

[Federal Register: October 16, 2007 (Volume 72, Number 199)]
[Proposed Rules]               
[Page 58577-58582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc07-34]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2007-0959-200745; FRL-8482-3]

 
Determination of Nonattainment and Reclassification of the 
Memphis, TN/Crittenden County, AR 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to find that the Memphis, Tennessee and 
Crittenden County, Arkansas marginal 8-hour ozone nonattainment area 
(Memphis TN-AR Nonattainment Area) has failed to attain the 8-hour 
ozone national ambient air quality standard (``NAAQS'' or ``standard'') 
by June 15, 2007, the attainment deadline set forth in the Clean Air 
Act (CAA) and Code of Federal Regulations (CFR) for marginal 
nonattainment areas. If EPA finalizes this finding, the Memphis TN-AR 
Nonattainment Area will then be reclassified as a moderate 8-hour ozone 
nonattainment area. The moderate area attainment date for the 
reclassified Memphis TN-AR Nonattainment Area would then be as 
expeditiously as practicable, but no later than June 15, 2010. Once 
reclassified, Tennessee and Arkansas must submit State Implementation 
Plan (SIP) revisions that meet the 8-hour ozone nonattainment 
requirements for moderate areas, as required by the CAA. In this 
action, EPA is also proposing the schedule for the States' submittal of 
the SIP revisions required for moderate areas once the area is 
reclassified.

DATES: Comments must be received on or before November 15, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0959, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    2. E-mail: spann.jane@epa.gov or riley.jeffrey@epa.gov.

    3. Fax: 404-562-9019 (Region 4) or 214-665-7263 (Region 6).
    4. Mail: EPA-R04-OAR-2007-0959, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960, or Air Planning Section, U.S. 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733.
    5. Hand Delivery or Courier: Jane Spann, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960, or Jeffrey Riley, Air 
Planning Section, U.S. Environmental Protection Agency, Region 6, 1445 
Ross Avenue, Dallas, Texas 75202-2733. Such deliveries are only 
accepted during the Regional Offices' normal hours of operation. The 
Regional Offices' official hours of business are Monday through Friday, 
8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2007-0959. 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 through http://www.regulations.gov or e-

mail, information that you consider to be CBI or otherwise protected. 
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, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or 

in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960 or the Air Planning Section, U.S. 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733. EPA requests that if at all possible, you contact the 
persons listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are

[[Page 58578]]

Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: (Tennessee issues)--Jane Spann, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
EPA Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 
Phone: (404) 562-9029. E-mail: spann.jane@epa.gov.
    (Arkansas issues)--Jeffrey Riley, Air Planning Section, U.S. EPA 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. Phone: (214) 665-
8542. E-mail: riley.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is the Background for This Proposed Action?
    A. What Are the National Ambient Air Quality Standards?
    B. What Is the Standard for 8-hour Ozone?
    C. What Is a SIP and How Does It Relate to the NAAQS for 8-Hour 
Ozone?
    D. What Is the Memphis TN-AR Nonattainment Area, and What Is its 
Current 8-Hour Ozone Nonattainment Classification?
    E. What Are the CAA Provisions Regarding Determinations of 
Nonattainment and Reclassifications?
II. What Is EPA's Evaluation of the Memphis TN-AR Nonattainment 
Area's 8-Hour Ozone Data?
III. What Action Is EPA Proposing?
    A. Determination of Nonattainment, Reclassification of Memphis 
TN-AR Nonattainment Area and New Attainment Date.
    B. Proposed Date for Submitting a Revised SIP for the Memphis 
TN-AR Nonattainment Area.
IV. Proposed Action.
V. Statutory and Executive Order Reviews.

I. What Is the Background for This Proposed Action?

A. What Are the National Ambient Air Quality Standards?

    The CAA requires EPA to establish a NAAQS for pollutants that ``may 
reasonably be anticipated to endanger public health and welfare'' and 
to develop a primary and secondary standard for each NAAQS. The primary 
standard is designed to protect human health with an adequate margin of 
safety and the secondary standard is designed to protect public welfare 
and the environment. EPA has set NAAQS for six common air pollutants 
referred to as criteria pollutants: Carbon monoxide, lead, nitrogen 
dioxide, ozone, particulate matter, and sulfur dioxide. These standards 
present state and local governments with the air quality levels they 
must meet to comply with the CAA. Also, these standards allow the 
American people to assess whether the air quality in their communities 
is healthful.

