[Federal Register Volume 73, Number 140 (Monday, July 21, 2008)]
[Proposed Rules]
[Pages 42294-42299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16668]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2008-0419; FRL-8695-2]
RIN 2060-A096


Proposed Rule to Implement the 1997 8-Hour Ozone National Ambient 
Air Quality Standard: Addressing a Portion of the Phase 2 Ozone 
Implementation Rule Concerning Reasonable Further Progress Emissions 
Reductions Credits Outside Ozone Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to revise its Phase 2 implementation rule for the 
8-hour ozone national ambient air quality standard (NAAQS or standard) 
to address the U.S. Circuit Court of Appeals for the District of 
Columbia Circuit's vacatur and remand of this rule. Specifically, this 
proposal addresses the vacatur and remand of a provision that allowed 
credit toward reasonable further progress (RFP) for the 8-hour standard 
from emission reductions outside the nonattainment area.

DATES: Comments must be received on or before August 20, 2008.
    If anyone contacts us requesting a public hearing by July 31, 2008, 
we will hold a public hearing approximately 30 days after publication 
in the Federal Register. Additional information about the hearing would 
be published in a subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0419 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax Number: (202) 566-9744.
     Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2008-0419, Environmental Protection 
Agency, 1301 Constitution Ave., NW., Mail Code 2822T, Washington, DC 
20460. Please include two copies if possible.
     Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2008-0419, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Avenue, NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation will 
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through 
Friday, Air and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0419. 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 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 www.regulations.gov, 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless

[[Page 42295]]

you provide it in the body of your comment. If you send an e-mail 
comment directly to EPA without going through 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. For additional 
instructions on submitting comments, go to the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in 
www.regulations.gov. 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 www.regulations.gov or in hard copy 
at the Air and Radiation Docket and Information Center in the EPA 
Headquarters Library, Room Number 3334 in the EPA West Building, 
located at 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.

FOR FURTHER INFORMATION CONTACT: For further information on the this 
proposal contact: Ms. Denise Gerth, Office of Air Quality Planning and 
Standards (C539-01), U.S. EPA, Research Triangle Park, North Carolina 
27711, telephone number (919) 541-5550 or by e-mail at 
[email protected], fax number (919) 541-0824; or Mr. John Silvasi, 
Office of Air Quality Planning and Standards, U.S. Environmental 
Protection Agency (C539-01), Research Triangle Park, NC 27711, 
telephone number (919) 541-5666, fax number (919) 541-0824 or by e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected directly by the subject rule for this 
action include state, local, and Tribal governments. Entities 
potentially affected indirectly by the subject rule include owners and 
operators of sources of emissions (volatile organic compounds (VOCs) 
and nitrogen oxides (NOX) that contribute to ground-level 
ozone concentrations.

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 to be 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 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.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

    A copy of this document and other related information is available 
from the docket.

D. What Information Should I Know About the Public Hearing?

    If requested, EPA will hold a public hearing only if a party 
notifies EPA by July 31, 2008, expressing its interest in presenting 
oral testimony on issues addressed in this notice. Any person may 
request a hearing by calling Mrs. Pamela Long at (919) 541-0641 before 
5 p.m. by July 31, 2008. Any person who plans to attend the hearing 
should also contact Mrs. Pamela Long at (919) 541-0641 to learn if a 
hearing will be held.
    If a public hearing is held on this notice, it will be held at the 
EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, NC 
27709. Because the hearing will be held at a U.S. Government facility, 
everyone planning to attend should be prepared to show valid picture 
identification to the security staff in order to gain access to the 
meeting room. Please contact Mrs. Pamela Long at long.pam@epa or by 
telephone at (919) 541-0641 for information and updates concerning the 
public hearing.
    If held, the public hearing will begin at 10 a.m. and will end one 
hour after the last registered speaker has spoken. The hearing will be 
limited to the subject matter of this document. Oral testimony will be 
limited to five minutes. The EPA encourages commenters to provide 
written versions of their oral testimony either electronically (on 
computer disk or CD-ROM) or in paper copy. The list of speakers can be 
obtained from Mrs. Pamela Long. Verbatim transcripts and written 
statements will be included in the rulemaking docket.
    A public hearing would provide interested parties the opportunity 
to present data, views, or arguments concerning issues addressed in 
this notice. The EPA may ask clarifying questions during the oral 
presentations, but would not respond to the presentations or comments 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
any oral comments and supporting information presented at a public 
hearing.

