[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69022-69028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20221]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2003-0090; FRL-8249-4]
RIN 2060-AN90


Final Extension of the Deferred Effective Date for 8-Hour Ozone 
National Ambient Air Quality Standards for Early Action Compact Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing the extension of the deferred effective 
date of air quality designations for 14 areas of the country that have 
entered into Early Action Compacts. Early Action Compact areas have 
agreed to reduce ground-level ozone pollution earlier than the Clean 
Air Act (CAA) requires. On April 30, 2004, EPA published an action 
designating all areas of the country for the 8-hour ozone National 
Ambient Air Quality Standards (NAAQS). In the designation rule, EPA 
deferred the effective date of the nonattainment designation for 14 
areas that had entered into Early Action Compacts until September 30, 
2005. On August 29, 2005, EPA deferred the nonattainment designation 
for these areas a second time until December 31, 2006. The EPA is now 
extending the deferred effective date of the nonattainment designation 
for 13 Early Action Compact areas until April 15, 2008, and for the 
Denver Early Action Compact area until July 1, 2007.

EFFECTIVE DATE: This final rule is effective on December 29, 2006.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID no. EPA-HQ-OAR-2003-0090. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, i.e., 
Confidential Business Information (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 through http://www.regulations.gov 
or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., Northwest, 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 telephone number for the Office of Air and 
Radiation Docket is (202) 566-1742. In addition, we have placed a copy 
of the rule and a variety of materials relevant to Early Action Compact 
areas on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/eac/.

    Note: The EPA Docket Center suffered damage due to flooding 
during the last week of June 2006. The Docket Center is continuing 
to operate. However, during the cleanup, there will be temporary 
changes to Docket Center telephone numbers, addresses, and hours of 
operation for people who wish to visit the Public Reading Room to 
view documents. Consult EPA's Federal Register notice at 71 FR 38147 
(July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations and 
telephone numbers.


FOR FURTHER INFORMATION CONTACT: Ms. Barbara Driscoll, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency, 
Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 
54l-1051 or by e-mail at: [email protected] or Mr. David Cole, 
Office of Air Quality Planning and Standards, U.S. Environmental 
Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711, 
phone number (919) 54l-5565 or by e-mail at: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

Does This Action Apply to Me?

    This action applies only to the 14 areas that entered into Early 
Action compacts and for which the effective date of the nonattainment 
designation was deferred. A list of these areas is included in Table 1.
    The information presented in this preamble is organized as follows:

    Outline
I. General Information
    Does this Action Apply to Me?
II. What Is the Purpose of This Document?
III. What Action has EPA Taken to Date for Early Action Compact 
Areas?
    A. What progress are compact areas making toward completing 
their milestones?
    B. What is this final action for compact areas?
    C. What is EPA's schedule for taking further action to further 
defer the effective date of nonattainment designation for compact 
areas?
    D. What comments did EPA receive on the August 3, 2006 proposal 
to extend the deferral of the effective date of the nonattainment 
designations for 14 Early Action Compact areas?
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

[[Page 69023]]

    K. Congressional Review Act
    L. Petitions for Judicial Review

II. What is the Purpose of This Document?

    The purpose of this document is to finalize the extension of the 
deferred effective date of the 8-hour ozone nonattainment designations 
for 14 participants in Early Action Compacts. The new effective 
designation date for 13 areas is April 15, 2008. The effective date of 
designation for the Denver EAC area is extended until July 1, 2007.