B. What Is the Standard for 8-Hour Ozone?

    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour ozone standard. Under EPA regulations at 40 
CFR part 50, the 8-hour ozone standard is attained when the 3-year 
average of the annual fourth highest daily maximum 8-hour average 
ambient air quality ozone concentration is less than or equal to 0.08 
ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857 
(April 30, 2004) for further information.) Ambient air quality 
monitoring data for the 3-year period must meet a data completeness 
requirement. The ambient air quality monitoring data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90 percent, and no single year has less 
than 75 percent data completeness as determined in Appendix I of part 
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I, 
``Comparisons with the Primary and Secondary Ozone Standards'' states:
    ``The primary and secondary ozone ambient air quality standards are 
met at an ambient air quality monitoring site when the 3-year average 
of the annual fourth-highest daily maximum 8-hour average ozone 
concentration is less than or equal to 0.08 ppm. The number of 
significant figures in the level of the standard dictates the rounding 
convention for comparing the computed 3-year average annual fourth-
highest daily maximum 8-hour average ozone concentration with the level 
of the standard. The third decimal place of the computed value is 
rounded, with values equal to or greater than 5 rounding up. Thus, a 
computed 3-year average ozone concentration of 0.085 ppm is the 
smallest value that is greater than 0.08 ppm.''

C. What Is a SIP and How Does It Relate to the NAAQS for 8-Hour Ozone?

    Section 110 of the CAA requires states to develop air pollution 
regulations and control strategies to ensure that state air quality 
meets the NAAQS established by EPA. Each state must submit these 
regulations and control strategies to EPA for approval and 
incorporation into the federally-enforceable SIP. Each federally-
approved SIP protects air quality primarily by addressing air pollution 
at its point of origin. They may contain state regulations or other 
enforceable documents and supporting information such as emission 
inventories, monitoring networks, and modeling demonstrations.

D. What Is the Memphis TN-AR Nonattainment Area, and What Is its 
Current 8-Hour Ozone Nonattainment Classification?

    The Memphis TN-AR Nonattainment Area is located in both Western 
Tennessee and Northeastern Arkansas, and consists of Shelby County, 
Tennessee and Crittenden County, Arkansas, respectively. For areas 
subject to Subpart 2 of the CAA, such as the Memphis TN-AR 
Nonattainment Area, the maximum period for attainment runs from the 
effective date of designations and classifications for the 8-hour ozone 
NAAQS and will be the same period as provided in Table 1 of CAA Section 
181(a): Marginal--3 years; Moderate--6 years; Serious--9 years; 
Severe--15 or 17 years; and Extreme--20 years. The Phase I Ozone 
Implementation Rule (April 30, 2004, 69 FR 23951) provides the 
classification scheme for the 8-hour ozone NAAQS (see, 40 CFR 51.903). 
The effective date of designations and classifications for the 8-hour 
ozone NAAQS was June 15, 2004 (April 30, 2004, 69 FR 23858).
    The Memphis TN-AR Nonattainment Area was initially designated 
nonattainment for the 8-hour ozone standard on April 30, 2004, and 
classified as ``moderate'' based on a design value of .092 parts per 
million (ppm) with an attainment date of June 15, 2010 (April 30, 2004, 
69 FR 23858). The design value of an area, which characterizes the 
severity of the air quality concern, is represented by the annual 
fourth-highest daily maximum 8-hour average ozone concentration 
measured at each monitor averaged over any three-year period. On July 
15, 2004, pursuant to section 181(a)(4) of the CAA, the States of 
Tennessee and Arkansas submitted a petition to EPA Regions 4 and 6, 
requesting a downward reclassification of the Memphis TN-AR 
Nonattainment Area from ``moderate'' to ``marginal'' for the 8-hour 
ozone standard. The petition was based on the area's ``moderate'' 
design value of .092 ppm being within five percent of the maximum 
``marginal'' design value of 0.091 ppm. Pursuant to Section 181(a)(4), 
areas with design values within five percent of the standard may 
request a reclassification under specific circumstances. Factors for 
EPA to consider as part of such a request are described in Section 
181(a)(4) of the CAA. The petition for reclassification to ``marginal'' 
was approved by EPA, and became effective on November 22, 2004 (see, 69 
FR 56697, September 22, 2004).

[[Page 58579]]

As a result of the downward classification, the new attainment date for 
the Memphis TN-AR ``marginal'' Nonattainment Area was set at June 15, 
2007, consistent with the CAA.

