Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31831

current. It, therefore—(1) is not a

‘‘significant regulatory action’’ under

Executive Order 12866; (2) is not a

‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. For the same

reason, the FAA certifies that this

amendment will not have a significant

economic impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports,

Navigation (Air).

Issued in Washington, DC on June 14,

1996.

Thomas C. Accardi,

Director, Flight Standards Service.

Adoption of the Amendment

Accordingly, pursuant to the

authority delegated to me, part 97 of the

Federal Aviation Regulations (14 CFR

part 97) is amended by establishing,

amending, suspending, or revoking

Standard Instrument Approach

Procedures, effective at 0901 UTC on

the dates specified, as follows:

PART 97—STANDARD INSTRUMENT

APPROACH PROCEDURES

1. The authority citation for part 97 is

revised to read as follows:

Authority: 49 U.S.C. 40103, 40113, 40120,

44701; 49 U.S.C. 106(g); and 14 CFR

11.49(b)(2).

2. Part 97 is amended to read as

follows:

§ § 97.23, 97.27, 97.33, 97.35 [Amended]

By amending: § 97.23 VOR, VOR/

DME, or TACAN, and VOR/DME or

TACAN; § 97.27 NDB, NDB/DME;

§ 97.33 RNAV SIAPs; and § 97.35

COPTER SIAPs, identified as follows:

***Effective August 15, 1996

Bartow, FL, Bartow Muni, VOR/DME or GPS

RWY 9L, Amdt 1A Cancelled

Bartow, FL, Bartow Muni, VOR/DME RWY

9L, Amdt 1A

Lake Providence, LA, Byerley, NDB or GPS

RWY 17, Amdt 1 Cancelled

Lake Providence, LA, Byerley, NDB RWY 17,

Amdt 1

Marksville, LA, Marksville Muni, NDB or

GPS RWY 4, Amdt 1A Cancelled

Marksville, LA, Marksville Muni, NDB RWY

4, Amdt 1A

Mansfield, MA, Mansfield Muni, NDB or GPS

RWY 32, Amdt 4 Cancelled

Mansfield, MA, Mansfield Muni, NDB RWY

32, Amdt 4

Willmar, MN, Willmar Muni-John L. Rice

Field, VOR or GPS RWY 10, Amdt 1A

Cancelled

Willmar, MN, Willmar Muni-John L. Rice

Field, VOR RWY 10, Amdt 1A

Imperial, NE, Imperial Muni, NDB or GPS

RWY 31, Amdt 2 Cancelled

Imperial, NE, Imperial Muni, NDB RWY 31,

Amdt 2

Portsmouth, NH, Pease International

Tradeport, VOR or TACAN or GPS RWY

16, Amdt 1A Cancelled

Portsmouth, NH, Pease International

Tradeport, VOR or TACAN RWY 16, Amdt

1A

Trenton, NJ, Mercer County, VOR/DME

RNAV or GPS RWY 16, Amdt 4 Cancelled

Trenton, NJ, Mercer County, VOR/DME

RNAV RWY 16, Amdt 4

Trenton, NJ, Mercer County, VOR/DME

RNAV or GPS RWY 34, Amdt 5 Cancelled

Trenton, NJ, Mercer County, VOR/DME

RNAV RWY 34, Amdt 5

North Kingstown, RI, Quonset State, VOR or

GPS RWY 34, Orig Cancelled

North Kingstown, RI, Quonset State, VOR

RWY 34, Orig.

Hondo, TX, Hondo Muni, VOR or GPS RWY

17L, Orig Cancelled

Hondo, TX, Hondo Muni, VOR RWY 17L,

Orig.

[FR Doc. 96–15914 Filed 6–20–96; 8:45 am]

BILLING CODE 4910–13–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[MI43–03–7258; FRL–5525–4]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Michigan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On April 2, 1996 the

Environmental Protection Agency (EPA)

published a proposal to approve the

redesignation to attainment and

associated section 175A maintenance

plan for the ozone National Ambient Air

Quality Standard (NAAQS) for the twocounty Grand Rapids, Michigan area as

a State Implementation Plan (SIP)

revision. The 30-day comment period

concluded on May 2, 1996. A total of 1

comment letter was received in

response to the April 2, 1996 proposal.

On May 1, 1996, the EPA published a

14-day partial extension of the comment

period on the redesignation request and

section 175A maintenance plan, limited

to the State’s April 11, 1996 revision to

the section 175A maintenance plan

which was not available in EPA’s docket

prior to April 15, 1996. The reopened

comment period concluded on May 16,

1996. One additional comment letter

was received in response to the May 1,

1996, extension of public comment

period. This final rule summarizes all

comments and EPA’s responses, and

finalizes the approval of the

redesignation to attainment for ozone

and associated section 175A

maintenance plan for the Grand Rapids

area.

EFFECTIVE DATE: This action will be

effective June 21, 1996.

ADDRESSES: Copies of the SIP revisions,

public comments and EPA’s responses

are available for inspection at the

following address: (It is recommended

that you telephone Jacqueline Nwia at

(312) 886–6081 before visiting the

Region 5 Office.) United States

Environmental Protection Agency,

Region 5, Air and Radiation Division, 77

West Jackson Boulevard, Chicago,

Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Jacqueline Nwia, Regulation

Development Section (AR–18J), Air

Programs Branch, Air and Radiation

Division, United States Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, Telephone Number (312) 886–

6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

The redesignation request and

maintenance plan for the Grand Rapids

and Muskegon moderate ozone

nonattainment areas discussed in this

rule were submitted on March 9, 1995

and May 1, 1995 (with a revision on

April 11, 1996), by the Michigan

Department of Environmental Quality

(MDEQ). However, the April 2, 1996

proposal and this final rule address only

the Grand Rapids area, which consists

of Kent and Ottawa Counties. On April

2, 1996, (61 FR 14522) the EPA

published a proposal to approve the

redesignation request and associated

section 175A maintenance plan as a

revision to the Michigan ozone SIP. On

May 1, 1996 (61 FR 19233), the EPA

published a partial 14-day extension of

the comment period on the

redesignation request and section 175A

maintenance plan, limited to the State’s

April 11, 1996 revision to the section

175A maintenance plan, which was not

available in EPA’s docket prior to April

15, 1996. The reopened comment period

concluded on May 16, 1996. Adverse

comments were received regarding the

proposed rule. The final rule contained

in this Federal Register addresses the

comments which were received during

the public comment periods and

announces EPA’s final action regarding

the redesignation and section 175A

maintenance plan for the Grand Rapids
31832 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

1Hereinafter referred to as ‘‘October 1994 Nichols

memorandum.’’

2Hereinafter referred to as ‘‘May 1995 Seitz

memorandum.’’

area. A more detailed discussion in

response to each comment is contained

in the EPA’s Technical Support

Document (TSD), dated XXX, 1995 from

Jacqueline Nwia to the Docket, entitled

‘‘Response to Comments on the April 2,

1996 Proposal to Approve the

Redesignation to Attainment for Ozone

and Section 175A Maintenance Plan for

the Grand Rapids Area,’’ which is

available from the Region 5 office listed

above.

II. Public Comments and EPA

Responses and Final Rulemaking

Actions

The following discussion summarizes

and responds to the comments received

regarding the redesignation of the Grand

Rapids area to attainment for ozone.

Comment: The commentor requested

additional time to review and provide

comments on the proposed

redesignation because: the proposal was

contingent on Michigan’s submittal of a

revision to the section 175A

maintenance plan which was not

available for public review until April

15, 1996; the proposed action concerns

the public health of many of the

requestor’s members; and the proposed

action incorporates new guidance and

policy which have broad implications

throughout the Lake Michigan basin and

beyond. The commentor requested a

minimum of 30 days beyond the date of

Michigan’s most recent submittal or

May 15, 1996.

Response: EPA extended the public

comment period only for those portions

of the redesignation and section 175A

maintenance plan pertaining to

Michigan’s April 11, 1996 maintenance

plan SIP that did not become available

in EPA’s docket until April 15, 1996.

The 14-day extension concluded on

May 16, 1996. The EPA believes this

provides the commentor with an

adequate opportunity to review and

submit comments on the subject of this

rulemaking action.

Comment: The commentor notes that

the proposed redesignation violates the

specific and general intent of Congress

in specifying requirements for

redesignation. The commentor

elaborates by stating that the proposed

approval violates redesignation

requirements of the Clean Air Act

Amendments of 1990 (Act) by lowering

the threshold for redesignation of these

areas by reinterpretation of longstanding

redesignation guidance and granting of

waivers and exemptions of applicable

statutory requirements. The waivers

granted to the Grand Rapids area

include: waiver from adoption of

volatile organic compounds (VOC)

reasonably available control technology

(RACT) rules; waiver of the reasonable

further progress (RFP) requirement;

waiver of the part D New Source Review

(NSR) requirement and waiver from the

adoption of conformity rules.

Response: At the outset, EPA rejects

the contention that its actions violate

the redesignation requirements of the

Act. The EPA has not granted the Grand

Rapids area ‘‘waivers,’’ or ‘‘exemptions’’

from, nor reinterpreted longstanding

guidance pertaining to, RFP

requirements or conformity. The EPA

did propose an exception to current

policy regarding the need to adopt

certain VOC RACT rules prior to

redesignation and applied the October

14, 1994 memorandum from Mary

Nichols, Assistant Administrator for Air

and Radiation entitled ‘‘Part D New

Source Review (part D NSR)

Requirements for Areas Requesting

Redesignation to Attainment,’’ 1

regarding the requirements for part D

NSR.

With respect to the RFP requirement,

on July 20, 1995, the EPA made a

determination regarding the

applicability of certain RFP and

attainment demonstration requirements.

This final rule determined that since the

Grand Rapids area had demonstrated

attainment of the ozone standard, a

factual determination based on 3 years

of complete quality assured monitoring

data, certain provisions of the Act,

whose explicit purpose is to achieve

attainment of the standard, do not

require SIP revisions to be made by the

State for so long as the area continues

to attain the standard. Those provisions

include RFP, the section 172(c)(9)

contingency measures and attainment

demonstration. The EPA believes it is

reasonable to interpret provisions

regarding RFP and attainment

demonstrations, along with certain other

related provisions, so as not to require

SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS demonstrated with three

consecutive years of complete, qualityassured, air quality monitoring data). As

explained in a memorandum from John

S. Seitz, Director, Office of Air Quality

Planning and Standards, entitled ‘‘RFP,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard,’’ dated

May 10, 1995,2 EPA believes it is

appropriate to interpret the more

specific RFP, attainment demonstration

and related provisions of subpart 2 in

the same manner as EPA had previously

interpreted the general provisions of

subpart 1 of part D of Title I (sections

171 and 172).

EPA has explained at length in other

notices, including the July 20, 1995

determination of attainment regarding

the Grand Rapids area (60 FR 37366), its

rationale for the reasonableness of that

interpretation of the Act and

incorporates those explanations by

reference here. See Approval and

Promulgation of Implementation Plans

and Designation of Areas for Air Quality

Planning Purposes; Ohio, 61 FR 20458

(May 7, 1996); Determination of

Attainment of Ozone Standard for Salt

Lake and Davis Counties, Utah, 60 FR

36723 (July 18, 1995). EPA emphasizes

that it has not suspended or granted the

Grand Rapids area an exemption from

any applicable requirements. Rather,

EPA has interpreted the requirements of

sections 182(b)(1)(A)(I) and 172(c)(9) as

not being applicable once an area has

attained the standard, as long as it

continues to do so. This is not a waiver

of requirements that by their terms

clearly apply; it is a determination that

certain requirements are written so as to

be operative only if the area is not

attaining the standard.

The May 1995 Seitz memorandum

was clear about the consequences of the

policy for redesignations. First, it made

plain that a determination of attainment

is not tantamount to a redesignation of

an area to attainment. Attainment is

only one of the criteria set forth in

section 107(d)(3)(E). To be redesignated,

the State must satisfy all of the criteria

of section 107(d)(3)(E), including the

requirement of a demonstration that the

improvement in the area’s air quality is

due to permanent and enforceable

reductions, and the requirements that

the area have a fully-approved SIP

which meets all of the applicable

section 110 and part D requirements,

and a fully approved maintenance plan.

Upon a determination of attainment,

however, the section 182(b)(1)(A)(I)

requirements of RFP and attainment

plans, and the section 172(c)(9)

requirement of contingency plans are no

longer considered applicable

requirements under section 107(d)(3)(E).

They would no longer be included

among those measures whose approval

is part of the requirement of having a

fully approved SIP.

EPA is not diluting the redesignation

requirements of section 107(d). What

EPA has done is make a determination

that since the area is attaining the

standard, which is a factual

determination, certain provisions of the
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31833

3Hereinafter referred to as ‘‘September 1992

Calcagni memorandum.’’

4The EPA also notes that the Synthetic Organic

Chemical Manufacturing (SOCMI) Distillation and

Reactor CTG was issued on November 15, 1993,

prior to the submission of the Grand Rapids

redesignation request. That CTG, however,

established a due date for State submittal of the

SOCMI Distillation and Reactor rules of March 23,

1995 (See March 23, 1994, 59 FR 13717), a date

after submission of a request to redesignation Grand

Rapids to attainment. Thus, those rules are not

applicable for purposes of this redesignation.

Act, whose express purpose is to

achieve attainment of the standard, do

not require SIP revisions to be made by

the State for so long as the area

continues to attain the standard. This

has long been EPA’s policy with respect

to the section 172(c)(9) contingency

measures and section 172(c)(2) RFP

requirement. See general preamble at 57

FR 13498. EPA has also made

determinations regarding section 182(f)

NOX waivers at or before the

redesignation of an area and therefore

not required NOX RACT submissions to

approve such redesignations. See the

Bay Area redesignation at 59 FR 49361

and Detroit-Ann Arbor redesignation at

60 FR 12459.

EPA’s statutory analysis was

explained in detail in the July 20, 1995

final rulemaking and in the May 1995

Seitz memorandum. To the extent here

pertinent, such portions of that notice,

including the responses to comments,

are incorporated herein by reference.

Thus, EPA disagrees with the

commentors’ view that EPA is not

complying with all the redesignation

requirements of section 107(d)(3)(E).

EPA has interpreted SIP submission

requirements of section 182(b)(1)

regarding reasonable further progress

and attainment demonstration plans,

and of section 172(c)(9) regarding

contingency measures to be

implemented in the event an area fails

to make reasonable further progress or

attain the standard by the attainment

date, not to apply for so long as the area

continues to attain the standard. Since

they are not applicable, fulfillment of

these requirements is not necessary to

meet the redesignation criteria of

section 107(d)(3)(E).

The commentor challenges EPA’s

authority to determine certain SIP

requirements inapplicable, and then

bootstraps that argument to complain

that since Grand Rapids has not met

these requirements, the redesignation

request only partially fulfills section

107(d)(E)(v). The commentor argues that

this is because the State has not met all

‘‘applicable’’ requirements under

section 110 and part D; but the

requirements it points to are the very

ones that EPA has determined are

inapplicable.

EPA rejects this kind of circular

argument. Since EPA has determined

that the statute does not require certain

submissions so long as the area is in

attainment, those inapplicable

requirements cannot serve as the basis

for concluding that the redesignation

request is defective. Under the criteria

of section 107(d)(E)(3) itself, a State

need only meet all applicable

requirements, and have a fully approved

plan that contains all required elements.

