
[Federal Register: March 18, 2008 (Volume 73, Number 53)]
[Rules and Regulations]               
[Page 14391-14396]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr08-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2007-0969; FRL-8543-5]

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

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 Beaumont/Port Arthur 8-hour ozone nonattainment 
area (BPA area). EPA finds that the BPA 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 BPA area is reclassified by operation of law as a 
moderate 8-hour ozone nonattainment area. The new moderate area 
attainment date for the reclassified BPA area is ``as expeditiously as 
practicable,'' but no later than June 15, 2010. The State of Texas must 
submit a SIP revision that meets the requirements of the CAA on or 
before January 1, 2009.

DATES: This final rule is effective on April 17, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2007-0969. All documents in the docket 
are listed on the http://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 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 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: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

Table of Contents

I. What Is the Background for This Action?
II. What Comments Did EPA Receive on the October 30, 2007 Proposal 
and How Has EPA Responded to Them?
III. What Is the Effect of This Action?
    A. Determination of Nonattainment, Reclassification of the BPA 
Area To Moderate and the New Attainment Date for the BPA Area
    B. What Is the Date for Submitting a Revised SIP for the BPA 
Area?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    The BPA area was classified as a marginal 8-hour ozone 
nonattainment area and, therefore, was required to attain the 8-hour 
ozone standard by June 15, 2007 (69 FR 23858). On October 30, 2007, we 
proposed to find that the BPA ozone nonattainment area did not attain 
the 8-hour ozone NAAQS by June 15, 2007, the applicable attainment 
date, (72 FR 61310). The proposed finding was based upon ambient air 
quality data from the years 2004, 2005, and 2006 that showed the area's 
air quality violated the standard. In addition, as explained in the 
proposed rule, the area did not qualify for an attainment date 
extension under the provisions of section 181(a)(5) and 40 CFR 51.907, 
because the area's 4th highest daily maximum 8-hour

[[Page 14392]]

average ozone value in the attainment year of 2006 was greater than 
0.084 parts per million (ppm). In the October 30, 2007, proposal, we 
also proposed that the appropriate reclassification of the BPA area 
would be from ``marginal'' to ``moderate'' nonattainment, in accordance 
with CAA Section 181(b)(2). We further proposed that the State of Texas 
submit the required SIP revision by January 1, 2009.

