Federal Register / Vol. 73, No. 61 / Friday, March 28, 2008 / Rules and Regulations 16547 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

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

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by May 27, 2008. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: March 12, 2008. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

■ 40 CFR part 52 is amended to read as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart TT—Utah 

■ 2. Section 52.2320 is amended by 

adding paragraph (c)(65) to read as 

follows: 

§ 52.2320 Identification of plan. 

* * * * * 

(c) * * * 

(65) On March 22, 2007 the Governor 

of Utah submitted the addition to the 

Utah Administrative Code (UAC) of 

Rule R307–110–36. This rule 

incorporates by reference Section XXIII, 

Interstate Transport, of the Utah State 

Implementation Plan (SIP). The 

Interstate Transport declaration satisfies 

the requirements of Section 

110(a)(2)(D)(i) of the Clean Air Act 

(CAA). On September 17, 2007, the 

Governor of Utah also submitted an 

amendment to the UAC Rule R307–130–

4, ‘‘Options,’’ that removes from the text 

a typographical error. It removes the 

word ‘‘not’’ which had been 

accidentally placed in this rule. 

(i) Incorporation by reference. 

(A) Addition to the UAC of rule 

R307–110–36 that incorporates by 

reference Section XXIII, ‘‘Interstate 

Transport,’’ of the Utah SIP. Rule R307–

110–36 was adopted by the UAQB on 

February 7, 2007, effective February 9, 

2007, and it was submitted by the 

Governor to EPA on March 22, 2007. 

(B) Revision to UAC Rule R307–130–

4, ‘‘Options.’’ This revision removes 

from the text the word ‘‘not.’’ The 

amended text was adopted by the UAQB 

on June 21, 2007, effective July 13, 2007, 

and it was submitted by the Utah 

Governor to EPA on September 17, 

2007. 

(ii) Additional material. 

(A) Replacement page for UAC Rule 

R307–110–36 attached to the March 22, 

2007 submittal letter by the Utah 

Governor to EPA. The new page 

correctly refers to Section XXIII of the 

Utah SIP instead of the incorrect 

reference to Section XXII included in 

the corresponding page submitted with 

the Administrative Documentation for 

Rule R307–110–36. 

■ 3. Section 52.2354 is added to read as 

follows: 

§ 52.2354 Interstate Transport. 

CAA Section 110(a)(2)(D)(i) 

requirements for the 1997 8-hour ozone 

and PM2.5 standards. Section XXIII, 

Interstate Transport, of the Utah SIP 

submitted by the Utah Governor on 

March 22, 2007, satisfies the 

requirements of the Clean Air Act 

Section 110(a)(2)(D)(i) for the 8-hour 

ozone and PM2.5 NAAQS promulgated 

by EPA in July 1997. Section XXIII, 

Interstate Transport, was adopted by the 

UAQB on February 9, 2007. The March 

22, 2007 Governor’s letter included as 

an attachment a set of replacement 

pages for the Interstate Transport text. 

The new pages reflect correctly that the 

Interstate Transport declaration is under 

Section XXIII of the Utah SIP and not 

under Section XXII as incorrectly 

indicated in the pages submitted with 

the Administrative Documentation for 

the adoption of this SIP section. 

[FR Doc. E8–6275 Filed 3–27–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R04–OAR–2007–0959–200804; FRL–

8547–8] 

Determination of Nonattainment and 

Reclassification of the Memphis, TN/ 

Crittenden County, AR 8-Hour Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This rule finalizes EPA’s 

finding of nonattainment and 

reclassification of the Memphis, 

Tennessee and Crittenden County, 

Arkansas 8-hour ozone nonattainment 

area (Memphis TN–AR Nonattainment 

Area). EPA finds that the Memphis TN–

AR Nonattainment Area has failed to 

attain the 8-hour ozone national 

ambient air quality standard (‘‘NAAQS’’

or ‘‘standard’’) by June 15, 2007, the 

attainment deadline set forth in the 

Clean Air Act (CAA) and Code of 

Federal Regulations (CFR) for marginal 

nonattainment areas. As a result, on the 

effective date of this rule, the Memphis 

TN–AR Nonattainment Area will be 

reclassified by operation of law as a 

moderate 8-hour ozone nonattainment 

area. The moderate area attainment date 

for the reclassified Memphis TN–AR 

Nonattainment Area would then be ‘‘as 

expeditiously as practicable,’’ but no 

later than June 15, 2010. Once 

reclassified, Tennessee and Arkansas 

must submit State Implementation Plan 

(SIP) revisions that meet the 8-hour 

ozone nonattainment requirements for 

moderate areas, as required by the CAA. 