III. What Action has EPA Taken to Date for Early Action Compact Areas?

    This section discusses EPA's actions to date with respect to 
deferring the effective date of nonattainment designations for certain 
areas of the country that are participating in the Early Action Compact 
program. The EPA's April 30, 2004 air quality designation rule (69 FR 
23858) provides a description of the compact approach, the requirements 
for areas participating in the program and the impacts of the program 
on those areas.
    On December 31, 2002, we entered into compacts with 33 communities. 
To receive the first deferral, these Early Action Compact areas agreed 
to reduce ground-level ozone pollution earlier than the CAA would 
require. On December 16, 2003 (68 FR 70108), we published a proposed 
rule to defer until September 30, 2005, the effective date of 
designation for Early Action Compact areas that did not meet the 8-hour 
ozone NAAQS. Fourteen of the 33 compact areas did not meet the 8-hour 
ozone NAAQS.
    The final designation rule published April 30, 2004 (69 FR 23858), 
as amended June 18, 2004 (69 FR 34080), included the following actions 
for compact areas: Deferred the effective date of nonattainment 
designation for 14 compact areas until September 30, 2005; detailed the 
progress compact areas had made toward completing their milestones; 
described the actions required for compact areas in order to remain 
eligible for a deferred effective date for a nonattainment designation; 
detailed EPA's schedule for taking further action to determine whether 
to further defer the effective date of nonattainment designations; and 
described the consequences for compact areas that do not meet a 
milestone. In the April 2004, action, we also discussed three compact 
areas which did not meet the March 31, 2004, milestone; Knoxville, 
Memphis, and Chattanooga, Tennessee. Knoxville and Memphis were 
designated nonattainment effective June 15, 2004. Chattanooga was later 
determined to have met the March 31, 2004, milestone, and we deferred 
the designation date until September 30, 2005, (69 FR 34080). This 
brought the number of participating compact areas to 31. Since then 2 
additional areas, Haywood and Putnam Counties, Tennessee have withdrawn 
from the program leaving the participating number of compact areas at 
29.
    On August 29, 2005, we published a final rule extending the 
deferred effective date of designation from September 30, 2005, to 
December 31, 2006, for the same 14 compact areas. In order to receive 
the second deferral, Early Action Compact areas needed to submit a 
State Implementation Plan with locally adopted measures by December 31, 
2004. The EPA approved the SIP revisions as meeting the EAC Protocol 
and EPA's EAC regulations at 40 CFR 81.300, and these approvals were 
the basis for extending the deferred effective date until December 31, 
2006. Information on local measures, SIP submittals and background on 
the Early Action Compact program may be found on EPA's Web site at 
http://www.epa.gov/ttn/naaqs/ozone/eac/.

A. What progress are compact areas making toward completing their 
milestones?

    In general, the remaining 29 compact areas have made satisfactory 
progress toward timely completion of their milestones. All compact 
areas were required to submit two progress reports, one by December 30, 
2005, and the other by June 30, 2006. In these progress reports, the 
States provided information on progress towards implementing local 
control measures that were incorporated in their SIPs. Each of the EAC 
areas submitted the required progress reports and these reports are 
available at http://www.epa.gov/ttn/naaqs/ozone/eac/.
    After review by EPA, all the EAC areas were found to be in 
compliance with the requirements of the EAC Protocol and the individual 
State Implementation Plans, however, issues were noted by the State of 
Colorado with the Denver area regarding emissions from oil and gas 
exploration and production condensate tanks. Based on a report and 
action plan submitted by the State of Colorado to EPA, dated June 2, 
2006, the State provided information that indicated volatile organic 
compound (VOC) emissions from oil and gas operations within the Denver 
EAC area were higher than had been estimated in the attainment 
demonstration modeling. Subsequent to this June 2, 2006 report, the 
State of Colorado has embarked on rulemaking activities to amend 
Colorado's Regulation No. 7 (the State's regulation for the control of 
VOCs) to require additional emission reductions from oil and gas 
exploration and production condensate tanks to achieve the level of 
reductions the State relied on in the EPA-approved modeled attainment 
demonstration. Further discussion on this issue is provided below in 
section D (response to comments).

B. What is this final action for compact areas?

    We are extending the deferred effective date of the nonattainment 
designation for 14 compact areas. In consideration of the progress 
reported by the EAC areas, we have concluded that 13 of the 14 areas 
are eligible for a final deferral of their nonattainment designation 
for the 8-hour ozone NAAQS to April 15, 2008. See 40 CFR 
81.300(e)(4)(ii). Therefore, we are further extending until April 15, 
2008 the effective date of the 8-hour ozone nonattainment designation 
for the compact area counties listed in Table 1 below, with the 
exception of the Denver EAC area, which is extended only to July 1, 
2007. We are revising 40 CFR part 81 to reflect these extensions.

