Federal Register / Vol. 78, No. 138 / Thursday, July 18, 2013 / Proposed Rules 42905 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule involves the establishment of a 

safety zone around an OCS Facility to 

protect life, property and the marine 

environment. This rule is categorically 

excluded from further review under 

paragraph 34(g) of Figure 2–1 of the 

Commandant Instruction. A preliminary 

environmental analysis checklist 

supporting this determination and a 

Categorical Exclusion Determination are 

available in the docket where indicated 

under ADDRESSES. We seek any 

comments or information that may lead 

to the discovery of a significant 

environmental impact from this 

proposed rule. 

List of Subjects in 33 CFR Part 147 

Continental shelf, Marine safety, 

Navigation (water). 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 147 as follows: 

PART 147—SAFETY ZONES 

■ 1. The authority citation for part 147 

continues to read as follows: 

Authority: 14 U.S.C. 85; 43 U.S.C. 1333; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 147.848 to read as follows: 

§ 147.848 Olympus Tension Leg Platform 

Safety Zone 

(a) Description. The Olympus Tension 

Leg Platform is in the deepwater area of 

the Gulf of Mexico in Mississippi 

Canyon Block 807B. The facility is 

located at 28°9′35.59′′ N, 89°14′20.86′′ 

W. The area within 500 meters (1640.4 

feet) from each point on the structure’s 

outer edge and the area within 500 

meters (1640.4 feet) of each of the 

supply boat mooring buoys is a safety 

zone. 

(b) Regulation. No vessel may enter or 

remain in this safety zone except the 

following: 

(1) An attending vessel; 

(2) A vessel under 100 feet in length 

overall not engaged in towing; or 

(3) A vessel authorized by the 

Commander, Eighth Coast Guard 

District or a designated representative. 

Dated: June 28, 2013. 

T.A. Sokalzuk, 

Captain, U.S. Coast Guard, Acting 

Commander, Eighth Coast Guard District. 

[FR Doc. 2013–17241 Filed 7–17–13; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2012–0760; FRL–9835–2] 

Revision to the Washington State 

Implementation Plan; Approval of 

Motor Vehicle Emission Budgets and 

Determination of Attainment for the 

2006 24-Hour Fine Particulate 

Standard; Tacoma-Pierce County 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve a request submitted by the 

Washington Department of Ecology 

(Ecology) dated November 28, 2012, to 

establish motor vehicle emission 

budgets for the Tacoma-Pierce County 

Fine Particulate Matter (PM2.5) 

nonattainment area to meet 

transportation conformity requirements. 

Under the Clean Air Act (CAA), new 

transportation plans, programs, and 

projects, such as the construction of 

new highways, must ‘‘conform’’ to (i.e., 

be consistent with) the State 

Implementation Plan (SIP). The CAA 

requires federal actions in 

nonattainment and maintenance areas to 

‘‘conform to’’ the goals of SIP. This 

means that such actions will not cause 

or contribute to violations of the 

National Ambient Air Quality Standards 

(NAAQS), worsen the severity of an 

existing violation, or delay timely 

attainment of any NAAQS or any 

interim milestone. 

Under the Transportation Conformity 

Rule, the EPA can approve motor 

vehicle emission budgets based on the 

most recent year of clean data if the EPA 

approves the request in the rulemaking 

that determines that the area has 

attained the NAAQS for which the area 

is designated nonattainment. In 

September 2012, the EPA finalized an 

attainment finding for the TacomaPierce County PM2.5 nonattainment area 

(hereafter referred to as ‘‘Tacoma-Pierce 

County Area’’ or ‘‘the area’’). This 

finding, also called a clean data 

determination, was based upon qualityassured, quality-controlled, and 

certified ambient air monitoring data 

showing that the area had monitored 

attainment of the 2006 PM2.5 NAAQS 

based on the 2009–2011 data available 

in the EPA’s Air Quality System 

database. This action proposes to update 

the previous finding of attainment with 

more recent 2010–2012 data and 

proposes to approve motor vehicle 

emission budgets under the 

Transportation Conformity Rule. 

DATES: Written comments must be 

received on or before August 19, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2012–0760, by any of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: R10- 

Public_Comments@epa.gov. 

• Mail: Jeff Hunt, EPA Region 10, 

Office of Air, Waste and Toxics (AWT– 

107), 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. 

• Hand Delivery/Courier: EPA Region 

10, 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. Attention: Jeff Hunt, 

Office of Air, Waste and Toxics, AWT– 

107. Such deliveries are only accepted 

during normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2012– 

0760. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 


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1The 2004 rulemaking addressed most of the 

transportation conformity requirements that apply 

in PM2.5 nonattainment and maintenance areas. The 

2005 conformity rule included provisions 

addressing treatment of PM2.5 precursors in MVEBs. 