E. What Are the CAA Provisions Regarding Determinations of 
Nonattainment and Reclassifications?

    Section 181(b)(2) prescribes the process for making determinations 
upon failure of an ozone nonattainment area to attain by its attainment 
date, and for reclassification of an ozone nonattainment area. Section 
181(b)(2)(A) of the Act requires that EPA determine, based on the 
area's design value (as of the attainment date), whether the ozone 
nonattainment area attained the ozone standard by that date. For 
marginal and moderate areas, if EPA finds that the nonattainment area 
has failed to attain the ozone standard by the applicable attainment 
date, the area must be reclassified to the higher of (1) the next 
higher classification for the area, or (2) the classification 
applicable to the area's design value as determined at the time of the 
required Federal Register notice. Section 181(b)(2)(B) requires EPA to 
publish in the Federal Register a notice identifying any area that has 
failed to attain by its attainment date and the resulting 
reclassification. Different circumstances apply to severe and extreme 
areas.

II. What Is EPA's Evaluation of the Memphis TN-AR Nonattainment Area's 
8-Hour Ozone Data?

    EPA makes attainment determinations for ozone nonattainment areas 
using available quality-assured air quality data. Within the Memphis 
TN-AR Nonattainment Area, ground-level ozone is measured at the 
Crittenden County monitor, which is located 10 miles northwest of 
downtown Memphis in Marion, Arkansas; at two monitors in Shelby County 
(Edmund Orgill Park and Frayser Street); and at one monitor located in 
the central part of DeSoto County, Mississippi. Although DeSoto County 
is not included in the Memphis TN-AR Nonattainment Area, its monitoring 
data is regularly considered for potential contributions to the Memphis 
TN-AR Nonattainment Area air shed. In recent years, the Marion monitor 
has measured some of the highest 8-hour average ozone concentrations in 
the Memphis TN-AR Nonattainment Area. For example, the fourth-highest 
daily maximum readings for 2004, 2005, and 2006 at the Marion monitor 
are .078, .096, and .089 ppm, respectively. The fourth-highest daily 
maximum readings for the Shelby County monitors are: .075, .081, and 
.084 ppm at the Edmund Orgill Park monitor, and .073, .082, and .083 
ppm at the Frayser Street monitor. The fourth-highest daily maximum 
readings at the Hernando (DeSoto County) monitor are .080, .084, and 
.087 ppm. For the Memphis TN-AR Nonattainment Area, the attainment 
determination is based on 2004-2006 air quality data. The Area has a 
design value of .087 ppm. Therefore, pursuant to section 181(b)(2) of 
the CAA, the Memphis TN-AR Nonattainment Area did not attain the 8-hour 
ozone NAAQS by the June 15, 2007, deadline for marginal areas.

  Table 1.--Memphis TN-AR Nonattainment Area Fourth Highest 8-Hour Ozone Concentrations and Design Values (ppm)
                                                       \1\
----------------------------------------------------------------------------------------------------------------
                                                      4th highest daily max               Design value
                      Site                       ---------------------------------------------------------------
                                                    2004      2005      2006       3 year average (2004-2006)
----------------------------------------------------------------------------------------------------------------
Marion, AR......................................     0.078     0.096     0.089                             0.087
Orgill Park, TN.................................     0.075     0.081     0.084                             0.080
Frayser, TN.....................................     0.073     0.082     0.083                             0.079
Hernando, MS....................................     0.080     0.084     0.087                            0.083
----------------------------------------------------------------------------------------------------------------
\1\ Unlike for the 1-hour ozone standard, design value calculations for the 8-hour ozone standard are based on a
  rolling three-year average of the annual fourth highest values (40 CFR part 50, Appendix I).

    Under Sections 172(a)(2)(C) and 181(a)(5) of the CAA, an area can 
qualify for up to two 1-year extensions of its attainment date based on 
the number of exceedances in the attainment year and whether the state 
has complied with all requirements and commitments pertaining to the 
area in the applicable SIP. For the 8-hour standard, if an area's 
fourth highest daily maximum 8-hour average in the attainment year is 
0.084 ppm or less (see, 40 CFR 51.907), the area is eligible for up to 
two 1-year attainment date extensions. The attainment year is the year 
immediately preceding the nonattainment area's attainment date. For the 
Memphis TN-AR Nonattainment Area, the attainment year was 2006. In 
2006, the fourth highest daily maximum 8-hour average value was 0.089 
ppm. Based on this information, the Memphis TN-AR Nonattainment Area 
currently does not qualify for a 1-year extension of the attainment 
date.
    Section 181(b)(2)(A) of the CAA provides that, when EPA finds that 
an area failed to attain by the applicable date, the area is 
reclassified by operation of law to the higher of: the next higher 
classification or the classification applicable to the area's ozone 
design value at the time of the required notice under Section 
181(b)(2)(B). Section 181(b)(2)(B) requires EPA to publish a notice in 
the Federal Register identifying the reclassification status of an area 
that has failed to attain the standard by its attainment date. The 
classification that would be applicable to the Memphis TN-AR 
Nonattainment Area's ozone design value at the time of this notice is 
``marginal'' because the area's 2006 calculated design value, based on 
quality-assured ozone monitoring data from 2004-2006, is 0.087 ppm. By 
contrast, the next higher classification for the Memphis TN-AR 
Nonattainment Area is ``moderate.'' Because ``moderate'' is a higher 
nonattainment classification than ``marginal'' under the CAA statutory 
scheme, upon the effective date of a final rulemaking, the Memphis TN-
AR Nonattainment Area will be reclassified by operation of law as 
``moderate,'' for failing to attain the standard by the marginal area 
applicable attainment date of June 15, 2007.