 Table 1.--Compact Areas Which Qualify for a Deferred Effective Date of
                           April 15, 2008 \1\
     [Note: Name of designated 8-hour ozone nonattainment area is in
                              parentheses]
------------------------------------------------------------------------
                                                         Counties which
                                        Counties with      are part of
                      Compact area       designation    compacts and are
       State           (designated       deferred to       designated
                          area)        April 15, 2008    unclassifiable/
                                                           attainment
------------------------------------------------------------------------
                              EPA Region 3
------------------------------------------------------------------------
VA................  Northern          Winchester City,
                     Shenandoah        Frederick
                     Valley Region     County.
                     (Frederick
                     County, VA),
                     adjacent to
                     Washington, DC-
                     MD-VA.

[[Page 69024]]

 
VA................  Roanoke Area      Roanoke County,
                     (Roanoke, VA).    Botetourt
                                       County, Roanoke
                                       City, Salem
                                       City.
MD................  Washington        Washington
                     County            County.
                     (Washington
                     County
                     (Hagerstown,
                     MD), adjacent
                     to Washington,
                     DC-MD-VA.
WV................  The Eastern Pan   Berkeley County,
                     Handle Region,    Jefferson
                     (Berkeley &       County.
                     Jefferson
                     Counties, WV),
                     Martinsburg
                     area.
------------------------------------------------------------------------
                              EPA Region 4
------------------------------------------------------------------------
NC................  Unifour (Hickory- Catawba County,
                     Morganton-        Alexander
                     Lenoir, NC).      County, Burke
                                       County (part),
                                       Caldwell County
                                       (part).
NC................  Triad             Randolph County,  Surry
                     (Greensboro-      Forsyth County,   County,Yadkin
                     Winston-Salem-    Davie County,     County, Stokes
                     High Point, NC).  Alamance          County.
                                       County, Caswell
                                       County,
                                       Davidson
                                       County,
                                       Guilford
                                       County,
                                       Rockingham
                                       County.
NC................  Cumberland        Cumberland
                     County            County.
                     (Fayetteville,
                     NC).
SC................  Appalachian--A    Spartanburg       Cherokee County,
                     (Greenville-      County,           Pickens County,
                     Spartanburg-      Greenville        Oconee County.
                     Anderson, SC).    County,
                                       Anderson County.
SC................  Central           Richland County   Newberry County,
                     Midlands--I       (part),           Fairfield
                     Columbia area.    Lexington         County.
                                       County (part).
TN/GA.............  Chattanooga       Hamilton County,  Marion County,
                     (Chattanooga,     TN, Meigs         TN, Walker
                     TN-GA).           County, TN,       County, GA.
                                       Catoosa County,
                                       GA.
TN................  Nashville         Davidson County,  Robertson
                     (Nashville, TN).  Rutherford        County,
                                       County,           Cheatham
                                       Williamson        County, Dickson
                                       County, Wilson    County.
                                       County, Sumner
                                       County.
TN................  Johnson City-     Sullivan Co, TN,  Washington Co,
                     Kingsport-        Hawkins County,   TN, Unicoi
                     Bristol Area      TN.               County, TN,
                     (TN portion                         Carter County,
                     only).                              TN, Johnson
                                                         County, TN.
------------------------------------------------------------------------
                              EPA Region 6
------------------------------------------------------------------------
TX................  San Antonio.....  Bexar County,     Wilson County.
                                       Comal County,
                                       Guadalupe
                                       County.
------------------------------------------------------------------------
                              EPA Region 8
------------------------------------------------------------------------
CO................  Denver \1\        Denver County,
                     (Denver-Boulder-  Boulder County
                     Greeley-Ft.       (includes part
                     Collins-Love,     of Rocky Mtn
                     CO).              Nat.Park),
                                       Jefferson
                                       County, Douglas
                                       County,
                                       Broomfield,
                                       Adams County,
                                       Arapahoe
                                       County, Larimer
                                       County (part),
                                       Weld County
                                       (part).
------------------------------------------------------------------------
\1\ Effective date of nonattainment designation for Denver EAC is
  extended to July 1, 2007.

C. What is EPA's schedule for taking further action to further defer 
the effective date of nonattainment designation for compact areas?

