[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Proposed Rules]
[Pages 13452-13458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5352]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-HQ-OAR-2007-0170; FRL-8290-9]


Supplemental Proposed Rulemaking on 8-Hour Ozone Redesignations 
for Various Areas in Michigan, Ohio and West Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.

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SUMMARY: On December 22, 2006, the U.S. Court of Appeals for the 
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule 
for the 8-hour ozone standard. This supplemental proposed rulemaking 
sets forth EPA's views on the potential effect of the Court's ruling on 
a number of proposed redesignation actions. This rulemaking applies to 
eighteen 8-hour ozone nonattainment areas in Michigan, Ohio and West 
Virginia, for which EPA has proposed approval of the States' 
redesignation requests. For the reasons set forth in the notice, EPA 
proposes to find that the Court's ruling does not alter any 
requirements relevant to these proposed redesignations that would 
prevent EPA from finalizing these redesignations. The EPA believes that 
the Court's decision, as it currently stands or as it may be modified 
based upon any petition for rehearing that may be filed, imposes no 
impediment to moving forward with redesignation of these areas to 
attainment, because in either circumstance, redesignation is 
appropriate under the relevant redesignation provisions of the Clean 
Air Act (CAA) and EPA's longstanding policies regarding redesignation 
requests.

DATES: Comments must be received on or before April 6, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0170 by one of the following methods:
     www.regulations.gov: Follow the online instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket and Information Center, 
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
     Hand Delivery: Environmental Protection Agency, EPA West 
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such 
deliveries are only accepted during the Docket's

[[Page 13453]]

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-
2007-0170. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online 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 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, avoid 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. For additional instructions on 
submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., 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 Air and Radiation Docket and 
Information Center, EPA/DC, EPA West, Room 3334, 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 
telephone number for the Air and Radiation Docket and Information 
Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Butch Stackhouse, Air Quality Policy 
Division, Office of Air Quality Planning and Standards, State and 
Locals Program Group, U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711; telephone number (919) 541-5208; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This action applies to you if you are a State that has proposed 
areas for redesignation from nonattainment to attainment of the 8-hour 
ozone standard, but EPA has not yet finalized such actions. This action 
is applicable therefore to the following States: Michigan; Ohio, and 
West Virginia. This supplemental proposed rulemaking applies to 
eighteen 8-hour ozone nonattainment areas, sixteen of which were 
designated nonattainment for the 8-hour ozone standard and classified 
under Subpart 1 of Part D of the CAA, and which were previously 
designated Unclassifiable/Attainment, or Attainment subject to a CAA 
section 175A maintenance plan under the 1-hour standard. EPA has 
published proposed rulemakings to redesignate these areas to attainment 
for the 8-hour ozone standard. The areas and dates of proposed 
rulemakings for these areas are: Parkersburg-Marietta, OH-WV 
(Washington County, OH), request submitted on November 17, 2006 and 
proposed on January 17, 2007, 72 FR 1956, previously Unclassifiable/
Attainment for the 1-hour standard; Parkersburg-Marietta, OH-WV (Wood 
County, WV), request submitted on September 8, 2006 and proposed on 
January 12, 2007, 72 FR 1474, previously Attainment subject to a 
maintenance plan for the 1-hour standard; Steubenville-Weirton, OH-WV 
(Brooke and Hancock Counties, WV) request submitted on August 3, 2006 
and proposed on October 2, 2006, 71 FR 57905, previously designated 
Unclassifiable/Attainment for the 1-hour standard; Wheeling, OH-WV 
(Marshall and Ohio counties, WV) request submitted on July 24, 2006 and 
proposed on October 2, 2006, 71 FR 57894, previously designated 
Unclassifiable/Attainment for the 1-hour standard; Flint (Genesee and 
Lapeer Counties), MI request submitted on June 13, 2006 and proposed on 
January 8, 2007, 72 FR 699, previously designated Attainment subject to 
a maintenance plan for the 1-hour standard (Genesee County) and 
Unclassifiable/Attainment (Lapeer County) for the 1-hour standard; 
Benton Harbor (Berrien County), MI request submitted on June 13, 2006 
and proposed on January 8, 2007, 72 FR 699, previously designated 
Unclassifiable/Attainment for the 1-hour standard; Benzie County, MI 
request submitted on May 9, 2006 and proposed on December 7, 2006, 70 
FR 70915, previously designated Unclassifiable/ Attainment for the 1-
hour standard; Grand Rapids, (Kent and Ottawa Counties), MI request 
submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, 
previously designated Attainment subject to a maintenance plan for the 
1-hour standard; Huron County, MI request submitted on May 9, 2006 and 
proposed on December 7, 2006, 70 FR 70915, previously designated 
Unclassifiable/Attainment for the 1-hour standard; Kalamazoo-Battle 
Creek (Calhoun, Kalamazoo, and Van Buren Counties), MI request 
submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, 
previously designated Unclassifiable/Attainment for the 1-hour 
standard; Lansing-East Lansing (Clinton, Eaton, and Ingham counties), 
MI request submitted on May 9, 2006 and proposed on December 7, 2006, 
70 FR 70915, previously designated Unclassifiable/Attainment for the 1-
hour standard; Mason County, MI request submitted on May 9, 2006 and 
proposed on December 7, 2006, 70 FR 70915, previously designated 
Unclassifiable/Attainment for the 1-hour standard; Canton-Massillon 
(Stark County), OH request submitted on August 24, 2006 and proposed on 
December 27, 2006, 71 FR 77678, previously designated Attainment 
subject to a maintenance plan for the 1-hour standard; Lima (Allen 
County), OH request submitted on August 24, 2006 and proposed on 
December 27, 2006, 71 FR 77678, previously designated Unclassifiable/
Attainment for the 1-hour standard; Wheeling, OH-WV (Belmont County, 
OH) request submitted on August 24, 2006 and proposed on December 27, 
2006, 71 FR 77666, previously designated Unclassifiable/ Attainment for 
the 1-hour standard; and Steubenville-Weirton, OH-WV (Jefferson County, 
OH) request submitted on October 3, 2006 and proposed on January 8, 
2007, 72 FR 711, previously designated Attainment