In this action, EPA is establishing the 

schedule for the States’ submittal of the 

SIP revisions required for the 


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16548 Federal Register / Vol. 73, No. 61 / Friday, March 28, 2008 / Rules and Regulations 

nonattainment area once it is 

reclassified. EPA determines that the 

States must submit these SIP revisions 

by March 1, 2009. 

DATES: Effective Date: April 28, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR–

2007–0959. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960 or Air 

Planning Section, U.S. Environmental 

Protection Agency, Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: Jane 

Spann, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, Region 4, U.S. Environmental 

Protection Agency, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9029. 

Mrs. Spann can also be reached via 

electronic mail at 

spann.jane@epa.gov.Or Jeffrey Riley, 

Air Planning Section, U.S. 

Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202–2733. The telephone 

number is 214–665–8542. Mr. Riley can 

also be reached via electronic mail at 

riley.jeffrey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Is the Background for This Action? 

II. Response to Comments 

III. What Is the Effect of This Action? 

A. Determination of Nonattainment, 

Reclassification of Memphis TN–AR 

Nonattainment Area and New 

Attainment Date 

B. When Must Tennessee and Arkansas 

Submit SIP Revisions Fulfilling the 

Requirements for Moderate Ozone 

Nonattainment Areas 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What Is the Background for This 

Action? 

On October 16, 2007, EPA proposed 

its finding that the Memphis TN–AR 

Nonattainment Area did not attain the 

8-hour ozone NAAQS by June 15, 2007, 

the applicable attainment date (72 FR 

58577). The proposed finding was based 

upon ambient air quality data from the 

years 2004, 2005, and 2006. In addition, 

as explained in the proposed rule, the 

Area did not qualify for an attainment 

date extension under the provisions of 

CAA section 181(a)(5) and 40 CFR 

51.907, because the 4th highest daily 

value in the attainment year of 2006 was 

greater than 0.084 parts per million 

(ppm). In the October 16, 2007, 

proposal, EPA proposed that the 

appropriate reclassification of the area 

was to ‘‘moderate’’ nonattainment, in 

accordance with CAA Section 181(b)(2). 

II. Response to Comments 

EPA received comments from the 

Shelby County Government of 

Tennessee (Shelby County), the 

Arkansas Department of Environmental 

Quality (ADEQ), the Sierra Club 

Chickasaw Group-Tennessee Chapter 

and two citizens in response to the 

proposed reclassification of the 

Memphis TN–AR Nonattainment Area 

from marginal to moderate, published 

on October 16, 2007 (72 FR 58577). 

Comments can be found on the internet 

in the electronic docket for this action. 

To access the comments, please go to 

http://www.regulations.gov and search 

for Docket No. EPA–R04–OAR–2007–

0959, or contact the person listed in the 

FOR FURTHER INFORMATION CONTACT

paragraph above. A summary of the 

adverse comments received and EPA’s 

response to the comments is presented 

below. 

Comment: All commenters discussed 

including DeSoto County, Mississippi in 

the 8-hour ozone nonattainment area. 

Shelby County commented that the 

area’s failure to meet the attainment 

date is not due to a lack of local control 

measures and regulation of ozone 

precursors, but is due to errors made in 

the original designation and that EPA’s 

decision to exclude DeSoto County was 

an error that is negatively affecting the 

Area’s ability to achieve the standard. 

Shelby County also commented that the 

DeSoto County monitor is exhibiting a 

disturbing trend towards violation that 

should be reversed. Shelby County and 

ADEQ suggested that the appropriate 

action would be to expand the 

nonattainment area to include DeSoto 

County rather than to reclassify the 

current area to moderate status. 