See 40 CFR 93.102(b)(2). The 2010 rulemaking 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy 

during normal business hours at the 

Office of Air, Waste and Toxics, EPA 

Region 10, 1200 Sixth Avenue, Seattle, 

WA 98101. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Hunt at telephone number: (206) 553– 

0256, email address: hunt.jeff@epa.gov, 

or the above EPA, Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

The following outline is provided to 

aid in locating information in this 

preamble. 

I. Background 

II. Description of Attainment Year (Clean 

Data) MVEBs 

III. Analysis of the Relevant Air Quality Data 

IV. Effect of Determination of Attainment for 

2006 PM2.5 Under Subpart 4 

V. Application of the Clean Data Policy to 

Attainment-Related Provisions of 

Subpart 4 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. Background 

The 2006 PM2.5 NAAQS set forth at 40 

CFR 50.13 became effective on 

December 18, 2006 and promulgated a 

24-hour standard of 35 micrograms per 

cubic meter (mg/m3) based on a 3-year 

average of the 98th percentile of 24-hour 

concentration (71 FR 61144, October 17, 

2006). Effective December 14, 2009, the 

EPA designated Tacoma-Pierce County 

(partial county designation) as a 

nonattainment area for the 2006 24-hour 

PM2.5 standard (74 FR 58688, November 

13, 2009). Under 40 CFR 51.1002, states 

were required to submit within three 

years of the effective date of a 

nonattainment designation a revision to 

the SIP that meets nonattainment 

planning requirements. Prior to 

Washington’s SIP revision submittal, the 

EPA issued a proposed finding of 

attainment on July 5, 2012, also called 

a clean data determination, based upon 

certified ambient air monitoring data 

showing that the Tacoma-Pierce County 

Area had met the 2006 PM2.5 NAAQS 

for the most recent 2009–2011 

monitoring period (77 FR 39657). The 

EPA received no comments on the 

proposal and issued a final finding of 

attainment on September 4, 2012 (77 FR 

53772). In accordance with 40 CFR 

51.1004(c), in effect at that time, the 

September 4, 2012 finding of attainment 

suspended the requirements for 

Washington to submit an attainment 

demonstration, associated reasonably 

available control measures, a reasonable 

further progress plan, contingency 

measures, and most other planning SIP 

revisions related to attainment of the 

standard for so long as the 

nonattainment area continues to meet 

the 2006 PM2.5 NAAQS. However, a 

finding of attainment does not suspend 

the CAA section 176(c) obligation to 

meet transportation conformity 

requirements. 

As described in 40 CFR 93.109(c)(5) of 

the Transportation Conformity Rule, a 

state may request that motor vehicle 

emissions budgets (MVEBs) calculated 

for the most recent year of attainment be 

used to satisfy the budget test as set 

forth in 40 CFR 93.118. Under this 

option, the EPA approves the MVEBs 

request in a rulemaking that determines 

the area has attained the NAAQS for 

which the area is designated 

nonattainment. In this action, the EPA 

is reaffirming the previous finding of 

attainment with updated 2010–2012 

data and is proposing to approve 

MVEBs under 40 CFR 93.109(c)(5)(iii) 

for the Tacoma-Pierce County Area. 

II. Description of Attainment Year 

(Clean Data) MVEBs 

The Transportation Conformity Rule 

allows the state air quality agency to 

request that motor vehicle emissions in 

the most recent year of clean data be 

used as budgets. The EPA must approve 

that request in the rulemaking that 

determines that the area has attained the 

relevant NAAQS (40 CFR 

93.109(c)(5)(iii)). On November 28, 

2012, Ecology requested that the EPA 

establish MVEBs for PM2.5 and nitrogen 

oxide (NOX) calculated for 2011, the 

first year of attainment for the TacomaPierce County Area. These budgets were 

calculated using the Motor Vehicle 

Emissions Simulator emissions model 

(MOVES). See ‘‘Policy Guidance on the 

Use of MOVES2010 and Subsequent 

Minor Model Revisions for State 

Implementation Plan Development, 

Transportation Conformity, and Other 

Purposes’’ (EPA, April 2012). 

Under the Transportation Conformity 

Rule, 40 CFR 93.102(b)(1) and (2)(iv) 

and (v), only MVEBs for PM2.5 and NOX

for the 2011 attainment year are 

applicable for meeting conformity 

requirements in the Tacoma-Pierce 

County Area. The Transportation 

Conformity Rule requires that MVEBs 

must address direct PM2.5 emissions. 

NOX emissions must also be included 

unless the EPA and state have made a 

finding that transportation-related 

emissions of NOX are not a significant 

contributor to the area’s PM2.5 problem. 

There was no such finding in this case. 

Therefore, Ecology requested that 

MVEBs be established for on-road 

emissions of direct PM2.5 and NOX. 