Thus EPA’s interpretation is fully

consistent with the criteria of section

107(d)(3). Since EPA has determined

that the 15 percent, attainment

demonstration, and section 172(c)(9)

contingency plan requirements are not

applicable to Grand Rapids, and has

found the SIP to be fully approvable

without them, the Grand Rapids area

has fairly met the criteria of section

107(d)(3). Certainly EPA, after

determining that these requirements are

inapplicable, could not in good faith

conclude that the redesignation request

is defective because it fails to meet

them.

Thus EPA concludes that, where it

has made a determination of attainment

that results in the suspension of

requirements, it may rely on that

determination and its consequences in

considering the approvability of a

redesignation request.

For the reasons stated above and

elsewhere in this document, in the July

20, 1995 Federal Register notice (60 FR

37366) pertaining to the Grand Rapids

area, in the May 1995 Seitz

memorandum, in the Utah notice (60 FR

36723, July 18, 1995) and in the

Cleveland-Akron-Lorain notice (May 7,

1996, 61 FR 20468), EPA does not

believe that the rulemaking violates any

section of the Act, nor does it dilute the

redesignation requirements under

section 107(d)(3)(E).

With respect to the full adoption of

VOC RACT rules, it should first be

noted that Michigan has submitted and

EPA has approved all of the sections

182(b)(2)(B) and 182(b)(2)(C) VOC RACT

requirements applicable to the Grand

Rapids area on September 7, 1994 (59

FR 46182) and October 23, 1995 (60 FR

54308). Therefore, the EPA assumes that

the commentor is concerned about the

section 182(b)(2)(A) requirement of the

Act which requires States to develop

VOC RACT rules for sources ‘‘covered

by a CTG document issued by the

Administrator between November 15,

1990, and the date of attainment’’ for

moderate and above ozone

nonattainment areas. The EPA has not

granted the Grand Rapids area a

‘‘waiver’’ or ‘‘exemption’’ from this

requirement either. In fact, EPA’s

proposed rulemaking action

acknowledges the applicability of these

rules in light of current EPA guidance

(See ‘‘Procedures for Processing

Requests to Redesignate Areas to

Attainment,’’ from John Calcagni,

Director, Air Quality Management

Division, dated September 4, 1992),3

since the due date for the CTG RACT

rules at issue preceded the submission

of the redesignation request, and

consequently, generally require full

adoption, submission and approval of

these rules prior to approval of the

redesignation request.4

The EPA does, however, believe that

in the context of the particular

circumstances of this redesignation, that

it is reasonable and permissible to

depart from that policy and instead

accept a commitment to implement

these RACT rules as contingency

measures in the maintenance plan

rather than require full adoption and

approval of the rules prior to approval

of the redesignation. The reasons

justifying this departure from EPA’s

general policy were explained in the

proposed action and are presented

below.

EPA believes that several factors in

combination justify allowing this

exception to current EPA policy with

respect to the Grand Rapids

redesignation. First, the RACT rules at

issue came due after the end of the

ozone season in which Grand Rapids

attained the standard and were not

needed to bring about attainment of the

ozone standard in Grand Rapids.

Second, the State has demonstrated

continued maintenance of the ozone

standard through 2007 without the

implementation of these measures.

Third, the State has placed other

contingency measures in the

maintenance plan that would bring

about far greater emission reductions

than the VOC RACT rules and would

therefore be substantially more effective

in terms of correcting violations

attributable to local emissions from the

Grand Rapids area that may occur after

redesignation. EPA’s analysis of the

emission reductions shows that the

implementation of enhanced inspection

and maintenance (I/M), Stage II or low

Reid Vapor Pressure (RVP) (to 7.8 psi)

programs would bring about greater

reductions than VOC RACT rules for

wood furniture coating, plastic parts

coating and industrial clean-up solvents

in aggregate, and substantially greater

reductions than any of these RACT rules

individually. Consequently, EPA

believes that the other, more effective

contingency measures, should and
31834 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

would be implemented first even if the

RACT rules were to be fully adopted

prior to redesignation. The detailed

analysis of these emission reduction

estimates is contained in the TSD for the

proposed rulemaking action dated

March 20, 1996 entitled ‘‘TSD for the

Request to Redesignate the Grand

Rapids, Michigan Moderate

Nonattainment Area to Attainment for

Ozone and Proposed Revision to the

Michigan Ozone SIP for a Section 175A

Maintenance Plan’’ and TSD for this

action dated XX, 1996, entitled

‘‘Response to Comments on the April 2,

1996 Proposal to Approve the

Redesignation to Attainment for Ozone

and Section 175A Maintenance Plan for

the Grand Rapids Area.’’

EPA emphasizes that even under this

departure from its policy regarding this

action, the requirement for these RACT

rules remains an applicable requirement

for purposes of evaluating the

redesignation request since it predated

the submission of the request. The

requirement, however, is met in the

form of the submission and full

approval of a commitment to adopt and

implement these rules as contingency

measures in the maintenance plan.

(Under EPA’s existing policy,

contingency measures in maintenance

plans may consist of commitments to

adopt and implement measures upon a

violation of the standard. See September

1992 Calcagni Memorandum.)

EPA further notes that even without

this exception to its general policy, the

State would have been able to have the

RACT rules become a part of the

contingency measures in the

maintenance plan upon approval of the

redesignation. That could have occurred

only after or upon EPA’s full approval

of the adopted RACT rules, however.

Thus, the only difference between EPA’s

general policy and the exception to that

policy described in this action is that a

commitment to adopt and implement

the RACT rules in an expeditious

manner, rather than fully-adopted RACT

rules, would be among the contingency

measures in the maintenance plan. In

light of the combination of factors

discussed above, including in particular

the inclusion of other, significantly

more effective, contingency measures in

the maintenance plan, EPA believes that

this difference has no significant

environmental consequence and that it

is permissible to approve the Grand

Rapids redesignation on this basis. The

EPA believes that this exception to its

general policy is legally permissible

under the statutory provisions

governing redesignations. As noted

above, the VOC RACT requirements

remain applicable requirements under

section 107 and EPA believes that their

treatment in the contingency plan as

commitments is consistent with the

manner in which EPA has accepted

other commitments to adopt and

implement contingency measures in

maintenance plans under section 175A.

The EPA believes that the Grand

Rapids area may be redesignated to

attainment notwithstanding the lack of

a fully-approved part D NSR program

meeting the requirements of the 1990

Act amendments and the absence of

such a part D NSR program from the

contingency plan. This view has been

set forth by the EPA as its policy in the

1994 Nichols memorandum.

The EPA believes that its decision not

to insist on a fully-approved part D NSR

program as a pre-requisite to

redesignation is justifiable as an

exercise of the Agency’s general

authority to establish de minimis

exceptions to statutory requirements.

See Alabama Power Co. v. Costle, 636

F.2d 323, 360–61 (D.C. Cir. 1979). Under

Alabama Power, Co. v. Costle, the EPA

has the authority to establish de

minimis exceptions to statutory

requirements where the application of

the statutory requirements would be of

trivial or no environmental value. See

also EDF v. EPA, Nos. 94–1044 and 94–

1062, Slip Op. at 28–29 (D.C. Cir. April

19, 1996).

Plainly, the part D NSR provisions of

section 110 and part D are requirements

that were applicable to the Grand

Rapids area at the time of the

submission of the request for

redesignation. Thus, on its face, section

107(d)(3)(E) would seem to require that

the State have submitted and the EPA

have fully-approved a part D NSR

program meeting the requirements of

the Act before the areas could be

redesignated to attainment.

Under the EPA’s de minimis

authority, however, it may establish an

exception to an otherwise plain

statutory requirement if its fulfillment

would be of little or no environmental

value. In this context, it is necessary to

determine what would be achieved by

insisting that there be a fully-approved

part D NSR program in place prior to the

redesignation of the Grand Rapids area.

For the following reasons, the EPA

believes that requiring the adoption and

full-approval of a part D NSR program

prior to redesignation would not be of

significant environmental value in this

case.

The Grand Rapids area has

demonstrated that maintenance of the

ozone NAAQS will occur even if the

emission reductions expected to result

from the part D NSR program do not

occur. The emission projections to

demonstrate maintenance of the

NAAQS considered growth in point

source emissions (along with growth for

other source categories) and were

premised on the assumption that the

Prevention of Significant Deterioration

(PSD) program, rather than the part D

NSR, would be in effect, during the

maintenance period. Under part D NSR,

significant point source emissions

growth would not occur. Michigan

assumed that part D NSR would not

apply after redesignation to attainment

and instead assumed source growth

factors based on projected growth in the

economy and in the area’s population.

(It should be noted that the growth

factors assumed may be overestimates

under PSD, which would restrain source

growth through the application of best

available control techniques.) Thus,

Michigan has demonstrated that there is

no need to retain the part D NSR as an

operative program in the SIP during the

maintenance period to provide for

continued maintenance of the ozone

NAAQS.

The other purpose that requiring the

full-approval of a part D NSR program

might serve would be to ensure that part

D NSR would become a contingency

provision in the maintenance plan

required for these areas by sections

107(d)(3)(E)(iv) and 175A(d). These

provisions require that, for an area to be

redesignated to attainment, it must

receive full approval of a maintenance

plan containing ‘‘such contingency

provisions as the Administrator deems

necessary to assure that the State will

promptly correct any violation of the

standard which occurs after the

redesignation of the area as an

attainment area. Such provisions shall

include a requirement that the State will

implement all measures with respect to

the control of the air pollutant

concerned which were contained in the

SIP for the area before redesignation of

the area as an attainment area.’’ Based

on this language, it is apparent that

whether an approved part D NSR

program must be included as a

contingency provision depends on

whether it is a ‘‘measure’’ for the control

of the pertinent air pollutants.

The term ‘‘measure’’ is not defined in

section 175A(d) and Congress utilized

that term differently in different

provisions of the Act with respect to the

part C PSD and part D NSR permitting

programs. For example, in section

110(a)(2)(A), Congress required that SIPs

include ‘‘enforceable emission

limitations and other control measures,

means, or techniques * * * as may be

necessary or appropriate to meet the

applicable requirements of the Act.’’ In

section 110(a)(2)(C), Congress required
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31835

5The EPA is not suggesting that part D NSR and

prevention of significant (PSD) are equivalent, but

merely that they are the same type of program. The

PSD program is a requirement in attainment areas

and designed to allow new source permitting, yet

contains adequate provisions to protect the

NAAQS. If any information including

preconstruction monitoring, indicates that an area

is not continuing to meet the NAAQS after

redesignation to attainment, 40 CFR 51 appendix S

(Interpretive Offset Rule) or a 40 CFR 51.165(b)

program would apply. The EPA believes that in any

area that is designated or redesignated as attainment

under section 107, but experiences violations of the

NAAQS, these provisions should be interpreted as

requiring major new or modified sources to obtain

VOC emission offsets of at least a 1:1 ratio, and as

presuming that 1:1 oxides of nitrogen (NOX) offsets

are necessary. See October 1994 Nichols

memorandum.

6The EPA also notes that in the case of the

Michigan area, all permits to install for major offset

sources and major offset modifications issued by

the State in the moderate nonattainment areas since

November 15, 1992 have complied with the 1.15 to

1.0 offset ratio. In addition, permits to install cannot

be issued under the PSD program unless the

applicant can demonstrate that the increased

emissions from the new or modified source will not

result in a violation of the NAAQS. Michigan’s Rule

702, which is part of the SIP, requires the

installation of Best Available Control Technology

regardless of size or location of all new and

modified sources in the State. In addition,

Michigan’s Rule 207, also approved in the SIP,

requires denial of any permit to install if operation

of the equipment will interfere with attainment or

maintenance of the NAAQS.

7Which has been applied in other areas such as

Detroit, Michigan, Preble, Columbiana, Clinton,

Youngstown, Columbus, Canton, Cleveland, Toledo

and Dayton, Ohio.

that SIPs include ‘‘a program to provide

for the enforcement of the measures

described in subparagraph (A), and

regulation of the modification and

construction of any stationary source

within the areas covered by the plan as

necessary to assure that NAAQS are

achieved, including a permit program as

required in parts C and D.’’ (Emphasis

added.) If the term measures as used in

sections 110(a)(2) (A) and (C) had been

intended to include part C PSD and part

D NSR there would have been no point

to requiring that SIPs include both

measures and preconstruction review

under parts C and D (PSD or NSR).

Unless ‘‘measures’’ referred to

something other than preconstruction

review under parts C and D, the

reference to preconstruction review

programs in section 110(a)(2)(C) would

be rendered mere surplusage. Thus, in

sections 110(a)(2) (A) and (C), it is

apparent that Congress distinguished

‘‘measures’’ from preconstruction

review. On the other hand, in other

provisions of the Act, such as section

161, Congress appeared to include PSD

within the scope of the term

‘‘measures.’’

The EPA believes that the fact that

Congress used the undefined term

‘‘measure’’ differently in different

sections of the Act is germane. This

indicates that the term is susceptible to

more than one interpretation and that

the EPA has the discretion to interpret

it in a reasonable manner in the context

of section 175A. Inasmuch as Congress

itself has used the term in a manner that

excluded part C PSD and part D NSR

from its scope, the EPA believes it is

reasonable to interpret ‘‘measure,’’ as

used in section 175A(d), not to include

part D NSR. That this is a reasonable

interpretation is further supported by

the fact that PSD, a program that is the

corollary of part D NSR for attainment

areas, goes into effect in lieu of part D

NSR.5 This distinguishes part D NSR

from other required programs under the

Act, such as inspection and

maintenance and RACT programs,

which have no corollary for attainment

areas. Moreover, the EPA believes that

those other required programs are

clearly within the scope of the term

‘‘measure.’’ 6

The EPA’s logic in treating part D

NSR in this manner does not mean that

other applicable part D requirements,

including those that have been

previously met and previously relied

upon in demonstrating attainment,

could be eliminated without an analysis

demonstrating that maintenance would

be protected. As noted above, Michigan

has demonstrated that maintenance

would be protected with PSD in effect,

rather than part D NSR. Thus, the EPA

is not permitting part D NSR to be

removed without a demonstration that

maintenance of the standard will be

achieved. Moreover, the EPA has not

amended its policy with respect to the

conversion of other SIP elements to

contingency provisions, which is that

they may be converted to contingency

provisions only upon a showing that

maintenance will be achieved without

them being in effect. Finally, as noted

above, the EPA believes that the part D

NSR requirement differs from other

requirements, and does not believe that

the rationale for the part D NSR

exception extends to other required

programs.

As noted above, this change in policy

was detailed in the October 1994

Nichols memorandum 7. The position

taken in this action is consistent with

the EPA’s current national policy

detailed in the October 1994 Nichols

memorandum. That policy permits

redesignation to proceed without

otherwise required part D NSR programs

having been fully approved and

converted to contingency provisions

provided that the area demonstrates, as

has been done in this case, that

maintenance will be achieved with the

application of PSD rather than part D

NSR.