Response: The validity of the 2004 

designations for DeSoto County or the 

Memphis ozone nonattaiment area are 

not the subject of this rulemaking, nor 

is it relevant to EPA’s determination of 

whether the Memphis area attained the 

8-hour ozone NAAQS by its attainment 

date. The CAA establishes a process for 

air quality management for purposes of 

attaining and maintaining the NAAQS. 

After promulgation of a new or revised 

NAAQS, section 107(d)(1) of the CAA 

requires EPA to designate areas as 

meeting or not meeting the standard. 

EPA published the designations for the 

8-hour ozone NAAQS on April 30, 2004. 

Prior to April 30, 2004, each State 

Governor had an opportunity to 

recommend air quality designations, 

including appropriate boundaries, to 

EPA. One hundred and twenty days 

prior to promulgating designations, EPA 

was required to notify the States, if EPA 

disagreed with a State’s recommended 

designation and intended to modify the 

recommended designation. States then 

had an opportunity to provide a 

demonstration as to why the proposed 

modification was inappropriate. Any 

issues concerning the initial 

designations, including whether a 

county should have been included as 

part of a specific nonattainment area, 

should have been raised at that time and 

any challenges to EPA’s final rule 

designating areas were required to be 

filed within 60 days of April 30, 2004. 

Thus, any claims now that DeSoto 

County should have been included as 

part of the Memphis ozone 

nonattainment area are not timely. The 

time for addressing the validity of the 

designations is past, and the 

appropriateness of the 2004 

designations is not at issue in this 

rulemaking. As a result, all comments 

concerning purported deficiencies in 

the final designations for these areas are 

not relevant to this rulemaking. 

With respect to the commenters’

contention that EPA should now expand 

the nonattainment area to include 

DeSoto County, this rulemaking action, 

which involves a determination of 

nonattainment for the Memphis 8-hour 

ozone nonattainment area pursuant to 

section 181(b)(2), is not the appropriate 

time in which to address a reevaluation 

of the designation for the area. 

In its proposed rulemaking EPA noted 

that DeSoto County is not included in 

the Memphis Area, but stated that ‘‘its 

monitoring data is regularly considered 

for potential contributions to the 

Memphis TN–AR Nonattainment Area 

airshed.’’ 72 FR 58579. EPA is clarifying 


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in this final rulemaking that, while we 

reviewed the data from the DeSoto 

monitor, we are not relying on data from 

that monitor in reaching a final 

determination that the Memphis Area 

failed to attain the 8-hour ozone 

standard by its June 15, 2007, 

attainment date. 

Notably, for the years 2004–2006, the 

monitor in DeSoto County demonstrated 

attainment. Because this final 

determination was based upon the 

Marion, AR monitor which provided the 

Area its 2004–2006 design value of .087 

ppm, the additional DeSoto County data 

would not alter this determination. EPA 

also notes that preliminary data for 2007 

for both the Marion and DeSoto 

monitors show that, if the data were 

quality assured, both monitors would 

register as nonattainment for 2005–

2007. Again, the additional DeSoto 

County data would not alter the 

determination that the Area did not 

attain the standard. 

Comment: Shelby County and ADEQ 

commented that EPA has invoked the 

legal principle known as ‘‘operation of 

law’’ as justification for reclassifying the 

Memphis, TN–AR Nonattainment Area 

from marginal to moderate. The 

commenters believe that the invocation 

of ‘‘operation of law’’ is, in this 

instance, a discretionary power. Shelby 

County commented that reclassification 

is not needed and will not serve to move 

the Area into attainment of the ozone 

standard any sooner than is currently 

predicted by the extensive computer 

modeling, and that reclassification will 

place an undue and completely 

unnecessary administrative cost on the 

taxpayers of Tennessee and Arkansas 

without improving air quality in the 

Area. ADEQ commented that 

reclassification is unmerited at this time 

and that ‘‘there would be no 

demonstrable harm to the public if the 

EPA Administrator used discretionary 

authority to waive the action otherwise 

the result of operation of law.’’ ADEQ 

also commented that delays in federal 

ozone programs were responsible for 

higher regional design values, and that 

‘‘States and localities should not be 

required to take on new regulatory 

burdens as a result of programmatic 

delays over which they had no control. 