    The EAC areas have one remaining milestone which is to demonstrate 
attainment with the 8-hour ozone NAAQS by December 31, 2007. No later 
than April 15, 2008, we will determine whether the compact areas that 
received a deferred effective date of April 15, 2008, have attained the 
8-hour ozone NAAQS by December 31, 2007, and have met all compact 
milestones. If the area has not attained the standard, the 
nonattainment designation will take effect. If the compact area has 
attained the standard, EPA will designate the area as attainment. Any 
compact area that has not attained the NAAQS and thus has an effective 
nonattainment designation will be subject to the full planning 
requirements of title I, part D of the CAA, and the area will be 
required to submit a revised attainment demonstration SIP within 1 year 
of the effective date of designation. As provided above, the State of 
Colorado is undertaking rulemaking to address shortfalls in VOC 
emission reductions for the Denver EAC. These rulemaking activities are 
designed to achieve greater VOC emission reductions from the oil and 
gas industry and we also note, the rule revisions contain a compliance 
date of May 1, 2007, which is just before the beginning of the Colorado 
high ozone season. Once the State's rulemaking actions are complete, 
the rule revisions will be submitted to EPA for our approval.

D. What comments did EPA receive on the August 3, 2006 proposal to 
extend the deferral of the effective date of the nonattainment 
designations for 14 Early Action Compact areas?

    We received six comments on the proposed rule to extend the 
deferred effective date of the nonattainment designations for 14 Early 
Action Compact areas to April 15, 2008. We have responded to the 
comments in this section.
    Comment: Two commenters expressed support for the compact

[[Page 69025]]

process, the goal of clean air sooner, the incentives and flexibility 
the program provides for encouraging early reductions of ozone-forming 
pollution, and the deferred effective date of nonattainment 
designation. However, a number of commenters opposed the Early Action 
Compact program. Several of these commenters expressed concern about 
various legal aspects of the program, primarily the deferral of the 
effective date of the nonattainment designation for these areas. 
Although some of these commenters were supportive of the goal of 
proactively addressing the public health concerns associated with ozone 
pollution, the commenters state that the program is not authorized by 
the CAA. All of these commenters indicated that EPA lacks authority 
under the CAA to defer the effective date of a nonattainment 
designation. In addition, these commenters state that EPA lacks 
authority to enter into Early Action Compacts with areas and lacks 
authority to allow areas to be relieved of obligations under title I, 
part D of the CAA while these areas are violating the 8-hour ozone 
standard or are designated nonattainment for that standard.
    Response: We have determined that the compact program, as designed, 
gives local areas the flexibility to develop their own approach to 
meeting the 8-hour ozone standard. The participating communities are 
serious in their commitment and have made good progress implementing 
State and local measures for controlling emissions from local sources 
earlier than the CAA would otherwise require. By involving diverse 
stakeholders, including representatives from industry, local and State 
governments, and local environmental and citizens groups, a number of 
these communities are, for the first time, cooperating on a regional 
basis to solve environmental problems that affect the health and 
welfare of their citizens. People living in these areas realize 
reductions in pollution levels sooner and will enjoy the health 
benefits of cleaner air sooner than might otherwise occur. With respect 
to the commenter who attached comments that were submitted on EPA's 
initial proposal to defer the effective date of a nonattainment 
designation of EAC areas meeting compact milestones, we refer back to 
our response to those comments in the April 2004 designation rule (69 
FR 23858).
    Comment: Three commenters expressed specific concerns about 
deferring the effective date of the nonattainment designation for the 
Denver metropolitan EAC area. The commenters noted that the Denver EAC 
area does not comply with its commitments to address ozone-forming 
pollution from the oil and gas sector. Two of these commenters stated 
that emissions from these operations are higher than the State 
originally projected; however, they acknowledged that Colorado is 
currently taking steps to revise control requirements for these 
operations to address the problem. Commenters believed that it was 
inappropriate for EPA to proceed at this time with granting the Denver 
EAC area a final deferred nonattainment effective date to April 15, 
2008, while the necessary revisions to Regulation No. 7, the State of 
Colorado's regulation for the control of VOCs which are designed to 
require additional VOC emission reductions from oil and gas condensate 
tanks would still be under consideration by both the Colorado Air 
Quality Control Commission (AQCC) and State Legislature. In addition, 
the commenters noted that air quality monitoring data for the 2006 
ozone season indicate that the area may not be complying with the 8-
hour ozone standard through 2007.
    Response: The commenters were concerned with increased VOC 
emissions from oil and gas exploration and production condensate tanks. 
Based on a report and action plan submitted by the State of Colorado to 
EPA, dated June 2, 2006, the State provided information that indicated 
VOC emissions from oil and gas operations within the Denver EAC area 
were higher than had been relied on in the attainment demonstration 
modeling. With rule revisions being proposed before the Colorado AQCC 
on August 17, 2006, the State of Colorado has initiated public 
rulemaking activities to amend Colorado's Regulation No. 7 to require 
additional emission reductions from oil and gas exploration and 
production condensate tanks to achieve the level of reductions relied 
on in the EPA-approved modeled attainment demonstration. However, by 
State rulemaking procedures, the Regulation No. 7 revisions will not be 
considered for adoption by the AQCC until November 16 or 17, 2006, and 
by Colorado State law, the Regulation No. 7 revisions will then have to 
be considered for adoption by the Colorado State Legislature which will 
only be in session between January 1, 2007 to the first week of May, 
2007. This presents a potential dilemma for EPA, as we currently 
consider granting the Denver EAC area a final deferred nonattainment 
effective date to April 15, 2008, in that the necessary revisions to 
Regulation No. 7, that are designed to require additional VOC emission 
reductions from oil and gas condensate tanks, would still be under 
consideration by both the AQCC and State Legislature.
    The EPA agrees with the commenters' concern regarding the timing of 
a final deferral of the Denver EAC's nonattainment effective date and 
potential conflict with the State's fall 2006 and spring 2007 State 
Implementation Plan (SIP) rulemaking process time frame. However, we 
also believe that beginning the rulemaking process to address the 
shortfall in reductions, the area has demonstrated its commitment to 
ensuring the terms of the EAC process will be met. Therefore, to 
accommodate the public rulemaking activities of the Colorado AQCC and 
Colorado State Legislature and to allow the Denver area to remain in 
the EAC program, with this final rule EPA is granting the Denver area a 
deferred effective date of nonattainment only to July 1, 2007. 
Following the rulemaking actions by the Colorado AQCC and Colorado 
State Legislature, EPA anticipates that it will undertake further 
rulemaking action for the Denver EAC to determine whether to extend the 
deferred nonattainment effective date beyond July 1, 2007. A likely 
schedule for EPA's subsequent rulemaking action is:

