
[Federal Register: July 21, 2008 (Volume 73, Number 140)]
[Proposed Rules]
[Page 42294-42299]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy08-17]

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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: a-and-r-docket@epa.gov.
     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
gerth.denise@epa.gov, 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 silvasi.john@epa.gov.

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

[[Page 42297]]

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