III. What Action Is EPA Proposing?

A. Determination of Nonattainment, Reclassification of Memphis TN-AR 
Nonattainment Area and New Attainment Date

    Pursuant to section 181(b)(2), EPA is proposing to find that the 
Memphis TN-AR Nonattainment Area has failed to attain the 8-hour ozone 
NAAQS by the June 15, 2007, attainment deadline prescribed under the 
CAA for marginal ozone nonattainment areas. If EPA finalizes this 
finding and it takes effect, the Memphis TN-AR Nonattainment

[[Page 58580]]

Area shall be reclassified by operation of law from marginal 
nonattainment to moderate nonattainment. Moderate areas are required to 
attain the standard ``as expeditiously as practicable'' but no later 
than 6 years after designation or June 15, 2010. The ``as expeditiously 
as practicable'' attainment date will be determined as part of the 
action on the required SIP submittal demonstrating attainment of the 8-
hour ozone standard. EPA is proposing a schedule by which Tennessee and 
Arkansas will submit the SIP revisions necessary for the proposed 
reclassification to moderate nonattainment of the 8-hour ozone 
standard.

B. Proposed Date for Submitting a Revised SIP for the Memphis TN-AR 
Nonattainment Area

    EPA must address the schedule by which Tennessee and Arkansas are 
required to submit a revised SIP. When an area is reclassified, EPA has 
the authority under section 182(i) of the Act to adjust the Act's 
submittal deadlines for any new SIP revisions that are required as a 
result of the reclassification. Pursuant to 40 CFR 51.908(d), for each 
nonattainment area, a state must provide for implementation of all 
control measures needed for attainment no later than the beginning of 
the attainment year ozone season. The attainment year ozone season is 
the ozone season immediately preceding a nonattainment area's 
attainment date, in this case 2009 (40 CFR 51.900(g)). The ozone season 
is the ozone monitoring season as defined in 40 CFR part 58, Appendix 
D, section 4.1, Table D-3 (October 17, 2006, 71 FR 61236). For the 
purposes of this reclassification for the Memphis TN-AR Nonattainment 
Area, March 1st is the beginning of the ozone monitoring season. As a 
result, EPA proposes that the required SIP revision be submitted by 
both Tennessee and Arkansas as expeditiously as practicable, but no 
later than March 1, 2009.
    A revised SIP must include the following moderate area 
requirements: (1) An attainment demonstration (40 CFR 51.908); (2) 
provisions for reasonably available control technology and reasonably 
available control measures (40 CFR 51.912); (3) reasonable further 
progress reductions in volatile organic compound (VOC ) emissions (40 
CFR 51.910); (4) contingency measures to be implemented in the event of 
failure to meet a milestone or attain the standard (CAA 172(c)(9)); (5) 
a vehicle inspection and maintenance program (40 CFR 51.350); and (6) 
nitrogen oxide and VOC emission offsets of 1.15 to 1 for major source 
permits (40 CFR 51.165(a). (See also, the requirements for moderate 
ozone nonattainment areas set forth in CAA section 182(b).)

IV. Proposed Action

    Pursuant to CAA section 181(b)(2), EPA is proposing to find that 
the Memphis TN-AR ``marginal'' 8-hour Ozone Nonattainment Area failed 
to attain the 8-hour ozone NAAQS by June 15, 2007. If EPA finalizes its 
proposal, the Area will by operation of law be reclassified as a 
moderate 8-hour ozone nonattainment area. Pursuant to section 182(i) of 
the CAA, EPA is also proposing the schedule for submittal of the SIP 
revisions required for moderate areas once the area is reclassified. 
EPA proposes that the required SIP revisions for Tennessee and Arkansas 
be submitted as expeditiously as practicable, but no later than March 
1, 2009.