The EPA has not ‘‘waived’’ the

requirement for adoption and

implementation of conformity

regulations. Rather, EPA has determined

that those requirements will continue to

apply after the area is redesignated, and

therefore need not be fulfilled as a

condition of redesignation. The State of

Michigan, in fact, has submitted

transportation and general conformity

SIP revisions on November 24, 1994 and

November 29, 1994, respectively. The

issue is full approval of these rules prior

to redesignation. As presented in the

April 2, 1996 (61 FR 14522) proposal,

the EPA believes that it is reasonable to

interpret the conformity requirement as

not being applicable for purpose of

redesignation under section 107(d). The

rationale for this is based on a

combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Act continue to apply to areas

after redesignation to attainment, since

such areas would be subject to a section

175A maintenance plan. Therefore, the

State remains obligated to adopt the

transportation and general conformity

rules even after redesignation and

would risk sanctions for failure to do so.

While a redesignation of an area to

attainment enables the area to avoid

further compliance with most

requirements of section 110 and part D,

since those requirements are linked to

the nonattainment status of an area, the

conformity requirements apply to both

nonattainment and maintenance areas.

Second, EPA’s federal conformity rules

require the performance of conformity

analyses in the absence of state-adopted

rules. Therefore, a delay in adopting

State rules does not relieve an area from

the obligation to implement conformity

requirements.

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, the EPA

believes it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request.

For the reasons just discussed, the

EPA believes that the ozone

redesignation request for the Grand

Rapids area may be approved

notwithstanding the lack of fully

approved State transportation and

general conformity rules. This policy

was also exercised in the Tampa,

Florida and Cleveland-Akron-Lorain

ozone redesignations finalized on
31836 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

8This includes 28 classified and 13 nonclassified

areas. The 28 classified areas include the Ohio

portion of the Youngstown-Warren-Sharon area.

9EPA’s policy to redesignate areas

notwithstanding the absence of fully adopted and

approved part D NSR SIP is based, in part, on EPA’s

authority to establish de minimis exceptions to

statutory requirements when the requirement

would be of trivial or no value environmentally

under the Alabama Power Co. v. Costle court

decision.

December 7, 1995 (60 FR 52748) and

May 7, 1996 (61 FR 20458), respectively.

According to the Federal

transportation and general conformity

rules, conformity applies to

nonattainment areas as well as

maintenance areas. Once redesignated,

the Grand Rapids area will be a

maintenance area and will be required

to conduct emission analyses to

determine that the VOC and NOX

emissions remain below the motor

vehicle emission budget established in

the maintenance plan. The Conformity

General Preamble to the conformity

regulations further clarifies this issue,

particularly as it pertains to areas

requesting and obtaining a section 182(f)

NOX exemption. Michigan has

established a motor vehicle emission

budget for NOX in the area’s

maintenance plan.

Comment: The commentor notes that

between December 1, 1990 and June 1,

1995, EPA has redesignated 54 areas

from nonattainment to attainment.

Several of these redesignated areas, such

as Kansas City, Kansas/Missouri,

Detroit, Michigan, San Francisco,

California, Charlotte, North Carolina;

Huntington-Ashland, West Virginia/

Kentucky violated the ozone standard

after redesignation. The commentor

states that the EPA’s ‘‘permissive’’ SIP

revision requirements for these areas

made future violations inevitable and

ensure that inadequate contingency

measures are adopted. The commentor

also notes that the Grand Rapids and

Muskegon areas observed 5 exceedances

each after receiving a determination of

attainment.

Response: To date the EPA has

redesignated a total of 41 areas 8 to

attainment for ozone. Of these areas,

only 4, Detroit, Michigan, Memphis,

Tennessee, San Francisco, California,

and Kansas City, Kansas-Missouri,

subsequently violated monitored

violations of the ozone standard. EPA

believes that this, in fact, demonstrates

that for the vast majority of instances

the redesignation policy is appropriate

since most of the redesignated areas

have not violated the ozone NAAQS to

date. Furthermore, the Act and Congress

contemplated that such events may

occur and therefore, required that the

Administrator fully approve a

maintenance plan for the area consistent

with the requirements of section 175A

before the area can be redesignated to

attainment. Section 107(d)(3)(E)(iv).

Section 175A(d) requires that a

maintenance plan contain contingency

provisions deemed necessary by the

Administrator to assure that the State

will promptly correct a violation of the

standard which occurs after the

redesignation of the area to attainment.

Clearly, the Act and Congress

anticipated that areas redesignated to

attainment may violate the NAAQS in

the future and ensured that control

measures to remedy the violation are

available. Areas redesignated to

attainment have approved maintenance

plans with contingency measures that

are and will be implemented in order to

address the violations monitored in the

area after redesignation. The

maintenance plans for these areas were

deemed appropriate and adequate for

purposes of addressing a future

violation as they were fully approved

into the area’s SIPs. Furthermore, if the

contingency measures implemented by

the State do not address future

violations of the NAAQS, EPA has the

authority to call for a plan revision

requiring the adoption of additional

control measures and/or redesignate the

area to nonattainment which in turn

would require the area to adopt and

implement additional control measures

appropriate for its classification. See

sections 110(k)(5) and 107(d)(3).

With respect to the adequacy of the

maintenance plan for Grand Rapids, the

EPA would like to note that all aspects

of the maintenance plan were reviewed

and deemed appropriate. The

commentor does not provide any

specific arguments to support the

comment.

For clarification purposes, the number

of exceedances cited by the commentor

is the total number of exceedances

monitored in the Grand Rapids area and

Muskegon area. The Grand Rapids area

monitored one exceedance at each of the

three monitors located within the twocounty area in 1995. Taken into account

with the previous two years, 1994 and

1993, the Grand Rapids area continues

to demonstrate attainment of the ozone

NAAQS with a number of expected

exceedances less than or equal to 1.0.

Comment: The commentor states that

the April 2, 1996 proposal jeopardizes

the efforts currently being undertaken

by the Ozone Transport Assessment

Group (OTAG).

Response: The commentor’s statement

is unsupported. In the April 2, 1996

proposal, the EPA specifically stated

that the redesignation of the Grand

Rapids area to attainment in no way

removes the State’s obligation to get

further reductions in emissions to

address the broader transport

phenomenon currently being

investigated as part of the OTAG

process. The issue of transported ozone

and ozone precursors is being addressed

by the OTAG which is composed of

industry, environmental groups and

Federal, State and local governments

from the eastern part of the United

States. The Lake Michigan States of

Illinois, Indiana, Wisconsin and

Michigan are all participating, at some

level, in the OTAG process (Phase I/

Phase II attainment demonstrations as

provided for in the March 2, 1995

memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, entitled ‘‘Ozone Attainment

Demonstrations’’). Phase II of this

analysis will assess the need for regional

control strategies and refine local

control strategies. Phase II will also

provide the States and EPA the

opportunity to determine appropriate

regional strategies to resolve transport

issues including any impacts the Grand

Rapids area may have on ozone

concentrations in its downwind areas.

The EPA has the authority under

sections 110(a)(2)(A) and 110(a)(2)(D) of

the Act to require emission reductions

where appropriate based on the results

of this effort or any other relevant

information.

Comment: The commentor stated that

exempting ozone nonattainment areas

from compliance with part D NSR

regulations presents special problems

since PSD and preconstruction review

rules ‘‘do not fully address how

emissions of ozone precursors should be

treated to assure that major new or

modified sources do not cause or

contribute to a NAAQS violation.’’ In

addition, the commentor contends that

the Alabama Power Co. v. Costle 9 court

cautioned that ‘‘to exempt de minimis

situations from a statutory command is

not an ability to depart from the statute,

but rather a tool to be used in

implementing the legislative design.’’

Response: EPA emphasizes that

contrary to the commentor’s contention,

ozone nonattainment areas are not

exempt from compliance with part D

NSR regulations. The October 1994

Nichols memorandum suggests that

areas that are otherwise eligible for

redesignation need not have a fully

approved part D NSR program as a

prerequisite to redesignation since the

part C PSD program would apply once

the area has been redesignated to

attainment. The part D NSR program
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31837

requirements apply to the area until the

area is redesignated to attainment.

The October 1994 Nichols

memorandum’s statement that EPA

regulations (40 CFR 51.165(b)(3) and

appendix S) ‘‘do not fully address how

ozone precursor emissions should be

treated to ensure that major new or

modified sources do not cause or

contribute to an ozone NAAQS

violation’’ is based on the difficulty in

modeling the impact of emissions from

specific sources on ozone formation.

The policy, however, also states that for

areas with preconstruction monitoring

or other information that indicate that

the area is not meeting the ozone

standard after redesignation to

attainment, Appendix S or 40 CFR

51.165(b) apply. These areas should

then require major new or modified

sources to obtain VOC emission offsets

of at least 1:1 ratio. In addition, the PSD

program allows BACT in place of LAER

if the less stringent control technology

can be justified based on an economic,

energy and environmental impacts

analysis. Consequently, the State may

impose a more stringent level of control

other than what may be selected as

BACT in an area redesignated to

attainment but not meeting the NAAQS.

With these elements, the

preconstruction review programs can

assure that major new or modified

sources achieve the statutory goals of

part D NSR.

With respect to the cautions of the

Costle court of the Alabama Power

decision, EPA believes that the exercise

of its de minimis authority in this

instance is fully consistent with them.

EPA is using its authority to facilitate

the implementation of the statute and

the legislative design behind it. EPA

also notes that the D.C. Circuit, the court

that decided the Alabama Power case,

recently decided another case

upholding EPA’s exercise of its de

minimis authority under the Act.

Referring to EPA’s authority to create de

minimis exceptions as being inherent in

the statutory scheme, the court stated

that ‘‘the same deference due to an

agency’s reasonable interpretation of an

ambiguous statute may also be due to an

agency’s creation of a de minimis

exception.’’ EDF v. EPA, Nos. 94–1044

and 94–1062, Slip Op. at 28–29 (D.C.

Cir. April 19, 1996).

Comment: The commentor contends

that the EPA cannot use the May 1995

Seitz memorandum to substitute its own

criteria for redesignation over

congressional instruction. The

commentor rationalizes that the part D

requirements are defined by the

nonattainment or attainment

designation of an area. The EPA,

therefore, does not have the ‘‘authority

to modify the operation of the Act, and

substitute its own judgement for that of

Congress.’’ Furthermore, SIP

requirements are joined to the

classification of a nonattainment area

(see sections 182 and 181).

Response: The May 1995 Seitz

memorandum does not substitute EPA’s

criteria for congressional instruction.

Instead, the May 1995 Seitz

memorandum presents EPA’s

interpretation of the statutory language

of the Act regarding RFP and related

provisions as they relate to areas

demonstrating attainment of the ozone

NAAQS.

With respect to the commentor’s

statement that SIP requirements are

joined to the classification of a

nonattainment area, the EPA would note

that the commentor is equating the

designation of an area as attainment or

nonattainment with the fact finding of

whether an area is attaining the

standard, regardless of its designation.

EPA believes that these are two distinct

issues. Title I of the Act, including part

D, contains provisions that distinguish

between the concept of attainment of a

NAAQS shown through monitoring

data, and an area’s designation as

attainment or nonattainment.

The fact that only one of the five

criteria for redesignation of a

nonattainment area to attainment is the

determination that the area ‘‘has

attained the national ambient air quality

standard,’’ demonstrates that section

107(d)(3)(E)(I) itself recognizes this

distinction. Clearly, the Act anticipates

there will be areas designated

nonattainment that are attaining the

standard, that there could be a

nonattainment area that meets the air

quality criterion for redesignation to

attainment without satisfying the other

criteria. Such an area would need to

remain designated nonattainment even

though it was attaining the standard.

In addition, the distinction between

attaining the standard and the

designation of an area as attainment or

nonattainment is again demonstrated in

the part D provision of section 182(f),

which authorizes EPA to waive the NOX

reduction requirements that apply to

ozone nonattainment areas if EPA

determines that the NOX reductions

would ‘‘not contribute to attainment of

the’’ ozone NAAQS. This provision has

been applied on numerous occasions to

waive NOX emission reduction

requirements for areas that have

attained the standard, since such

reductions in areas that have already

attained the standard would not

contribute to attainment. Thus, this

provision clearly contemplates that

areas designated nonattainment that

have attained the standard may have

certain specified requirements waived.

In conclusion, the Act does not equate

the factual issue of whether an area is

attaining the standard with the area’s

designation status as attainment or

nonattainment. It explicitly expects

situations in which areas designated

nonattainment may be attaining the

standard. Thus, the definition of

‘‘nonattainment area’’ in section 171(2),

which provides that, for purposes of

part D, a nonattainment area means an

area that ‘‘is designated

‘‘nonattainment’’ with respect to [a

particular] pollutant within the meaning

of section 107(d)’’ does not contradict

EPA’s interpretation of the language of

section 171(1) defining ‘‘RFP’’

requirements in terms of reductions for

the purpose of ‘‘ensuring attainment.’’

EPA believes that, in general, the

classification of an area designated

nonattainment for ozone determines the

set of requirements of subpart 2 to

which the area is subject.

The issue becomes the substance of

some of those requirements. In general,

section 182(b)(1) and section 172(c)(9)

apply to moderate ozone nonattainment

areas. EPA, however, has interpreted

section 182(b)(1) and 172(c)(9) such that

additional SIP submission requirements

are not necessary for an area classified

as a moderate ozone nonattainment area

that is attaining the ozone standard, for

so long as the area continues to attain

the standard. This is not a waiver of the

requirement that by their terms clearly

apply; it is a determination that certain

requirements are written so as to be

applicable only if the area is not

attaining the standard. If prior to the

redesignation of such an area to

attainment, the area violated the ozone

NAAQS, that determination would no

longer apply. That area will once again

be faced with an obligation to submit

SIP revisions pursuant to sections

172(c)(9) and 182(b)(1).

Finally, other requirements of part D

that are not written in such a way

continue to apply solely by virtue of the

area’s classification and designation as a

moderate ozone nonattainment area. For

example, the VOC RACT requirement of

section 182(a)(2) applies regardless of

whether an area is attaining the

standard. Similarly, the requirements of

part D new source review continue to

apply to areas designated nonattainment

solely by virtue of their continuing

nonattainment designation.

Comment: The Administrative

Procedures Act (APA) requires that

‘‘substantive rules of general

applicability’’ be subjected to public

comment before promulgation. EPA’s
31838 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

10 It is presumed that the commentor is referring

to such documents as the October 1994 Nichols,

May 1995 Seitz, and September 1992 Calcagni

memoranda as well as the General Preamable (April

16, 1992, 57 FR 13498).

11An upwind monitor would indicate

background levels of ozone entering an area.

guidance interpreting section

107(d)(3)(E) requirements constitutes

substantive rules of general applicability

and thus, required to be subjected to

public comment.

Response: EPA’s reference to and

reliance on guidance documents

interpreting section 107(d)(3)(E),10 all of

which are either published or publicly

available and a part of the record of the

July 20, 1995 rulemaking and this

rulemaking, is in no way illegal under

provisions of either the Act or the APA.

The commentor cites the APA’s

requirement that ‘‘substantive rules of

general applicability’’ be published in

the Federal Register and subject to

public comment before promulgation.