E. How Is This Notice Organized?

    The information presented in this notice is organized as follows:

SUPPLEMENTARY INFORMATION:

[[Page 42296]]

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 Get a Copy of This Document and Other Related 
Information?
    D. What Information Should I Know About the Public Hearing?
    E. How Is This Notice Organized?
II. What Is the Background for This Proposal?
    A. Final Phase 2 Ozone Implementation Rule (40 CFR parts 51, 52, 
and 80)
    B. Court's Vacatur and Remand of Provision Allowing Credit for 
Emissions Reductions Outside a Nonattainment Area for Purposes of 
RFP for the 8-Hour Ozone NAAQS
III. This Action
    A. Revision of 8-Hour Ozone RFP Provision for Emission Reduction 
Credit From Outside a Nonattainment Area
    1. Original Regulatory Interpretation
    2. Effect of Court Ruling
    3. This Proposed Regulatory Interpretation for RFP
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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)

II. What Is the Background for This Proposal?

A. Final Phase 2 Ozone Implementation Rule (40 CFR Parts 51, 52, and 
80)

    On November 29, 2005 (70 FR 71612), EPA published the Phase 2 final 
rule that addressed, among other things, the following control and 
planning obligations as they apply to areas designated nonattainment 
for the 8-hour ozone NAAQS: Reasonably available control technology and 
measures (RACT and RACM), RFP, modeling and attainment demonstrations 
and new source review (NSR). In the Phase 1 Rule, RFP was defined in 
section 51.900(p) as meaning for the purposes of the 8-hour NAAQS, the 
progress reductions required under section 172(c)(2) and section 
182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA. In section 51.900(q), 
rate of progress (ROP) was defined as meaning for purposes of the 1-
hour NAAQS, the progress reductions required under section 172(c)(2) 
and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA (see 69 FR 
23997).
    The Phase 2 Rule to implement the 8-hour NAAQS set forth an 
interpretation that certain emission reductions from outside a 
nonattainment area could be credited toward the 8-hour ozone RFP 
requirement. The rule stated that credit could be taken for VOC and 
NOX emission reductions within 100 kilometers (km) and 200 
km respectively outside the nonattainment area (70 FR 71647; November 
29, 2005). In addition, if a regional NOX control strategy 
were in place in the state, reductions could be taken from within the 
state (beyond 200 km). In all cases, areas had to include a 
demonstration that the emissions from outside the nonattainment had an 
impact on air quality levels within the nonattainment area.
    This interpretation was similar to the policy EPA had established 
under the 1-hour ozone standard.\1\ That policy provided additional 
flexibility for a nonattainment area as it attempted to meet its annual 
ROP emission reductions. This flexibility expanded the geographic size 
of the area from which states could obtain emission reductions to meet 
their annual average 3 percent per year ROP requirement. The policy 
required that pre-control emissions from a source outside the 
nonattainment area that would provide credit had to be included in the 
baseline ROP emissions and target ROP reduction calculation. However, 
emissions from other sources in the area outside the nonattainment area 
did not have to be included in the baseline if the nonattainment area 
was not taking credit for emissions reductions for purposes of ROP.
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    \1\ The 1-hour ozone policy was established in a memorandum 
``Guidance for Implementing the 1-Hour Ozone and Pre-Existing 
PM10 NAAQS,'' December 29, 1997.
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B. Court's Vacatur and Remand of Provision Allowing Credit for 
Emissions Reductions Outside a Nonattainment Area for Purposes of RFP 
for the 8-Hour Ozone NAAQS