II. What Comments Did EPA Receive on the October 30, 2007 Proposal and 
How Has EPA Responded to Them?

    We received 18 comment letters on our proposal to find the BPA 
ozone nonattainment area failed to attain the 8-hour ozone NAAQS by 
June 15, 2007 and to reclassify the area from marginal to moderate and 
on our proposed schedule for the required SIP revision submittal (72 FR 
61310). Comments were received from: Beaumont City Council Member; 
ChevronPhillips Chemical Company's Orange Plant; ChevronPhillips 
Chemical Company's Port Arthur Plant; Clean Air and Water, Inc.; 
Entergy Texas; Gerdau Ameristeel Beaumont; Goodyear Tire and Rubber 
Company; Greater Port Arthur Texas Chamber of Commerce; Hardin County 
Commissioner's Court; Huntsman Petrochemical Corporation; Jefferson 
County Commissioner for Precinct 1; Jefferson County Commissioner for 
Precinct 4; Jefferson County Judge; LANXESS Corporation; Port Arthur 
City Manager; Southeast Texas Chapter of Texas Association of Business; 
South East Texas Regional Planning Commission; and the Texas 
Commissions on Environmental Quality (TCEQ).
    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-R06-OAR-2007-0969, or 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph above. A summary of the relevant comments and EPA's response 
to the comments received is presented below.
    Comment: Sixteen of the commenters requested that EPA postpone 
finalizing the reclassification because current monitoring data are 
showing attainment and requested that EPA instead allow the area the 
opportunity to file for redesignation to attainment for the 8-hour 
ozone standard. To support their request for EPA to not finalize the 
reclassification, many discussed the status of the air quality in the 
BPA area, noting that it is much cleaner today than it was in 1990 at 
the time the CAA amendments were finalized: (1) Monitored levels of 
nitrogen oxides and volatile organic compounds are at least 40-50% 
lower than 10 years ago, (2) major reductions in monitored air toxic 
levels continue and after 17 years of monitoring, there is no evidence 
of air toxic hot spots, (3) ozone has been improving in the area in 
both design value and number of exceedances and (4) this improvement is 
due to the tremendous amount of work done by local industry, 
businesses, and community.
    Response: We recognize the efforts taken by TCEQ, the Southeast 
Texas Planning Commission, local industry, businesses, and the 
community to improve air quality. EPA acknowledges that the area's air 
quality data has improved, but the area did not meet the 8-hour ozone 
standard by the applicable June 15, 2007 attainment date. TCEQ, itself, 
agreed the BPA area's air quality was not below the 8-hour ozone 
standard for the years 2004, 2005, and 2006. These three years of air 
quality data provide the area's design value ``as of the attainment 
date.'' This value shows that the area did not attain the standard by 
the applicable attainment date. The Act requires EPA to make an 
attainment determination within six months following the attainment 
date. Reclassification upon a determination of failure is not a 
discretionary power and EPA cannot waive reclassification after it has 
determined that the area has failed to attain by its attainment date.
    In our October 30, 2007, proposed rule (72 FR 61310), we 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), we have determined that the BPA 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 BPA area must be 
reclassified by operation of law to a moderate nonattainment area. 72 
FR 61312.
    As EPA noted above, under section 181(b)(2)(A), the attainment 
determination is made solely based on 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 requires EPA to consider only the air quality data occurring as 
of the attainment date (including any extension thereof), in making the 
mandatory attainment determination.
    Today's action, however, does not preclude TCEQ from developing and 
submitting the appropriate documentation for redesignation of the area 
from nonattainment to attainment. The appropriate documentation would 
be the submittal after public notice, public comment period, and public 
hearing of a complete redesignation request that meets the requirements 
of the Act and the Phase 1 8-hour ozone implementation rule, and an 
approvable plan for maintenance of the 8-hour ozone standard.\1\ The 
September 4, 1992 Calcagni memorandum and the 1993 Shapiro memorandum 
describe EPA's interpretation of section 107(d)(3)(E) with respect to 
the timing of applicable requirements. Under this interpretation, to 
qualify for redesignation, States requesting redesignation to 
attainment must meet the relevant Clean Air Act requirements that came 
due prior to the submittal of a complete redesignation request. 
Applicable requirements of the Act that come due subsequent to the

[[Page 14393]]