[[Page 13454]]

subject to a maintenance plan for the 1-hour standard.
    This rulemaking also applies to two 8-hour nonattainment areas that 
were classified under Subpart 2 for the 8-hour ozone standard. These 
areas, Muskegon, (Muskegon county), MI and Cass County, MI, were also 
previously designated Attainment subject to a maintenance plan 
(Muskegon) and Unclassifiable/Attainment (Cass County) for the 1-hour 
standard. The request was submitted on June 13, 2006 and proposed 
rulemakings for these areas on January 8, 2007, 72 FR 699.

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

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     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.
     Explain why you agree or disagree, suggest alternatives, 
and provide substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    Commenters wishing to submit proprietary information for 
consideration must clearly distinguish such information from other 
comments and clearly label it as CBI. Send submissions containing such 
proprietary information directly to the following address, and not to 
the public docket, to ensure that proprietary information is not 
inadvertently placed in the docket: Attention: Mr. Roberto Morales, 
U.S. Environmental Protection Agency, OAQPS Document Control Officer, 
109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. 
The EPA will disclose information identified as CBI only to the extent 
allowed by the procedures set forth in 40 CFR part 2. If no claim of 
confidentiality accompanies a submission when it is received by the 
EPA, the information may be made available to the public without 
further notice to the commenter.

C. Where Can I Obtain Additional Information?

    In addition to being available in the docket, an electronic copy of 
this proposed rule is also available on the World Wide Web. Following 
signature by the EPA Acting Assistant Administrator for Air and 
Radiation, a copy of this proposed rule will be posted on the EPA's 
http://www.epa.gov/ozonedesignations/.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply To Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. What is the Background for This Action?
III. What are EPA's Views on the Potential Effect of the Court's 
Ruling on the Proposed Redesignation Actions Identified in This 
Action?
    A. Areas Classified Under Subpart 1
    B. Areas Classified Under Subpart 2: Muskegon and Cass County, 
MI
IV. What Action is EPA proposing?
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

