
[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58067-58072]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22973]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0713; FRL-9727-6]


Disapproval of Implementation Plan Revisions; State of 
California; South Coast VMT Emissions Offset Demonstrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to withdraw its final approvals of state 
implementation plan revisions submitted by the State of California to 
meet the vehicle-miles-traveled emissions offset requirement under the 
Clean Air Act for the Los Angeles-South Coast Air Basin 1-hour and 8-
hour ozone nonattainment areas. EPA is also proposing to disapprove the 
same plan revisions. EPA is proposing the withdrawal and disapproval 
actions in response to a remand by the Ninth Circuit Court of Appeals 
in Association of Irritated Residents v. EPA. The effect of this 
action, if finalized as proposed, would be to trigger deadlines by 
which new plan revisions meeting the applicable requirements must be 
submitted by the State of California and approved by EPA to avoid 
sanctions and to avoid an obligation on EPA to promulgate a federal 
implementation plan.

DATES: Written comments must be received on or before October 19, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0713, by one of the following methods:

[[Page 58068]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: tax.wienke@epa.gov.
     Mail or deliver: Wienke Tax, Air Planning Office, U.S. 
Environmental Protection Agency, Region 9, Mailcode AIR-2, 75 Hawthorne 
Street, San Francisco, California 94105-3901.
    Instructions: All comments 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. Information that you consider CBI or otherwise 
protected should be clearly identified as such and should not be 
submitted through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an ``anonymous access'' system, and EPA 
will not know your identity or contact information unless you provide 
it in the body of your comment. If you send an email comment directly 
to EPA, your email address will be automatically captured and included 
as part of the public comment. 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.
    Docket: The index to the docket for this action is available 
electronically on the http://www.regulations.gov Web site and in hard 
copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California, 
94105. While all documents in the docket are listed in the index, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material), and some may not be publicly available at 
either location (e.g., CBI). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office, U.S. 
Environmental Protection Agency, Region 9, Mail Code AIR-2, 75 
Hawthorne Street, San Francisco, California 94105-3901, 415-947-4192, 
tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Background
    A. Regulatory Context
    B. South Coast Ozone Designations and Classifications and 
Related SIP Revisions
    C. Litigation on EPA's Final Action on 2003 South Coast 1-Hour 
Ozone SIP
    D. Litigation on EPA's Final Action on 2007 South Coast 8-Hour 
Ozone SIP
II. Proposed Withdrawal of Previous Approvals, and Proposed 
Disapproval, of VMT Emissions Offset Demonstrations
III. Proposed Action and Request for Public Comment
IV. Statutory and Executive Order Reviews

I. Background

A. Regulatory Context

    The Clean Air Act (CAA or Act) requires EPA to establish national 
ambient air quality standards (NAAQS or ``standards'') for certain 
widespread pollutants that cause or contribute to air pollution that is 
reasonably anticipated to endanger public health or welfare (see 
sections 108 and 109 of the CAA).
    In 1979, under section 109 of the CAA, EPA established a primary 
health-based NAAQS for ozone \1\ at 0.12 parts per million (ppm) 
averaged over a 1-hour period. See 44 FR 8202; (February 8, 1979). The 
Act, as amended in 1990, required EPA to designate as nonattainment any 
area that had been designated as nonattainment before the 1990 
Amendments [section 107(d)(1)(C) of the Act; 56 FR 56694; (November 6, 
1991)]. The Act further classified 1-hour ozone nonattainment areas, 
based on the severity of their nonattainment problem, as Marginal, 
Moderate, Serious, Severe, or Extreme.
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    \1\ Ground-level ozone or smog is formed when oxides of nitrogen 
(NOX), volatile organic compounds (VOC), and oxygen react 
in the presence of sunlight, generally at elevated temperatures. 
Strategies for reducing smog typically require reductions in both 
VOC and NOX emissions. Ozone causes serious health 
problems by damaging lung tissue and sensitizing the lungs to other 
irritants. When inhaled, even at very low levels, ozone can cause 
acute respiratory problems, aggravate asthma, temporary decreases in 
lung capacity of 15 to 20 percent in healthy adults, inflammation of 
lung tissue, lead to hospital admissions and emergency room visits, 
and impair the body's immune system defenses, making people more 
susceptible to respiratory illnesses, including bronchitis and 
pneumonia.
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    The control requirements and date by which attainment of the 1-hour 
ozone standard was to be achieved varied with an area's classification. 
Marginal areas were subject to the fewest mandated control requirements 
and had the earliest attainment date, November 15, 1993, while Extreme 
areas were subject to the most stringent planning requirements and were 
provided the most time to attain the standard, until November 15, 2010. 
The various ozone planning requirements to which Extreme ozone 
nonattainment areas are subject are set forth in section 172(c) and 
section 182(a)-(e) of the CAA. Of particular importance for the 
purposes of this proposed action, section 182(d)(1)(A) requires the 
following:

    Within 2 years after November 15, 1992, the State shall submit a 
revision that identifies and adopts specific enforceable 
transportation control strategies and transportation control 
measures to offset any growth in emissions from growth in vehicle 
miles traveled or numbers of vehicle trips in such area and to 
attain reduction in motor vehicle emissions as necessary, in 
combination with other emission reduction requirements of this 
subpart, to comply with the requirements of subsection (b)(2)(B) and 
(c)(2)(B) of this section (pertaining to periodic emissions 
reduction requirements). The State shall consider measures specified 
in section 7408(f) of this title, and choose from among and 
implement such measures as necessary to demonstrate attainment with 
the national ambient air quality standards; in considering such 
measures, the State should ensure adequate access to downtown, other 
commercial, and residential areas and should avoid measures that 
increase or related emissions and congestion rather than reduce 
them.

    EPA believes that it is appropriate to treat the three required 
elements of section 182(d)(1)(A) (i.e., offsetting emissions growth, 
attainment of the rate-of-progress (ROP) reduction, and attainment of 
the ozone NAAQS) as separable. As to the first element of CAA section 
182(d)(1)(A) (i.e., offsetting emissions growth caused by growth in 
vehicle miles travelled (VMT)), EPA had historically interpreted this 
CAA provision to allow areas to meet the requirement by demonstrating 
that emissions from motor vehicles decline each year through the 
attainment year. See, e.g., 57 FR 13498, at 13521-15323; (April 16, 
1992). This proposed rule relates only to the first element of section 
182(d)(1)(A) (i.e., offsetting emissions growth caused by growth in 
VMT). Herein, we refer to this element as the Vehicle Miles Traveled 
(VMT) emissions offset requirement (``VMT emissions offset 
requirement'') and the demonstration submitted to us to address this 
requirement as the ``VMT emissions offset demonstration.''
    In 1997, EPA replaced the 1-hour ozone standard with an 8-hour 
ozone standard of 0.08 ppm. See 62 FR 38856; (July 18, 1997).\2\ We 
promulgated final rules to implement the 1997 8-hour ozone standard in 
two phases. The ``Phase 1'' rule, which was issued on April 30, 2004 
(69 FR 23951) establishes, among other things, the

[[Page 58069]]

classification structure and corresponding attainment deadlines, as 
well as the anti-backsliding principles for the transition from the 1-
hour ozone standard to the 8-hour ozone standard. For an area that was 
designated nonattainment for the 1-hour ozone standard at the time when 
EPA designated it as nonattainment for the 1997 8-hour ozone standard 
as part of the initial 8-hour ozone designations, most of the 
requirements that had applied by virtue of the area's classification 
for the 1-hour ozone standard continue to apply even after revocation 
of the 1-hour ozone standard (which occurred in June 2005 for most 
areas). See 40 CFR 51.905(a)(1) and 40 CFR 51.900(f). Thus, for 
example, an area that was designated nonattainment and classified as 
Extreme for the 1-hour ozone standard at the time of an initial 
designation of nonattainment for the 8-hour standard remains subject to 
the VMT emissions offset requirement under CAA section 182(d)(1)(A) for 
the 1-hour ozone NAAQS even if the area would not otherwise have been 
subject to that particular requirement based on the area's 
classification for the 1997 8-hour ozone standard. See 40 CFR 
51.905(a)(1) and 40 CFR 51.900(f)(11).
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    \2\ In 2008, EPA tightened the 8-hour ozone NAAQS to 0.075 ppm, 
see 73 FR 16436 (March 27, 2008). Today's proposed action relates 
only to SIP requirements arising from the classifications and 
designations of the South Coast with respect to the 1979 1-hour 
ozone and 1997 8-hour ozone standards.
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    The Phase 2 rule, which was issued on November 29, 2005 (70 FR 
71612), addresses the SIP obligations for the 1997 8-hour ozone 
standard. Under the Phase 2 rule, an area that is designated as 
nonattainment for the 1997 8-hour ozone standard, and classified under 
subpart 2 (of part D of title I of the CAA), is subject to the 
requirements of subpart 2 that apply for that classification. See 40 
CFR 51.902(a). Among the requirements for areas classified as Severe or 
Extreme for the 1997 8-hour ozone standard is the VMT emissions offset 
requirement under CAA section 182(d)(1)(A).

