
[Federal Register: March 28, 2008 (Volume 73, Number 61)]
[Rules and Regulations]               
[Page 16547-16553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr08-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

 [EPA-R04-OAR-2007-0959-200804; FRL-8547-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule finalizes EPA's finding of nonattainment and 
reclassification of the Memphis, Tennessee and Crittenden County, 
Arkansas 8-hour ozone nonattainment area (Memphis TN-AR Nonattainment 
Area). EPA finds that the 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. As a result, on the effective 
date of this rule, the Memphis TN-AR Nonattainment Area will be 
reclassified by operation of law 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 establishing the schedule for the States' submittal of 
the SIP revisions required for the

[[Page 16548]]

nonattainment area once it is reclassified. EPA determines that the 
States must submit these SIP revisions by March 1, 2009.

DATES: Effective Date: April 28, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-0959. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through 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 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 person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jane Spann, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9029. Mrs. Spann can also be reached via electronic mail at 
spann.jane@epa.gov.Or Jeffrey Riley, Air Planning Section, U.S. 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733. The telephone number is 214-665-8542. Mr. Riley can 
also be reached via electronic mail at riley.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Is the Background for This Action?
II. Response to Comments
III. What Is the Effect of This Action?
    A. Determination of Nonattainment, Reclassification of Memphis 
TN-AR Nonattainment Area and New Attainment Date
    B. When Must Tennessee and Arkansas Submit SIP Revisions 
Fulfilling the Requirements for Moderate Ozone Nonattainment Areas
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    On October 16, 2007, EPA proposed its finding that the Memphis TN-
AR Nonattainment Area did not attain the 8-hour ozone NAAQS by June 15, 
2007, the applicable attainment date (72 FR 58577). The proposed 
finding was based upon ambient air quality data from the years 2004, 
2005, and 2006. In addition, as explained in the proposed rule, the 
Area did not qualify for an attainment date extension under the 
provisions of CAA section 181(a)(5) and 40 CFR 51.907, because the 4th 
highest daily value in the attainment year of 2006 was greater than 
0.084 parts per million (ppm). In the October 16, 2007, proposal, EPA 
proposed that the appropriate reclassification of the area was to 
``moderate'' nonattainment, in accordance with CAA Section 181(b)(2).