The EPA has not taken this into account 

in its deliberations as to whether 

redesignation [sic] is appropriate in this 

instance.’’

Response: EPA disagrees with the 

assertion that reclassification upon a 

determination of failure to attain is a 

discretionary power, and that EPA can 

‘‘waive’’ reclassification after it has 

determined that the area has failed to 

attain by its attainment date. In the 

October 16, 2007, proposed rule (72 FR 

58577), EPA cited section 181(b)(2)(A) 

of the CAA, which provides that, for 

reclassification upon failure to attain, 

‘‘within 6 months following the 

applicable attainment date (including 

any extension thereof) for an ozone 

nonattainment area, the Administrator 

shall determine, based on the area’s 

design value (as of the attainment date), 

whether the area attained the standard 

by that date. Except for any Severe or 

Extreme area, any area that the 

Administrator finds has not attained the 

standard by that date shall be 

reclassified by operation of law in 

accordance with table 1 of subsection (a) 

(of Section 181) to the higher of—(i) the 

next higher classification for the area, or 

(ii) the classification applicable to the 

area’s design value as determined at the 

time of the notice required under 

subparagraph (B).’’ Pursuant to section 

181(b)(2), EPA has determined that the 

Memphis TN–AR Nonattainment Area 

failed to attain the 8-hour ozone 

NAAQS by June 15, 2007, the 

attainment deadline set forth in the 

CAA and CFR for marginal 

nonattainment areas. Because the Area 

is not classified as severe or extreme, 

the area shall be reclassified by 

operation of law to the next higher 

classification. The next higher 

classification for the Area (moderate) is 

higher than the classification applicable 

to the Area’s design value (marginal). 

Therefore, in accordance with the CAA, 

the Area must be reclassified by 

operation of law to a moderate 

nonattainment area. 72 FR 58579. 

As EPA noted above, under section 

181(b)(2)(A), the attainment 

determination is made solely on the 

basis of air quality, and any 

reclassification is by operation of law. 

Thus, the resulting requirements apply 

regardless of how the nonattainment 

came about, and the CAA does not 

allow EPA to assess the need, or lack 

thereof, for additional local measures. 

With respect to any perceived burden 

imposed by the new planning 

requirements, EPA notes that the 

moderate area requirements are imposed 

by section 182(b) of the CAA and the 

impact, economic or otherwise, of a 

reclassification is not a consideration in 

making the attainment determination 

under section 181(b)(2). 

Comment: Shelby County and ADEQ 

commented that if EPA determines that 

it has no discretion on reclassification, 

the public comment process provides no 

opportunity for relevant comments on 

the proposed action to be considered. 

Response: EPA disagrees that the 

public comment process provides no 

opportunity for relevant comments on 

the proposed action. The process allows 

for an opportunity to ascertain whether 

EPA’s analysis of the relevant data and 

CAA requirements is correct. Under 

section 182(b)(2)(A), the attainment 

determination is made solely on the 

basis of air quality data, and 

reclassification and the level to which 

an area is reclassified is by operation of 

law. Section 181(b)(2)(B) requires EPA 

to publish a notice in the Federal 

Register identifying the reclassification 

status of an area that has failed to attain 

the standard by its attainment date. 

Thus, in making the determinations 

required by the CAA, EPA solicits and 

will consider comments addressing 

EPA’s determination with respect to 

whether air quality data show 

attainment or nonattainment by the 

applicable attainment date, and EPA’s 

identification of any resulting 

reclassification that occurs by operation 

of law. There is, therefore, a meaningful 

role for public comments in 

determinations of attainment, 

specifically with regard to the data and 

EPA’s analysis of the data, but this is 

not inconsistent with, and does not alter 

the statutory scheme that provides that 

reclassification occurs as a matter of 

law, and is not within EPA’s discretion. 

Comment: ADEQ commented that for 

the 2007 ozone season to date, the 

fourth highest value in the 

nonattainment Area had not exceeded 

0.084 ppm and that the Area’s air 

quality appears to be improving. ADEQ 

further requested that EPA consider 

calendar year 2007 as an ‘‘extension 

year’’ and grant a one-year extension of 

the attainment date as a means of 

providing relief from the duplication of 

effort that will be required in the event 

that the recently proposed revisions to 

the ozone standard are promulgated in 

the near future. 

