

[Federal Register: October 30, 2007 (Volume 72, Number 209)]
[Proposed Rules]               
[Page 61310-61315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc07-15]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 61310]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2007-0969; FRL-8489-1]

 
Determination of Nonattainment and Reclassification of the 
Beaumont/Port Arthur 8-Hour Ozone Nonattainment Area; State of Texas; 
Proposed Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to find that the Beaumont/Port Arthur (BPA) 
marginal 8-hour ozone 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 BPA area will then be 
reclassified, by operation of law, as a moderate 8-hour ozone 
nonattainment area. The moderate area attainment date for the BPA area 
would then be as expeditiously as practicable, but no later than June 
15, 2010. Once reclassified, Texas 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 State's submittal of the SIP 
revisions required for moderate areas once the area is reclassified.

DATES: Comments must be received on or before November 29, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2007-0969, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the on-line instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm.
 Please click on ``6PD'' (Multimedia) and select 

``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0969. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0969, 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 docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Planning Section 

(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas

[[Page 61311]]

75202-2733. The file will be made available by appointment for public 
inspection in the Region 6 FOIA Review Room between the hours of 8:30 
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or 
Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, 
please make the appointment at least two working days in advance of 
your visit. There will be a 15 cent per page fee for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section, 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7247; fax 
number 214-665-7263; e-mail address young.carl@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 BPA Nonattainment Area, and What Is Its Current 
8-Hour Ozone Nonattainment Classification?
    E. What Are the CAA Provisions Regarding Determinations of 
Nonattainment and Reclassifications?
    F. What Happens if the BPA Area Attains the 8-Hour Ozone 
Standard at the End of 2007?
II. What Is EPA's Evaluation of the BPA Area's 8-Hour Ozone Data?
III. What Action Is EPA Proposing?
    A. Determination of Nonattainment, Reclassification of the BPA 
Nonattainment Area and New Attainment Date
    B. Proposed Date for Submitting a Revised SIP for the BPA 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 concentrations 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 
meet 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 BPA Nonattainment Area, and What Is Its Current 8-Hour 
Ozone Nonattainment Classification?

    The BPA 8-hour ozone nonattainment area consists of Hardin, 
Jefferson, and Orange Counties. For areas subject to Subpart 2 of the 
CAA, such as the BPA 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 periods 
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 (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 BPA area was designated nonattainment for the 8-hour ozone 
standard on April 30, 2004, and classified ``marginal'' based on a 
design value of 0.091 ppm, with an attainment date of June 15, 2007 
(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.

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 area 
attained the ozone standard by that date. For marginal, moderate, and 
serious 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 by operation of law

[[Page 61312]]

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.

F. What Happens if the BPA Area Attains the 8-Hour Ozone Standard at 
the End of 2007?

    The BPA area may attain the 8-hour ozone standard at the end of 
2007, based on data from 2005, 2006 and 2007. If EPA determines, after 
notice and comment rulemaking, that the area has attained the standard 
at the end of 2007, the requirement to submit SIPs related to 
attainment of the standard shall be suspended until such time as (1) 
the area is redesignated to attainment, at which time the requirements 
no longer apply; or (2) EPA determines that the area has violated the 
8-hour ozone NAAQS (40 CFR 51.918). Other requirements not related to 
attainment would remain in force.

II. What Is EPA's Evaluation of the BPA Area's 8-Hour Ozone Data?

    EPA makes attainment determinations for ozone nonattainment areas 
using available quality-assured air quality data. Quality-assured air 
quality data from sites in the BPA area is presented in Table 1. For 
the BPA ozone nonattainment area, the attainment determination is based 
on 2004-2006 air quality data. The area has a design value of 0.085 
ppm. Therefore, pursuant to section 181(b)(2) of the CAA, the BPA 
nonattainment area did not attain the 8-hour ozone NAAQS by the June 
15, 2007, deadline for marginal areas.