II. Response to Comments

    EPA received comments from the Shelby County Government of 
Tennessee (Shelby County), the Arkansas Department of Environmental 
Quality (ADEQ), the Sierra Club Chickasaw Group-Tennessee Chapter and 
two citizens in response to the proposed reclassification of the 
Memphis TN-AR Nonattainment Area from marginal to moderate, published 
on October 16, 2007 (72 FR 58577). Comments can be found on the 
internet in the electronic docket for this action. To access the 
comments, please go to http://www.regulations.gov and search for Docket 
No. EPA-R04-OAR-2007-0959, or contact the person listed in the FOR 
FURTHER INFORMATION CONTACT paragraph above. A summary of the adverse 
comments received and EPA's response to the comments is presented 
below.
    Comment: All commenters discussed including DeSoto County, 
Mississippi in the 8-hour ozone nonattainment area. Shelby County 
commented that the area's failure to meet the attainment date is not 
due to a lack of local control measures and regulation of ozone 
precursors, but is due to errors made in the original designation and 
that EPA's decision to exclude DeSoto County was an error that is 
negatively affecting the Area's ability to achieve the standard. Shelby 
County also commented that the DeSoto County monitor is exhibiting a 
disturbing trend towards violation that should be reversed. Shelby 
County and ADEQ suggested that the appropriate action would be to 
expand the nonattainment area to include DeSoto County rather than to 
reclassify the current area to moderate status.
    Response: The validity of the 2004 designations for DeSoto County 
or the Memphis ozone nonattaiment area are not the subject of this 
rulemaking, nor is it relevant to EPA's determination of whether the 
Memphis area attained the 8-hour ozone NAAQS by its attainment date. 
The CAA establishes a process for air quality management for purposes 
of attaining and maintaining the NAAQS. After promulgation of a new or 
revised NAAQS, section 107(d)(1) of the CAA requires EPA to designate 
areas as meeting or not meeting the standard. EPA published the 
designations for the 8-hour ozone NAAQS on April 30, 2004. Prior to 
April 30, 2004, each State Governor had an opportunity to recommend air 
quality designations, including appropriate boundaries, to EPA. One 
hundred and twenty days prior to promulgating designations, EPA was 
required to notify the States, if EPA disagreed with a State's 
recommended designation and intended to modify the recommended 
designation. States then had an opportunity to provide a demonstration 
as to why the proposed modification was inappropriate. Any issues 
concerning the initial designations, including whether a county should 
have been included as part of a specific nonattainment area, should 
have been raised at that time and any challenges to EPA's final rule 
designating areas were required to be filed within 60 days of April 30, 
2004. Thus, any claims now that DeSoto County should have been included 
as part of the Memphis ozone nonattainment area are not timely. The 
time for addressing the validity of the designations is past, and the 
appropriateness of the 2004 designations is not at issue in this 
rulemaking. As a result, all comments concerning purported deficiencies 
in the final designations for these areas are not relevant to this 
rulemaking.
    With respect to the commenters' contention that EPA should now 
expand the nonattainment area to include DeSoto County, this rulemaking 
action, which involves a determination of nonattainment for the Memphis 
8-hour ozone nonattainment area pursuant to section 181(b)(2), is not 
the appropriate time in which to address a reevaluation of the 
designation for the area.
    In its proposed rulemaking EPA noted that DeSoto County is not 
included in the Memphis Area, but stated that ``its monitoring data is 
regularly considered for potential contributions to the Memphis TN-AR 
Nonattainment Area airshed.'' 72 FR 58579. EPA is clarifying

[[Page 16549]]