    On January 27, 2007, the Natural Resources Defense Council (NRDC) 
filed a petition for review of EPA's ``Final Rule to Implement the 8-
Hour Ozone National Ambient Air Quality Standard--Phase 2,'' 70 FR 
71612 (November 29, 2005) in the Court of Appeals for the District of 
Columbia's Circuit. NRDC challenged several aspects of the Phase 2 rule 
including challenges to EPA's implementation of statutory provisions 
concerning RFP. In its challenge to EPA's implementation of the RFP 
provisions, NRDC stated that allowing certain NOX and VOC 
emissions reductions achieved at sources outside a nonattainment area 
to be credited towards that area's RFP State Implementation Plan (SIP) 
requirements is both unlawful and arbitrary. NRDC specifically argued, 
in part, that the rule is arbitrary because it allowed the 
nonattainment area to claim credit for emission reductions from 
selected outside sources without also adding emissions from other 
outside sources to the RFP baseline, even where those other sources 
impact air quality in the nonattainment area.
    Following the conclusion of briefing in this case, EPA published a 
final rule implementing the NAAQS for fine particulate matter (the 
``PM2.5 Implementation Rule''). See 72 FR 20586 (April 25, 
2007). In the PM2.5 Implementation Rule, EPA adopted a 
different approach for crediting ``outside'' reductions. The 
PM2.5 Rule allows states to take credit for ``outside'' 
reductions of NOX and sulfur dioxide (SO2) 
emissions up to 200 kilometers from the nonattainment area (and 
potentially for VOC or ammonia if the state has provided a technical 
demonstration indicating that such pollutant emissions significantly 
contribute to PM2.5 concentrations in the nonattainment 
area) provided it meets three conditions: (1) The state plan must 
demonstrate that emissions from the ``outside'' source area contribute 
to PM2.5 concentrations in the nonattainment area; (2) a SIP 
taking RFP credit for emissions reductions achieved in ``outside'' 
areas includes all sources from that area in its baseline emissions 
inventory; and (3) the area ``outside'' the nonattainment area from 
which the state seeks credits only can include portions of the state or 
states in which the nonattainment area is located, even if the other 
states may be within 200 km of the nonattainment area.\2\ See 72 FR at 
20636-38. One objective of this policy was to reflect the net emission

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reductions in the ``outside'' area that could affect the nonattainment 
area rather than crediting only reductions from selected sources. 
Another objective was to ensure that credit for ``outside'' reductions 
is achieved due to emission reduction programs implemented by the 
states having a responsibility to take actions to bring that specific 
nonattainment area into attainment.
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    \2\ On July 26, 2007, Earthjustice challenged, among other 
things, the suspension of requirements for attainment plans, 
progress plans (including RFP plans), contingency measures and 
certain other plans and measures where EPA determines that an area 
is meeting the PM2.5 standard. The provision in the 
PM2.5 implementation rule that allows States to take 
credit for reductions from outside the nonattainment area for the 
purposes of meeting RFP requirements has been challenged in 
litigation filed by Earthjustice on behalf of the American Lung 
Association, Medical Advocates for Healthy Air, the Natural 
Resources Defense Council, and the Sierra Club. See National 
Cattlemen's Beef Association v. Environmental Protection Agency, No. 
07-1227.
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    Following publication of the PM2.5 Implementation rule 
which significantly modified the interpretation regarding credits for 
emissions outside the nonattainment area, EPA requested a partial 
voluntary remand from the Court on July 17, 2007, to re-evaluate and 
consider whether to revise the Phase 2 Rule RFP interpretation for 
consistency with analogous provisions in the PM2.5 
Implementation rule. In response to EPA's motion for a partial 
voluntary remand of the RFP policy, NRDC asked the Court to also 
vacate, i.e., to nullify this provision. On November 2, 2007, the Court 
issued an order that vacated and remanded the portion of the Phase 2 
Rule that permitted credit for reductions of VOC and NOX 
from outside the nonattainment areas.
    In the meantime, to assist in making decisions regarding RFP in SIP 
submissions, EPA issued a memorandum on October 11, 2007 advising that, 
among other things, the Regional Offices not approve ROP/RFP SIPs that 
obtained VOC or NOX reductions from outside the 
nonattainment area until the anticipated new rulemaking was 
finalized.\3\
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    \3\ ``Partial Voluntary Remand Sought in the Ozone Phase 2 Rule 
Concerning Rate of Progress (ROP) Reductions Obtained From Outside a 
Nonattainment Area'' Memorandum of October 11, 2007.
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III. This Action