--March 1, 2007; EPA proposes whether to extend the final deferred 
effective date for the Denver EAC to April 15, 2008. This proposed rule 
would reflect the actions taken by the Colorado AQCC and then current 
actions by the Colorado State Legislature. This proposal would open a 
30-day public comment period.
--April 1, 2007; the 30-day public comment period closes.
--April 2007; EPA evaluates all public comments.
--May 1, 2007; EPA prepares a final rule and starts its internal 
concurrence process.
--On or about May 25, 2007; Signature on the final rule by the 
Administrator.
--June 1, 2007; Publication in the Federal Register of the final rule 
and that rule will have a 30-day effective date.

    The above schedule would allow both the Colorado AQCC and Colorado 
State Legislature until late April to complete their respective 
functions and also allow EPA appropriate time to complete a final 
deferral of the Denver EAC nonattainment effective date to April 15, 
2008, if EPA determines that is the appropriate action to take.
    With respect to the commenters' concerns regarding the ambient air 
quality monitoring data for the Denver

[[Page 69026]]

EAC area, EPA agrees that several exceedances of the 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) were observed in 2006. 
However, even with these exceedances none of the ambient air quality 
monitors in the 8-hour ozone monitoring network recorded a violation of 
the 8-hour ozone NAAQS. Further, we note that the ambient air quality 
monitors for the Denver EAC area have shown attainment of the 8-hour 
ozone NAAQS for the periods, 2002 through 2004, 2003 through 2005, and 
2004 through 2006. Although Denver has not violated the standard for 
the past three 3-year periods, EPA notes that air quality in the area 
remains very close to the standard, indicating that the additional 
emission reductions being considered now by the State are important to 
ensure that air quality in the area remains below the level of the 
standard. EPA notes and appreciates commenters' concerns for the 
potential for a violation of the 8-hour ozone NAAQS during the upcoming 
ozone season of 2007.

IV. Statutory and Executive Order Reviews

    This action finalizes the extension of the deferred effective date 
of the nonattainment designation for 13 compact areas until April 15, 
2008. This action also finalizes the extension of the deferred 
effective date of the nonattainment designation for the Denver compact 
area until July 1, 2007.