Under the Transportation Conformity 

Rule, PM2.5 precursors volatile organic 

compounds (VOCs), sulfur dioxide 

(SO2) and ammonia (NH3) must be 

addressed before a SIP is submitted if 

either the EPA or the state air agency 

makes a finding that on-road emissions 

of any of these precursors is a 

significant contributor to the area’s 

PM2.5 problem. Neither the EPA nor 

Ecology has made such a finding with 

regard to any of these precursors. 

Therefore, consistent with the 

Transportation Conformity Rule, the 

State did not request that MVEBs be 

established for VOCs, SO2 or NH3. 

The EPA promulgated conformity 

regulations to implement the 1997 PM2.5

NAAQS in July 2004 and May 2005 (69 

FR 40004, July 1, 2004 and 70 FR 24280, 

May 6, 2005). Subsequently, the EPA 

promulgated conformity regulations to 

implement the 2006 PM2.5 NAAQS in 

March 2010 (75 FR 14260, March 24, 

2010). Those actions were not part of 

the final rules remanded to the EPA by 

the Court of Appeals for the District of 

Columbia in Natural Resources Defense 

Council v. EPA, 706 F.3d 428 (D.C. Cir. 

2013) (NRDC v. EPA). The Court 

remanded to the EPA the ‘‘Final Clean 

Air Fine Particle Implementation Rule’’ 

(72 FR 20586; April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5)’’ final rule (73 FR 28321, May 

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’ or 

‘‘Implementation Rule’’) because it 

concluded that the EPA must 

implement the PM2.5 NAAQS pursuant 

to the PM-specific provisions of subpart 

4 of part D of title I of the CAA, rather 

than solely under the general provisions 

of subpart 1. This decision does not 

affect the EPA’s proposed approval of 

the Tacoma-Pierce County MVEBs. The 

EPA’s conformity rules implementing 

the PM2.5 NAAQS were separate actions 

from the overall PM2.5 implementation 

rule addressed by the Court and were 

not considered or disturbed by the 

decision. Therefore, the conformity 

regulations were not at issue in NRDC 

v. EPA.1


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addressed requirements for the 2006 PM2.5 NAAQS. 

While none of these provisions were challenged in 

the NRDC v. EPA case, the EPA also notes that the 

court declined to address challenges to the EPA’s 

presumptions regarding PM2.5 precursors in the 

PM2.5 implementation rule. NRDC v. EPA, 706 F.3d 

437. 

2For the purposes of evaluating the effects of this 

proposed determination of attainment under 

subpart 4, we are considering the Tacoma-Pierce 

County Area to be a ‘‘moderate’’ PM2.5

nonattainment area. Under section 188 of the CAA, 

all areas designated nonattainment areas under 

subpart 4 would initially be classified by operation 

of law as ‘‘moderate’’ nonattainment areas, and 

would remain moderate nonattainment areas unless 

and until the EPA reclassifies the area as a 

‘‘serious’’ nonattainment area or the area fails to 

attain the standard by the attainment date and 

would be reclassified to ‘‘serious’’ by operation of 

law. Accordingly, the EPA believes that it is 

appropriate to limit the evaluation of the potential 

impact of subpart 4 requirements to those that 

would be applicable to moderate nonattainment 

areas. In addition, in reviewing Ecology’s submittal 

the EPA also evaluates the applicable requirements 

of subpart 1. 

The Transportation Conformity Rule’s 

adequacy criteria at 40 CFR 

93.118(e)(4)(i)–(v) are not directly 

applicable because they apply to 

budgets that are part of a SIP submittal 

and the budgets that are under review 

in this action were submitted under the 

Transportation Conformity Rule 

provision that allows a state to request 

that budgets be established through the 

EPA’s clean data determination process. 

However, these criteria establish a 

general framework for the review of any 

MVEBs before those budgets are made 

effective for use in transportation 

conformity determinations. For this 

reason, the EPA has reviewed the direct 

PM2.5 and NOX MVEBs submitted by the 

State by applying the general 

requirements of the criteria. 

Briefly, our review has determined: 

• The request to establish these 

budgets was made by the appropriate 

State official (letter addressed to Dennis 

M. McLerran, Regional Administrator, 

EPA Region 10, from Ted Sturdevant, 

Director, Washington State Department 

of Ecology, November 28, 2012, 

included in the docket for this action). 

• The request for establishment of 

MVEBs underwent full interagency 

consultation including consultation 

with representatives from the following 

agencies: EPA, Federal Highway 

Administration, Federal Transit 

Administration, Washington State 

Department of Transportation, Puget 

Sound Clean Air Agency, and Puget 

Sound Regional Council. All meetings 

of the interagency air quality 

consultation partners were open to the 

public, and the EPA raised no concerns 

with the MVEBs or calculation 

methodology as part of the consultation 

process. 