II. What Is the Background for This Action?

    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. v. E.P.A., 472 F.3d 882 (DC Cir. December 22, 
2006). The Court held that certain provisions of EPA's Phase 1 Rule 
were inconsistent with the requirements of the CAA. The Court rejected 
EPA's reasons for implementing the 8-hour ozone standard in 
nonattainment areas under subpart 1 in lieu of subpart 2 of Title I, 
part D of the CAA. The Court also held that EPA improperly failed to 
retain four measures required for 1-hour nonattainment areas in the 
anti-backsliding provisions of the regulations: (1) Nonattainment area 
New Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for severe 
or extreme nonattainment areas; (3) measures to be implemented pursuant 
to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an 
area not making reasonable further progress toward attainment of the 1-
hour NAAQS, or for failure to attain that NAAQS; (4) and the 
requirement to demonstrate that certain types of projects meet certain 
conformity requirements. The Court upheld EPA's authority to revoke the 
1-hour standard provided there were adequate anti-backsliding 
provisions. The Court has established March 22, 2007, as the date by 
which any rehearing petitions must be filed.

III. What Are EPA's Views on the Potential Effect of the Court's Ruling 
on the Proposed Redesignation Actions Identified in This Action?

    This action sets forth EPA's views on the potential effect of the 
Court's ruling on the proposed redesignation actions that are the 
subject of this document. For the reasons set forth below, EPA does not 
believe that the Court's ruling alters any requirements relevant to 
these proposed redesignations and does not prevent EPA from finalizing 
these redesignations. The EPA believes that the Court's decision, as it 
currently stands or as it may be modified based

[[Page 13455]]

upon any petition for rehearing that may be filed, imposes no 
impediment to moving forward with redesignation of these areas to 
attainment, because in either circumstance, redesignation is 
appropriate under the relevant redesignation provisions of the CAA and 
longstanding policies regarding redesignation requests.