in this final rulemaking that, while we reviewed the data from the 
DeSoto monitor, we are not relying on data from that monitor in 
reaching a final determination that the Memphis Area failed to attain 
the 8-hour ozone standard by its June 15, 2007, attainment date.
    Notably, for the years 2004-2006, the monitor in DeSoto County 
demonstrated attainment. Because this final determination was based 
upon the Marion, AR monitor which provided the Area its 2004-2006 
design value of .087 ppm, the additional DeSoto County data would not 
alter this determination. EPA also notes that preliminary data for 2007 
for both the Marion and DeSoto monitors show that, if the data were 
quality assured, both monitors would register as nonattainment for 
2005-2007. Again, the additional DeSoto County data would not alter the 
determination that the Area did not attain the standard.
    Comment: Shelby County and ADEQ commented that EPA has invoked the 
legal principle known as ``operation of law'' as justification for 
reclassifying the Memphis, TN-AR Nonattainment Area from marginal to 
moderate. The commenters believe that the invocation of ``operation of 
law'' is, in this instance, a discretionary power. Shelby County 
commented that reclassification is not needed and will not serve to 
move the Area into attainment of the ozone standard any sooner than is 
currently predicted by the extensive computer modeling, and that 
reclassification will place an undue and completely unnecessary 
administrative cost on the taxpayers of Tennessee and Arkansas without 
improving air quality in the Area. ADEQ commented that reclassification 
is unmerited at this time and that ``there would be no demonstrable 
harm to the public if the EPA Administrator used discretionary 
authority to waive the action otherwise the result of operation of 
law.'' ADEQ also commented that delays in federal ozone programs were 
responsible for higher regional design values, and that ``States and 
localities should not be required to take on new regulatory burdens as 
a result of programmatic delays over which they had no control. The EPA 
has not taken this into account in its deliberations as to whether 
redesignation [sic] is appropriate in this instance.''
    Response: EPA disagrees with the assertion that reclassification 
upon a determination of failure to attain is a discretionary power, and 
that EPA can ``waive'' reclassification after it has determined that 
the area has failed to attain by its attainment date. In the October 
16, 2007, proposed rule (72 FR 58577), EPA cited section 181(b)(2)(A) 
of the CAA, which provides that, for reclassification upon failure to 
attain, ``within 6 months following the applicable attainment date 
(including any extension thereof) for an ozone nonattainment area, the 
Administrator shall determine, based on the area's design value (as of 
the attainment date), whether the area attained the standard by that 
date. Except for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law in accordance with table 1 of 
subsection (a) (of Section 181) to the higher of--(i) the next higher 
classification for the area, or (ii) the classification applicable to 
the area's design value as determined at the time of the notice 
required under subparagraph (B).'' Pursuant to section 181(b)(2), EPA 
has determined that the Memphis TN-AR Nonattainment Area failed to 
attain the 8-hour ozone NAAQS by June 15, 2007, the attainment deadline 
set forth in the CAA and CFR for marginal nonattainment areas. Because 
the Area is not classified as severe or extreme, the area shall be 
reclassified by operation of law to the next higher classification. The 
next higher classification for the Area (moderate) is higher than the 
classification applicable to the Area's design value (marginal). 
Therefore, in accordance with the CAA, the Area must be reclassified by 
operation of law to a moderate nonattainment area. 72 FR 58579.
    As EPA noted above, under section 181(b)(2)(A), the attainment 
determination is made solely on the basis of air quality, and any 
reclassification is by operation of law. Thus, the resulting 
requirements apply regardless of how the nonattainment came about, and 
the CAA does not allow EPA to assess the need, or lack thereof, for 
additional local measures. With respect to any perceived burden imposed 
by the new planning requirements, EPA notes that the moderate area 
requirements are imposed by section 182(b) of the CAA and the impact, 
economic or otherwise, of a reclassification is not a consideration in 
making the attainment determination under section 181(b)(2).
    Comment: Shelby County and ADEQ commented that if EPA determines 
that it has no discretion on reclassification, the public comment 
process provides no opportunity for relevant comments on the proposed 
action to be considered.
    Response: EPA disagrees that the public comment process provides no 
opportunity for relevant comments on the proposed action. The process 
allows for an opportunity to ascertain whether EPA's analysis of the 
relevant data and CAA requirements is correct. Under section 
182(b)(2)(A), the attainment determination is made solely on the basis 
of air quality data, and reclassification and the level to which an 
area is reclassified is by operation of law. 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. Thus, in making the determinations 
required by the CAA, EPA solicits and will consider comments addressing 
EPA's determination with respect to whether air quality data show 
attainment or nonattainment by the applicable attainment date, and 
EPA's identification of any resulting reclassification that occurs by 
operation of law. There is, therefore, a meaningful role for public 
comments in determinations of attainment, specifically with regard to 
the data and EPA's analysis of the data, but this is not inconsistent 
with, and does not alter the statutory scheme that provides that 
reclassification occurs as a matter of law, and is not within EPA's 
discretion.
    Comment: ADEQ commented that for the 2007 ozone season to date, the 
fourth highest value in the nonattainment Area had not exceeded 0.084 
ppm and that the Area's air quality appears to be improving. ADEQ 
further requested that EPA consider calendar year 2007 as an 
``extension year'' and grant a one-year extension of the attainment 
date as a means of providing relief from the duplication of effort that 
will be required in the event that the recently proposed revisions to 
the ozone standard are promulgated in the near future.
    Response: Sections 172(a)(2)(C) and 181(a)(5) of the CAA provide 
states with an opportunity to apply to extend the attainment date by 
one year. Section 181(a)(5) applies to areas classified under Subpart 2 
of the CAA, and 40 CFR 51.907 provides EPA's interpretation of section 
172(a)(2)(C) and 181(a)(5) for purposes of the 8-hour ozone standard. 
For the 8-hour ozone standard, if an area's fourth highest daily 
maximum 8-hour average value in the attainment year is 0.084 ppm or 
less, the area is eligible for a 1-year extension of the attainment 
date (40 CFR 51.907). The attainment year is the year in which the last 
full ozone season relied on for purposes of demonstrating attainment 
occurs. Because the attainment date for the Memphis Area was June 15, 
2007, the last full ozone season preceding the Area's attainment date 
was the 2006