• As shown below in Table 1, the 

budgets are clearly identified and 

precisely quantified. 

• The budgets are consistent with 

attainment of the 2006 24-hour PM2.5

NAAQS as they have been established 

for 2011, which was the most recent 

year of clean data available at the time 

the submittal was made in November 

2012, and the area was attaining the for 

the 2009–2011 period. 

• The budgets are based on results 

from the EPA’s approved motor vehicle 

emission factor model, MOVES2010b. 

The modeling analyses are based on the 

most recent planning information for 

the area and include consideration of all 

relevant national regulations as well as 

all previously established local 

transportation control measures. 

TABLE 1—2011 MOTOR VEHICLE

EMISSION BUDGETS FOR THE TACOMA-PIERCE COUNTY 2006 FINE

PARTICULATE MATTER NONATTAINMENT AREA

Pollutant 

Emissions 

(pounds per 

winter day) 

PM2.5 ..................................... 3,002 

NOX ...................................... 71,598 

III. Analysis of the Relevant Air Quality 

Data 

The EPA has reviewed the ambient air 

monitoring data for PM2.5, consistent 

with the requirements contained in 40 

CFR part 50 for the Tacoma-Pierce 

County Area. All data considered have 

been recorded in the Air Quality System 

(AQS) database, certified as meeting 

quality assurance requirements, and 

determined to have met data 

completeness requirements. On the 

basis of this review, the EPA has 

concluded that the area continued to 

attain the 2006 24-hour PM2.5 NAAQS 

during the 2010–2012 monitoring 

period. The EPA regulations at 40 CFR 

50.7 provide that ‘‘The 24-hour primary 

and secondary PM2.5 standards are met 

when the 98th percentile 24-hour 

concentration, as determined in 

accordance with appendix N of this 

part, is less than or equal to 35 mg/m3.’’ 

This calculation, made in accordance 

with 40 CFR part 50, appendix N for 

determining compliance with the 2006 

24-hour PM2.5 NAAQS, is commonly 

called a design value. Because the 2010– 

2012 design value at the Federal 

Reference Method monitor (Tacoma 

South L Street) is 28 mg/m3, the EPA is 

proposing to determine that the area 

continues to have monitored attainment 

for this NAAQS. Additional information 

about design values for the TacomaPierce County Area can be found at 

http://www.epa.gov/airtrends/ 

values.html. 

IV. Effect of Determination of 

Attainment for 2006 PM2.5 Under 

Subpart 4 

This section of the EPA’s proposal 

addresses the effects of a final 

determination of attainment for the 

Tacoma-Pierce County Area. For the 

1997 PM2.5 standard, 40 CFR 51.004 of 

the EPA’s Implementation Rule sets 

forth the EPA’s ‘‘Clean Data Policy’’ 

interpretation under subpart 1 and the 

effects of a determination of attainment 

with that standard (72 FR 20585, 20665, 

April 25, 2007). While the regulatory 

provisions of § 51.1004(c) do not 

explicitly apply to the 2006 PM2.5

standard, the underlying statutory 

interpretation is the same for both 

standards. See 77 FR 76427, December 

28, 2012 (proposed determination of 

attainment for the 2006 PM2.5 standard 

for Milwaukee, Wisconsin). 

As noted above, the D.C. Circuit Court 

of Appeals recently remanded to the 

EPA the 1997 PM2.5 Implementation 

Rule. The Court directed the EPA to repromulgate the 1997 PM2.5

Implementation Rule consistent with 

the Court’s opinion. NRDC v. EPA, 706 

F.3d 428. The Court found that the EPA 

erred in limiting implementation of the 

1997 PM2.5 NAAQS to the general 

implementation provisions of subpart 1 

of part D of title I of the CAA, rather 

than the particulate-matter-specific 

provisions of subpart 4 of part D of title 

I. In light of the remand of the 

Implementation Rule, in the immediate 

action, the EPA addresses the effect of 

a final determination of attainment for 

the Tacoma-Pierce County Area, 

assuming the area is classified as a 

moderate nonattainment area under 

subpart 4.2 As set forth in more detail 

below, under the EPA’s Clean Data 

Policy, a determination that the area has 

attained the standard suspends the 

State’s obligation to submit attainmentrelated planning requirements of 

subpart 4 (and the applicable provisions 

of subpart 1) so long as the area 

continues to attain the standard. The 

suspended requirements include 

submission of an attainment 

demonstration (CAA section 

189(a)(1)(B)), meeting quantitative 

milestones demonstrating reasonable 

further progress (RFP) toward 

attainment by the applicable attainment 

date (CAA section 189(c)), provisions 

for reasonably available control 

measures (RACM) (CAA section 

189(a)(1)(C)), and contingency measures 

(CAA section 172(c)(9). These 

requirements are suspended because 


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3 ‘‘EPA’s Final Rule to implement the 8-hour 

Ozone National Ambient Air Quality Standard— 

Phase 2 (Phase 2 Final Rule)’’. 70 FR 71612, 71645– 

46, November 29, 2005. 

their purpose is to help reach 

attainment, a goal which the TacomaPierce County Area has already 

achieved. 

