[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80420-80425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32139]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2010-0891, FRL-9241-9]
RIN 2060-AQ65


Reasonable Further Progress Requirements for the 1997 8-Hour 
Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: The EPA is proposing to revise the Agency's earlier 
interpretation of its rule regarding requirements for Reasonable 
Further Progress (RFP) that allowed certain emissions reductions from 
outside the nonattainment area to be credited toward meeting the RFP 
requirements for the 1997 8-hour ozone national ambient air quality 
standards (NAAQS). Specifically, EPA is proposing that States may not 
take credit for emission reductions from outside the nonattainment area 
to meet the area's RFP obligations. EPA is also taking comment on 
whether it would be appropriate for States to rely on emission 
reductions credit from outside the nonattainment area for RFP 
obligations.

DATES: Comments. Comments must be received on or before February 7, 
2011.
    Public Hearings. If anyone contacts us requesting a public hearing 
on or before January 6, 2011, we will hold a public hearing. Please 
refer to SUPPLEMENTARY INFORMATION for additional information on the 
comment period and the public hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0891, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#f697db979892db84db9299959d9382b6938697d8919980"><span class="__cf_email__" data-cfemail="aecf83cfc0ca83dc83cac1cdc5cbdaeecbdecf80c9c1d8">[email protected]</span></a>.
    <bullet> Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2010-0891, Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code: 
2822T. Please include two copies if possible.
    <bullet> Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2010-0891, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation will 
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through 
Friday, Air and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0891. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
on-line at  http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be confidential business information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as

[[Page 80421]]

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 in http://www.regulations.gov or in hard copy at the Air and Radiation Docket and 
Information Center is in the EPA Headquarters Library, Room Number 3334 
in the EPA West Building, located at 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Mr. H. Lynn Dail, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, (C539-
01), Research Triangle Park, NC 27711, phone number (919) 541-2363, fax 
number (919) 541-0824 or by e-mail at <a href="/cdn-cgi/l/email-protection#7410151d185a180d1a1a341104155a131b02"><span class="__cf_email__" data-cfemail="1672777f7a387a6f78785673667738717960">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include 
State, local, and Tribal governments. Entities potentially affected 
indirectly by this rule include owners and operators of sources of 
emissions [volatile organic compounds (VOCs) and nitrogen oxides 
(NO<INF>X</INF>)] that contribute to ground-level ozone concentrations.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under ``recent actions.''

D. What information should I know about possible public hearing?

    EPA will hold a public hearing only if a party notifies EPA by 
January 3, 2011. Further details concerning a public hearing for this 
proposed rule will be published in a separate Federal Register notice. 
For updates and additional information on a public hearing, please 
check EPA's Web site for this rulemaking at http://www.epa.gov/ozonepollution/actions.html#impl.

E. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. What information should I know about possible public 
hearings?
    E. How is this notice organized?
II. Can emissions reductions from sources located outside the 
nonattainment area boundary be used to meet RFP requirements?
    A. Background
    B. NRDC's Petition for Reconsideration of the August 2009 RFP 
Rule on Credits for Outside Reductions
    C. EPA's Proposed Approach to Relying on Credits From Outside 
the Nonattainment Area to Meet the RFP Obligations and Response to 
the Request for Reconsideration
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)
IV. Statutory Authority
List of Subjects

II. Can emissions reductions from sources located outside the 
nonattainment area boundary be used to meet RFP requirements?

A. Background

    Under EPA's Phase 2 \1\ Rule, certain emission reductions from 
sources located outside a nonattainment area could be credited toward 
meeting the 1997 ozone NAAQS RFP requirement. In the preamble to that 
rule, EPA stated that credit could be taken for VOC and NO<INF>X</INF> 
emission reductions within 100 kilometers (km) and 200 km, 
respectively, outside the nonattainment area under certain 
circumstances. In addition, if a regional NO<INF>X</INF> control 
strategy were in place in a State, NO<INF>X</INF> reductions within 
that State beyond 200 km could be credited toward meeting the RFP 
target. In all cases, areas had to include a demonstration that the 
emissions from outside the nonattainment area had an impact on ozone 
air quality levels within the nonattainment area. EPA explained that 
where data indicated that emissions reductions from sources outside a 
nonattainment area improved ozone air quality within the nonattainment 
area, it was appropriate to allow States to take RFP credit for such 
reductions from outside the nonattainment area. This interpretation was 
consistent with the policy EPA had established under the 1-hour ozone 
standard ``Guidance for Implementing the 1-Hour Ozone and Pre-Existing 
PM<INF>10</INF> NAAQS,'' December

[[Page 80422]]