B. South Coast Ozone Designations and Classifications and Related SIP 
Revisions

    As noted above, the CAA, as amended in 1990, required EPA to 
designate as nonattainment any area that had been designated as 
nonattainment before the 1990 Amendments. The CAA also required EPA to 
classify nonattainment areas as Marginal, Moderate, Serious, Severe, or 
Extreme depending upon the design value of the area. On November 6, 
1991, EPA designated the Los Angeles-South Coast Air Basin Area 
(``South Coast'') \3\ as nonattainment and classified it as Extreme for 
the 1-hour ozone standard; thus the area had an attainment date no 
later than November 15, 2010 (56 FR 56694).
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    \3\ The South Coast includes Orange County, the southwestern 
two-thirds of Los Angeles County, southwestern San Bernardino 
County, and western Riverside County (see 40 CFR 81.305).
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    The California Air Resources Board (CARB) has submitted a number of 
SIP revisions over the years for the South Coast Air Basin to address 
1-hour ozone SIP planning requirements. Specifically, in 1994, CARB 
submitted a 1-hour ozone SIP that, among other things, included for the 
South Coast an attainment demonstration, ROP demonstrations, and 
transportation control measures (TCMs). In 1997, EPA approved the 1994 
Ozone SIP as it applied to the South Coast for the 1-hour standard. See 
62 FR 1150; (January 8, 1997).
    In 1997 and 1999, CARB submitted revisions to the 1994 South Coast 
1-Hour Ozone SIP, including revised ROP demonstrations, and a revised 
attainment demonstration (``1997/1999 South Coast 1-Hour Ozone SIP''). 
See 65 FR 18903; (April 10, 2000). In 2004, CARB submitted revisions to 
the 1997/1999 South Coast 1-Hour Ozone SIP (``2003 South Coast 1-Hour 
Ozone SIP''). In 2008, the 2003 South Coast 1-Hour Ozone SIP was 
supplemented by submittal of a VMT emissions offset demonstration \4\ 
that was intended to comply with the VMT emissions offset requirement 
by showing that there would be no upturn in emissions between the 
area's base year for the SIP revision and the area's attainment year. 
In 2009, EPA disapproved the revised ROP demonstrations and attainment 
demonstration in the 2003 South Coast 1-Hour Ozone SIP, but approved 
the VMT emissions offset demonstration that had been submitted in 2008. 
74 FR 10176; (March 10, 2009).\5\
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    \4\ Letter from Elaine Chang, Deputy Executive Officer, South 
Coast Air Quality Management District, dated September 10, 2008, 
approved at 40 CFR 52.220(c)(339)(ii)(B)(2).
    \5\ In response to comments on EPA's proposal to partially 
approve and partially disapprove the 2003 South Coast 1-Hour Ozone 
SIP, EPA indicated that the second and third elements of CAA section 
182(d)(1)(A) were satisfied in 1997 when EPA approved the 1994 South 
Coast 1-Hour Ozone SIP's transportation control strategies and TCMs, 
such as TCM-1 (``Transportation Improvements''), which includes the 
capital and non-capital facilities, projects, and programs contained 
in the Regional Mobility Element and programmed through the Regional 
Transportation Improvement Program (RTIP) process to reduce 
emissions, in the same action in which EPA approved the South Coast 
ROP and attainment demonstrations. See 74 FR 10176, at 10179; (March 
10, 2009).
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    With respect to the 1997 8-hour standard, EPA designated the South 
Coast as nonattainment and classified the area as ``Severe-17,'' but 
later approved a request by California to reclassify the South Coast to 
``Extreme.'' See 69 FR 23858; (April 30, 2004) and 75 FR 24409; (May 5, 
2010). In 2007, CARB submitted a SIP revision to address the 8-hour 
ozone SIP planning requirements for the South Coast (``2007 South Coast 
8-hour Ozone SIP''). The 2007 South Coast 8-Hour Ozone SIP included, 
among many other elements, a VMT emissions offset demonstration 
addressing the VMT emissions offset requirement under CAA section 
182(d)(1)(A).\6\ Consistent with the approach used for the 
demonstration submitted for 1-hour ozone purposes in 2008, the 2007 
South Coast 8-Hour Ozone SIP showed compliance with the VMT emissions 
offset requirement, as then interpreted by EPA, by showing that 
aggregate motor vehicle emissions are projected to decrease each year 
from the base year through the attainment year (2024).
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    \6\ See pages 6-23 and 6-27 (table 6-12) of the Final 2007 Air 
Quality Management Plan, June 2007, prepared by the South Coast Air 
Quality Management District.
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    In March 2012, EPA approved the 2007 South Coast 8-Hour Ozone SIP, 
including the VMT emissions offset demonstration addressing the VMT 
emissions offset requirement under CAA section 182(d)(1)(A). See 77 FR 
12674; (March 1, 2012).