Background on Clean Data Policy 

Over the past two decades, the EPA 

has consistently applied its ‘‘Clean Data 

Policy’’ to attainment-related provisions 

of subparts 1, 2 and 4. The Clean Data 

Policy is the subject of several EPA 

memoranda and regulations. In 

addition, numerous individual 

rulemakings published in the Federal 

Register have applied the policy to a 

spectrum of NAAQS, including the 

ozone, PM10, PM2.5, CO and lead 

standards. The D.C. Circuit Court of 

Appeals has upheld the Clean Data 

Policy as embodied in the EPA’s 8-hour 

ozone Implementation Rule, 40 CFR 

51.918.3 See NRDC v. EPA, 571 F. 3d 

1245 (D.C. Cir. 2009). Other federal 

Courts of Appeals that have considered 

and reviewed the EPA’s Clean Data 

Policy interpretation have upheld it and 

the rulemakings applying the EPA’s 

interpretation. Sierra Club v. EPA, 99 

F.3d 1551 (10th Cir. 1996); Sierra Club 

v. EPA, 375 F. 3d 537 (7th Cir. 2004); 

Our Children’s Earth Foundation v. 

EPA, N. 04–73032 (9th Cir. June 28, 

2005) (memorandum opinion), Latino 

Issues Forum, v. EPA, Nos. 06–75831 

and 08–71238 (9th Cir.), Memorandum 

Opinion, March 2, 2009. 

As noted above, the EPA incorporated 

its Clean Data Policy interpretation in 

both its 1997 8-hour Ozone 

Implementation Rule and in its PM2.5

Implementation Rule in 40 CFR 

51.1004(c) (72 FR 20585, 20665; April 

25, 2007). While the D.C. Circuit Court 

of Appeal, in its January 4, 2013 

opinion, remanded to the EPA the 1997 

PM2.5 Implementation Rule, the Court’s 

opinion did not address the merits of 

that regulation, nor cast doubt on EPA’s 

existing interpretation of the statutory 

provisions. 

However, in light of the Court’s 

opinion, we set forth here the EPA’s 

Clean Data Policy interpretation under 

subpart 4, for the purpose of identifying 

the effects of a determination of 

attainment for the 2006 PM2.5 standard 

for the Tacoma-Pierce County Area. The 

EPA has previously articulated its Clean 

Data Policy interpretation under subpart 

4 in implementing the PM10 standard. 

See, e.g., 75 FR 27944, May 19, 2010 

(determination of attainment of the PM– 

10 standard in Coso Junction, 

California); 75 FR 6571, February 10, 

2010; 71 FR 6352, February 8, 2006 

(Ajo, Arizona area); 71 FR 13021, March 

14, 2006 (Yuma, Arizona area); 71 FR 

40023, July 14, 2006 (Weirton, West 

Virginia area); 71 FR 44920, August 8, 

2006 (Rillito, Arizona area); 71 FR 

63642, October 30, 2006 (San Joaquin 

Valley, California area); 72 FR 14422, 

March 28, 2007 (Miami, Arizona area); 

75 FR 27944, May 19, 2010 (Coso 

Junction, California area). In these 

determinations the EPA has established 

that, under subpart 4, an attainment 

determination suspends the obligations 

to submit an attainment demonstration, 

RACM, RFP contingency measures, and 

other measures related to attainment. 

V. Application of the Clean Data Policy 

to Attainment-Related Provisions of 

Subpart 4 

In the EPA’s proposed and final 

rulemakings determining that the San 

Joaquin Valley nonattainment area 

attained the PM10 standard, the EPA set 

forth at length its rationale for applying 

our interpretation of the Clean Data 

Policy to PM10 under subpart 4. The 

Ninth Circuit upheld the EPA’s final 

rulemaking, and specifically the EPA’s 

application of the Clean Data Policy, in 

the context of subpart 4. Latino Issues 

Forum v. EPA, supra. Nos. 06–75831 

and 08–71238 (9th Cir.), Memorandum 

Opinion, March 2, 2009. In rejecting the 

petitioner’s challenge to the Clean Data 

Policy under subpart 4 for PM10, the 

Ninth Circuit stated, ‘‘As the EPA 

explained, if an area is in compliance 

with PM10 standards, then further 

progress for the purpose of ensuring 

attainment is not necessary.’’ 

The general requirements of subpart 1 

apply in conjunction with the more 

specific requirements of subpart 4 to the 

extent they are not superseded or 

subsumed by the subpart 4 

requirements. Subpart 1 contains 

general air quality planning 

requirements for areas designated as 

nonattainment. See CAA section 172(c). 

