13452 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Proposed Rules 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.lD and Department of 

Homeland Security Management 

Directive 5100.1, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, we believe that 

this rule should be categorically 

excluded, under figure 2–1, paragraph 

(34)(g) of the Instruction, from further 

environmental documentation. This 

proposed rule establishes a regulated 

navigation area and as such is covered 

by this paragraph. 

A preliminary ‘‘Environmental 

Analysis Check List’’ is available in the 

docket where indicated under 

ADDRESSES. Comments on this section 

will be considered before we make the 

final decision on whether this rule 

should be categorically excluded from 

further environmental review. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for Part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

2. Add § 165.T09–003 to read as 

follows: 

§ 165.T09–003 Safety Zone, Kenosha 

Harbor, Kenosha, WI. 

(a) Location. The following area is a 

temporary safety zone: all waters of 

Lake Michigan and Kenosha Harbor 

within a 300-yard radius of position 

42°35′14′′ N, 087°48′29′′ W (NAD 83). 

(b) Effective period. This regulation is 

effective from 8 p.m. (local) on August 

11, 2007 to 10 p.m. (local), on August 

11, 2007. 

(c) Regulations. 

(1) In accordance with the general 

regulations in section 165.23 of this 

part, entry into, transiting, or anchoring 

within this safety zone is prohibited 

unless authorized by the Captain of the 

Port Lake Michigan, or his designated 

on-scene representative. 

(2) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Lake Michigan or his designated onscene representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port is any Coast 

Guard commissioned, warrant or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

designated on-scene representative may 

be contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Lake 

Michigan or his on-scene representative 

to obtain permission to do so. Vessel 

operators given permission to enter or 

operate in the safety zone must comply 

with all directions given to them by the 

Captain of the Port Lake Michigan or his 

on-scene representative. 

Dated: March 8, 2007. 

Bruce C. Jones, 

Captain, U.S. Coast Guard, Commander, 

Coast Guard Sector Lake Michigan. 

[FR Doc. E7–5179 Filed 3–21–07; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–HQ–OAR–2007–0170; FRL–8290–9] 

Supplemental Proposed Rulemaking 

on 8-Hour Ozone Redesignations for 

Various Areas in Michigan, Ohio and 

West Virginia 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Supplemental proposed rule. 

SUMMARY: On December 22, 2006, the 

U.S. Court of Appeals for the District of 

Columbia Circuit vacated EPA’s Phase 1 

Implementation Rule for the 8-hour 

ozone standard. This supplemental 

proposed rulemaking sets forth EPA’s 

views on the potential effect of the 

Court’s ruling on a number of proposed 

redesignation actions. This rulemaking 

applies to eighteen 8-hour ozone 

nonattainment areas in Michigan, Ohio 

and West Virginia, for which EPA has 

proposed approval of the States’

redesignation requests. For the reasons 

set forth in the notice, EPA proposes to 

find that the Court’s ruling does not 

alter any requirements relevant to these 

proposed redesignations that would 

prevent EPA from finalizing these 

redesignations. The EPA believes that 

the Court’s decision, as it currently 

stands or as it may be modified based 

upon any petition for rehearing that may 

be filed, imposes no impediment to 

moving forward with redesignation of 

these areas to attainment, because in 

either circumstance, redesignation is 

appropriate under the relevant 

redesignation provisions of the Clean 

Air Act (CAA) and EPA’s longstanding 

policies regarding redesignation 

requests. 

DATES: Comments must be received on 

or before April 6, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OAR–2007–0170 by one of the following 

methods: 

• www.regulations.gov: Follow the 

online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket and 

Information Center, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: Environmental 

Protection Agency, EPA West Building, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. Such deliveries 

are only accepted during the Docket’s 


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normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2007–

0170. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. 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, avoid 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 section I.B 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, 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 

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, EPA/DC, EPA West, 

Room 3334, 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, and the telephone 

number for the Air and Radiation 

Docket and Information Center is (202) 

566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Butch Stackhouse, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards, State and Locals 

Program Group, U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number (919) 

541–5208; e-mail address: 

stackhouse.butch@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

This action applies to you if you are 

a State that has proposed areas for 

redesignation from nonattainment to 

attainment of the 8-hour ozone 

standard, but EPA has not yet finalized 

such actions. This action is applicable 

therefore to the following States: 