A. Areas Classified Under Subpart 1

1. Possible Subpart 2 Requirements
    With respect to the 16 8-hour nonattainment areas EPA classified 
under Subpart 1 at the time of designation, EPA notes that the Court's 
ruling rejected EPA's reasons for classifying areas under subpart 1 for 
the 8-hour standard and remanded that matter to the Agency. 
Consequently, it is possible that these areas could, during a remand to 
EPA, be reclassified under Subpart 2. Although any future decision by 
EPA to classify these areas under subpart 2 might trigger additional 
future requirements for such areas, EPA believes that this does not 
mean that redesignation of the areas that are the subject of this 
notice cannot now go forward. This belief is based upon: (1) EPA's 
longstanding policy of evaluating redesignation requests in accordance 
with only the requirements due at the time the request was submitted; 
(2) consideration of the inequity of applying retroactively any 
requirements that might be applied in the future and, (3) with respect 
to certain of the areas that are the subject of this notice, the fact 
that the redesignation requests preceded even the earliest possible due 
dates of any requirements for Subpart 2 areas.
    First, at the time the redesignation requests for the 16 Subpart 1 
areas that are the subject of this notice were submitted, the areas 
were classified under Subpart 1 and were obligated to meet the Subpart 
1 requirements. Under EPA's longstanding interpretation of section 
107(d)(3)(E) of the CAA, to qualify for redesignation, States 
requesting redesignation to attainment must meet only the relevant 
State Implementation plan (SIP) requirements that came due prior to the 
submittal of a complete redesignation request. September 4, 1992 
Calcagni memorandum (``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division); See also Michael Shapiro 
Memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (March 7, 
1995) (redesignation of Detroit-Ann Arbor). Sierra Club v. EPA, 375 
F.3d 537 (7th Cir. 2004). See, e.g., also 68 FR 25424, 25427 (May 12, 
2003) (redesignation of St. Louis). At the time the redesignation 
requests were submitted, the 16 areas were not classified under Subpart 
2 and no Subpart 2 requirements were applicable for purposes of 
redesignation.
    Moreover, it would be inequitable to retroactively apply any new 
SIP requirements that were not applicable at the time the request was 
submitted, but which might later become applicable. The DC Circuit has 
recognized the inequity in such retroactive rulemaking, See Sierra Club 
v. Whitman 285 F. 3d 63 (DC Cir. 2002), in which the DC Circuit upheld 
a District Court's ruling refusing to make retroactive an EPA 
determination of nonattainment that was past the statutory due date. 
Such a determination would have resulted in the imposition of 
additional requirements on the area. The Court stated: ``Although EPA 
failed to make the nonattainment determination within the statutory 
timeframe, Sierra Club's proposed solution only makes the situation 
worse. Retroactive relief would likely impose large costs on the 
States, which would face fines and suits for not implementing air 
pollution prevention plans in 1997, even though they were not on notice 
at the time.'' Id. at 68. Similarly, here it would be unfair to 
penalize the areas included in this notice by applying to them for 
purposes of redesignation any additional SIP requirements under Subpart 
2 that were not in effect at the time they submitted their 
redesignation requests, but that might apply in the future.
    Third, even if a future Subpart 2 classification were applied to 
these areas retroactively, for many of the Subpart 1 areas subject to 
this notice, the Subpart 2 requirements would still not be considered 
applicable for purposes of redesignation. As set forth above, the 
applicable requirements for purposes of redesignation are only those 
that became due prior to submission of the redesignation request. In 
the case of eight of the areas subject to this rulemaking,\1\ the 
submission of the redesignation request preceded even the earliest 
possible due date of requirements for areas classified under Subpart 2 
effective June 2004. These requests were all submitted before the 
earliest such submission date, which was June 15, 2006, for the 
emissions statement requirement under section 182(a)(3)(B) and 
emissions inventories under section 182(a)(1). Thus for this additional 
reason alone these additional Subpart 2 requirements would not be 
applicable for purposes of evaluating redesignation requests for these 
areas. In addition, to the extent that areas had complied with the 
emissions statement requirement for the 1-hour standard under section 
182(a)(3)(B), this could also be considered to satisfy the requirement 
under the 8-hour standard.
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    \1\ Benzie County, MI, Grand Rapids, MI, Huron County, MI, 
Kalamazoo-Battle Creek, MI, Lansing-East Lansing, MI, Benton Harbor, 
MI, Mason County, MI, Flint, MI.
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2. Requirements Under the 1-Hour Standard
    With respect to the Court's ruling regarding EPA's revocation of 
the 1-hour standard, all of the Subpart 1 areas that are the subject of 
the pending redesignation actions were designated attainment or 
unclassifiable/ attainment or attainment subject to a maintenance plan 
for the 1-hour standard. Those areas designated attainment or 
unclassifiable/attainment were never designated nonattainment for the 
1-hour standard. Thus, the provisions at issue in the antibacksliding 
portion of the Court's decision never applied to these areas and would 
not apply. For those areas designated attainment subject to a CAA 
section 175A maintenance plan for the 1-hour standard, the Court's 
ruling could be interpreted to require continuation of certain 
conformity requirements, such as the requirement to submit a 
transportation conformity SIP that addresses the 1-hour standard.\2\ 
EPA approved conformity SIPs for those subpart 1 areas in Michigan and 
Ohio that were attainment subject to a maintenance plan for the 1-hour 
standard.\3\
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    \2\ CAA section 176(c)(4)(E) currently requires States to submit 
revisions to their SIPs to reflect certain Federal criteria and 
procedures for determining transportation conformity. Transportation 
conformity SIPs are different from the motor vehicle emissions 
budgets that are established in control strategy SIPs and 
maintenance plans.
    \3\ Grand Rapids (MI), the Genesee County portion of Flint (MI), 
Canton-Massillon (OH), the Ohio portion of Steubenville-Weirton (OH) 
EPA approved Michigan's conformity SIP on December 18, 1996 (61 FR 
66609), and Ohio's on May 30, 2000 (65 FR 34395).
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    Moreover, under longstanding EPA policy, EPA interprets the 
conformity SIP requirements as not being applicable requirements for 
purposes of evaluating a redesignation request under section 107(d). 
See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), (upholding this 
interpretation). See also 60 FR 62748 (Dec. 7. 1995) (Tampa, FL 
redesignation). This is because state conformity rules are still 
required after redesignation and Federal conformity rules apply where 
State rules have not been approved. 40 CFR 93.151 and 40

[[Page 13456]]

CFR 51.390. Thus the decision in South Coast should not alter 
requirements for these areas that would preclude EPA from finalizing 
its proposed redesignations.