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 (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO. The Agency has 
determined that the finding of nonattainment would result in none of 
the effects identified in the Executive Order. Under section 181(b)(2) 
of the CAA, determinations of nonattainment are based upon air quality 
considerations and the resulting reclassifications must occur by 
operation of law.

B. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This proposed action to reclassify the Memphis TN-AR Nonattainment Area 
as a moderate ozone nonattainment area and to adjust applicable 
deadlines does not establish any new information collection burden. 
Burden means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid Office 
of Management and Budget (OMB) control number. The OMB control numbers 
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this action 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 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. Determinations of nonattainment and the 
resulting reclassification of nonattainment areas by operation of law 
under section 181(b)(2) of the CAA do not in and of themselves create 
any new requirements. Instead, this rulemaking only makes a factual 
determination, and does not directly regulate any entities. After 
considering the economic impacts of today's action on small entities, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities.

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

[[Page 58581]]

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 rule for which a written statement is needed, section 205 of the 
UMRA generally requires EPA to identify and consider a reasonable 
number of regulatory alternatives and adopt the least costly, most 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule. The provisions of section 205 do not apply when 
they are inconsistent with applicable law. Moreover, section 205 allows 
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator 
publishes with the final rule an explanation to 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.
    This proposed action does not include a Federal mandate within the 
meaning of UMRA that may result in expenditures of $100 million or more 
in any one year by either State, local, or Tribal governments in the 
aggregate or to the private sector, and therefore, is not subject to 
the requirements of sections 202 and 205 of the UMRA. Also, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and therefore, 
is not subject to the requirements of section 203. EPA believes, as 
discussed previously in this document, that the finding of 
nonattainment is a factual determination based upon air quality 
considerations and that the resulting reclassification of the area must 
occur by operation of law. Thus, EPA believes that the proposed finding 
does not constitute a Federal mandate, as defined in section 101 of the 
UMRA, because it does not impose an enforceable duty on any entity.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132, this action merely proposes to 
determine that the Memphis TN-AR Nonattainment Area had not attained by 
its applicable attainment date, and to reclassify the Memphis TN-AR 
Nonattainment Area as a moderate ozone nonattainment area and to adjust 
applicable deadlines. Thus, Executive Order 13132 does not apply to 
this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This action does not have 
``Tribal implications'' as specified in Executive Order 13175. This 
action merely proposes to determine that the Memphis TN-AR 
Nonattainment Area has not attained by its applicable attainment date, 
and to reclassify the Memphis TN-AR Nonattainment Area as a moderate 
ozone nonattainment area and to adjust applicable deadlines. The Clean 
Air Act and the Tribal Authority Rule establish the relationship of the 
Federal government and Tribes in developing plans to attain the NAAQS, 
and this rule does nothing to modify that relationship. Thus, Executive 
Order 13175 does not apply to this rule.

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This action 
is not subject to Executive Order 13045 because it is not economically 
significant as defined in Executive Order 12866, and because the Agency 
does not have reason to believe the environmental health risks or 
safety risks addressed by this rule present a disproportionate risk to 
children. This action merely proposes to determine that the Memphis TN-
AR Nonattainment Area has not attained by its applicable attainment 
date, and to reclassify the Memphis TN-AR Nonattainment Area as a 
moderate ozone nonattainment area and to adjust applicable deadlines.

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

    This action is not subject to Executive Order 13211, ``Actions 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 (VCS) in its regulatory activities unless to do so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by VCS bodies. The NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable VCS. This action 
merely proposes to determine that the Memphis TN-AR Nonattainment Area 
has not attained by its applicable attainment date, and to reclassify 
the Memphis TN-AR ``marginal'' Nonattainment Area as a ``moderate'' 
ozone nonattainment area

[[Page 58582]]

and to adjust applicable deadlines. Therefore, EPA did not consider 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, 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 does not 
affect the level of protection provided to human health or the 
environment. This action merely proposes to determine that the Memphis 
TN-AR Nonattainment Area has not attained by its applicable attainment 
date, and to reclassify the Memphis TN-AR Nonattainment Area as a 
moderate ozone nonattainment area and to adjust applicable deadlines.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: October 9, 2007.
Russell L. Wright, Jr.,
Acting Regional Administrator, Region 4.

    Dated: September 24, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
 [FR Doc. E7-20390 Filed 10-15-07; 8:45 am]

BILLING CODE 6560-50-P