area's submittal of a complete redesignation request remain applicable 
until a redesignation is approved, but are not required as a 
prerequisite to redesignation. Section 175A(c) of the Act. Sierra Club 
v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR at 25424, 25427 
(May 12, 2003) (redesignation of St. Louis).
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    \1\ For more information on redesignation to attainment, please 
see, among other things, the General Preamble for the Implementation 
of Title I of the CAA Amendments of 1990, published on April 16, 
1992 (57 FR 13498), and supplemented on April 28, 1992 (57 FR 
18070); ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (available at: http://
www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf); ``State 
Implementation Plan (SIP) Requirements for Areas Submitting Requests 
for Redesignation to Attainment of the Ozone and Carbon Monoxide 
(CO) National Ambient Air Quality Standards (NAAQS) On or After 
November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting 
Assistant Administrator for Air and Radiation, September 17, 1993 
(available at: http://www.epa.gov/ttn/caaa/t1/memoranda/
redesig.pdf); the redesignation of Detroit-Ann Arbor published ion 
March 7, 1995 (60 FR 12459, 12465-12466, and EPA's Final Rule to 
Implement the 8-Hour Ozone NAAQS-Phase 1 and the Notice of 
Reconsideration at 69 FR 23951 (April 30, 2004) and 70 FR 30592, 
30604 (May 26, 2005).
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    Comment: One commenter stated that (1) the area did miss the June 
15, 2007 attainment date; (2) action on this matter should be based on 
real data, not speculation of attainment in the near future; and (3) 
the area's petrochemical industry is currently undergoing expansions 
which will result in more air emissions. Consequently, the 
recommendation was that the area be classified as moderate until 
attainment is actually achieved.
    Response: EPA agrees with the commenter supporting the proposal. As 
quality-assured data for the area shows the area did not attain the 8-
hour ozone standard by the June 15, 2007 attainment date, the area is 
being reclassified by operation of law as moderate nonattainment. 
Regarding the commenter's concern about industry expansions and more 
air emissions, the State's Nonattainment New Source Review (NNSR) 
permitting requirements apply to new major sources or major 
modifications at existing air pollution sources, such as the 
petrochemical industry expansions. The NNSR permit issued by the State 
must require that the emissions increase from the new source or 
modification be offset. The NNSR permit also requires the source to 
reduce emissions consistent with the application of lowest achievable 
emission rate as defined in 40 CFR 51.165(a)(1)(xiii). The State's 
permitting rules provide that the TCEQ will assure that emissions from 
a new minor source or minor modification will not interfere with 
attainment or maintenance of a national ambient air quality standard.
    Comment: The State's concern was that the schedule for submittal of 
the SIP revision would require use of existing and somewhat outdated 
technical data due to the short timeframe. TCEQ commented that for any 
SIP revision, the most current and robust technical work is optimal, 
but due to the short timeframe for submittal, if they are required to 
submit an attainment demonstration SIP revision for the area by January 
1, 2009, use of existing and somewhat outdated technical work will be 
necessary.
    Response: With respect to any potential 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 of a 
reclassification is not a consideration in making the attainment 
determination under section 181(b)(2). When an area is reclassified, 
the 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 reclassification. Although some may argue that January 
1, 2009 provides a short timeframe for submittal of a revised SIP, 
pursuant to 40 CFR 51.908(d), the State must provide for implementation 
of all control measures needed for attainment no later than January 1, 
2009, the beginning of the attainment year ozone season for the BPA 
area. See 40 CFR 51.900(g) and 40 CFR part 58, Appendix D, section 4.1, 
Table D-3 (71 FR 61236).
    Establishing the date for submittal as January 1, 2009 will help 
the State to optimize, to the extent possible, its public consultation 
and rulemaking process to choose control strategies, adopt, and 
implement them swiftly in order to avoid the possibility of the area 
failing to attain again and being reclassified to serious. Given the 
submittal deadline, the State should use the best and most up-to-date 
information available in the allotted timeframe. For more discussion of 
the SIP submittal date, please see the section titled ``Proposed Date 
for Submitting a Revised SIP for the BPA Area'' in our proposed action 
(72 FR 61310, October 30, 2007).
    Comment: TCEQ also asked for clarification regarding the following 
sentences in the proposal notice at page 61321: ``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).''
    The State asked in particular whether EPA would set a new SIP 
submittal deadline after notice and comment rulemaking.
    Response: The staffs of both agencies have been in contact to 
discuss various potential legal avenues available to the State of 
Texas. The State staff is considering the pros and cons of the 
potential legal avenues.
    One of the potential legal avenues is the use of our clean data 
regulation for the 8-hour ozone standard (40 CFR 51.918). This is the 
legal avenue alluded to in the proposal. Under this regulation, if 
after EPA makes a clean data determination that results in the 
suspension of the requirement to submit certain SIPs, and EPA later 
determines that the area violates the 8-hour ozone NAAQS, EPA would 
establish a new SIP submittal deadline for these SIP requirements after 
notice and comment rulemaking. As EPA stated in its May 10, 1995 
Memorandum ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard for the 1-hour NAAQS'', ``[i]f 
EPA subsequently determines that an area has violated the standard * * 
*. EPA would notify the State of that determination and would also 
provide notice to the public in the Federal Register. Such a 
determination would mean that the area would thereafter have to address 
the pertinent SIP requirements within a reasonable amount of time, 
which EPA would establish taking into account the individual 
circumstances surrounding the particular SIP submissions at issue.'' 
(pp. 6-7).
    A potential consequence of relying upon this avenue is that 
depending on the timing of a violation and of an EPA rulemaking 
determining that a violation had occurred, it is possible that the BPA 
area would not be able to attain by its new moderate area attainment 
date, and therefore may be subject to another determination of 
nonattainment and reclassification to a higher classification than 
moderate.