Response: Sections 172(a)(2)(C) and 

181(a)(5) of the CAA provide states with 

an opportunity to apply to extend the 

attainment date by one year. Section 

181(a)(5) applies to areas classified 

under Subpart 2 of the CAA, and 40 

CFR 51.907 provides EPA’s 

interpretation of section 172(a)(2)(C) 

and 181(a)(5) for purposes of the 8-hour 

ozone standard. For the 8-hour ozone 

standard, if an area’s fourth highest 

daily maximum 8-hour average value in 

the attainment year is 0.084 ppm or less, 

the area is eligible for a 1-year extension 

of the attainment date (40 CFR 51.907). 

The attainment year is the year in which 

the last full ozone season relied on for 

purposes of demonstrating attainment 

occurs. Because the attainment date for 

the Memphis Area was June 15, 2007, 

the last full ozone season preceding the 

Area’s attainment date was the 2006 


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1Moreover, as noted above, preliminary data for 

2005–2007 shows that the Area remains in 

nonattainment. 

ozone season and 2006 is considered the 

attainment year. In 2006, the Area’s 

fourth highest daily maximum 8-hour 

average was 0.089 ppm. Based on this 

information, the Area does not qualify 

for a 1-year extension of the attainment 

date. Under the applicable statutory and 

regulatory provisions, EPA is unable to 

consider 2007 as an extension year. 

First, as explained above, the Area did 

not qualify for an initial 1-year 

extension based on its 2006 attainment 

year. Second, even if the Area had 

qualified for a 1-year extension based on 

2006 data (which it did not), it would 

not qualify for a second 1-year extension 

based on preliminary data for 2007. This 

is because the Area’s 4th highest daily 

8-hour value, averaged over both 2006 

(the original attainment year) and 2007 

(the hypothetical ‘‘first extension year’’) 

is greater than 0.84 ppm. 40 CFR 

51.907(b). Finally, preliminary data for 

2005–2007 show that the Area is still 

not attaining the standard. 

Comment: Shelby County commented 

that air quality in the Memphis Area has 

in recent years demonstrated a trend of 

improvement; that pollution measures 

in place are making a positive impact 

and will lead to further improvement; 

and that modeling shows that the Area 

will soon attain the standard. Shelby 

County also commented that 

reclassification could ‘‘result in an 

absurd conclusion since the possibility 

exists that, by next year, the only 

controlling monitor in the area could be 

located in a county that is attainment.’’

ADEQ commented that for the 2007 

ozone season to date, the fourth highest 

8-hour ozone value for any monitor in 

the Area did not exceed 0.084 ppm; that 

they are hopeful ozone levels in 2008 

and beyond will continue to show 

improvement; and that it is unfortunate 

that EPA considers it necessary to 

increase the severity of the ozone 

classification from marginal to moderate 

when it appears that the Area’s air 

quality is improving. ADEQ also 

commented that ‘‘the redesignation [sic] 

to moderate that is proposed would, in 

this instance, result in an absurd 

conclusion.’’

Response: EPA recognizes the efforts 

taken by Shelby County, ADEQ, the 

Tennessee Department of Environment 

and Conservation, and the Memphis 

Area in general to improve air quality. 

However, while it is encouraging that 

the Area’s air quality appears to be 

improving, unfortunately, it did not 

improve enough to meet the June 15, 

2007, deadline for attainment.1 The 

statute requires an assessment of air 

quality as of an area’s attainment date, 

and that assessment is the subject of 

today’s rulemaking. (See also, our 

responses to previous comments.) 

Reclassification of the Area, which 

occurs by operation of law, as required 

by the CAA will lead to additional 

planning and emission controls, which 

will help ensure that the Area attains 

and maintains the 8-hour ozone 

standard. 