[[Page 16550]]

ozone season and 2006 is considered the attainment year. In 2006, the 
Area's fourth highest daily maximum 8-hour average was 0.089 ppm. Based 
on this information, the Area does not qualify for a 1-year extension 
of the attainment date. Under the applicable statutory and regulatory 
provisions, EPA is unable to consider 2007 as an extension year. First, 
as explained above, the Area did not qualify for an initial 1-year 
extension based on its 2006 attainment year. Second, even if the Area 
had qualified for a 1-year extension based on 2006 data (which it did 
not), it would not qualify for a second 1-year extension based on 
preliminary data for 2007. This is because the Area's 4th highest daily 
8-hour value, averaged over both 2006 (the original attainment year) 
and 2007 (the hypothetical ``first extension year'') is greater than 
0.84 ppm. 40 CFR 51.907(b). Finally, preliminary data for 2005-2007 
show that the Area is still not attaining the standard.
    Comment: Shelby County commented that air quality in the Memphis 
Area has in recent years demonstrated a trend of improvement; that 
pollution measures in place are making a positive impact and will lead 
to further improvement; and that modeling shows that the Area will soon 
attain the standard. Shelby County also commented that reclassification 
could ``result in an absurd conclusion since the possibility exists 
that, by next year, the only controlling monitor in the area could be 
located in a county that is attainment.'' ADEQ commented that for the 
2007 ozone season to date, the fourth highest 8-hour ozone value for 
any monitor in the Area did not exceed 0.084 ppm; that they are hopeful 
ozone levels in 2008 and beyond will continue to show improvement; and 
that it is unfortunate that EPA considers it necessary to increase the 
severity of the ozone classification from marginal to moderate when it 
appears that the Area's air quality is improving. ADEQ also commented 
that ``the redesignation [sic] to moderate that is proposed would, in 
this instance, result in an absurd conclusion.''
    Response: EPA recognizes the efforts taken by Shelby County, ADEQ, 
the Tennessee Department of Environment and Conservation, and the 
Memphis Area in general to improve air quality. However, while it is 
encouraging that the Area's air quality appears to be improving, 
unfortunately, it did not improve enough to meet the June 15, 2007, 
deadline for attainment.\1\ The statute requires an assessment of air 
quality as of an area's attainment date, and that assessment is the 
subject of today's rulemaking. (See also, our responses to previous 
comments.) Reclassification of the Area, which occurs by operation of 
law, as required by the CAA will lead to additional planning and 
emission controls, which will help ensure that the Area attains and 
maintains the 8-hour ozone standard.
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    \1\ Moreover, as noted above, preliminary data for 2005-2007 
shows that the Area remains in nonattainment.
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III. What Is the Effect of This Action?

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

    Pursuant to section 181(b)(2), EPA finds that the Memphis TN-AR 
Nonattainment Area failed to attain the 8-hour ozone NAAQS by the June 
15, 2007, attainment deadline prescribed under the CAA and 69 FR 23858 
(April 30, 2004) for marginal ozone nonattainment areas. When this 
finding is effective, the Memphis TN-AR Nonattainment Area will be 
reclassified by operation of law from marginal nonattainment to 
moderate nonattainment. The reclassification to the next higher 
classification is mandated by Section 181(b)(2)(A) of the CAA. 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. Also in this 
action, EPA is establishing a schedule by which Tennessee and Arkansas 
will submit the SIP revisions necessary for the reclassification to 
moderate nonattainment of the 8-hour ozone standard.