Subpart 4 itself contains specific 

planning and scheduling requirements 

for PM10 nonattainment areas, and 

under the Court’s January 4, 2013 

opinion in NRDC v. EPA, these same 

statutory requirements also apply to 

PM2.5 nonattainment areas. The EPA has 

longstanding general guidance 

interpreting the 1990 amendments to 

the CAA, for use by states in meeting 

the statutory requirements for SIPs for 

nonattainment areas. See, ‘‘State 

Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clear Air Act Amendments 

of 1990,’’ (57 FR 13498, April 16, 1992) 

(the ‘‘General Preamble’’). In the General 

Preamble, the EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM10

requirements.’’ 57 FR 13538, April 16, 

1992. These subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

The EPA has long interpreted the 

provisions of part D, subpart 1 of the 

Act (sections 171 and 172) as not 

requiring the submission of RFP for an 

area already attaining the NAAQS. For 

an area that is attaining, showing that 

the state will make RFP towards 

attainment ‘‘will, therefore, have no 

meaning at that point.’’ (57 FR at 

13564). See 71 FR 40952 and 71 FR 

63642 (proposed and final 

determination of attainment for San 

Joaquin Valley); 75 FR 13710 and 75 FR 

27944 (proposed and final 

determination of attainment for Coso 

Junction). CAA section 189(c)(1) of 

subpart 4 states that: 

Plan revisions demonstrating attainment 

submitted to the Administrator for approval 

under this subpart shall contain quantitative 

milestones which are to be achieved every 3 

years until the area is redesignated 

attainment and which demonstrate 

reasonable further progress, as defined in 

section [section 171(1)] of this title, toward 

attainment by the applicable date. 

With respect to RFP, CAA section 

171(1) states that, for purposes of part D, 

RFP ‘‘means such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

or may reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

NAAQS by the applicable date.’’ Thus, 

whether dealing with the general RFP 

requirement of CAA section 172(c)(2), 

the ozone-specific RFP requirements of 

CAA sections 182(b) and (c), or the 

specific RFP requirements for PM10

areas of part D, subpart 4, CAA section 

189(c)(1), the stated purpose of RFP is 

to ensure attainment by the applicable 

attainment date. 

The General Preamble, states that 

with respect to CAA section 189(c) that 

the purpose of the milestone 

requirement ‘‘is to provide for emission 

reductions adequate to achieve the 

standards by the applicable attainment 

date (H.R. Rep. No. 490 101st Cong., 2d 

Sess. 267 (1990)).’’ 57 FR 13539. If an 

area has in fact attained the standard, 

the stated purpose of the RFP 


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4Thus, we believe that it is a distinction without 

a difference that section 189(c)(1) speaks of the RFP 

requirement as one to be achieved until an area is 

‘‘redesignated attainment,’’ as opposed to section 

172(c)(2), which is silent on the period to which the 

requirement pertains, or the ozone nonattainment 

area RFP requirements in sections 182(b)(1) or 

182(c)(2), which refer to the RFP requirements as 

applying until the ‘‘attainment date,’’ since section 

189(c)(1) defines RFP by reference to section 171(1) 

of the Act. Reference to section 171(1) clarifies that, 

as with the general RFP requirements in section 

172(c)(2) and the ozone-specific requirements of 

section 182(b)(1) and 182(c)(2), the PM-specific 

requirements may only be required ‘‘for the purpose 

of ensuring attainment of the applicable national 

ambient air quality standard by the applicable 

date.’’ 42 U.S.C. 7501(1). As discussed in the text 

of this rulemaking, the EPA interprets the RFP 

requirements, in light of the definition of RFP in 

section 171(1), and incorporated in section 

189(c)(1), to be a requirement that no longer applies 

once the standard has been attained. 5And section 182(c)(9) for ozone. 

6The EPA’s interpretation that the statute 

requires implementation only of RACM measures 

that would advance attainment was upheld by the 

United States Court of Appeals for the Fifth Circuit 

(Sierra Club v. EPA, 314 F.3d 735, 743–745 (5th Cir. 

2002), and by the United States Court of Appeals 

for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 

155, 162–163 (D.C. Cir. 2002)). 

requirement will have already been 

fulfilled.4

Similarly, the requirements of CAA 

section 189(c)(2) with respect to 

milestones no longer apply so long as an 

area has attained the standard. CAA 

section 189(c)(2) provides in relevant 

part that: 

Not later than 90 days after the date on 

which a milestone applicable to the area 

occurs, each State in which all or part of such 

area is located shall submit to the 

Administrator a demonstration . . . that the 

milestone has been met. 