Michigan; Ohio, and West Virginia. This 

supplemental proposed rulemaking 

applies to eighteen 8-hour ozone 

nonattainment areas, sixteen of which 

were designated nonattainment for the 

8-hour ozone standard and classified 

under Subpart 1 of Part D of the CAA, 

and which were previously designated 

Unclassifiable/Attainment, or 

Attainment subject to a CAA section 

175A maintenance plan under the 1- 

hour standard. EPA has published 

proposed rulemakings to redesignate 

these areas to attainment for the 8-hour 

ozone standard. The areas and dates of 

proposed rulemakings for these areas 

are: Parkersburg-Marietta, OH-WV 

(Washington County, OH), request 

submitted on November 17, 2006 and 

proposed on January 17, 2007, 72 FR 

1956, previously Unclassifiable/ 

Attainment for the 1-hour standard; 

Parkersburg-Marietta, OH-WV (Wood 

County, WV), request submitted on 

September 8, 2006 and proposed on 

January 12, 2007, 72 FR 1474, 

previously Attainment subject to a 

maintenance plan for the 1-hour 

standard; Steubenville-Weirton, OH-WV 

(Brooke and Hancock Counties, WV) 

request submitted on August 3, 2006 

and proposed on October 2, 2006, 71 FR 

57905, previously designated 

Unclassifiable/Attainment for the 1- 

hour standard; Wheeling, OH-WV 

(Marshall and Ohio counties, WV) 

request submitted on July 24, 2006 and 

proposed on October 2, 2006, 71 FR 

57894, previously designated 

Unclassifiable/Attainment for the 1- 

hour standard; Flint (Genesee and 

Lapeer Counties), MI request submitted 

on June 13, 2006 and proposed on 

January 8, 2007, 72 FR 699, previously 

designated Attainment subject to a 

maintenance plan for the 1-hour 

standard (Genesee County) and 

Unclassifiable/Attainment (Lapeer 

County) for the 1-hour standard; Benton 

Harbor (Berrien County), MI request 

submitted on June 13, 2006 and 

proposed on January 8, 2007, 72 FR 699, 

previously designated Unclassifiable/ 

Attainment for the 1-hour standard; 

Benzie County, MI request submitted on 

May 9, 2006 and proposed on December 

7, 2006, 70 FR 70915, previously 

designated Unclassifiable/ Attainment 

for the 1-hour standard; Grand Rapids, 

(Kent and Ottawa Counties), MI request 

submitted on May 9, 2006 and proposed 

on December 7, 2006, 70 FR 70915, 

previously designated Attainment 

subject to a maintenance plan for the 1- 

hour standard; Huron County, MI 

request submitted on May 9, 2006 and 

proposed on December 7, 2006, 70 FR 

70915, previously designated 

Unclassifiable/Attainment for the 1- 

hour standard; Kalamazoo-Battle Creek 

(Calhoun, Kalamazoo, and Van Buren 

Counties), MI request submitted on May 

9, 2006 and proposed on December 7, 

2006, 70 FR 70915, previously 

designated Unclassifiable/Attainment 

for the 1-hour standard; Lansing-East 

Lansing (Clinton, Eaton, and Ingham 

counties), MI request submitted on May 

9, 2006 and proposed on December 7, 

2006, 70 FR 70915, previously 

designated Unclassifiable/Attainment 

for the 1-hour standard; Mason County, 

MI request submitted on May 9, 2006 

and proposed on December 7, 2006, 70 

FR 70915, previously designated 

Unclassifiable/Attainment for the 1- 

hour standard; Canton-Massillon (Stark 

County), OH request submitted on 

August 24, 2006 and proposed on 

December 27, 2006, 71 FR 77678, 

previously designated Attainment 

subject to a maintenance plan for the 1- 

hour standard; Lima (Allen County), OH 

request submitted on August 24, 2006 

and proposed on December 27, 2006, 71 

FR 77678, previously designated 

Unclassifiable/Attainment for the 1- 

hour standard; Wheeling, OH-WV 

(Belmont County, OH) request 

submitted on August 24, 2006 and 

proposed on December 27, 2006, 71 FR 

77666, previously designated 

Unclassifiable/ Attainment for the 1- 

hour standard; and SteubenvilleWeirton, OH-WV (Jefferson County, OH) 

request submitted on October 3, 2006 

and proposed on January 8, 2007, 72 FR 

711, previously designated Attainment 


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subject to a maintenance plan for the 1- 

hour standard. 