C. Litigation on EPA's Final Action on 2003 South Coast 1-Hour Ozone 
SIP

    In approving the VMT emissions offset demonstration that was 
submitted by the South Coast Air Quality Management District to 
supplement the 2003 South Coast 1-Hour Ozone SIP, EPA applied its then-
longstanding interpretation of the VMT emissions offset requirement 
under CAA section 182(d)(1)(A) that no TCMs are necessary if aggregate 
motor vehicle emissions are projected to decline each year from the 
base year of the plan to the attainment year. See 74 FR 10176, at 
10179-10180; (March 10, 2009). EPA's 2009 approval was challenged in 
the U.S. Court of Appeals for the Ninth Circuit, and, in 2011, the 
court ruled against EPA, determining that EPA incorrectly interpreted 
the statutory phrase ``growth in emissions'' in section 182(d)(1)(A) as 
meaning a growth in ``aggregate motor vehicle emissions.'' In other 
words, the court ruled that additional transportation control 
strategies and measures are required whenever vehicle emissions are 
projected to be higher than they would have been had vehicle miles 
traveled not increased, even when aggregate vehicle emissions are 
actually decreasing. Association of Irritated Residents v. EPA, 632 
F.3d 584, at 596-597 (9th Cir. 2011), reprinted as

[[Page 58070]]

amended on January 27, 2012, 686 F.3d 668, further amended February 13, 
2012 (``AIR v. EPA'').
    Based on this reasoning, the court remanded the approval of the VMT 
emissions offset demonstration back to EPA for further proceedings 
consistent with the opinion. In May 2011, EPA filed a petition for 
panel rehearing requesting the court to reconsider its decision as to 
the VMT emissions offset requirement. In January 2012, the court denied 
the request and issued the mandate shortly thereafter.

D. Litigation on EPA's Final Action on 2007 South Coast 8-Hour Ozone 
SIP

    As of December 15, 2011, the time of signature on the final rule 
approving the 2007 South Coast 8-hour Ozone SIP, the court had not yet 
responded to our petition for panel rehearing in AIR v. EPA. 
Notwithstanding adverse comments on the proposed approval of the VMT 
emissions offset demonstration in the 2007 South Coast 8-Hour Ozone 
SIP, EPA proceeded to approve the demonstration on the basis of the 
same rationale that had been rejected by the Ninth Circuit in 
connection with the VMT emissions offset demonstration submitted as 
part of the 2003 South Coast 1-Hour Ozone SIP. The final rule was 
ultimately published on March 1, 2012 (77 FR 12674). Shortly 
thereafter, several environmental and community groups filed a lawsuit 
in the Ninth Circuit challenging that approval. Communities for a 
Better Environment, et al. v. EPA, No. 12-71340.

II. Proposed Withdrawal of Previous Approvals, and Proposed 
Disapproval, of VMT Emissions Offset Demonstrations

    As noted above, the Ninth Circuit rejected EPA's long-standing 
interpretation of the first element of section 182(d)(1)(A) that states 
could demonstrate compliance with the VMT emissions offset requirement 
through submittal of aggregate motor vehicle emissions estimates 
showing year-over-year declines in such emissions. These demonstrations 
formed the basis for our consideration and approval of the section 
182(d)(1)(A) VMT emissions offset demonstrations submitted in 
connection with the 2003 South Coast 1-Hour Ozone SIP and the 2007 
South Coast 8-Hour Ozone SIP. In response to the court's rejection of 
our interpretation of the Act and its remand of our action approving 
the VMT emissions offset demonstration for the 1-hour ozone standard, 
we are proposing the following two actions.
    First, we are proposing to withdraw our previous approval of the 
VMT emissions offset demonstration in our March 8, 2009 final action on 
the 2003 South Coast 1-Hour Ozone SIP. Second, we are proposing to 
withdraw our March 1, 2012 approval of the portion of the 2007 South 
Coast 8-Hour Ozone SIP that was submitted to address the VMT emissions 
offset requirement of CAA section 182(d)(1)(A).
    Withdrawal of our approvals of the two section 182(d)(1)(A) 
demonstrations would remove them from the California SIP and we would 
be obligated to take action on them under section 110(k), unless the 
State were to also withdraw the demonstrations from their submissions 
to us. To date, the State has not withdrawn these demonstrations. 
Therefore, in this action, we are proposing to disapprove them. 
Specifically, we are proposing to disapprove the demonstrations 
submitted by California to demonstrate compliance with the VMT 
emissions offset requirement under CAA section 182(d)(1)(A) with 
respect to the 1-hour and 8-hour ozone standards because they are 
predicated on EPA's previous interpretation of section 182(d)(1)(A) 
that has been rejected by the Ninth Circuit. The demonstrations are not 
consistent with the court's ruling on the requirements of section 
182(d)(1)(A) because they fail to identify, compared to a baseline 
assuming no VMT growth, the level of increased emissions resulting 
solely from VMT growth and to show how such increased emissions have 
been offset through adoption and implementation of transportation 
control strategies and transportation control measures.