A. Revision of 8-Hour Ozone RFP Provision for Emission Reduction Credit 
From Outside a Nonattainment Area

1. Original Regulatory Interpretation
    As noted above under the Background section, EPA's interpretation 
in the Phase 2 Rule stated that emissions from a source outside the 
nonattainment area that would provide credit had to be included in the 
baseline for calculating the percent reduction needed. However, 
emissions from other sources outside the nonattainment area did not 
have to be included in the baseline if they did not provide RFP credit 
for the nonattainment area. The Phase 2 Rule also clarified that in 
relying on this provision, states should ensure that the reductions 
meet the standard tests of creditability (permanent, enforceable, 
surplus, and quantifiable) and are shown to be beneficial toward 
reducing ozone in the nonattainment area.
2. Effect of Court Ruling
    The U.S. Court of Appeals for the District of Columbia Circuit 
vacated and remanded that portion of the Phase 2 Rule which provided 
credit under the 8-hour ozone RFP requirement for VOC and 
NOX emission reductions from outside a nonattainment area.
3. This Proposed Regulatory Interpretation for RFP
    In response to the Court's vacatur and remand, this action proposes 
to revise the earlier interpretation to be consistent with the 
analogous provisions in the PM2.5 implementation rule (72 FR 
20636) such that if the state justifies consideration of precursor 
emissions for an area outside the nonattainment area, EPA will expect 
state RFP assessments to reflect emissions changes from all sources in 
this area. The state may no longer include only selected sources from 
an area providing emission reductions in the calculation of either (a) 
the RFP baseline from which to calculate the percent reduction needed 
for RFP or (b) the reductions obtained that would be credited toward 
the RFP requirement and the analysis of whether the reductions from 
areas outside the nonattainment area would contribute to decreases in 
ozone levels in the nonattainment area. Also, the justification for 
considering emissions outside the nonattainment area shall include 
justification of the state's selection of the area used in the RFP plan 
for each pollutant. In the PM2.5 rule, EPA received comments 
objecting to the possibility that RFP inventories for areas outside the 
nonattainment area could include selected sources expecting substantial 
emission reductions while excluding other nearby sources expecting 
emissions increases. Consequently, EPA changed its approach for 
considering regional emissions. The PM2.5 rules state that 
if a state justifies consideration of precursor emissions for an area 
outside the nonattainment area, EPA expects state RFP assessments to 
reflect emissions changes from all sources in the area. The state 
cannot include only selected sources providing emission reductions in 
the analysis. The inventories for 2002, 2009, 2012 (where applicable) 
and the attainment year would all reflect the same source domain, i.e., 
the same set of sources except for the addition of any known new 
sources or removal of known, creditably and permanently shut down 
sources. EPA is proposing to adopt the same approach that was used in 
the PM2.5 implementation rule in this revised interpretation 
for purposes of implementing the 8-hour ozone NAAQS.
    In cases where the state justifies consideration of emissions of 
one or both of the ozone precursors (VOC and NOX) from 
outside the nonattainment area, EPA proposes that they must provide 
separate information regarding on-road mobile source emissions within 
the nonattainment area for transportation conformity purposes.\4\ The 
EPA's transportation conformity regulations (40 CFR 93.102(b)) only 
require conformity determinations in nonattainment and maintenance 
areas, and these regulations rely on SIP on-road motor vehicle emission 
budgets that address on-road emissions within the boundary of the 
designated nonattainment area. For this reason, if the state addresses 
emissions outside the nonattainment area for an ozone precursor, the 
on-road mobile source component of the RFP inventory will not satisfy 
the requirements for establishing a SIP budget for transportation 
conformity purposes. In such a case, the state must supplement the RFP 
inventory with an inventory of on-road mobile source emissions to be 
used to establish a motor vehicle emissions budget for transportation 
conformity purposes. This inventory must: (1) Address on-road motor 
vehicle emissions that occur only within the designated nonattainment 
area, (2) provide for the same milestone year or years as the RFP 
demonstration, and (3) satisfy other applicable requirements of the 
transportation conformity regulations (40 CFR part 93). As long as the 
state provides this separate emissions budget, EPA believes that this 
approach will optimally address both the RFP and the transportation 
conformity provisions of the Clean Air Act (CAA).
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    \4\ Transportation conformity is required under CAA section 
176(c) to ensure that federally supported transportation plans, 
programs, and highway and transit projects are consistent with the 
purpose of the SIP.
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    In addition, for consistency with the approach taken in the 
PM2.5 rule, this proposal would restrict the use of emission 
reductions for RFP credit to areas within the state, except in the case 
of multi-state nonattainment areas, and only then would allow RFP 
reductions from outside the state to be credited from outside the 
nonattainment area if the states involved develop and submit a 
coordinated RFP plan. EPA would expect states with multi-state 
nonattainment areas to consult with other involved states, to formulate 
a list