These documents do not purport to be

anything but guidance. That is precisely

why EPA performed the July 20, 1995

rulemaking, and this rulemaking action,

a notice and comment rulemaking to

take comment on its statutory

interpretations and factual

determinations in order to make a

binding and enforceable determination

regarding the Grand Rapids area. The

April 2, 1996 notice referred to EPA’s

policy memorandum not as binding the

Agency to adopt the interpretations

being proposed therein, but rather as

useful descriptions of rationale

underlying those proposed

interpretations. EPA has explained the

legal and factual basis for its rulemaking

in the April 2, 1996 rulemaking and

afforded the public a full opportunity to

comment on EPA’s proposed

interpretation and determination fully

consistent with the applicable

procedural requirements of the APA.

Comment: The 1993 Nichols and 1995

Seitz memoranda are inconsistent with

earlier redesignation guidance (General

Preamble, Calcagni and Shapiro

memoranda) pertaining to required SIP

revisions for redesignations.

Response: The October 1994 Nichols

memorandum and the May 1995 Seitz

memorandum represented

modifications of earlier policies. That

does not necessarily mean these

memoranda were by any means

completely inconsistent with prior

policies. For example, the May 1995

Seitz memorandum interpreted the

more specific RFP requirements of

section 182(b)(1) in a manner consistent

with EPA’s previous interpretation of

the more general section 171 and 172

requirements. Furthermore, EPA notes

that it is permissible to revise its

policies provided that the revised

policies, as is the case with these, are

legally justified and reasonable.

Comment: The commentor contends

that ozone remains a significant public

health threat in Grand Rapids since it

fails to demonstrate attainment of the

ozone NAAQS. The commentor

proceeds to discuss an analysis of eight

hour ozone concentration averages in

the Grand Rapids Consolidated

Metropolitan Statistical Area for 1995.

The commentor states that on 26 days

at least one monitor recorded ozone

concentrations at or above 80 parts per

billion (ppb) and represent days when

at-risk populations were exposed to

unhealthy levels of air pollution. The

commentor states that by examining

ground level wind directions and

speeds and comparing results of

monitors upwind (Jenison or Parnell)

from Grand Rapids to downwind

observations (Parnell or Jenison), the

commentor has determined that 18 of

these episodes indicate that local

emissions significantly exacerbate the

formation of unhealthy levels of ozone.

Response: The EPA determines

attainment and nonattainment based on

the current NAAQS of 0.12 parts per

million (ppm) not 80 ppb. Therefore, the

EPA must evaluate the eligibility for

redesignation on the basis of the

current, health based standard. The EPA

agrees with the commentor’s contention

that ozone and ozone precursor

emissions from the Grand Rapids

urbanized area may contribute to ozone

concentrations in downwind areas

(downwind areas are relative to wind

directions) by virtue of the fact that the

area is an urbanized area. Nonetheless,

the Grand Rapids area has demonstrated

attainment of the current ozone NAAQS

in the three year period 1992–1994, and

continues to demonstrate attainment for

the period 1993–1995.

The EPA evaluated the winds on July

13, 1995, where exceedances of the

ozone NAAQS were recorded at all 3

monitors in the Grand Rapids area:

Jenison at 0.133 ppm; Grand Rapids at

0.163 ppm; and Parnell at 0.134 ppm.

Given that the winds were

predominantly from the southwest and

west/southwest, one would deduce that

the exceedances were a result of ozone

transport into the area. This is

especially likely in view of the fact that

the Jenison monitor, which is the Grand

Rapids upwind monitor,11 recorded an

ozone concentration of 0.133 ppm.

Comment: The commentor

acknowledges that emissions from the

Milwaukee-Chicago-Gary corridor were

transported north out of the basin on

June 16, 1994, under high south/southsoutheasterly winds. However, the

commentor attributes an exceedance

recorded in Grand Rapids on June 17,

1994, at a level of 149 ppb, to emissions

from the Grand Rapids area since winds

were still to light.

Response: The EPA acknowledges

that local emissions, those from the

Grand Rapids urbanized area, may affect

ozone concentrations in the area and

any downwind area. However, the

extent of any contribution to ozone

levels from the Grand Rapids area

cannot be determined with any degree

of certainty based on the information

provided by the commentor,

particularly in light of indications that

the Grand Rapids area is the recipient of

significant levels of transported ozone.

Regardless of its origin, this exceedance

does not constitute a violation of the

ozone NAAQS. Thus, the area continues

to be eligible for redesignation based on

monitoring data showing no violations

of the ozone NAAQS for the periods

1992–1994 and 1993–1995.

Comment: The commentor suggests

that the 1992–1994 period cannot be

used to demonstrate improvements in

air quality due to permanent and

enforceable emission reductions.

Otherwise, the Chicago-Milwaukee-Gary

severe-17 ozone nonattainment area

could be downgraded to moderate ozone

nonattainment. The commentor also

alludes to the Detroit’s assessment of

contingency measures necessary to

reduce domain-wide peaks in Tiverton,

Ontario (Canada) below 200 ppb.

Response: The November 6, 1991 (56

FR 56694) classifications served to

determine a control strategy adequate to

achieve emissions reductions that

would improve the air quality in an area

to a level that would demonstrate

attainment of the NAAQS. Consequently

as an area implemented its control

strategy it is anticipated that the air

quality would continually improve until

the area demonstrated attainment of the

NAAQS. Upon demonstration of

attainment, an area could request

redesignation pursuant to section

107(d)(3) of the Act. The EPA has not

allowed any area to reclassify based on

1992–1994 monitoring data or any other

data sets outside of the data sets used in

the November 1991 designations and

classifications. Furthermore, pursuant to

the General Preamble (April 16, 1992,

57 FR 13498), it is appropriate to

redesignate any area to attainment based

on the most recent consecutive 3 years

of air quality data demonstrating

attainment of the ozone NAAQS if the

area satisfies the other redesignation

criteria of section 107(d)(3)(E) including

a demonstration that the improvement
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31839

in air quality was due to permanent and

enforceable emission reductions. Since

the Grand Rapids area demonstrated

attainment of the ozone NAAQS in the

period 1992–1994, it is an appropriate

period to be used as the basis for

redesignation of the area to attainment

particularly since the area has also

satisfied the other section 107(d)(3)

redesignation criteria including a

reasonable demonstration that of

permanent and enforceable emission

reductions were the cause of the

improvement in air quality in the area.

The Grand Rapids area achieved 0.6 and

2.4 tons per day of VOC and NOX

emission reductions between 1991 and

1994. In addition, since the Grand

Rapids area is the recipient of

significant levels of transported ozone,

Michigan also attributes the

improvement in air quality, in part, to

emission reductions achieved

throughout the Lake Michigan region.

The comment regarding Detroit,

Michigan is unclear and irrelevant to

this rulemaking action.

Comment: Based on a table comparing

number of days with temperatures

above 90 degrees and number of

monitored exceedances in Chicago, the

commentor states that the years for

which the Grand Rapids area

demonstrated attainment, 1992–1994,

fail the requirement that attainment can

not be due to ‘‘unusually favorable

meteorology’’ since that time period

represents ‘‘a statistically significant

(Chi square=14.6, Alpha=0.005)

negative deviation’’ from the number of

days conducive to formation of ozone or

days with temperatures above 90

degrees.

Response: Section 107(d)(3)(E)(iii)

requires that, for the EPA to approve a

redesignation, it must determine that

the improvement in air quality is due to

permanent and enforceable reductions

in emissions. The September 1992

Calcagni memorandum, at page 4,

clarifies this requirement by stating that

‘‘[attainment resulting from temporary

reductions in emission rates (e.g.,

reduced production or shutdown due to

temporary adverse economic

conditions) or unusually favorable

meteorology would not qualify as an air

quality improvement due to permanent

and enforceable emission reductions.’’

As discussed in the April 2, 1996

Federal Register notice, the Grand

Rapids area has reasonably

demonstrated that permanent and

enforceable emission reductions are

responsible for the recent improvement

in air quality. This demonstration was

accomplished through an estimate of the

reductions (from a nonattainment year,

1991 to an attainment year, 1994) of

VOC and NOX achieved primarily

through implementation of the Federal

Motor Vehicle Control Program

(FMVCP) from 1991–1994, in line with

the September 1992 Calcagni

memorandum. The total reductions

achieved from 1991 to 1994 were 0.6

tons of VOC and 2.4 tons of NOX per

day. The State claimed credit only for

emission reductions achieved as a result

of implementation of this federally

enforceable control measure. The

emission reductions claimed are

conservative since they do not include

the emission reductions resulting from

other control measures and programs

implemented during this time period,

such as the VOC RACT fix-ups and

catch-ups. The State, therefore,

adequately demonstrated that the

improvement in air quality is due to

permanent and enforceable emission

reductions. Furthermore, the State has

always maintained that the Grand

Rapids area is significantly affected by

ozone transported from the ChicagoMilwaukee-Gary severe-17 ozone

nonattainment area. Consequently,

emission reductions occurring in these

areas are also attributable to the

improvement in air quality in the Grand

Rapids area.

With respect to the commentor’s

contention that meteorological

conditions were not conducive to ozone

production during the 1992–1994

period, the commentor provided an

analysis of the number of days with

temperatures equal to or greater than 90

degrees Fahrenheit at Chicago’s O’Hare

airport and the total number of

monitored exceedance days from 1981–

1995 throughout the Lake Michigan

area. Since, the data is not limited to the

Grand Rapids area, i.e. the number of 90

degree days in Chicago not Grand

Rapids and the number of monitored

exceedance days throughout the Lake

Michigan area not only Grand Rapids, it

would not be accurate to conduct a

statistical analysis or draw conclusions

pertaining to the Grand Rapids area

based on this data, particularly in light

of the transport phenomena affecting

Grand Rapids. EPA, however,

conducted a general statistical analysis

of the meteorological parameters in the

Grand Rapids area of maximum

monthly temperatures and days with

temperatures greater than 90 degrees

Fahrenheit for the periods of April

through September, 1992 through 1994,

with the 10-year (1982–1991) averages

for these parameters. The 1992–1994

averages for these parameters agreed

with those for the 10-year averages with

only minor differences. Based on

averaged parameters, it can be

concluded that the 1992–1994 period

was typically conducive to ozone

formation. Finally, the EPA notes that

the Grand Rapids area has been in

attainment for the two 3-year periods

(1992–1994, and 1993–1995), and that

this, along with the fact that real

emission reductions have occurred,

indicates that attainment is not due to

unusually favorable, temporary

meteorological conditions.

Comment: The commentor contends

that the Ottawa County ozone

monitoring network is inadequate to

permit redesignation. The commentor

notes that every monitor located on the

eastern shoreline of Lake Michigan

recorded a violation of the NAAQS in

1995, and finds it inconceivable that

residents of southeastern Ottawa County

were not exposed to ozone at levels

above the NAAQS. This, the commentor

concludes, should compel the EPA to

require the State to site a monitor along

the lakeshore in Ottawa County. The

commentor is particularly concerned

that EPA refuses to acknowledge that

violations recorded at the Holland

monitor, in Allegan County, which it

contends, indicates violations of the

NAAQS in Ottawa County. The

commentor further states that it agrees

with Michigan’s contention that the

Holland monitor ‘‘* * * is

representative of the conditions in

Ottawa County.’’

Response: As discussed in detail in

the April 2, 1996, EPA believes that the

monitoring network for the Grand

Rapids area satisfies the requirements of

40 CFR part 58, appendix D. Michigan

established a number of monitors on the

west side of the State for purposes of

gathering field data for the Lake

Michigan Ozone Study (LMOS) during

1989–1991. Based on the field study

data, the State decided to locate an

ozone monitor in Holland, an urbanized

area in Allegan County (just south of

Ottawa County). However, at the

encouragement of EPA, the State

reestablished a monitor in Ottawa

County, i.e. the Jenison site, in 1994.

This in addition to the two monitors

that already exist in Kent County. Thus,

an ozone monitor is established in

Ottawa County, however, the monitor is

not at the lakeshore but inland and

represents background ozone

concentrations for the Grand Rapids

urban area. The EPA has not taken any

action to disapprove the network, but

continually works with the State to

improve the quality of the ambient

monitoring network throughout the

State. The fact that EPA and the State

undertake actions that may result in

improvements to the network, does not

mean that EPA views the monitoring
31840 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

data which shows attainment of the

standard in the Grand Rapids area as

being inadequate or unreliable. EPA

continually reviews monitoring

networks to determine how they can be

improved. However, the fact that a

monitoring network is susceptible to

improvement does not mean that the

existing network does not meet EPA’s

regulations, nor does it mean that the

data collected from the existing network

should be ignored or discounted. EPA

believes that the monitoring data fully

supports a determination that the Grand

Rapids area has attained the standard

and is, therefore, eligible for

redesignation to attainment. EPA does

not believe that there is a basis for

discounting the data which shows

attainment of the standard.

EPA further notes that the additional

monitor established in Ottawa County

as part of the ongoing network

improvements did not monitor an

exceedance in 1992 when it operated for

part of the ozone season, and has

monitored only one exceedance since

the monitor was reestablished in 1994.

While that monitor has yet to be in

operation for three full years, those

initial results support the finding that

the area has attained the standard. As a

violation does not occur unless four

exceedances occur at a single monitor

over a three-year period, the data from

the Grand Rapids area support the

determination that the area has attained

the standard and is, therefore, eligible

for redesignation.

Michigan contends that the Holland

monitor ‘‘* * * data is included in this

request as representative of levels of

transported ozone coming into the

area.’’ This can be interpreted to mean

that the Holland monitor is

representative of ozone that is being

transported into Ottawa County.

However, as explained in the proposal,

the Allegan monitor cannot be

considered part of the Grand Rapids

area since it is outside the two county

nonattainment area and the State of

Michigan has never formally requested

that it be made part of the Grand Rapids

area’s monitoring network. Furthermore,

the Holland monitor is not

representative of ozone concentrations

resulting from ozone precursor

emissions from the Grand Rapids area.

The EPA is making its conclusion about

the air quality data that has been

collected from the valid network that

currently exists in the Grand Rapids

area.

Comment: The commentor is

concerned about the validity of

monitoring data collected at the Jenison

monitor, specifically, the commentor

alleges that of the years 1992–1994 only

the 1994 data set is usable and is

supplemented with 1995. In addition,

the commentor questions the

interpretation of the missing daily ozone

value for July 14, 1995, from the Ottawa

County ozone monitor. The commentor

suggests that the missing daily ozone

value for July 14, 1995 cannot be

assumed to be less than the level of the

standard since the maximum ozone

concentration on the preceding day

exceeded the standard.

Response: The Jenison monitor is one

of three monitors in the Grand Rapids

area. The other two monitors have

operated in Kent County since 1980 and

recorded a complete data set for 1992–

1994 that demonstrate attainment of the

ozone NAAQS consistent with EPA

guidance including the September 1992

Calcagni memorandum and January

1979 document entitled ‘‘Guideline for

the Interpretation of Ozone Air Quality

Standards’’. The April 2, 1996 proposal

noted that the Jenison monitor operated

for 63 percent of the 1992 ozone season

with no exceedances of the ozone

NAAQS. The monitor was relocated to

Holland, as discussed previously, based

on the LMOS. However, at the

encouragement of EPA, the State

reestablished a monitor in Ottawa

County, i.e. at Jenison, in 1994. Thus,

the Jenison monitor has partial 1992

data and complete data for 1994 and

1995. No exceedances of the ozone

NAAQS were recorded in 1992 and

1994 and one was recorded in 1995 at

0.133 ppm. As noted in the April 2,

1996 proposal, the ‘‘Guideline for the

Interpretation of Ozone Air Quality

Standards’’ suggests that evaluation

ozone data requires the use of all ozone

data collected at a site during the past

3 calendar years. If no data are available

for a particular year then the remaining

years are used. Since 1992 data is

incomplete and 1993 data is unavailable

for this monitor, it would suffice to use

ozone monitoring data for the remaining

most recent calendar years, 1992–1995.