29, 1997.\2\ For a more complete discussion of EPA's rationale for 
applying this interpretation in the Phase 2 Rule, see 70 FR at 71647-
49.
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    \1\ See Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2 (70 FR 71612, November 29, 
2005).
    \2\ The memorandum is available on the EPA Technology and 
Transfer Network (TTN) Policy and Guidance page for Title I at this 
Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
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    On January 27, 2006, the Natural Resources Defense Council (NRDC) 
filed a petition for review of EPA's Phase 2 Ozone Implementation Rule 
in the U.S. Court of Appeals for the District of Columbia Circuit (the 
Court). NRDC challenged several aspects of the Phase 2 Rule including 
EPA's interpretation that formed the basis of its policy for allowing 
credit for reductions outside the nonattainment area, namely EPA's 
interpretation that the intent of section 182(c)(2)(C) is to reduce 
ambient ozone concentrations within an area rather than to reduce 
emissions within the nonattainment area. NRDC claimed that EPA's 
interpretation and implementation of these provisions were both 
unlawful and arbitrary. NRDC also argued that the rule was arbitrary 
because it allowed the State to claim credit for emission reductions 
from selected outside-the-nonattainment-area sources without also 
adding emissions from other outside sources to the RFP baseline, even 
where those other sources impact air quality in the nonattainment area.
    Following the conclusion of briefing in this case, EPA published a 
final rule implementing the NAAQS for fine particulate matter (the 
PM<INF>2.5</INF> Implementation Rule) where we adopted a different 
approach for crediting reductions from outside nonattainment areas 
(``outside'' reductions). See 72 FR 20586 (April 25, 2007). The 
PM<INF>2.5</INF> Rule allows States to take credit for ``outside'' 
reductions of NO<INF>X</INF> and sulfur dioxide (SO<INF>2</INF>) 
emissions up to 200 km from the nonattainment area (and potentially VOC 
or ammonia as well) provided certain conditions are met, including that 
when taking RFP credit for emissions reductions achieved in ``outside'' 
areas, the baseline emissions inventory for the nonattainment area 
contain all, rather than a select few, sources in the outside area.\3\ 
The primary objective of this policy was to reflect the net emission 
reductions in the ``outside'' area that could affect the nonattainment 
area rather than crediting only reductions from selected sources.
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    \3\ In addition, where State RFP plans rely on ``outside'' 
reductions to meet the RFP obligations, such plans must include a 
technical demonstration showing that such outside emissions 
significantly affected the PM<INF>2.5</INF> concentrations within 
the nonattainment area. And, the area outside the nonattainment area 
from which creditable reductions are taken must be within the State; 
areas outside the State but within 200 km would not be eligible for 
credit for RFP purposes.
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    Following publication of the PM<INF>2.5</INF> Implementation Rule, 
EPA requested from the Court on July 17, 2007, a partial voluntary 
remand of the Phase 2 Rule to reevaluate and consider whether to revise 
the RFP interpretation for ozone to assure consistency with the 
provisions in the PM<INF>2.5</INF> Implementation Rule. In response to 
EPA's motion for a partial voluntary remand of the ozone RFP policy, 
NRDC asked the Court to also vacate this provision. On November 2, 
2007, the Court issued an order that vacated and remanded the portion 
of the Phase 2 Rule that permitted credit for reductions of VOC and 
NO<INF>X</INF> from outside nonattainment areas. On August 11, 2009 (74 
FR 40074), EPA issued a final rule to revise the RFP policy in the 
Phase 2 Rule to be consistent with the interpretation in the 
PM<INF>2.5</INF> Implementation rule.
    Meanwhile on July 10, 2009, the Court issued its decision on the 
other issues in the Phase 2 Ozone Implementation Rule case. NRDC v. 
EPA, 571 F.3d 1245 (DC Cir. 2009). The Court examined the phrase ``in 
the area'' included in separate provisions relating to reductions from 
the application of Reasonably Available Control Technology (RACT) (CAA 
sections 172 (1) and 182(b)(2)). In the Phase 2 Rule, EPA had explained 
that because an interstate emissions trading program [the 
NO<INF>X</INF> State implementation plan (SIP) call's NO<INF>X</INF> 
budget program] would achieve beyond RACT-level NO<INF>X</INF> 
reductions regionally, areas did not have to meet the RACT-level 
reductions required under CAA section 172(c)(1) solely from within the 
nonattainment area. The Court, however, concluded that the phrase ``in 
the area'' means that reductions must occur within the area and 
``reductions from outside the nonattainment area do not satisfy the 
requirement.'' 571 F.3d at 1256. Although such region-wide reductions 
could potentially satisfy the statutory requirement that the reductions 
must be from sources within the nonattainment area, the Court found 
that EPA had not made a demonstration for all nonattainment areas 
within the SIP Call area showing that the regional emissions trading 
program did in fact produce sufficient reductions from inside each 
nonattainment area to represent RACT-level reductions. Id.