            Table 1.--BPA Area Fourth Highest 8-Hour Ozone Concentrations And Design Values (ppm) \1\
----------------------------------------------------------------------------------------------------------------
                                                                     4th Highest daily max       Design value  3
                             Site                              ---------------------------------   year average
                                                                   2004       2005       2006      (2004-2006)
----------------------------------------------------------------------------------------------------------------
Beaumont (48-245-0009)........................................      0.082      0.081      0.085            0.082
Port Arthur West (48-245-0011)................................      0.080      0.079      0.085            0.081
Sabine Pass (48-245-0101).....................................      0.091      0.082      0.084            0.085
Hamshire (48-245-0022)........................................      0.084      0.080      0.078            0.080
West Orange (48-361-1001).....................................      0.078      0.078      0.078            0.078
Mauriceville (48-361-1100)....................................      0.066      0.076      0.071            0.071
Jefferson Co. Airport (48-245-0018)...........................      0.084      0.083      0.084           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 4th 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 2 one-year extensions of its attainment date based on 
the number of exceedances in the attainment year and if the State has 
complied with all requirements and commitments pertaining to the area 
in the applicable implementation plan. For the 8-hour standard, if an 
area's fourth highest daily maximum 8-hour average value in the 
attainment year is 0.084 ppm or less (40 CFR 51.907), the area is 
eligible for up to 2 one-year attainment date extensions. The 
attainment year is the year immediately preceding the nonattainment 
area's attainment date. For BPA the attainment year is 2006. In 2006, 
the area's fourth highest daily maximum 8-hour average was 0.085 ppm. 
Based on this information, the BPA 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 BPA area's ozone design 
value at the time of today's notice is ``marginal'' because the area's 
2006 calculated design value, based on quality-assured ozone monitoring 
data from 2004-2006, is 0.085 ppm. By contrast, the next higher 
classification for the BPA 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 BPA 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 the BPA 
Nonattainment Area and New Attainment Date

    Pursuant to section 181(b)(2), EPA is proposing to find that the 
BPA 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 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 Texas 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 BPA Area

    EPA must address the schedule by which Texas is 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, the State must provide for implementation of all control measures 
needed for attainment

[[Page 61313]]

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 
BPA area, January 1st is the beginning of the ozone monitoring season. 
As a result EPA proposes that the required SIP revision be submitted by 
Texas as expeditiously as practicable, but no later than January 1, 
2009. This timeline also calls for implementation of applicable 
controls no later than January 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) and nitrogen 
oxide (NOX) emissions (40 CFR 51.910), and (4) contingency 
measures to be implemented in the event of failure to meet a milestone 
or attain the standard (CAA 172(c)(9)).\2\ See also the requirements 
for moderate ozone nonattainment areas set forth in CAA section 182(b).
---------------------------------------------------------------------------

    \2\ A vehicle inspection and maintenance (I/M) program would 
normally be listed as a requirement for an ozone moderate or above 
nonattainment area. However, the Federal I/M flexibility Amendments 
of 1995 determined the urbanized areas with populations less than 
200,000 for 1990 (such as BPA) are not mandated to participate in 
the I/M program (60 FR 48027, September 18, 1995).
---------------------------------------------------------------------------

    As discussed above, the BPA area may attain the 8-hour ozone 
standard at the end of 2007, based on data from 2005, 2006 and 2007. 
If, after notice and comment rulemaking, EPA determines that the area 
does attain the standard at the end of 2007, the requirement to submit 
SIPs related to attainment of the standard shall be suspended until 
such time as (1) the area is redesignated to attainment, at which time 
the requirements no longer apply; or (2) EPA determines that the area 
has violated the 8-hour ozone NAAQS (40 CFR 51.918).

IV. Proposed Action

    Pursuant to CAA section 181(b)(2), EPA is proposing to find that 
the BPA marginal 8-hour ozone nonattainment area has 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 be submitted as expeditiously as practicable, 
but no later than January 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 BPA 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 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

[[Page 61314]]

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 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 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 BPA area had not attained by its applicable 
attainment date, and to reclassify the BPA 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 BPA area has not attained 
by its applicable attainment date, and to reclassify the BPA 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 E.O. 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 BPA area has not 
attained the standard by the applicable attainment date, and to 
reclassify the BPA 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 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. 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 BPA nonattainment area has not 
attained by its applicable attainment date, and to reclassify the BPA 
``marginal'' nonattainment area as a ``moderate'' ozone nonattainment 
area 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,

[[Page 61315]]

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 BPA 
nonattainment area has not attained by its applicable attainment date, 
and to reclassify the BPA 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 22, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E7-21313 Filed 10-29-07; 8:45 am]

BILLING CODE 6560-50-P