The Ottawa County monitor

demonstrates attainment of the ozone

NAAQS with the average number of

expected exceedances of 0.5, a value

less than 1.0.

It is unclear to EPA why the

commentor believes that the missing

daily ozone value for July 14, 1995 has

been assumed to be less than the level

of the standard. AIRS reports

consistently show that there were no

missing days assumed to be less than

the standard for the Ottawa County

monitor for 1995. The monitor captured

179 of a potential 183 days of

monitoring data (98 percent data

completeness). The 4 missing days

(183¥179=4) were not assumed to be

less than the standard, but rather were

accounted for in the calculation of the

number of expected exceedances

consistent with 40 CFR 51 (appendix H).

The four missing days of data included

July 14, 1995.

Comment: The commentor states that

Michigan fails to comply with the

section 176 conformity requirements

and provides discussion to support the

comment.

Response: This specific comment was

submitted by the commentor to EPA in

response to the EPA’s February 2, 1996

(61 FR 3815–3817) direct final

rulemaking to approve Michigan’s

general conformity SIP. As a result the

EPA withdrew the direct final

rulemaking in an action published on

March 25, 1996 (61 FR 12030). This

comment is not relevant to

redesignation and therefore, will be

addressed in the final rulemaking action

on Michigan’s general conformity SIP.

See also the discussion above in the

response on conformity requirements as

they pertain to redesignation.

Comment: The commentor states that

the Michigan City, Indiana ozone

monitor (18–091–0005) in LaPorte

County in northeastern Indiana

recorded six exceedances during 1995,

including daily ozone values of 0.154

ppm and 0.149 ppm. The commentor

argues that several of the exceedances

recorded in the Michigan City area are

attributable, in part, to ozone and

precursors originating in west Michigan.

The commentor notes that in response

to EPA’s June 2, 1995 proposed

rulemaking pertaining to the

determination of attainment for the

Grand Rapids area, they submitted a

comment regarding LMOS modeling for

June 20–21 (Episode 4) which confirms

that emissions from western Michigan

contribute to exceedances of the ozone

NAAQS. The commentor further notes

that Episode 4 conditions are

‘‘associated with a lesser, yet significant,

number of historical ozone episodes.’’

The commentor suggests that EPA

stated that it has an ‘‘affirmative

responsibility’’ to address transported

emissions from upwind areas that

significantly contribute to air quality

problems in downwind areas. See 60 FR

37368.

The commentor notes that Michigan

only cites LMOS modeling which shows

that ozone and ozone precursors are

transported into the Grand Rapids area.

The commentor is concerned that

Michigan refuses to acknowledge LMOS

modeling that indicates that ozone and

precursor emissions originating from

Grand Rapids under certain

meteorological conditions which occur

with regular frequency, contribute to
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31841

exceedances in downwind areas,

including Michigan City, Indiana.

Response: The EPA has reviewed

wind speeds and wind directions in

Grand Rapids and Michigan City,

Indiana for the 6 days on which

exceedances were recorded in Michigan

City, Indiana in 1995. The winds on the

days at issue in Grand Rapids were

predominantly from the south/

southwest, i.e. into the Grand Rapids

area with the exception of June 15,

1995, when the winds in Grand Rapids

were predominantly from the easterly.

The winds in Michigan City on the same

days were also predominately from the

south/southwest. Since Michigan City,

Indiana is south-southwest of the Grand

Rapids area, the exceedances on these

days in 1995 were clearly not

attributable to emissions from the Grand

Rapids area but likely from the ChicagoGary severe-17 nonattainment area.

The commentor has not clearly

indicated what version of the modeling

is used as the basis of their comment. It

must be emphasized that the version of

the LMOS modeling approved for

regulatory purposes by EPA on

December 15, 1994, for Episode 4 (June

20–21), does not clearly indicate the

extent of the contribution of emissions

from the Grand Rapids area to

exceedances in the Michigan City,

Indiana or any other downwind area.

Since the extent of Grand Rapids’

contribution to exceedances downwind

cannot be determined with any degree

of certainty given the information

currently available, it would be

premature for EPA to issue a finding

pursuant to section 110(a)(2)(D). The

commentor does not provide any

additional information that would cause

the EPA to determine that the

imposition of additional control

requirements in the area is warranted at

this time. As further information

becomes available, however, such a

finding may be warranted.

In light of the preliminary information

currently available, EPA does not

believe that it would be justifiable to

disapprove the redesignation request on

the basis of concerns regarding

transported emissions. The

redesignation does not mean, however,

that the Grand Rapids area might not

have to achieve additional reductions

pursuant to other provisions of the Act

if it is determined in the future that such

reductions are necessary to deal with

transport from the Grand Rapids area to

downwind areas. Finally, EPA would

note that the issue of transported ozone

and ozone precursors is being addressed

by EPA through the OTAG which is

composed of industry, environmental

groups, Federal, State and Local

governments from the eastern half of the

United States. The Lake Michigan States

of Illinois, Indiana, Wisconsin, and

Michigan are all participating, at some

level, in the OTAG process (Phase I/

Phase II attainment demonstrations as

provided for in the March 2, 1995

memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, entitled ‘‘Ozone Attainment

Demonstrations’’). In addition, Phase II

of this analysis will assess the need for

regional control strategies and refine

local control strategies. Phase II will

also provide the States and EPA the

opportunity to determine appropriate

regional strategies to resolve transport

issues including any impacts the Grand

Rapids area may have on ozone

concentrations in its downwind areas.

The commentor references the July

20, 1995 final rule regarding the

determination of applicability of certain

RFP and attainment demonstration

requirements to the Grand Rapids area,

and claims that EPA stated that it has an

‘‘affirmative responsibility’’ to address

transported emissions from upwind

areas that significantly contribute to air

quality problems in downwind areas.

EPA was, in fact, responding to a

comment from the same commentor

regarding the impacts of Grand Rapids

on downwind areas. The EPA stated

that it has the authority under sections

110(a)(2)(A) and 110(a)(2)(D) of the Act

to ensure that the required and

necessary reductions are achieved in

Grand Rapids, should subsequent

modeling become available, such as the

modeling that will be available through

completion of the Phase II analysis, or

any other subsequent modeling data.

The EPA acknowledged in that final

rule and in the April 2, 1996 proposal

to redesignate Grand Rapids that

preliminary modeling indicates that

western Michigan is the recipient of

transported ozone and that the area may

also contribute to ozone concentrations

in downwind areas. However, the

LMOS modeling is being refined and is

intertwined with the OTAG Phase I/

Phase II process. Indeed, should the

Phase II or any other modeling become

available that demonstrates that

reductions in ozone precursor emissions

from the Grand Rapids area are

necessary, the EPA has the authority to

ensure that these emission reductions

are achieved. In summary, currently no

technically supportable basis exists for

EPA to exercise its responsibility to take

appropriate action to seek additional

emission reductions in the Grand

Rapids area.

Finally, Michigan submitted LMOS

modeling which illustrated ozone and

ozone precursor transport into the

Grand Rapids area in the context of an

overwhelming transport petition. Since

Episode 4 models northeasterly wind

patterns, it would not be relevant in

demonstrating overwhelming transport

into the area.

Comment: The commentor states that

the maintenance plan submitted by

Michigan is inadequate because

Michigan’s attainment emission

inventory does not comply with EPA

requirements and implies that there are

insufficient enforceable pollution

control measures available to ensure

attainment and promptly correct any

violations. The commentor appears to

be saying that the SIP revision

requirements of section 110 and part D

should initially reduce ozone pollution,

and subsequently maintain the

improvement in air quality. The

commentor also suggest that the

emission inventory projections in the

maintenance plan underestimate

emissions growth in Grand Rapids.

Response: The commentor does not

provide support for the contention that

the attainment emission inventory does

not comply with EPA requirements.

EPA has reviewed Michigan’s

attainment emission inventory and

believes that the inventory, in fact, is

sufficient and meets EPA’s requirements

and guidance regarding emission

inventories. With respect to the

sufficiency of control measures

necessary to ensure attainment and

promptly correct a violation, the EPA

would note first that Michigan has

included inspection and maintenance,

Stage II, low Reid Vapor Pressure fuel at

7.8 psi, and VOC RACT for major plastic

parts coating, wood furniture coating

and industrial clean-up solvents as

control measures to be implemented to

address a violation not attributable to

transport. EPA believes that these

control measures are adequate for

purposes of contingency measures. The

control measures already implemented

in the area were obviously sufficient to

allow the area to attain the ozone

standard. Furthermore, the State has

demonstrated that VOC and NOX

emissions will continue to decrease

from the 1991 atttainment year levels

through the 10 year maintenance period.

EPA agrees with the commentor that

emission controls under section 110 and

part D should reduce ozone pollution

and subsequently maintain

improvements in air quality. Although

Michigan did not claim permanent and

enforceable emission reductions credit

for emission reductions achieved as a

result of implementing section 110 and

part D requirements, the State must

continue to implement these programs

even after redesignation.
31842 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

12Such a demonstration must show that removal

of a control program will not interfere with

maintenance of the ozone NAAQS and would entail

submittal of an attainment modeling demonstration

with the EPA’s current Guideline on Air Quality

Models.

13See September 1992 Calcagni memorandum.

It should be recognized that approval

of the redesignation is not expected to

result in an increase in ozone precursor

emissions. In fact, a decrease in both

VOC and NOX emissions from the Grand

Rapids area is expected over the 10-year

maintenance period. See 61 FR 14522,

April 2, 1996. It should be noted that

redesignation does not allow States to

automatically remove control programs

which have contributed to an area’s

attainment of a NAAQS for any

pollutant. The EPA’s general policy is

that a State may not relax the adopted

and implemented SIP for an area upon

the area’s redesignation to attainment,

unless an appropriate demonstration,

based on modeling 12 or adequate

justification 13, is approved by the EPA.

In this case no previously implemented

control strategies are being relaxed as

part of this redesignation.

Further, apart from Title I

requirements related to the cessation of

the Grand Rapids area’s status as an

ozone nonattainment area, the area is

and will continue to be, required to

satisfy all Act requirements. Other

control programs required by the Act

will be implemented in the area,

regardless of the ozone designation,

such as Title IV NOX controls, section

112 toxic controls and FMVCP

requirements.

The commentor does not provide any

support for its contention that the

emissions growth projections in the

maintenance plan are underestimated

for the Grand Rapids area. The

emissions projections in the

maintenance plan are based on the 1991

emission inventory developed for the

LMOS modeling effort. The projections

are based on growth factors extracted

from the EPA’s Economic Growth

Analysis System and supplemental

information used in the development of

emission projections. Point source

growth factors for utilities are based on

source specific data provided by the

utility companies. Area source growth

factors were supplemented with

population and gasoline sales/marketing

data. The stationary source emission

estimates (point and area) were

developed using the geocoded

emissions modeling and projections

system (GEMAP) which employs

projection methodologies equivalent to

those in the EPA’s Emissions

Projections System. EPA’s MOBILE5a

model was used to develop the mobile

source emission estimates. Therefore,

the emission projections methods are

consistent with EPA’s guidance.

Comment: The commentor cites two

separate provisions of the Act, sections

182(c)(9) and 175A(d) that demand that

maintenance plans include ‘‘specific

measures to be undertaken if the area

fails to meet any applicable milestone.

Such measures shall be included in the

plan revision as contingency measures

to take effect without further action by

the State or Administrator upon a

failure by the State to meet the

applicable milestone.’’ Section

182(c)(9). The commentor argues that

Michigan’s triggering mechanism is

patently illegal and unacceptable under

the Act.

The commentor states that the

triggering mechanism defeats the

meaning and purpose of the ozone

standard (40 CFR 50.9) in that the ozone

standard does not account for transport,

i.e. an area is either in attainment or

nonattainment due to observed ozone

violations and that the designation and

classification are purely a function of

observed ozone values and not a

function of the origin of ozone.

The commentor also questions the

evaluation criteria utilized by Michigan,

calling it ‘‘extremely suspect.’’

Response: Section 182(c)(9) contains

the requirements for serious and above

areas to adopt contingency measures

pertaining to RFP, and is not relevant to

this redesignation. Section 175A(d),

however, is relevant and states that

‘‘ * * * plan revision submitted under

this section shall contain such

contingency provisions as the

Administrator deems necessary to

assure that the State will promptly

correct any violation of the standard

which occurs after the redesignation of

the area as an attainment area.’’ The

mechanism that would trigger the

implementation of contingency

measures in the Grand Rapids area is

‘‘an actual monitored ozone violation of

the NAAQS, as defined in 40 CFR 50.9,

determined not to be attributable to

transport from upwind areas.’’ The EPA

believes that this triggering mechanism

is appropriate for the Grand Rapids area,

given the overwhelming evidence

demonstrating that the area is the

recipient of transported ozone and

ozone precursors from the MilwaukeeChicago-Gary severe-17 nonattainment

areas. EPA believes that this triggering

mechanism satisfies the requirement of

section 175A(d), because if a violation is

due to transport, then control measures

implemented in the Grand Rapids area

will not likely correct the violation.

Thus, when violations are occurring as

a result of transport, an attempt to

impose control measures in the Grand

Rapids area would be futile. EPA

believes that it is implicit in the Act that

the purpose of control measures is to

achieve attainment.

Because violations due to transport

are not accounted for in the ozone

NAAQS at 40 CFR 50.9 does not mean

that transport cannot be taken into

account for purposes of implementing a

control strategy to correct a violation.

Although areas are designated and

classified based on monitored

violations, regardless of their origin,

areas redesignated to attainment will be

provided an opportunity to implement

contingency measures to correct the

violation before EPA would exercise its

authority to redesignate the area back to

nonattainment.

As part of the contingency plan for

the Grand Rapids area, Michigan will

conduct a technical analysis of

meteorological conditions leading up to

and during the exceedances

contributing to a violation in order to

determine local culpability. The

commentor is concerned about the

criteria to be used to evaluate transport,

although the commentor does not

provide any specifics about what

criteria they are concerned.

Furthermore, EPA notes that any

analysis conducted by Michigan to

determine local culpability will be

subject to a public process. As part of

the contingency plan, Michigan has

incorporated procedures to involve EPA

and afford the public the opportunity to

review and participate in the

determination of whether transport or

local sources are reasonable for a

violation.

Comment: The commentor contends

that the only contingency measure

actually adopted by Michigan is low

RVP to 7.8 psi during the ozone season.

The commentor notes that

implementation of the I/M program was

stayed by the Governor of Michigan on

December 29, 1994, and that the

Michigan legislature rescinded

implementation of the Stage II vapor

recovery program once the EPA

promulgated its on board canister rule.