III. What is the Effect of This Action?

A. Determination of Nonattainment, Reclassification of the BPA Area to 
Moderate and the New Attainment Date for the BPA Area

    Pursuant to section 181(b)(2), we find that the BPA 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 BPA area 
is 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

[[Page 14394]]

submittal demonstrating attainment of the 8-hour ozone standard. Also 
in this action, we are establishing a schedule by which Texas will 
submit the SIP revision necessary for the reclassification to moderate 
nonattainment of the 8-hour ozone standard.

B. What Is the Date for Submitting a Revised SIP for the BPA Area?

    We must address the schedule by which Texas is required to submit 
the SIP revision addressing the requirements for the BPA area. When an 
area is reclassified, we have 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 for the 
BPA area, January 1, 2009 is the beginning of the ozone monitoring 
season. As a result, we are requiring that the required SIP revision be 
submitted by Texas as expeditiously as practicable, but no later than 
January 1, 2009.
    A revised SIP must include, among other things, all the moderate 
area requirements in section 182(b) of the Act: (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). Since the BPA area also is a 1-hour ozone 
nonattainment area, the anti-backsliding requirements of 40 CFR 51.900 
and 51.905 apply also. See also South Coast Air Quality Mgmt. Dist. v. 
EPA, 472 F.3d 882 (D.C. Cir. 2006), mod. (June 8, 2007).
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    \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 that 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).
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IV. Final Action

    Pursuant to CAA section 181(b)(2), we are making a final 
determination that the Beaumont/Port Arthur ``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 area is reclassified by 
operation of law as a moderate 8-hour ozone nonattainment area. 
Pursuant to section 182(i) of the CAA, we are establishing the schedule 
for submittal of the SIP revision required for moderate areas once the 
area is reclassified. The required SIP revision for the BPA area shall 
be submitted by the State of Texas 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 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 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,

[[Page 14395]]

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 as 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 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 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 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 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 determines 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 determines 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
    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 determines 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. It does not involve technical standards. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

[[Page 14396]]

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 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.

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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 19, 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 BPA 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.

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

    Dated: March 6, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
Part 81, chapter I, title 40 of the Code of Federal Regulations 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.


0
2. In Sec.  81.344 the table entitled ``Texas--Ozone (8-hour 
Standard)'' is amended by revising the entries for Beaumont/Port 
Arthur, TX to read as follows:


Sec.  81.344  Texas.

* * * * *

                                                                      Texas--Ozone
                                                                    [8-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Designation \a\                                           Classification
           Designated area           -------------------------------------------------------------------------------------------------------------------
                                          Date\1\                       Type                        Date\1\                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beaumont/Port Arthur, TX:
    Hardin County...................  ..............  Nonattainment...........................           (\3\)  Subpart 2/Moderate.
    Jefferson County................  ..............  Nonattainment...........................           (\3\)  Subpart 2/Moderate.
    Orange County...................  ..............  Nonattainment...........................           (\3\)  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.
* * * * * * *
\3\ April 17, 2008.

[FR Doc. E8-5403 Filed 3-17-08; 8:45 am]

BILLING CODE 6560-50-P