Where the area has attained the 

standard and there are no further 

milestones, there is no further 

requirement to make a submission 

showing that such milestones have been 

met. This is consistent with the position 

that the EPA took with respect to the 

general RFP requirement of CAA section 

172(c)(2) in the April 16, 1992 General 

Preamble and also in the May 10, 1995 

Seitz memorandum with respect to the 

requirements of CAA section 182(b) and 

(c). In the May 10, 1995 Seitz 

memorandum, titled ‘‘Reasonable 

Further Progress, Attainment 

Demonstration, and Related 

Requirements for Meeting the Ozone 

National Ambient Air Quality 

Standard,’’ the EPA also noted that CAA 

section 182(g), the milestone 

requirement of subpart 2, which is 

analogous to provisions in CAA section 

189(c), is suspended upon a 

determination that an area has attained. 

The memorandum, also citing 

additional provisions related to 

attainment demonstration and RFP 

requirements, stated: 

Inasmuch as each of these requirements is 

linked with the attainment demonstration or 

RFP requirements of section 182(b)(1) or 

182(c)(2), if an area is not subject to the 

requirement to submit the underlying 

attainment demonstration or RFP plan, it 

need not submit the related SIP submission 

either. 

1995 Seitz memorandum at 5. 

With respect to the attainment 

demonstration requirements of CAA 

section 172(c) and section 189(a)(1)(B), 

an analogous rationale leads to the same 

result. CAA section 189(a)(1)(B) requires 

that the plan provide for ‘‘a 

demonstration (including air quality 

modeling) that the [SIP] will provide for 

attainment by the applicable attainment 

date . . .’’. As with the RFP 

requirements, if an area is already 

monitoring attainment of the standard, 

the EPA believes there is no need for an 

area to make a further submission 

containing additional measures to 

achieve attainment. This is also 

consistent with the interpretation of the 

CAA section 172(c) requirements 

provided by the EPA in the General 

Preamble, the December 14, 2004 Page 

memorandum titled ‘‘Clean Data Policy 

for the Fine Particulate National 

Ambient Air Quality Standards’’, and 

the CAA section 182(b) and (c) 

requirements set forth in the Seitz 

memorandum. As the EPA stated in the 

General Preamble, no other measures to 

provide for attainment would be needed 

by areas seeking redesignation to 

attainment since ‘‘attainment will have 

been reached.’’ 57 FR 13564. 

Other SIP submission requirements 

are linked with these attainment 

demonstration and RFP requirements, 

and similar reasoning applies to them. 

These requirements include the 

contingency measure requirements of 

CAA sections 172(c)(9). We have 

interpreted the contingency measure 

requirements of CAA sections 172(c)(9) 5

as no longer applying when an area has 

attained the standard because those 

‘‘contingency measures are directed at 

ensuring RFP and attainment by the 

applicable date.’’ 57 FR 13564; Seitz 

memorandum, pp. 5–6. 

CAA section 172(c)(9) provides that 

SIPs in nonattainment areas 

shall provide for the implementation of 

specific measures to be undertaken if the area 

fails to make reasonable further progress, or 

to attain the [NAAQS] by the attainment date 

applicable under this part. Such measures 

shall be included in the plan revision as 

contingency measures to take effect in any 

such case without further action by the State 

or [EPA]. 

The contingency measure requirement 

is inextricably tied to the RFP and 

attainment demonstration requirements. 

Contingency measures are implemented 

if RFP targets are not achieved, or if 

attainment is not realized by the 

attainment date. Where an area has 

already achieved attainment, it has no 

need to rely on contingency measures to 

come into attainment or to make further 

progress to attainment. As the EPA 

stated in the General Preamble: ‘‘The 

section 172(c)(9) requirements for 

contingency measures are directed at 

ensuring RFP and attainment by the 

applicable date.’’ 57 FR 13564. Thus 

these requirements no longer apply 

when an area has attained the standard. 

Both CAA sections 172(c)(1) and 

189(a)(1)(C) require ‘‘provisions to 

assure that reasonably available control 

measures’’ (i.e., RACM) are 

implemented in a nonattainment area. 

The General Preamble (57 FR 13560) 

states that the EPA interprets CAA 

section 172(c)(1) so that RACM 

requirements are a ‘‘component’’ of an 

area’s attainment demonstration. Thus, 

for the same reason the attainment 

demonstration no longer applies by its 

own terms, the requirement for RACM 

no longer applies. The EPA has 

consistently interpreted this provision 

to require only implementation of 

potential RACM measures that could 

contribute to reasonable further progress 

or to attainment. 57 FR 13498. Thus, 

where an area is already attaining the 

standard, no additional RACM measures 

are required.6 The EPA is interpreting 

CAA section 189(a)(1)(C) consistent 

with its interpretation of CAA section 

172(c)(1). 