B. Areas Classified Under Subpart 2: Muskegon and Cass County, MI

1. Subpart 2 Requirements
    The two 8-hour nonattainment areas listed above are classified 
under subpart 2 for the 8-hour standard. We do not believe that any 
part of the Court's opinion could require that these subpart 2 
classifications be changed upon remand to EPA. However, even assuming 
that they may (and Muskegon and Cass County would be subject to a 
different classification under a classification scheme created in a 
future rule in response to the court's decision) that would not prevent 
EPA from finalizing the proposed redesignation for these areas. For the 
same reasons set forth above with respect to the applicability of 
Subpart 2 requirements to areas that were classified Subpart 1 at the 
time of submission of redesignation requests, any additional 
requirements that might apply based on that different classification 
would not be applicable for purposes of evaluating their redesignation 
requests.
2. Requirements Under the 1-Hour Standard
    With respect to the 1-hour standard, since Cass County was never 
designated nonattainment for the 1-hour standard, there are no 
outstanding 1-hour nonattainment area requirements that it would be 
required to meet under the anti-backsliding requirements.
    Muskegon was a maintenance area under the 1-hour standard; thus, 
the conformity requirement is the only relevant anti-backsliding 
requirement that was at issue before the court. As noted above, EPA 
approved Michigan's transportation conformity SIP on December 18, 1996 
(61 FR 66609). Also, for the reasons set forth above with respect to 
the areas classified under Subpart 1, EPA believes that having an 
approved conformity SIP is not an applicable requirement for purposes 
of redesignation.

IV. What Action Is EPA Proposing?

    Thus, for the reasons discussed above, EPA proposes that the 
Court's ruling in South Coast, whether it stands as initially rendered 
or is modified based on any petition for rehearing or other further 
court proceeding, does not alter any requirements applicable for 
purposes of evaluating the redesignation requests for these areas that 
would prevent the Agency from finalizing its proposed determinations.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not contain any information collection 
requirements subject to OMB review under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. It does not contain any recordkeeping or 
reporting requirements.
    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 does 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 control numbers for EPA's 
regulations 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 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This proposed rule sets forth EPA's views on the potential effect 
of the ruling of the U.S. Court of Appeals for the District of Columbia 
Circuit in South Coast Air Quality Management Dist. v. EPA, 472 F.3d. 
882 (DC Cir. December 22, 2006) on a number of areas proposed for 
redesignation of the 8-hour ozone standard.
    We continue to be interested in the potential impacts of the 
proposed rule 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

[[Page 13457]]

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. Since this proposed rule does not impose 
a mandate upon any source, this rule is not estimated to result in the 
expenditure by State, local and Tribal governments or the private 
sector of $100 million in any 1 year. Therefore, the Agency has not 
prepared a budgetary impact statement or specifically addressed the 
selection of the least costly, most cost-effective, or least burdensome 
alternative. Because small governments will not be significantly or 
uniquely affected by this rule, the Agency is not required to develop a 
plan with regard to small governments. Thus, this proposed rule is not 
subject to the requirements of sections 202, 203 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.''
    This proposed action 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 action does not 
impose any new mandates on State or local governments. Thus, Executive 
Order 13132 does not apply to this 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 the proposed rule for this action 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 6, 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. It will not 
have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
This action does not have any direct effects on Indian Tribes. Thus, 
Executive Order 13175 does not apply to this proposed rule. The EPA 
specifically solicits additional comment on this proposed rule from 
Tribal officials where there are applicable Tribal lands in the 
affected areas.

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 and safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA.
    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 12866, and because EPA does not have reason to believe that the 
environmental health risks or safety risks addressed by this proposed 
rule present a disproportionate risk or safety risk to children. This 
proposed rule sets forth EPA's views regarding the potential effect of 
a recent Court's ruling, vacating the Phase 1 Ozone Implementation 
rule, on previously proposed redesignation actions. Furthermore, at the 
time those actions were proposed in the Federal Register, it was 
determined that Executive Order 13045 did not apply to those actions.

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

    This proposed 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

    As noted in the proposed rule, 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 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 voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, with explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental

[[Page 13458]]

justice. Its main provision directs Federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of health or environmental protection, but instead 
merely sets forth EPA's views on the potential effect of the ruling of 
the U.S. Court of Appeals for the District of Columbia Circuit in South 
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 
December 22, 2006) on a number of areas proposed for redesignation of 
the 8-hour ozone standard.

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: March 16, 2007.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E7-5352 Filed 3-21-07; 8:45 am]
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