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of the measures that they will adopt and the measures that the other 
state(s) will adopt, and then to adopt their list of measures under the 
assumption that the other state(s) will adopt their listed measures. 
Each state would be responsible for adopting and thereby providing for 
enforcement of its list of measures, and then that state and ultimately 
EPA (at such time as the plan is approved) would be responsible for 
assuring compliance with the SIP requirements (72 FR 20640).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not significant. Accordingly, this action is not subject to 
the Office of Management and Budget for review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The reason for this is that the CAA imposes the obligation for states 
to submit SIPs, including RFP, to implement the Ozone NAAQS. In this 
proposal, EPA is merely providing an interpretation of those 
requirements; thus there is no information collection burden. However, 
the Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations 40 CFR parts 50 and 51 under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0594. 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 regulation 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 rule on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR 121.); (2) a 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact 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. This 
proposed rule will not impose any requirements on small entities. 
Rather this proposal interprets the RFP requirements under the SIP for 
states to submit RFP plans in order to attain the ozone NAAQS. 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 regulations 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 one year. Before promulgating an EPA regulations 
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 to adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives 
of the regulation. 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 regulations 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 revision 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 one year. Thus, this proposed revision is not 
subject to the requirements of section 202 and 205 of the UMRA. The CAA 
imposes the obligation for states to submit SIPs, including RFP, to 
implement the Ozone NAAQS. In this proposal, EPA is merely providing an 
interpretation of those requirements. However, even if this 
interpretation did establish an independent requirement for states to 
submit SIPs, it is questionable whether such a requirement would 
constitute a Federal mandate in any case. The obligation for a state to 
submit a SIP that arises out of section 110 and section 172 (part D) of 
the CAA is not legally enforceable by a court of law, and at most is a 
condition for continued receipt of highway funds. Therefore, it is 
possible to view an action requiring such a submittal as not creating 
any enforceable duty within the meaning of section 21(5)(9a)(I) of UMRA 
(2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as 
falling within the exception for a condition of Federal assistance 
under section 21(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
    The EPA has determined that this proposal contains merely an 
interpretation of regulatory requirements and no regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments because these regulations 
affect Federal agencies only.

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'' are 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 action does not have Federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national

[[Page 42299]]

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 proposal, if made final, would address 
the Court's vacatur and remand of a portion of the Phase 2 
implementation rule for the 8-hour standard, namely an interpretation 
that allowed credit toward RFP for the 8-hour standard from emission 
reductions outside the nonattainment area. In addressing the vacatur 
and remand, this proposal merely explains the requirements for RFP and 
does not impose any additional requirements. Thus, Executive Order 
13132 does not apply to this proposal.
    In the spirit of Executive Order 13121 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 proposal does not have Tribal implications as specified in 
Executive Order 13175. They do not have a substantial direct effect on 
one or more Indian Tribes, since no Tribe has to develop a SIP under 
this proposal. Furthermore, this proposal does not affect the 
relationship or distribution of power and responsibilities between the 
Federal government and Indian Tribes. The CAA and the Tribal Air Rule 
establish the relationship of the Federal government and Tribes in 
developing plans to attain the NAAQS, and these revisions to the 
regulations do nothing to modify that relationship. Because these 
proposed regulations revisions do not have Tribal implications, 
Executive Order 13175 does not apply. EPA specifically solicits 
additional comment on this proposed rule from tribal officials.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866, and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This proposal addresses whether a 
SIP will adequately and timely achieve reasonable further progress to 
attain and maintain the NAAQS and meet the obligations of the CAA. The 
NAAQS are promulgated to protect the health and welfare of sensitive 
population, including children. The public is invited to submit 
comments or identify peer-reviewed studies and data that assess effects 
of early life exposure to ozone or its precursors.

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 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. The VCS 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 proposal 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 (EO) 12898 (59 FR 7629, February 16, 1994) 
establishes Federal executive policy on environmental 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.
    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 increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The reason for this is that the CAA imposes the 
obligation for states to submit SIPs, including RFP, to implement the 
Ozone NAAQS. In this proposal, EPA is merely providing an 
interpretation of those requirements.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''
    EPA has determined that this proposal 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 protection provided to human health or the 
environment. The proposal would, if promulgated, revise procedures for 
states to follow in developing SIPs to attain the NAAQS, which are 
designed to protect all segments of the general populations. As such, 
they do not adversely affect the health or safety of minority or low 
income populations and are designed to protect and enhance the health 
and safety of these and other populations.

List of Subjects 40 CFR Parts 50 and 51

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Transportation, Volatile organic compounds.

    Authority: 42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7511-7511f; 
42 U.S.C. 7601(a)(1).

    Dated: July 14, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-16668 Filed 7-18-08; 8:45 am]
BILLING CODE 6560-50-P