III. What Is the Effect of This Action? 

A. Determination of Nonattainment, 

Reclassification of Memphis TN–AR 

Nonattainment Area and New 

Attainment Date 

Pursuant to section 181(b)(2), EPA 

finds that the Memphis TN–AR 

Nonattainment Area failed to attain the 

8-hour ozone NAAQS by the June 15, 

2007, attainment deadline prescribed 

under the CAA and 69 FR 23858 (April 

30, 2004) for marginal ozone 

nonattainment areas. When this finding 

is effective, the Memphis TN–AR 

Nonattainment Area will be reclassified 

by operation of law from marginal 

nonattainment to moderate 

nonattainment. The reclassification to 

the next higher classification is 

mandated by Section 181(b)(2)(A) of the 

CAA. Moderate areas are required to 

attain the standard ‘‘as expeditiously as 

practicable’’ but no later than 6 years 

after designation or June 15, 2010. The 

‘‘as expeditiously as practicable’’

attainment date will be determined as 

part of the action on the required SIP 

submittal demonstrating attainment of 

the 8-hour ozone standard. Also in this 

action, EPA is establishing a schedule 

by which Tennessee and Arkansas will 

submit the SIP revisions necessary for 

the reclassification to moderate 

nonattainment of the 8-hour ozone 

standard. 

B. When Must Tennessee and Arkansas 

Submit SIP Revisions Fulfilling the 

Requirements for Moderate Ozone 

Nonattainment Areas 

EPA must address the schedule by 

which Tennessee and Arkansas are 

required to submit revised SIPs 

addressing the requirements for the 

Memphis TN–AR moderate 

Nonattainment Area. When an area is 

reclassified, EPA has the authority 

under section 182(i) of the CAA to 

adjust the CAA’s submittal deadlines for 

any new SIP revisions that are required 

as a result of the reclassification. 

Pursuant to 40 CFR 51.908(d), for each 

nonattainment area, a state must 

provide for implementation of all 

control measures needed for attainment 

no later than the beginning of the 

attainment year ozone season. The 

attainment year ozone season is the 

ozone season immediately preceding a 

nonattainment area’s attainment date, in 

this case 2009 (40 CFR 51.900(g)). The 

ozone season is the ozone monitoring 

season as defined in 40 CFR part 58, 

Appendix D, section 4.1, Table D–3 

(October 17, 2006, 71 FR 61236). For the 

purposes of this reclassification of the 

Memphis TN–AR Nonattainment Area, 

March 1, 2009, is the beginning of the 

ozone monitoring season. As a result, 

EPA is requiring that the necessary SIP 

revisions be submitted by both 

Tennessee and Arkansas as 

expeditiously as practicable, but no later 

than March 1, 2009. 

A revised SIP must include all the 

moderate area requirements in section 

182(b) of the CAA including: (1) An 

attainment demonstration (40 CFR 

51.908); (2) provisions for reasonably 

available control technology and 

reasonably available control measures 

(40 CFR 51.912); (3) reasonable further 

progress reductions in volatile organic 

compound (VOC) emissions (40 CFR 

51.910); (4) contingency measures to be 

implemented in the event of failure to 

meet a milestone or attain the standard 

(CAA 172(c)(9)); (5) a vehicle inspection 

and maintenance program (40 CFR 

51.350); and (6) nitrogen oxide and VOC 

emission offsets of 1.15 to 1 for major 

source permits (40 CFR 51.165(a)). 

IV. Final Action 

Pursuant to CAA section 181(b)(2), 

EPA is making a final determination 

that the Memphis TN–AR marginal 8- 

hour Ozone Nonattainment Area failed 

to attain the 8-hour ozone NAAQS by 

June 15, 2007. Upon the effective date 

of this rule, the Memphis TN–AR 

marginal 8-hour Ozone Nonattainment 

Area will be reclassified by operation of 

law as a moderate 8-hour ozone 

nonattainment area. Pursuant to section 

182(i) of the CAA, EPA is establishing 

the schedule for submittal of the SIP 

revisions required for moderate areas 

once the area is reclassified. The 

required SIP revisions for Tennessee 

and Arkansas shall be submitted as 

expeditiously as practicable, but no later 

than March 1, 2009. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the Executive 


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Federal Register / Vol. 73, No. 61 / Friday, March 28, 2008 / Rules and Regulations 16551 

Order. The Agency has determined that 

the finding of nonattainment would 

result in none of the effects identified in 

the Executive Order. Under section 

181(b)(2) of the CAA, determinations of 

nonattainment are based upon air 

quality considerations and the resulting 

reclassifications must occur by 

operation of law. 