Response: The Grand Rapids

moderate ozone nonattainment area was

required to adopt and implement a basic

I/M program. An enhanced I/M program

was adopted by Michigan and fully

approved by EPA into the SIP on

October 11, 1994 (59 FR 51379), and

was to have commenced operation on

January 1, 1995. By the end of 1994, the

Grand Rapids area had attained the

ozone standard and was therefore,

eligible for redesignation. The January 5,

1995 (60 FR 1735) revisions to the

national I/M rule stipulate that areas
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31843

14Hereinafter referred to as the ‘‘September 1993

Shapiro memorandum.’’

otherwise eligible for redesignation may

submit the following in order to satisfy

the I/M component of the SIP:

legislative authority for basic I/M; a

provision in the SIP providing that I/M

be placed in the contingency measure

portion of the maintenance plan; and an

enforceable schedule and commitment

by the Governor or his designee for

adoption and implementation of a basic

I/M program upon a triggering event.

Also, see September 17, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation, entitled, ‘‘SIP

Requirements for Areas Submitting

Requests for Redesignation to

Attainment of the Ozone, Carbon

Monoxide NAAQS on or after November

15, 1992,’’ 14 memorandum. With this,

the Governor stayed the implementation

of the I/M program in the Grand Rapids

area. The Grand Rapids area, therefore,

only needs to satisfy the items noted

above. The legislative authority to

implement an I/M program is contained

in Michigan’s Enrolled House Bill No.

4165, which provides that I/M may be

implemented as a contingency measure

consistent with an area’s maintenance

plan if it is not necessary for

maintenance. The section 175A

maintenance plan provides for the

implementation of I/M as a contingency

measure and also provides an

enforceable schedule for the

implementation of I/M as a contingency

measure.

With respect to the commentor’s

concern regarding the rescission of

Stage II, section 10c(3) of Michigan’s

Enrolled Senate Bill No. 726 for Stage II

suspends implementation of the Stage II

program once EPA has promulgated the

final onboard rule. However, section

10c(3) also retains the authority to

implement Stage II as a contingency

measure in a maintenance plan for an

area redesignated to attainment. Thus,

once Grand Rapids is redesignated to

attainment, Stage II may be

implemented by the State as a

contingency measure pursuant to the

maintenance plan.

In conclusion, the State has adopted

legislative authority to implement I/M,

Stage II and low RVP to 7.8 psi as

contingency measures.

Comment: The commentor notes that

the January 24, 1996 letter from Dennis

Drake, Chief of the Air Quality Division,

Michigan Department of Environmental

Quality to Valdas Adamkus, Regional

Administrator, Region 5, and the State’s

April 11, 1996 contingency plan SIP

revision imply that the VOC non-CTG

RACT rules were at least adopted when

in fact they were not.

Response: The January 24, 1996 letter

merely notified EPA of the State’s

intention to revise the Grand Rapids

area’s maintenance plan to include a

commitment to adopt and implement

non-CTG VOC RACT rules for major

sources of plastic parts coating, wood

furniture coating and industrial cleanup solvents as contingency measures for

the Grand Rapids area. The actual

revision to the maintenance plan SIP,

dated April 11, 1996, states that rules to

apply non-CTG RACT to major sources

of plastic parts coating, wood furniture

coating and industrial clean up solvents

have been ‘‘drafted.’’ The State

specifically notes that the promulgation

process requires additional steps

including ‘‘approval of the proposed

rules by the Office of Regulatory

Reform, the Legislative Services Bureau,

and the Joint Legislative Committee on

Administrative Rules.’’ The State clearly

indicated that the rules are draft and

additional steps are necessary for

promulgation. Furthermore, EPA

explained in the April 2, 1996 proposal

that the contingency measure for this

element is that the State would commit

to adopt and implement non-CTG VOC

RACT rules for the three source

categories noted previously.

Comment: The commentor suggests

that the State’s failure to adopt and

implement the VOC non-CTG RACT

rules in accordance with section

182(b)(2)(A) of the Act violates the

sections 110 and 107(d)(3)(E)(v)

requirements. Section 107(d)(3)(E)

requires the State to adopt a complete

part D nonattainment plan, which these

non-CTG VOC RACT rules are part of,

prior to redesignation.

Response: In the April 2, 1996

proposal, the EPA acknowledges that

the section 182(b)(2)(A) requirement for

non-CTG VOC RACT rules is an

applicable requirement and that current

EPA redesignation policy requires that

these rules be fully adopted, and if not

necessary for maintenance of the

NAAQS, be moved to the contingency

plan portion of the maintenance plan.

However, the EPA, in this instance,

proposed an exception to this policy

based on a combination of three factors

as previously discussed. The

commentor, however, has not provided

comments specific to the rationale used

as the basis of the exception.

EPA emphasizes that, even without

this exception to its general policy, the

State would have been able to have the

RACT rules become a part of the

contingency measures in the

maintenance plan upon approval of the

redesignation. However, that could have

occurred only after or upon EPA’s full

approval of the adopted RACT rules.

Therefore, the only difference between

EPA’s general policy and the exception

to that policy proposed for Grand

Rapids is that a commitment to adopt

and implement the RACT rules in an

expeditious manner, rather than fullyadopted RACT rules, would be among

the contingency measures in the

maintenance plan. As previously

discussed, the EPA believes that this

exception to its general policy is legally

permissible under the statutory

provisions governing redesignation. The

VOC RACT requirements remain

applicable requirements under section

107 and EPA believes that their

treatment in the contingency plan as

commitments is consistent with the

manner in which EPA has accepted

other commitments to adopt and

implement contingency measures in

maintenance plans under section 175A.

Comment: The commentor states that

the contingency measures provided for

in the maintenance plan are inadequate

and illusory. The commentor further

elaborates that none of the contingency

measures are adopted with the

necessary legislative authority or

described with sufficient specificity, nor

do they include milestones to insure

prompt implementation as required by

section 175A(d) or EPA guidance.

Response: Contrary to the

commentor’s statement, legislative

authority is adopted for three of the

contingency measures, I/M, Stage II and

low RVP to 7.8 psi. Further, the State

has submitted an enforceable

commitment to implement the three

non-CTG VOC RACT rules. Neither the

Act nor redesignation guidance require

milestones to track the State’s

compliance with adoption and

implementation of contingency

measures. The September 1992 Calcagni

memorandum suggests that the

contingency plan identify the

contingency measure to be adopted,

provide a schedule and procedure for

adoption and implementation, and

provide a specific time limit for action

by the State. The Grand Rapids area’s

contingency plan identifies the measure

to be adopted, provides a procedure for

adoption of the non-CTG VOC RACT

rules (‘‘promulgation involves * * *

additional steps * * * approval of the

proposed rules by the Office of

Regulatory Reform, the Legislative

Services Bureau * * * ’’ See April 11,

1996, SIP revision) and provides a

schedule for implementation (e.g. 20

months from the Governor’s decision to

employ these rules as contingency

measures). It is noted that the critical

component of this schedule is not the
31844 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

15Phased in implementation of Stage II

commences within 6 months of the Governor’s

decision to employ Stage II or one year of a

monitored violation.

16See March 16, 1989 memorandum from John

Calcagni, Director, Air Quality Management

Division and John Seitz, Director, Stationary Source

Compliance Division entitled ‘‘Compliance

Schedules for Volatile Organic Compounds.’’ This

memorandum clarifies that the ‘‘presumptive

norm’’ for source compliance with a new or revised

rule is recommended to be 1 year or less.

State’s internal schedule for adoption of

the rule(s) but the schedule for full

implementation.

It is further noted that the

contingency measure implementation

schedules for the Grand Rapids area

were derived from the Act, and

applicable State and Federal

regulations. The schedule established

for the implementation of contingency

measures provides for the

implementation of such measures as

soon as within 1 year of a violation 15.

The EPA believes that this schedule

satisfies the criterion of section 175A

regarding the need for contingency

measures to promptly correct violations

of the standard occurring during the

maintenance period.

Comment: The commentor states that

EPA guidance requires that a

maintenance plan ‘‘ensure prompt

correction of any violation of the

NAAQS.’’ Yet the Grand Rapids

maintenance plan SIP revision of April

11, 1996 allows implementation of the

non-CTG RACT rules within 26 months

of an ozone violation. The commentor is

concerned that 26 months for

implementation of the non-CTG VOC

RACT rules does not ensure prompt

correction of a violation. In addition, the

maintenance plan lacks adequate

milestones to track the State’s

compliance.

Response: The 26-month schedule to

implement the non-CTG VOC RACT

rules takes into account 6 months to

quality assure the monitoring data

indicating a violation of the ozone

NAAQS, conduct an analysis to

determine local culpability with respect

to a violation, and to afford the public

an opportunity to participate in the

determination of local culpability, 8

months for full adoption of any of the

non-CTG RACT rule(s) chosen as a

contingency measure, and 12 months for

full implementation.16 The EPA believes

that this is an expeditious schedule for

adoption and implementation of these

rules.

Furthermore, neither the Act nor

redesignation guidance requires

milestones to track the State’s

compliance with adoption and

implementation of contingency

measures. The September 1992 Calcagni

memorandum suggests that the

contingency plan identify the

contingency measure to be adopted,

provide a schedule and procedure for

adoption and implementation, and

provide a specific time limit for action

by the State. The Grand Rapids area’s

contingency plan identifies the measure

to be adopted, provides a procedure for

adoption of the non-CTG VOC RACT

rules (‘‘promulgation involves * * *

additional steps * * * approval of the

proposed rules by the Office of

Regulatory Reform, the Legislative

Services Bureau * * * ’’ See April 11,

1996, SIP revision) and provides a

schedule for implementation (e.g. 20

months from the Governor’s decision to

employ these rules as contingency

measures). The critical component of

this schedule is not the State’s internal

schedule for adoption of the rule(s) but

the schedule for full implementation.

Finally, there are other more effective

contingency measures than the non-CTG

VOC RACT rules that could be

implemented more expeditiously such

as Stage II and low RVP gasoline (to 7.8

psi).

Comment: The commentor states that

allowing the State to commit to

subsequent adoption of the three

required VOC non-CTG RACT rules as

contingency measures is ‘‘extraordinary

and prohibited * * * preferential

treatment’’ for Michigan and is

inconsistent with EPA guidance and

recent actions on other moderate area

redesignation requests. The commentor

believes that such preferential treatment

rewards the State for its failure to satisfy

Act requirements. This is particularly

so, since the EPA penalized adjacent

States that did not adopt and implement

these non-CTG VOC RACT rules and

other control measures. Preferential

treatment is ‘‘illegal’’ and undermines

the cooperation of other States

implementing future control measures

to reduce ozone and ozone precursor

emissions and other efforts such as

LMOS and OTAG. The commentor

further states that the EPA’s preferential

treatment is especially evident in its

allowing Michigan to determine the

need for implementation of contingency

measures based on parameters

developed by Michigan.

Response: EPA again notes that, even

without the exception to its general

policy proposed in the April 2, 1996

rulemaking, the State would have been

able to have the RACT rules become a

part of the contingency measures in the

maintenance plan upon approval of the

redesignation. However, that could have

occurred only after or upon EPA’s full

approval of the adopted RACT rules.

Consequently, the only difference

between EPA’s general policy and the

exception to that policy described in the

proposal is that a commitment to adopt

and implement the RACT rules in an

expeditious manner, rather than fullyadopted RACT rules, would be among

the contingency measures in the

maintenance plan. EPA would also note

that, in general, contingency measures

need not be fully adopted. See

September 1992 Calcagni memorandum.

Thus, EPA is acknowledging that

allowing Michigan to incorporate these

non-CTG VOC RACT measures into the

contingency plan without fully adopted

rule is an exception to policy. The

commentor, however, has not provided

any basis to dispute the rationale for

this exception and factors presented in

the April 2, 1996 proposal.

The EPA disagrees with the

commentor’s contention that EPA is

affording Michigan ‘‘preferential

treatment.’’ EPA guidance and policies

have been, or can be, applied to all

areas, including Grand Rapids, in an

equitable manner. EPA periodically will

make an exception to policy where an

exception is warranted and appropriate.

Allowing an exception to policy for a

particular area does not constitute

preferential treatment for that area but

instead is a neutral determination that is

available to other areas that could also

demonstrate circumstances that would

warrant the same exception. This is the

first instance that the issue of full

adoption of these particular non-CTG

VOC RACT rules has arisen in the

context of redesignation. As such, it is

in this action that the exception to

policy is being exercised.

The commentor does not cite any

instances, nor is EPA aware of any

instances, where EPA penalized an

adjacent State that did not adopt and

implement these non-CTG VOC RACT

rules. The commentor does not specify

the ‘‘other control measures’’ referred to.

In addition, with respect to the Grand

Rapids maintenance plan, Michigan has

incorporated a process not only to

involve the EPA but to afford the public

an opportunity to participate in the

process to determine the necessity to

select and implement contingency

measures based on a technical analysis

to determine local culpability. Thus,

although Michigan will be conducting

the analysis an opportunity for the

public review and participate will be

provided.

Comment: The commentor states that

the non-CTG VOC RACT rules should

have been adopted and implemented by

November 15, 1994. The commentor

also notes that neither Michigan nor

EPA acknowledges this. The commentor

adds that EPA has failed to enforce
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31845

17See footnote 15.

sections 182(b)(2)(A) at that time and is

failing to enforce section 175A of the

Act, now.

Response: Although EPA’s general

redesignation policy requires that rules

and programs for requirements that

come due prior to submittal of a

complete redesignation request be

adopted and fully approved into the

area’s SIP, it also allows for these

measures to be moved into the area’s

maintenance plan as contingency

measures if they are not yet

implemented and not necessary for

maintenance of the standard. September

1993 Shapiro memorandum. Thus, the

non-CTG VOC RACT rules should have

been adopted but not necessarily

implemented. The rules would have

been moved over into the area’s

maintenance plan since they were not

needed for maintenance.

The April 2, 1996 proposal to approve

the Grand Rapids redesignation does, in

fact, acknowledge that the non-CTG

VOC RACT rules were required to be

submitted to EPA by November 15, 1994

and implemented by November 15,

1995. See 61 FR 14526. The State’s

April 11, 1996 submittal also

acknowledges that these rules were due

on November 15, 1994.

For the reasons explained above,

however, EPA believes that its treatment

of these rules in this redesignation is

justifiable and appropriate.

Comment: The commentor is

concerned that Michigan’s contingency

plan lacks milestones and is

inconsistent with the specificity that the

EPA required of contingency plans in

other areas such as the Toledo, Ohio

contingency plan, which included a

number of milestones to gauge the

State’s progress.

Response: Neither the Act nor

redesignation guidance require

milestones to track the State’s

compliance with adoption and

implementation of contingency

measures. The September 1992 Calcagni

memorandum suggests that the

contingency plan identify the

contingency measure to be adopted,

provide a schedule and procedure for

adoption and implementation, and

provide a specific time limit for action

by the State. The Grand Rapids area’s

contingency plan identifies the measure

to be adopted, provides a procedure for

adoption of the non-CTG VOC RACT

rules (‘‘promulgation involves * * *

additional steps * * * approval of the

proposed rules by the Office of

Regulatory Reform, the Legislative

Services Bureau * * * ’’ See April 11,

1996, SIP revision) and provides a

schedule for implementation (e.g. 20

months from the Governor’s decision to

employ these rules as contingency

measures). The critical component of

this schedule is not the State’s internal

schedule for adoption of the rule(s), but

the schedule for full implementation.