B. NRDC's Petition for Reconsideration of the August 2009 RFP Rule on 
Credits for Outside Reductions

    Following the Court's decision, on October 9, 2009, NRDC filed a 
petition with EPA for administrative reconsideration of the August 2009 
final rule revising EPA's interpretation in the Phase 2 Ozone 
Implementation Rule on allowing credit toward meeting the RFP 
requirements using emissions reductions from outside of ozone 
nonattainment areas. In its petition, NRDC based its objections to the 
rule on the following grounds: (1) The Court's decision on the RACT 
provisions in the Phase 2 Rule and its interpretation of the phrase 
``sources in the area'' requires that RFP emission reductions also be 
achieved only from sources within the nonattainment area; (2) EPA 
presented a new rationale, i.e., there is some ambiguity in the 
statutory provisions because they do not prohibit credits for 
reductions from outside the nonattainment area, for which it did not 
provide an opportunity for comment; (3) EPA offered a new and arbitrary 
rationale for its choice of the 100 and 200 km distances for 
``outside'' reductions; (4) EPA stated a new and arbitrary rationale, 
i.e., creditable ``outside'' reductions must be reasonably expected to 
provide ozone air quality benefits comparable to those from reductions 
in the area, for evaluating ``outside'' reductions; and (5) EPA relied 
on a new rationale when it explained that sources that are outside the 
nonattainment area are not necessarily ``nearby'' for designations 
purposes and certain factors would need to be considered for judging 
whether an area is ``nearby.''
    On May 13, 2010, EPA granted reconsideration of the rule based on 
NRDC's petition and stated it would initiate rulemaking to address the 
reconsideration. EPA is addressing the reconsideration through this 
proposed rulemaking. NRDC's first objection is addressed in the 
following section and EPA believes that the proposed action makes 
NRDC's other objections moot. Therefore, EPA is not addressing any of 
those subsequent points here.

C. EPA's Proposed Approach to Relying on Credits From Outside the 
Nonattainment Area to Meet the RFP Obligations and Response to the 
Request for Reconsideration

    EPA is proposing to set aside its earlier interpretation of the RFP 
provisions in the August 2009 final rule and no longer permit States to 
rely on credit for emission reductions from outside the ozone 
nonattainment area to meet such an area's RFP obligations. In light of 
the Court's decision in NRDC discussed previously, and upon 
consideration of NRDC's petition for reconsideration, EPA believes that 
the language in the baseline emissions

[[Page 80423]]

provision for determining the emissions reductions required for RFP 
purposes (CAA sections 182(b)(1)(B) and 182(c)(2)(B)) is almost 
identical to the language in the RACT provision (section 172(c)(1)) 
addressed by the Court, and thus compels a similar interpretation. All 
three sections contain the phrase ``in the area'' and in examining the 
RACT provision the Court found that language compelled that the 
reductions must come from within the nonattainment area, and that 
reductions from outside the nonattainment area would not satisfy the 
statutory requirement for reductions ``in the area.'' We see no basis 
for interpreting that same clause in the RFP provisions in a different 
manner in light of the Court's decision.
    EPA is therefore proposing that for the 1997 ozone NAAQS States may 
not take credit for VOC or NO<INF>X</INF> reductions occurring outside 
the nonattainment area for purposes of meeting the section 182(b) and 
(c) RFP requirements. This includes the 15 percent VOC plan requirement 
for Moderate and above ozone nonattainment areas in section 182(b)(1) 
and the additional 3 percent per year requirement for Serious and above 
ozone nonattainment areas in section 182(c)(2)(B).
    EPA recognizes that not allowing credit for emissions reductions 
outside the nonattainment area will make it more challenging for some 
areas, such as nonattainment areas adjacent to the South Coast Air 
Quality Management District, namely, Coachella Valley, West Mojave 
Desert and Ventura County in California, to meet the RFP requirements, 
and may limit the extent to which regional programs can be creditable 
toward RFP. For ozone nonattainment areas that are not able to meet the 
182(b)(1) and 182(c)(2)(B)(i) RFP requirements, the CAA allows for a 
lesser amount of RFP if certain conditions are met. For an area to 
qualify for a less than the required 15 percent emissions reduction, 
that State must demonstrate that, in the area, New Source Review (NSR) 
provisions are applicable in the same manner and to the same extent as 
in an Extreme area, RACT is required for all existing major sources, 
and the RFP plan includes all feasible measures that can be implemented 
in light of technological achievability. For purposes of applying this 
provision, a major source is defined as a source that emits or has the 
potential to emit at least 5 tons per year of VOC. Similarly, for 
Serious and above areas to qualify for less than the required 3 percent 
each year of reductions in emissions to meet their RFP obligations, a 
State must show that the SIP includes all feasible measures that can be 
implemented in the area in light of technological achievability. In 
both instances, the State must also demonstrate that the SIP for the 
area includes measures that are achieved in practice by sources in the 
same source category in nonattainment areas of the next higher 
classification. See 182(b)(1)(A)(ii) and 182(c)(2)(B)(ii).
    Despite the Court's opinion in NRDC, there may remain valid policy 
reasons for giving States incentive to focus on obtaining emission 
reductions that are the most beneficial and cost effective for 
attaining the ozone standards. Also, there may be cases where the most 
beneficial and cost-effective reductions are from sources located 
outside the nonattainment area boundaries. In these cases, there may be 
good reason to credit the emission reductions toward meeting RFP 
requirements. To this end, EPA is also taking comment on allowing 
credit for reductions outside the nonattainment area to satisfy the RFP 
requirements for the 1997 and 2010 ozone NAAQS. If EPA finalizes this 
proposal to provide that credit cannot be taken for emission reductions 
from outside the nonattainment area, States that previously submitted 
plans that relied on such credit will need to submit new RFP 
demonstrations for those areas.
    EPA requests comments on the proposal and the implications for the 
1997 ozone NAAQS.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``non-significant regulatory action'' because it does 
not raise novel legal or policy issues arising out of legal mandates.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The CAA imposes the obligation for States to submit SIPs, including 
RFP, to implement the ozone NAAQS. In this proposal, EPA is merely 
providing an interpretation of those requirements; thus there is no 
information collection burden. However, the Office of Management and 
Budget (OMB) has previously approved the information collection 
requirements contained in the existing regulations 40 CFR parts 50 and 
51 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq. and has assigned OMB control number 2060-0594. 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 regulation subject 
to notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of these proposed regulations 
on small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA) regulations at 13 
CFR 121.201); (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impact of these proposed revisions 
to the regulations on small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. This proposal will not impose any requirements on small 
entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C. 
1531-1538 for State, local, and Tribal governments, in the aggregate, 
or the private sector. This action imposes no enforceable duty on any 
State, local or Tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of section 202 and 205 
of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

