RACM). For an area classified as an OTA 
under Sec.  51.904, the State shall meet the RACT and RACM requirements 
of section 172(c)(1) by submitting an attainment demonstration SIP 
showing that the area will attain as expeditiously as practicable, 
taking into consideration emissions reductions in upwind nonattainment 
areas that contribute to the OTAs air quality.
    (d) Contingency measures. Contingency measures must accompany the 
attainment demonstration SIP. All subpart 1 ozone areas and subpart 2 
areas other than marginal areas need contingency measures. Overwhelming 
transport areas may rely on contingency measures adopted by the upwind 
contributing areas; however such contingency measures must be 
structured to be triggered by a failure in the OTA itself to make RFP 
or attain the standard by the applicable date.
[FR Doc. 06-2909 Filed 3-24-06; 8:45 am]
BILLING CODE 6560-50-P