Comment: The commentor is

concerned that the schedule for

implementation of the non-CTG VOC

RACT rules for the three source

categories identified would not

‘‘promptly correct any violation of the

standard’’ since it allows over 2 years

after an ozone violation before adopting

and implementing a selected

contingency measure.

Response: As noted previously, the

26-month schedule to implement the

non-CTG VOC RACT rules takes into

account: 6 months to quality assure the

monitoring data indicating a violation of

the ozone NAAQS, conduct an analysis

to determine local culpability with

respect to the violation, and afford the

public an opportunity to participate in

the determination of local culpability; 8

months for full adoption of any of the

non-CTG RACT rule(s) chosen as a

contingency measure; and 12 months for

full implementation. The EPA believes

that this is an adequate and expeditious

schedule for adoption and

implementation of these rules. In

addition, the contingency plan contains

other measures that provide for

implementation of a measure as soon as

within 1 year of a violation.17

Comment: The commentor suggests

that the September 1992 Calcagni

memorandum requires States to

implement all the control measures

prior to redesignation but that a revision

to the SIP to remove measures may be

submitted. The commentor interprets

this to mean that the State must have

adopted and implemented the

‘‘applicable control measures’’ in the

area. The commentor notes that

Michigan did not adopt and implement

the non-CTG VOC RACT rules for

plastic parts coating, wood furniture

coating and clean-up solvents as

required by section 182(b)(2)(A). In

addition, Michigan did not adopt rules

for non-CTG source categories which it

deemed unnecessary due to the absence

of existing sources.

Response: The September 1992

Calcagni memorandum interprets

section 175A(d) as requiring the

continued implementation of all

measures contained in the area’s part D

nonattainment plan and that removal of

these implemented measures would

require a demonstration that the

measures are not necessary for

attainment or maintenance. In addition,

once removed those measures are

required to be incorporated into the

area’s contingency plan as contingency

measures. The non-CTG VOC RACT

rules, however, were not adopted by the

State or approved by EPA into the area’s

part D nonattainment SIP. As such, the

non-CTG VOC RACT rules were not

required to be implemented as a

prerequisite for redesignation since they

were not incorporated into the part D

nonattainment SIP. Furthermore, EPA’s

general redesignation policy does not

require the implementation of all

measures that were applicable to the

area instead, it allows unimplemented

measures to be moved into an area’s

maintenance plan as contingency

measures if they are not necessary for

maintenance. See Detroit redesignation

with respect to Stage I (March 7, 1995,

60 FR 12459).

It is unclear to EPA why the

commentor would be concerned that the

State did not adopt rules applicable to

sources which do not exist in the State.

Appendix E of the supplement to the

General Preamble (April 28, 1992, 57 FR

18070) stipulated that the States submit

a list of major stationary sources that are

expected to be subject to one of the 11

source categories for which EPA was to

issue a CTG. Michigan submitted such

a list on November 15, 1992. States have

not been required to adopt rules for nonCTG source categories for which no

sources exist in the State.

Comment: The commentor states that

EPA noted to Michigan, in its

preliminary review of the Grand Rapids

area’s redesignation request, that

adopted rules for the applicable source

categories in Appendix E should be

submitted. In response, the State

committed to adopt these non-CTG VOC

RACT rules as contingency measures

should they be chosen as contingency

measures. The commentor believes this

is an ‘‘inadequate and unacceptable

substitute’’ for adoption and

implementation of these rules.

Response: EPA’s comments merely

represented a preliminary review of the

State’s redesignation request. As

discussed in the April 2, 1996 proposal,

current EPA policy, in fact, would

require the State to have submitted

adopted non-CTG VOC RACT rules for

the 3 source categories at issue before

the area could be redesignated to

attainment. As discussed previously,

however, EPA proposed to make an

exception to policy in this instance for

several reasons, including the fact that

the RACT rules at issue came due after

the end of the ozone season in which

Grand Rapids attained the standard and

were not needed to bring about

attainment of the ozone standard in

Grand Rapids. In addition, the State has
31846 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

demonstrated continued maintenance of

the ozone standard through 2007

without the implementation of these

measures and other contingency

measures are included in the

maintenance plan that would bring

about far greater emission reductions

than the VOC RACT rules, and would

therefore be substantially more effective

in terms of correcting violations

attributable to local emissions from the

Grand Rapids area that may occur after

redesignation. Again, the commentor

does not challenge the rational used to

make the exception to policy pertaining

to the non-CTG RACT rules.

EPA’s general redesignation policy

requires that rules and programs for

requirements that come due prior to

submittal of a complete redesignation

request be adopted and fully approved

into the area’s SIP. The policy also

allows for these measures to be moved

into the area’s maintenance plan as

contingency measures if they are not

necessary for maintenance of the

standard. September 1993 Shapiro

memorandum. Thus, the non-CTG VOC

RACT rules should have been adopted

but may have been moved over into the

area’s maintenance plan, if the area

demonstrated that the measure(s) was

not necessary for maintenance.

Comment: The commentor submits

that the EPA is prohibited from

accepting commitments by a State to

adopt and implement contingency

measures in place of fully adopted and

implemented rules as required for SIP

revisions pursuant to section 110(k)(4).

Natural Resources Defense Counsel

(NRDC) v. U.S. EPA.

Response: EPA does not believe that

the D.C. Circuit’s decision in NRDC v.

U.S. EPA, 22 F.3d 1125 (D.C. Cir. 1994)

concerning the use of commitments

under section 110(k)(4) prohibits EPA

from fully approving commitments by a

State to adopt and implement

contingency measures in a section 175A

maintenance plan. The NRDC decision

concerned the use of the section

110(k)(4) conditional approval

mechanism, which contemplates the

conversion of a conditional approval to

a disapproval if a State fails to comply

with a commitment to adopt specific

enforceable measures by a date certain,

which may be no later than one year

after the conditional approval. In

contrast, the commitments regarding

contingency measures in a section 175A

maintenance plan become enforceable

commitments once they are fullyapproved into the maintenance plan. As

these commitments are fully approved

into the SIP, they, like other provisions

of a fully-approved plan, are enforceable

pursuant to the provisions of the Act.

See September 1992 Calcagni

memorandum at p. 12 (stating that ‘‘the

contingency plan is considered to be an

enforceable part of the SIP’’). EPA notes

that it has not relied on the section

110(k)(4) conditional approval

mechanism for dealing with

commitments regarding maintenance

plan contingency measures either before

or after the NRDC decision, but has

consistently fully-approved such

commitments, thereby making them an

enforceable part of the SIP. In sum, EPA

does not believe that its authority to

accept such commitments was affected

by the NRDC decision.

Comment: The commentor cites the

September 1992 Calcagni memorandum

which provides that, ‘‘for purposes of

section 175A, a State is not required to

have fully adopted contingency

measures that will take effect without

further action by the State in order for

the maintenance plan to be approved,’’

and interprets this language to imply

that contingency measures need not be

self-executing and provides the State

discretion in selection of a contingency

measure from a host of ‘‘adopted

contingency measures.’’

Response: The September 1992

Calcagni memorandum citation noted

by the commentor is valid. However, the

September 1992 Calcagni memorandum

goes on to say in the next sentences that

‘‘the contingency plan * * * should

ensure that the contingency measures

are adopted expediently once they are

triggered.’’ Clearly, this indicates that

contingency measures need not be fully

adopted since the contingency plan

should ensure expeditious adoption of

contingency measures.

Comment: The commentor is

concerned that the State did not

implement an enhanced I/M program as

scheduled in December 1994 and that

the State has partially rescinded the

legal authority for the I/M program.

Response:The Grand Rapids moderate

ozone nonattainment area was required

to adopt and implement a basic I/M

program. An enhanced I/M program was

adopted by Michigan and fully

approved by EPA into the SIP on

October 11, 1994 (59 FR 51379) and was

to have commenced implementation on

January 1, 1995. By the end of 1994, the

Grand Rapids area had attained the

ozone standard and therefore, was

eligible for redesignation. The January 5,

1995 (60 FR 1735) revisions to the

national I/M rule stipulate that areas

otherwise eligible for redesignation,

may submit the following in order to

satisfy the I/M component of the SIP:

legislative authority for basic I/M; a

provision in the SIP providing that I/M

be placed in the contingency measure

portion of the maintenance plan; and an

enforceable schedule and commitment

by the Governor or his designee for

adoption and implementation of a basic

I/M program upon a triggering event.

Also, see September 1993 Shapiro

memorandum. With this, the Governor

stayed the implementation of the I/M

program in the Grand Rapids area. In

order to satisfy the I/M component of

the SIP, therefore, the State needs to

satisfy only the items noted above. The

legislative authority to implement an I/

M program is contained in Michigan’s

Enrolled House Bill No. 4165 which

provides that I/M may be implemented

as a contingency measure consistent

with an area’s maintenance plan if it is

not necessary for maintenance. The

175A maintenance plan provides for the

implementation of I/M as a contingency

measure, and also provides an

enforceable schedule for the

implementation of I/M as a contingency

measure.

Finally, EPA is not aware of any

revocation of the legal authority of the

I/M program. In fact, discussions with

the State verified that Michigan’s

Enrolled House Bill No. 4165 has not

been revoked or repealed but is still

valid.

Comment:The commentor conducted

an analysis of 1995 ambient monitoring

data and concluded that the emissions

from the Grand Rapids area produces

tropospheric ozone. Adoption and

implementation of the non-CTG VOC

RACT rules for plastic parts coating,

wood furniture coating and industrial

clean-up solvents would have achieved

considerable, cost-effective reduction in

local VOC emissions as well as lessened

the exposure of the community to toxic

air pollutants. The commentor states

that, if EPA had enforced part D

nonattainment plan requirements for the

Grand Rapids area, significant VOC

emission reductions would have

occurred.

Response: The EPA does not dispute

the commentor’s contention that ozone

and ozone precursor emissions from the

Grand Rapids urbanized area contribute

to the formation of ozone nor that

implementation of the non-CTG VOC

RACT rules for the three source

categories would have achieved

reductions in local VOC emissions.

Based on the current ozone standard,

0.12 ppm, however, the Grand Rapids

area has demonstrated attainment of the

current ozone NAAQS in the three year

period 1992–1994 and continues to

demonstrate attainment for the period

1993–1995 even without the

implementation of these rules.

With respect to the EPA’s

enforcement of part D nonattainment
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31847

18Hereinafter referred to as ‘‘LADCO document.’’

19Hereinafter referred to as ‘‘STAPPA/ALAPCO

document.’’

plan requirements, EPA’s general

redesignation policy provides that part

D nonattainment plan requirements that

have been adopted but unimplemented

may be moved into the area’s

maintenance plan as contingency

measures if the area demonstrates that

these rules are not necessary for

maintenance of the ozone NAAQS. Even

if EPA had made a finding of failure to

submit after the State of Michigan’s

failure to submit the non-CTG VOC

RACT rules at issue, there is no

assurance that those rules would have

been adopted and implemented prior to

redesignation of the Grand Rapids area.

Assuming that the State of Michigan

would have adopted and submitted

such rules to EPA after a finding of

failure to submit, such rules would not

have had to have been implemented

prior to this redesignation. Indeed, as

explained above, since maintenance of

the standard has been demonstrated in

the Grand Rapids area without such

rules, the State would probably have

simply included such rules on the list

of contingency measures in the

maintenance plan and not implemented

them prior to the redesignation. In sum,

no environmental benefit, and no

reduction of emissions would have been

realized by EPA’s enforcement of

section 182(b)(2)(A) in this case.

The commentor’s calculations of

emission reductions resulting from the

implementation of non-CTG VOC RACT

in the plastic parts, wood furniture and

industrial clean up solvents are

somewhat unclear and inaccurate.

However, the EPA agrees with the

commentor’s assumption that in the

calculations to determine the emissions

on a tons per day basis from a tons per

year basis, the tons per year figure

should be divided by 365 days. Since

the tons per year figures were based on

a theoretical emission value, assuming

the facilities are operating 365 days per

year, dividing by 365 is more accurate

and appropriate than dividing by 250. In

its original calculations, the EPA

erroneously divided by 250 days

assuming that the tons per year figure

was based on actual emissions and the

facilities only operated on weekdays

and not on weekends or holidays.

The commentor references two

documents as the basis of its

calculations, the ‘‘Lake Michigan Ozone

Control Program Evaluation of Possible

Control Measures: Control of Surface

Coating of Plastic Parts; Control of

Emissions from Wood Furniture Coating

[VOC], Evaluation of Possible Control

Measures for Solvent Metal Cleaning,’’

developed through the Lake Michigan

Air Directors Consortium, April 16,

1993 18 and ‘‘Meeting the 15–Percent

Rate-of-Progress Requirement Under the

Clean Air Act: A Menu of Options,’’

from STAPPA/ALAPCO, September

1993.19

In calculating potential emission

reductions for the plastic parts coating

source category, EPA believes that the

commentor assumed a 95 percent

reduction in emissions. This value

appears to be based on the LADCO

document, which estimates a potential

40–95 percent emission reduction

depending on the level of control

applied to the source category. The 95

percent reduction assumes that these

sources are uncontrolled and that the

State’s rule would require the most

stringent of three control options that

represent RACT. Since Michigan has a

rule applicable to plastic parts coating

sources, the emission reductions would

be far less than the 95 percent assumed

by the commentor. In fact, according to

Michigan’s calculations, a non-CTG

VOC RACT rule would achieve,

approximately, an additional 7 percent

reduction to the reductions already

achieved by Michigan’s Rule 632. The 7

percent reduction represents the

additional reductions that would be

achieved from the level of controls

required by Michigan’s current Rule 632

and a level of RACT between the first

and second control options available in

the draft CTG for this source category.

With respect to the wood furniture

source category, the commentor

assumed a 70 percent emission

reduction. It appears that this value,

again, was based on the LADCO

document, which estimates a 50–70

percent emission reduction in the wood

furniture coating source category. In its

calculation of the emission reductions

for this source category, EPA assumed a

30 percent emission reduction. This was

based on an emission reduction estimate

from the non-CTG document ‘‘Control of

Volatile Organic Compound Emissions

from Wood Furniture Manufacturing

Operations,’’ September 7, 1995.

Furthermore, the STAPPA/ALAPCO

document referred to by the commentor

also estimates an emission reduction of

approximately 36 percent. While EPA’s

assumption is not as optimistic as that

assumed by the commentor, EPA

believes that the 30 percent emission

reduction is a reasonable assumption

based on EPA guidance and

documentation, which estimates a range

of reductions between 20 and 47 percent

depending on the process being

controlled. Furthermore, even if the

optimistic 70 percent emission

reduction is assumed, emission

reductions from the implementation of

I/M or low RVP (to 7.8 psi), at various

time intervals, would achieve greater

reductions than the plastic parts

coating, wood furniture coating and

industrial clean-up solvents in

aggregate. In addition, emission

reductions from the implementation of

I/M, low RVP or Stage II would bring

about far greater reductions than any of

these non-CTG VOC RACT rules

individually, even with the 70 percent

emission reduction assumed by the

commentor.