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

[[Page 80424]]

and local officials in the development of regulator policies that have 
Federalism implications.'' Policies that have ``Federalism 
implications'' are 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 action 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 proposed rule, 
if made final, would modify the rules for implementing the 1997 8-hour 
ozone NAAQS. Thus, Executive Order 13132 does not apply to these 
proposed regulation revisions.
    In the spirit of Executive Order 13121 and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA is soliciting comments on this proposal from State and 
local officials.

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 (65 FR 67249, November 9, 2000). They do not have 
a substantial direct effect on one or more Indian Tribes, since no 
Tribe has to develop a SIP under these proposed regulatory revisions. 
Furthermore, these proposed regulation revisions do not affect the 
relationship or distribution of power and responsibilities between the 
Federal government and Indian Tribes. The CAA and the Tribal Air Rule 
establish the relationship of the Federal government and Tribes in 
developing plans to attain the NAAQS, and these revisions to the 
regulations do nothing to modify that relationship. This proposed 
regulation revision does not have Tribal implications. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children from Environmental 
Health and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because this proposed revision addresses whether allowing outside 
the nonattainment area emission reduction credits for purposes of RFP 
obligations will adequately ensure attainment and maintenance of the 
1997 ozone NAAQS and meet the obligations of the CAA. The NAAQS are 
promulgated to protect the health and welfare of sensitive population, 
including children.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and 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 in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. The voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards.
    This proposed revision to the regulations does not involve 
technical standards. Therefore, EPA is not considering 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 (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed 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. The CAA imposes the obligation for States to submit SIPs, 
including RFP, to implement the ozone NAAQS. In this proposal, EPA is 
merely providing an interpretation of those requirements. The proposed 
interpretation, if promulgated, would no longer permit States to rely 
on credit for emission reductions from outside a nonattainment area to 
meet such an area's RFP obligations, which are designed to protect all 
segments of the general population. As such, they do not adversely 
affect the health or safety of minority or low-income populations and 
are designed to protect and enhance the health and safety of these and 
other populations.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

VII. Statutory Authority

    The statutory authority for this action is provided by sections 
109; 110; 172; 181 through 185B; and 301(a)(1) of the CAA, as amended 
(42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C. 7511-7511f; 
42 U.S.C. 7601(a)(1)). This notice is also subject to section 307(d) of 
the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 50

    Environmental protection, Air pollution control, Ozone, 
Particulate.

40 CFR Part 51

    Air pollution control, Intergovernmental relations, Ozone, Nitrogen 
oxides, Volatile organic compounds.


[[Page 80425]]


    Dated: December 15, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-32139 Filed 12-21-10; 8:45 am]
BILLING CODE 6560-50-P


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