B. When Must Tennessee and Arkansas Submit SIP Revisions Fulfilling the 
Requirements for Moderate Ozone Nonattainment Areas

    EPA must address the schedule by which Tennessee and Arkansas are 
required to submit revised SIPs addressing the requirements for the 
Memphis TN-AR moderate Nonattainment Area. When an area is 
reclassified, EPA has the authority under section 182(i) of the CAA to 
adjust the CAA'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 of the 
Memphis TN-AR Nonattainment Area, March 1, 2009, is the beginning of 
the ozone monitoring season. As a result, EPA is requiring that the 
necessary SIP revisions be submitted by both Tennessee and Arkansas as 
expeditiously as practicable, but no later than March 1, 2009.
    A revised SIP must include all the moderate area requirements in 
section 182(b) of the CAA including: (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)).

IV. Final Action

    Pursuant to CAA section 181(b)(2), EPA is making a final 
determination that the Memphis TN-AR marginal 8-hour Ozone 
Nonattainment Area failed to attain the 8-hour ozone NAAQS by June 15, 
2007. Upon the effective date of this rule, the Memphis TN-AR marginal 
8-hour Ozone Nonattainment Area will be reclassified by operation of 
law as a moderate 8-hour ozone nonattainment area. Pursuant to section 
182(i) of the CAA, EPA is establishing the schedule for submittal of 
the SIP revisions required for moderate areas once the area is 
reclassified. The required SIP revisions for Tennessee and Arkansas 
shall 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 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive

[[Page 16551]]

Order. 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 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 
Procedure 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 part 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 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 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 sections 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 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 final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This action merely determines 
that the Memphis TN-AR Nonattainment Area had not attained by its 
applicable attainment date, reclassifies the Memphis TN-AR 
Nonattainment Area as a moderate ozone nonattainment area and adjusts 
applicable deadlines. Thus, Executive Order 13132 does not apply to 
this rule.

[[Page 16552]]

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 determines that the Memphis TN-AR Nonattainment Area has 
not attained by its applicable attainment date, reclassifies the 
Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area 
and adjusts applicable deadlines. The CAA 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, entitled ``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 determines that the Memphis TN-AR 
Nonattainment Area has not attained by its applicable attainment date, 
reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone 
nonattainment area and adjusts applicable deadlines.

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

    This action is not subject to Executive Order 13211, entitled 
``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 determines that the Memphis TN-AR Nonattainment Area has not 
attained by its applicable attainment date, reclassifies the Memphis 
TN-AR ``marginal'' Nonattainment Area as a ``moderate'' ozone 
nonattainment area and adjusts 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 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 determines that the Memphis TN-AR Nonattainment Area has not 
attained by its applicable attainment date, and reclassifies the 
Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area 
and adjusts applicable deadlines.

K. Congressional Review Act

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

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 27, 2008. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action to reclassify the Memphis TN-AR area as a moderate ozone 
nonattainment area and to adjust applicable deadlines may not be 
challenged later in proceedings to enforce its requirements. (See, 
section 307(b)(2).)

List of Subjects in 40 CFR Part 81

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

    Dated: March 14, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
    Dated: March 19, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

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

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

[[Page 16553]]

Subpart C--Section 107 Attainment Status Designations


0
2. In Sec.  81.304 the table for Arkansas--Ozone (8-hour Standard) is 
amended by revising the entry for Memphis, TN-AR and footnote 2 to read 
as follows:


Sec.  81.304  Arkansas.

* * * * *

                                                            Arkansas--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Memphis, TN-AR: (AQCR 018 Metropolitan    ...........  Nonattainment............................        (\2\)  Subpart 2/Moderate.
 Memphis Interstate) Crittenden County.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ April 28, 2008.

* * * * *
0
3. In Sec.  81.343 the table for Tennessee--Ozone (8-hour Standard) is 
amended by removing footnote 3 and revising the entry for ``Memphis, 
TN-AR'' to read as follows:


Sec.  81.343  Tennessee.

* * * * *

                                                           Tennessee--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Designation \a\                                      Category/classification
           Designated area            ------------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                       Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Memphis, TN-AR: Shelby County........  ...............  Nonattainment..........................   March 28, 2008  Subpart 2/Moderate.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
 [FR Doc. E8-6287 Filed 3-27-08; 8:45 am]

BILLING CODE 6560-50-P