III. Proposed Action and Request for Public Comment

    EPA is proposing to withdraw and to disapprove our final approvals 
of SIP revisions submitted by the State of California to demonstrate 
compliance with the VMT emissions offset requirement under CAA section 
182(d)(1)(A) with respect to the 1-hour and 8-hour ozone standards in 
the South Coast nonattainment area. EPA is proposing this action in 
response to a decision of the Ninth Circuit in AIR v. EPA. Under 
section 110(k) of the Clean Air Act, we are proposing to disapprove 
these same plan elements because they reflect an approach to showing 
compliance with section 182(d)(1)(A) that was rejected by the court as 
inconsistent with the CAA section 182(d)(1)(A) VMT emissions offset 
requirement. Should we finalize the disapproval proposed here, the 
offset sanction in CAA section 179(b)(2) would apply in the South Coast 
ozone nonattainment area 18 months after the effective date of the 
final disapproval. The highway funding sanctions in CAA section 
179(b)(1) would apply in the area six months after the offset sanction 
is imposed. These sanctions will apply unless we take final action 
approving SIP revisions meeting the relevant requirements of the CAA 
prior to the time the sanctions would take effect. If we propose 
approval of a SIP revision meeting the relevant requirements of the CAA 
and determine at that time that it is more likely than not the 
deficiency has been corrected, sanctions would be deferred. See 40 CFR 
52.31 which sets forth when sanctions apply and when they may be 
stopped or deferred.
    In addition to the sanctions, CAA section 110(c) provides that EPA 
must promulgate a federal implementation plan addressing the deficiency 
that is the basis for this disapproval two years after the effective 
date of the disapproval unless we have approved a revised SIP before 
that date.
    We are soliciting comments on these proposed actions. Comments will 
be accepted for 30 days following publication of this proposal in the 
Federal Register. We will consider all comments in our final 
rulemaking.

IV. Statutory and Executive Order Reviews

A. Executive Order 12988, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 128665, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Reduction Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove

[[Page 58071]]

requirements that the State is already imposing. Therefore, because the 
proposed withdrawal of previous approvals of certain SIP revisions, and 
proposed disapproval of the same, do not create any new requirements, I 
certify that this proposed action will not have a significant economic 
impact on a substantial number of small entities. Moreover, due to the 
nature of the Federal-State relationship under the Clean Air Act, 
preparation of flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of State action. The Clean Air Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed withdrawal and disapproval 
action does not include a Federal mandate that may result in estimated 
costs of $100 million or more to either State, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action proposes to withdraw previous approvals of certain SIP 
revisions, and proposes disapproval of the same, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this proposed 
action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule 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, because it 
merely proposes to withdraw previous approvals of certain SIP revisions 
implementing a Federal standard, and proposes disapproval of the same, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, 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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this proposed rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it proposes to 
withdraw previous approvals of certain SIP revisions implementing a 
federal standard, and proposes disapproval of the same.

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

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this proposed action. 
Today's proposed action does not require the public to perform 
activities conducive to the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 lacks the discretionary authority to address environmental 
justice in this

[[Page 58072]]

proposed rulemaking. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the Clean 
Air Act. Accordingly, this action merely proposes to withdraw previous 
approvals of certain SIP revisions, and proposes disapproval of the 
same, and will not in-and-of itself create any new requirements. 
Accordingly, it does not provide EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: August 30, 2012.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
[FR Doc. 2012-22973 Filed 9-18-12; 8:45 am]
BILLING CODE 6560-50-P