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

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. 
This final rule does not require the collection of any information.
    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.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities. This final rule will 
not impose any requirements on small entities. Rather, this rule would 
extend the deferred 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.

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 final 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 this final rule, EPA is deferring the 
effective date of nonattainment designations for certain areas that 
have entered into compacts with us. Thus, this final rulemaking is not 
subject to the requirements of sections 202 and 205 of the UMRA.

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.''

[[Page 69027]]

    This final 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. The CAA establishes the scheme 
whereby States take the lead in developing plans to meet the NAAQS. 
This final 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.

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 final rule does not have 
``Tribal implications'' as specified in 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.

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 EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 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 final rule 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 final 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.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 29, 2006.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit by December 29, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. See CAA Section 307(b)(2).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Reporting and 
recordkeeping requirements.

    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 22, 2006.
Stephen L. Johnson,
Administrator.

0
40 CFR Part 81 is amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

0
2. Section 81.300 is amended by revising paragraphs (e)(3)(i) and 
(e)(3)(ii)(B) and (C) to read as follows:


Sec.  81.300  Scope.

* * * * *
    (e) * * *
    (3) * * *
    (i) General. With the exception of the Denver area subject to a 
compact and notwithstanding clauses (i) through (iv)

[[Page 69028]]

of section 107(d)(1)(B) of the Clean Air Act (42 U.S.C. 7407(d)(1)(B)), 
the Administrator shall defer until April 15, 2008 the effective date 
of a nonattainment designation of any area subject to a compact that 
does not meet (or that contributes to ambient air quality in a nearby 
area that does not meet) the 8-hour ozone national ambient air quality 
standard if the Administrator determines that the area subject to a 
compact has met the requirements in paragraphs (e)(2)(i) through (iii) 
of this section. The Administrator shall defer until July 1, 2007 the 
effective date of a nonattainment designation of the Denver area.
* * * * *
    (ii) * * *
    (B) Prior to expiration of the deferred effective date on April 15, 
2008, if the Administrator determines that an area or the State subject 
to a compact has not met either requirement in paragraphs (e)(2)(iv) 
and (v) of this section, the nonattainment designation shall become 
effective as of the deferred effective date, unless EPA takes 
affirmative rulemaking action to further extend the deadline.
    (C) If the Administrator determines that an area subject to a 
compact and/or State has not met any requirement in paragraphs 
(e)(2)(iv) through (vi) of this section, the nonattainment designation 
shall become effective as of the deferred effective date, unless EPA 
takes affirmative rulemaking action to further extend the deadline.
* * * * *

0
3. In Sec.  81.306, the table entitled ``Colorado-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.306  Colorado.

* * * * *

Colorado-Ozone (8-Hour Standard)

* * * * *
     \2\ Early Action Compact Area, effective date deferred until 
July 1, 2007.
---------------------------------------------------------------------------

    \2\ Effective date of nonattainment designation for Denver EAC 
is extended to July 1, 2007.

---------------------------------------------------------------------------
* * * * *

0
4. In Sec.  81.311, the table entitled ``Georgia-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.311  Georgia.

Georgia-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
5. In Sec.  81.321, the table entitled ``Maryland-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.321  Maryland.

* * * * *

Maryland-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
6. In Sec.  81.334, the table entitled ``North Carolina-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.334  North Carolina.

* * * * *

North Carolina-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
7. In Sec.  81.341, the table entitled ``South Carolina-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.341  South Carolina.

* * * * *

South Carolina-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
8. In Sec.  81.343, the table entitled ``Tennessee-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.343  Tennessee.

* * * * *

Tennessee-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
9. In Sec.  81.344, the table entitled ``Texas-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.344  Texas.

* * * * *

Texas-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.
* * * * *


0
10. In Sec.  81.347, the table entitled ``Virginia-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.347  Virginia.

* * * * *

Virginia-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *

0
11. In Sec.  81.349, the table entitled ``West Virginia-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.349  West Virginia.

* * * * *

West Virginia-Ozone (8-Hour Standard)

* * * * *

     \2\ Early Action Compact Area, effective date deferred until 
April 15, 2008.

* * * * *
 [FR Doc. E6-20221 Filed 11-28-06; 8:45 am]
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