B. Paperwork Reduction Act 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This action 

to reclassify the Memphis TN–AR 

Nonattainment Area as a moderate 

ozone nonattainment area and to adjust 

applicable deadlines does not establish 

any new information collection burden. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. An agency 

may not conduct or sponsor, and a 

person is not required to respond to a 

collection of information unless it 

displays a currently valid Office of 

Management and Budget (OMB) control 

number. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards 

(see, 13 CFR part 121); (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. Determinations of 

nonattainment and the resulting 

reclassification of nonattainment areas 

by operation of law under section 

181(b)(2) of the CAA do not in and of 

themselves create any new 

requirements. Instead, this rulemaking 

only makes a factual determination, and 

does not directly regulate any entities. 

After considering the economic impacts 

of today’s action on small entities, I 

certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any one year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation to why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

This action does not include a Federal 

mandate within the meaning of UMRA 

that may result in expenditures of $100 

million or more in any one year by 

either State, local, or Tribal 

governments in the aggregate or to the 

private sector, and therefore, is not 

subject to the requirements of sections 

202 and 205 of the UMRA. Also, EPA 

has determined that this rule contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments and therefore, is not 

subject to the requirements of sections 

203. EPA believes, as discussed 

previously in this document, that the 

finding of nonattainment is a factual 

determination based upon air quality 

considerations and that the resulting 

reclassification of the area must occur 

by operation of law. Thus, EPA believes 

that the finding does not constitute a 

Federal mandate, as defined in section 

101 of the UMRA, because it does not 

impose an enforceable duty on any 

entity. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

merely determines that the Memphis 

TN–AR Nonattainment Area had not 

attained by its applicable attainment 

date, reclassifies the Memphis TN–AR 

Nonattainment Area as a moderate 

ozone nonattainment area and adjusts 

applicable deadlines. Thus, Executive 

Order 13132 does not apply to this rule. 


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16552 Federal Register / Vol. 73, No. 61 / Friday, March 28, 2008 / Rules and Regulations 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This action does not have 

‘‘Tribal implications’’ as specified in 

Executive Order 13175. This action 

merely determines that the Memphis 

TN–AR Nonattainment Area has not 

attained by its applicable attainment 

date, reclassifies the Memphis TN–AR 

Nonattainment Area as a moderate 

ozone nonattainment area and adjusts 

applicable deadlines. The CAA and the 

Tribal Authority Rule establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this rule does nothing 

to modify that relationship. Thus, 

Executive Order 13175 does not apply 

to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045, entitled 

‘‘Protection of Children From 

Environmental Health and Safety Risks’’

(62 FR 19885, April 23, 1997) applies to 

any rule that (1) is determined to be 

‘‘economically significant’’ as defined 

under Executive Order 12866, and (2) 

concerns an environmental health or 

safety risk that EPA has reason to 

believe may have disproportionate effect 

on children. If the regulatory action 

meets both criteria, the Agency must 

evaluate the environmental health or 

safety effects of the planned rule on 

children, and explain why the planned 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by the 

Agency. This action is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health risks or safety 

risks addressed by this rule present a 

disproportionate risk to children. This 

action merely determines that the 

Memphis TN–AR Nonattainment Area 

has not attained by its applicable 

attainment date, reclassifies the 

Memphis TN–AR Nonattainment Area 

as a moderate ozone nonattainment area 

and adjusts applicable deadlines. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, entitled ‘‘Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer 

Advancement Act 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law 104–113, 

section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. This action merely 

determines that the Memphis TN–AR 

Nonattainment Area has not attained by 

its applicable attainment date, 

reclassifies the Memphis TN–AR 

‘‘marginal’’ Nonattainment Area as a 

‘‘moderate’’ ozone nonattainment area 

and adjusts applicable deadlines. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it does not affect 

the level of protection provided to 

human health or the environment. This 

action merely determines that the 

Memphis TN–AR Nonattainment Area 

has not attained by its applicable 

attainment date, and reclassifies the 

Memphis TN–AR Nonattainment Area 

as a moderate ozone nonattainment area 

and adjusts applicable deadlines. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

L. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by May 27, 2008. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action to 

reclassify the Memphis TN–AR area as 

a moderate ozone nonattainment area 

and to adjust applicable deadlines may 

not be challenged later in proceedings to 

enforce its requirements. (See, section 

307(b)(2).) 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: March 14, 2008. 