The suspension of the obligations to 

submit SIP revisions concerning these 

RFP, attainment demonstration, RACM, 

contingency measures and other related 

requirements exists only for as long as 

the area continues to monitor 

attainment of the standard. If the EPA 

determines, after notice-and-comment 

rulemaking, that the area has a 

monitored violation of the NAAQS, the 

basis for the requirements being 

suspended would no longer exist. Only 

if and when the EPA redesignates the 

area to attainment would the area be 

relieved of these submission obligations. 

Attainment determinations under the 

Clean Data Policy do not shield an area 

from obligations unrelated to attainment 

in the area. 

As set forth above, based on our 

proposed determination that the 

Tacoma-Pierce County Area has attained 

the 2006 24-hour PM2.5 NAAQS, we 

propose to find that the obligations to 

submit planning provisions to meet the 

requirements for an attainment 

demonstration, RFP, RACM, and 


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contingency measures continue to be 

suspended for so long as the area 

continues to monitor attainment of the 

2006 24-hour PM2.5 NAAQS. If, in the 

future, the EPA determines after noticeand-comment rulemaking that the area 

again violates the 2006 24-hour PM2.5

NAAQS, the basis for suspending the 

attainment demonstration, RFP, RACM, 

and contingency measure obligations 

would no longer exist. 

VI. Proposed Action 

The EPA proposes to determine, 

based on the most recent three years of 

complete, quality-assured data meeting 

the requirements of 40 CFR part 50, 

appendix N, that the Tacoma-Pierce 

County Area is currently attaining the 

2006 24-hour PM2.5 NAAQS. In 

conjunction with and based upon our 

proposed determination that TacomaPierce County Area is attaining the 

standard, the EPA proposes to 

determine that the obligation to submit 

the following attainment-related 

planning requirements are not 

applicable for so long as the area 

continues to attain the PM2.5 standard: 

The part D, subpart 4 obligations to 

provide an attainment demonstration 

pursuant to CAA section 189(a)(1)(B), 

the RACM provisions of CAA section 

189(a)(1)(C), the RFP provisions of CAA 

section 189(c), and related attainment 

demonstration, RACM, RFP and 

contingency measure provisions 

requirements of subpart 1, CAA section 

172. This proposed action, if finalized, 

would not constitute a redesignation to 

attainment under CAA section 

107(d)(3). In conjunction with this 

proposed finding of attainment, the EPA 

is proposing to approve MVEBs 

calculated for the 2011 attainment year, 

the year that the Tacoma-Pierce County 

first attained the 2006 24-hour PM2.5

NAAQS. The EPA is proposing approval 

of MVEBs pursuant to 40 CFR 

93.109(c)(5)(iii), as described in the 

Transportation Conformity Rule and the 

preamble of the Transportation 

Conformity Restructuring Amendments 

(77 FR 14982, March 14, 2012). 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. The 

SIP is not approved to apply in Indian 

country located in the State, except for 

non-trust land within the exterior 

boundaries of the Puyallup Indian 

Reservation, also known as the 1873 

Survey Area. Under the Puyallup Tribe 

of Indians Settlement Act of 1989, 25 

U.S.C. 1773, Congress explicitly 

provided State and local agencies in 

Washington authority over activities on 

non-trust lands within the 1873 Survey 

Area and the EPA is therefore approving 

this SIP on such lands. Consistent with 

EPA policy, the EPA provided a 

consultation opportunity to the 

Puyallup Tribe in a letter dated 

December 11, 2012. The EPA did not 

receive a request for consultation. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: July 8, 2013. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2013–17267 Filed 7–17–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 372 

[EPA–HQ–OEI–2011–0979; FRL–9825–9] 

RIN 2025–AA36 

Community Right-to-Know; Adoption 

of 2012 North American Industry 

Classification System (NAICS) Codes 

for Toxics Release Inventory (TRI) 

Reporting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to update 

the list of North American Industry 

Classification System (NAICS) codes 

subject to reporting under the Toxics 

Release Inventory (TRI) to reflect the 

Office of Management and Budget 

(OMB) 2012 NAICS revision. Facilities 

would be required to use 2012 NAICS 

codes when reporting to TRI beginning 

with TRI reporting forms that are due on 

July 1, 2014, covering releases and other 

waste management quantities for the 

2013 calendar year. In the ‘‘Rules and 

Regulations’’ section of today’s Federal 

Register, we are simultaneously 

publishing the 2012 OMB NAICS 

revisions for TRI Reporting as a direct 

final rule without a prior proposed rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. We will withdraw this 

proposed rule, and the direct final rule 

will become effective as specified in 

that rule. If, however, we do receive 

adverse comment in response to this 

proposed rule or in response to the 

direct final rule, then we will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

direct final rule will not take effect. In 

that case, we would address all public 

comments in a subsequent final rule 

based on this proposed rule. We will not 

institute a second comment period on 

this action. Any parties interested in 


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