The commentor appears to be

assuming a 15 percent emission

reduction for the industrial clean-up

solvents source category. The EPA based

its calculations on an assumption of 25

percent reduction. Since the basis of the

15 percent assumption is unclear and

EPA assumed a higher percentage

emission reduction than did the

commentor, this does not appear to be

an issue of contention.

Consequently, EPA’s conclusion that

the other, more effective contingency

measures, should and would be

implemented first even if these RACT

rules were to be fully adopted prior to

redesignation, is not affected.

III. Final Rulemaking Action

The EPA approves the redesignation

of the Grand Rapids, Michigan ozone

area to attainment and the section 175A

maintenance plan as a revision to the

Michigan SIP. The State of Michigan has

satisfied all of the necessary

requirements of the Act.

EPA finds that there is good cause for

this redesignation to attainment, and

SIP revision to become effective

immediately upon publication because a

delayed effective date is unnecessary

due to the nature of a redesignation to

attainment which relieves the area from

certain Clean Air Act requirements that

would other wise apply to it. The

immediate effective date for this

redesignation is authorized under both

5 U.S.C. 553(d)(1), which provides that

rulemaking actions may become

effective less than 30 days after

publication if the rule ‘‘grants or

recognizes an exemption or relieves a

restriction’’ and section 553(d)(3),

which allows an effective date less than

30 days after publication ‘‘as otherwise

provided by the agency for good cause

found and published with the rule.’’

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific
31848 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

Ozone SIPs are designed to satisfy the

requirements of part D of the Act and to

provide for attainment and maintenance

of the ozone NAAQS. This final

redesignation should not be interpreted

as authorizing the State to delete, alter,

or rescind any of the VOC or NOX

emission limitations and restrictions

contained in the approved ozone SIP.

Changes to ozone SIP VOC regulations

rendering them less stringent than those

contained in the EPA approved plan

cannot be made unless a revised plan

for attainment and maintenance is

submitted to and approved by EPA.

Unauthorized relaxations, deletions,

and changes could result in both a

finding of nonimplementation [section

173(b) of the Act] and in a SIP

deficiency call made pursuant to section

110(a)(2)(H) of the Act.

This action has been classified as a

Table 3 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by a July 10, 1995,

memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget has exempted this

regulatory action from Executive Order

12866 review.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000. This

determination does not create any new

requirements, but suspends the

indicated requirements. Therefore,

because this action does not impose any

new requirements, I certify that it does

not have a significant impact on small

entities affected.

The EPA has determined that today’s

final 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 imposes no new Federal

requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

The SIP approvals under section 110

and subchapter I, part D of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

Act, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The Act

forbids EPA to base its actions on such

grounds. Union Electric Co. v.

U.S.E.P.A., 427 U.S. 246, 256–66 (S.Ct.

1976); 42 U.S.C. section 7401(a)(2).

Under section 801(a)(1)(A) of the APA

as amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted a report

constraining this rule and other required

information to the U.S. Senate, the U.S.

House of Representative and the

Comptroller General of the General

Accounting Office prior to publication

of the rule in today’s Federal Register.

This rule is not a ‘‘major rule’’ as

defined by section 804(2) of the APA as

amended.

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, the EPA

must prepare a budgetary impact

statement to accompany any proposed

or final rulemaking 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.

Section 203 requires the EPA to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule. Under section

205, the EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements.

Redesignation of an area to attainment

under section 107(d)(3)(E) of the Act

does not impose any new requirements

on small entities. Redesignation is an

action that affects the status of a

geographical area and does not impose

any regulatory requirements on sources.

The Administrator certifies that the

approval of the redesignation request

will not affect a substantial number of

small entities.

Under section 307(b)(1) of the Act,

petitions for judicial review of this final

action must be filed in the United States

Court of Appeals for the appropriate

circuit by August 20, 1996. 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 may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2)).

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Nitrogen oxides, Ozone,

Volatile organic compounds, Motor

vehicle pollution, and reporting and

record keeping requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, Carbon monoxide,

National parks, Wilderness areas,

Hydrocarbons, Nitrogen oxides, Ozone,

and Volatile organic compounds.

Authority: 42 U.S.C. 7401–7671q.

Dated: June 17, 1996.

David A. Ullrich,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

Subpart X—Michigan

1. The authority citation for Part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Section 52.1170 is amended by

adding paragraph (c)(106) to read as

follows:

§ 52.1170 Identification of plan.

* * * * *

(c) * * *

(106) On March 9, 1995, the State of

Michigan submitted as a revision to the

Michigan State Implementation Plan for

ozone a State Implementation Plan for a

section 175A maintenance plan for the

Grand Rapids area as part of Michigan’s

request to redesignate the area from

moderate nonattainment to attainment

for ozone. Elements of the section 175A

maintenance plan include an attainment

emission inventory for NOX and VOC, a

demonstration of maintenance of the

ozone NAAQS with projected emission

inventories to the year 2007 for NOX

and VOC, a plan to verify continued

attainment, a contingency plan, and a

commitment to submit a subsequent

maintenance plan revision in 8 years as

required by the Clean Air Act. If a

violation of the ozone NAAQS,
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 31849

determined not to be attributable to

transport from upwind areas, is

monitored, Michigan will implement

one or more appropriate contingency

measure(s) contained in the contingency

plan. Once a violation of the ozone

NAAQS is recorded, the State will

notify EPA, review the data for quality

assurance, and conduct a technical

analysis, including an analysis of

meteorological conditions leading up to

and during the exceedances

contributing to the violation, to

determine local culpability. This

preliminary analysis will be submitted

to EPA and subjected to public review

and comment. The State will solicit and

consider EPA’s technical advice and

analysis before making a final

determination on the cause of the

violation. The Governor or his designee

will select the contingency measure(s)

to be implemented within six months of

a monitored violation attributable to

ozone and ozone precursors from the

Grand Rapids area. The menu of

contingency measures includes a motor

vehicle inspection and maintenance

program, Stage II vapor recovery,

gasoline RVP reduction to 7.8 psi, RACT

on major non-CTG VOC sources in the

categories of coating of plastics, coating

of wood furniture, and industrial

cleaning solvents. Michigan submitted

legislation or rules for I/M in House Bill

No 4165, signed by Governor John

Engler on November 13, 1993; Stage II

in Senate Bill 726 signed by Governor

John Engler on November 13, 1993; and

RVP reduction to 7.8 psi in House Bill

4898 signed by Governor John Engler on

November 13, 1993.

(i) Incorporation by reference.

(A) State of Michigan House Bill No.

4165 signed by the Governor and

effective on November 13, 1993.

(B) State of Michigan Senate Bill 726

signed by the Governor and effective on

November 13, 1993.

(C) State of Michigan House Bill No.

4898 signed by the Governor and

effective on November 13, 1993.

2. Section 52.1174 is amended by

adding paragraph (o) to read as follows:

§ 52.1174 Control strategy: Ozone.

* * * * *

(o) Approval—On March 9, 1996, the

Michigan Department of Environmental

Quality submitted a request to

redesignate the Grand Rapids ozone

nonattainment area (consisting of Kent

and Ottawa Counties) to attainment for

ozone. As part of the redesignation

request, the State submitted a

maintenance plan as required by 175A

of the Clean Air Act, as amended in

1990. Elements of the section 175A

maintenance plan include an attainment

emission inventory for NOX and VOC, a

demonstration of maintenance of the

ozone NAAQS with projected emission

inventories to the year 2007 for NOX

and VOC, a plan to verify continued

attainment, a contingency plan, and a

commitment to submit a subsequent

maintenance plan revision in 8 years as

required by the Clean Air Act. If a

violation of the ozone NAAQS,

determined not to be attributable to

transport from upwind areas, is

monitored, Michigan will implement

one or more appropriate contingency

measure(s) contained in the contingency

plan. Once a violation of the ozone

NAAQS is recorded, the State will

notify EPA, review the data for quality

assurance, and conduct a technical

analysis, including an analysis of

meteorological conditions leading up to

and during the exceedances

contributing to the violation, to

determine local culpability. This

preliminary analysis will be submitted

to EPA and subjected to public review

and comment. The State will solicit and

consider EPA’s technical advice and

analysis before making a final

determination on the cause of the

violation. The Governor or his designee

will select the contingency measure(s)

to be implemented within 6 months of

a monitored violation attributable to

ozone and ozone precursors from the

Grand Rapids area. The menu of

contingency measures includes a motor

vehicle inspection and maintenance

program, Stage II vapor recovery, RVP

reduction to 7.8 psi, RACT on major

non-CTG VOC sources in the categories

of coating of plastics, coating of wood

furniture, and industrial cleaning

solvents. The redesignation request and

maintenance plan meet the

redesignation requirements in section

107(d)(3)(E) and 175A of the Act as

amended in 1990, respectively. The

redesignation meets the Federal

requirements of section 182(a)(1) of the

Clean Air Act as a revision to the

Michigan Ozone State Implementation

Plan for the above mentioned counties.

Part 81, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7871q.

2. Section 81.323 is amended by

revising the attainment status

designation table entry for the Grand

Rapids area for ozone to read as follows:

§ 81.323 Michigan.

* * * * *

MICHIGAN—OZONE

Designated areas

Designation Classification

Date 1 Type Date Type

* * * * * * *

Grand Rapids Area:

Kent County ................................................................. June 21, 1996 ........... Attainment.

Ottawa County ............................................................. June 21, 1996 ........... Attainment.

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.
31850 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

[FR Doc. 96–15881 Filed 6–20–96; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 14

RIN 1018–AB49

Importation, Exportation, and

Transportation of Wildlife

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: This final rule updates the

U.S. Fish and Wildlife Service (Service)

regulations providing for uniform rules

and procedures for the importation,

exportation, and transportation of

wildlife. Several definitions are added

and amended. The Service’s exception

to the designated port of entry

requirement for wildlife products or

manufactured articles worn as articles of

clothing or contained in accompanying

personal baggage is amended. The

exceptions to the import declaration

requirements and export declaration

requirements are also amended. The

Service minimum age requirement for

certain antique articles, other than

scrimshaw, imported into the United

States is changed. The Service is also

revising its clearance requirements and

its refusal of clearance requirements.

The Service’s import declaration filing

requirements are also changed.

Changes are also made in the marking

requirements for containers used to ship

fish or wildlife. Further changes are

made in the import and export

requirements and fee schedules and the

exceptions to license requirements. In

addition to the above changes, the nonstandards fee schedule in part 13 for an

import/export license is amended.

Finally, the Service will allow the

importation and exportation of dead,

preserved, dried, or embedded scientific

wildlife specimens by accredited

scientists or accredited scientific

institutions engaged in taxonomic or

systematic research at any U.S. Customs

port, or by way of the international mail.

EFFECTIVE DATE: This rule is effective

July 22, 1996.

FOR FURTHER INFORMATION CONTACT:

Thomas Striegler, Special Agent in

Charge, Branch of Investigations,

Division of Law Enforcement, Fish and

Wildlife Service, U.S. Department of

Interior, Washington, DC 20240,

Telephone Number (703) 358–1949.

SUPPLEMENTARY INFORMATION:

Background

The Fish and Wildlife Service

(Service) has oversight responsibilities

under statutory and regulatory authority

to regulate the importation, exportation,

and transportation of wildlife. The

Service, consistent with this authority,

has established an inspection program

to oversee the importation, exportation,

and transportation of wildlife and

wildlife products. The Service, in

support of its program activities, has

promulgated regulations, subject to

exemptions and permitted exceptions,

restricting the importation and

exportation of wildlife and wildlife

products to certain designated ports,

border ports, and special ports

enumerated within the Code of Federal

Regulations. Service regulations

governing the importation, exportation,

and transportation of wildlife are

codified in 50 CFR part 14 and are

implemented through the efforts of

Service Special Agents and Wildlife

Inspectors, and with the essential

support, cooperation, and assistance of

the U.S. Customs Service (Customs) and

the Department of Agriculture, Animal

and Plant Health Inspection Service

(APHIS) and other cooperating agencies.

The Service is making the following

changes to the Importation, Exportation,

and Transportation of Wildlife

regulations in part 14. A new section

§ 14.4, entitled ‘‘Definitions’’, is being

added to include several new

definitions. In adding these new

definitions, the Service’s intent is to

provide greater uniformity in the

interpretation of part 14. This section,

includes a definition for the term

‘‘commercial’’ to explain when the

commercial intent of a shipment

becomes presumptive. The effect of this

definition is to clarify when a wildlife

shipper is required to obtain an import/

export license, and when the personal

baggage exception does not apply. A

definition is also added for the term

‘‘export’’ to delineate when the filing of

an export declaration and clearance by

a Service Officer will be required. The

term ‘‘accompanying personal baggage’’

is also defined to eliminate any

ambiguity as to when hand-carried

items and checked baggage will be

regarded by the Service as an export or

import. The meaning of the term

‘‘domesticated animal’’ is defined to

distinguish such animals from wildlife.

The Service, in order to clarify its

requirements, is defining the terms

‘‘Accredited scientific institutions’’ and

‘‘Accredited scientist.’’ The term

‘‘Accredited scientific institution’’ is

defined to include any public museum,

public zoological park, accredited

institution of higher education,

accredited member of the American Zoo

and Aquarium Association, accredited

member of the American Association of

Systematic Collections, or any State or

Federal government agency that

conducts biological or medical research.

The term ‘‘Accredited scientist’’ is

defined to include any individual

associated with, employed by, or under

contract to and accredited by an

accredited scientific institution for the

purposes of conducting biological or

medical research, and whose research

activities are approved and sponsored

by the scientific institution granting

accreditation.

In addition to the above changes, the

term ‘‘worn’’ in § 14.15 is being

removed and replaced with term ‘‘used’’

in order to clearly define when wildlife

products are included within the

personal baggage and household effects

exception to the designated port

requirements.

The Service is making several

administrative corrections within the

text of the regulations. The erroneous

references to § 14.93(d) in § 14.82(a)(2)

and the erroneous reference to

§ 14.93(d)(1) in § 14.93(c)(5) are being

changed to read § 14.93(c) and

§ 14.93(c)(1), respectively. These

citations refer to the requisite record

requirements applicable to holders of an

import/export license.

A reference to the permit

requirements of part 23 is included

within several sections of part 14. The

requirements of part 23 implement the

Convention on International Trade in

Endangered Species of Wild Fauna and

Flora (CITES). The following provisions

are being changed to include references

to part 23: At § 14.21, the exceptions to

the Service’s license requirements for

shellfish and fishery products; at

§ 14.55, the exceptions to Service

wildlife clearance requirements stating

when wildlife and wildlife products

may be imported without clearance; at

§ 14.62(a), the exceptions to the import

declaration requirements stating when a

Service import declaration (Form 3–177)

is not required; at § 14.64(a), the

exception to export declaration

requirements stating when a Service

export declaration (Form 3–177) is not

required; and at § 14.92(a)(1) and

14.92(a)(2), the exceptions to license

requirements stating when wildlife may

be imported or exported without the

procurement of a Service import/export

license.

The Service is changing the age

minimum in § 14.22 for certain antique

articles to be consistent with changes in

the Endangered Species Act. The