J.I. Palmer, Jr., 

Regional Administrator, Region 4. 

Dated: March 19, 2008. 

Richard E. Greene, 

Regional Administrator, Region 6. 

■ 40 CFR part 81 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 et seq. 


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Federal Register / Vol. 73, No. 61 / Friday, March 28, 2008 / Rules and Regulations 16553 

Subpart C—Section 107 Attainment 

Status Designations 

■ 2. In § 81.304 the table for Arkansas—

Ozone (8-hour Standard) is amended by 

revising the entry for Memphis, TN–AR 

and footnote 2 to read as follows: 

§ 81.304 Arkansas. 

* * * * * 

ARKANSAS—OZONE (8-HOUR STANDARD) 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Memphis, TN–AR: (AQCR 018 Metropolitan Memphis Interstate) Crittenden County..................... Nonattainment ............... (2) Subpart 2/Moderate. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2April 28, 2008. 

* * * * * 

■ 3. In § 81.343 the table for 

Tennessee—Ozone (8-hour Standard) is 

amended by removing footnote 3 and 

revising the entry for ‘‘Memphis, TN–

AR’’ to read as follows: 

§ 81.343 Tennessee. 

* * * * * 

TENNESSEE—OZONE (8-HOUR STANDARD) 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

* * * * * * * 

Memphis, TN–AR: Shelby County .............................. .......................... Nonattainment ............... March 28, 2008 Subpart 2/Moderate. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

* * * * * 

[FR Doc. E8–6287 Filed 3–27–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2005–0145; FRL–8354–4] 

Boscalid; Pesticide Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of boscalid in or 

on caneberry subgroup 13A at 6.0 parts 

per million (ppm); bushberry subgroup 

13B at 13 ppm; cotton, undelinted seed 

at 1.0 ppm; cotton, gin by-products at 55 

ppm; avocado at 1.5 ppm; sapote, black 

at 1.5 ppm; canistel at 1.5 ppm; sapote, 

mamey at 1.5 ppm; mango at 1.5 ppm; 

papaya at 1.5 ppm; sapodilla at 1.5 ppm; 

and star apple at 1.5 ppm. It revokes the 

existing berries, group 13 tolerance at 

3.5 ppm because the two new caneberry 

and bushberry tolerances cover all 

commodities in the berries, group 13. 

Tolerances are being increased for 

cucumber from 0.20 ppm to 0.5 ppm, 

and vegetable, root, subgroup 1A, except 

sugarbeet, garden beet, radish, and 

turnip from 0.7 ppm to 1.0 ppm. BASF, 

Inc requested these tolerance actions 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA). In addition, this 

action establishes a time-limited 

tolerance for residues of boscalid in or 

on Endive, Belgian, in response to the 

approval of a crisis exemption under 

section 18 of the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) 

authorizing the post harvest use of the 

fungicide on Endive, Belgian to control 

the fungal pathogen, scelerotinia 

sclerotiorum. This regulation establishes 

a maximum permissible level of 

residues of boscalid in this food 

commodity. The time-limited tolerance 

expires and is revoked on December 31, 

2009. 

DATES: This regulation is effective 

March 28, 2008. Objections and requests 

for hearings must be received on or 

before May 27, 2008, and must be filed 

in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ–

OPP–2005–0145. To access the 

electronic docket, go to http:// 

www.regulations.gov, select ‘‘Advanced 

Search,’’ then ‘‘Docket Search.’’ Insert 

the docket ID number where indicated 

and select the ‘‘Submit’’ button. Follow 

the instructions on the regulations.gov 

website to view the docket index or 

access available documents. All 

documents in the docket are listed in 

the docket index available in 

regulations.gov. Although listed in the 

index, some information is not publicly 

available, e.g., Confidential Business 

Information (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 form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S–


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