This rulemaking also applies to two 8- 

hour nonattainment areas that were 

classified under Subpart 2 for the 8-hour 

ozone standard. These areas, Muskegon, 

(Muskegon county), MI and Cass 

County, MI, were also previously 

designated Attainment subject to a 

maintenance plan (Muskegon) and 

Unclassifiable/Attainment (Cass 

County) for the 1-hour standard. The 

request was submitted on June 13, 2006 

and proposed rulemakings for these 

areas on January 8, 2007, 72 FR 699. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

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 as 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: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• 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. 

• Explain why you agree or disagree, 

suggest alternatives, and provide 

substitute language for your requested 

changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

Commenters wishing to submit 

proprietary information for 

consideration must clearly distinguish 

such information from other comments 

and clearly label it as CBI. Send 

submissions containing such 

proprietary information directly to the 

following address, and not to the public 

docket, to ensure that proprietary 

information is not inadvertently placed 

in the docket: Attention: Mr. Roberto 

Morales, U.S. Environmental Protection 

Agency, OAQPS Document Control 

Officer, 109 TW Alexander Drive, Room 

C404–02, Research Triangle Park, NC 

27711. The EPA will disclose 

information identified as CBI only to the 

extent allowed by the procedures set 

forth in 40 CFR part 2. If no claim of 

confidentiality accompanies a 

submission when it is received by the 

EPA, the information may be made 

available to the public without further 

notice to the commenter. 

C. Where Can I Obtain Additional 

Information? 

In addition to being available in the 

docket, an electronic copy of this 

proposed rule is also available on the 

World Wide Web. Following signature 

by the EPA Acting Assistant 

Administrator for Air and Radiation, a 

copy of this proposed rule will be 

posted on the EPA’s http:// 

www.epa.gov/ozonedesignations/. 

D. How Is This Preamble Organized? 

The information presented in this 

preamble 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 Obtain Additional 

Information? 

D. How Is This Preamble Organized? 

II. What is the Background for This Action? 

III. What are EPA’s Views on the Potential 

Effect of the Court’s Ruling on the 

Proposed Redesignation Actions 

Identified in This Action? 

A. Areas Classified Under Subpart 1 

B. Areas Classified Under Subpart 2: 

Muskegon and Cass County, MI 

IV. What Action is EPA proposing? 

V. 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 That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

II. What Is the Background for This 

Action? 

On December 22, 2006, the U.S. Court 

of Appeals for the District of Columbia 

Circuit vacated EPA’s Phase 1 

Implementation Rule for the 8-hour 

Ozone Standard (69 FR 23951, April 30, 

2004). South Coast Air Quality 

Management Dist. v. E.P.A., 472 F.3d 

882 (DC Cir. December 22, 2006). The 

Court held that certain provisions of 

EPA’s Phase 1 Rule were inconsistent 

with the requirements of the CAA. The 

Court rejected EPA’s reasons for 

implementing the 8-hour ozone 

standard in nonattainment areas under 

subpart 1 in lieu of subpart 2 of Title I, 

part D of the CAA. The Court also held 

that EPA improperly failed to retain four 

measures required for 1-hour 

nonattainment areas in the antibacksliding provisions of the 

regulations: (1) Nonattainment area New 

Source Review (NSR) requirements 

based on an area’s 1-hour nonattainment 

classification; (2) Section 185 penalty 

fees for severe or extreme nonattainment 

areas; (3) measures to be implemented 

pursuant to section 172(c)(9) or 

182(c)(9) of the CAA, on the 

contingency of an area not making 

reasonable further progress toward 

attainment of the 1-hour NAAQS, or for 

failure to attain that NAAQS; (4) and the 

requirement to demonstrate that certain 

types of projects meet certain 

conformity requirements. The Court 

upheld EPA’s authority to revoke the 1- 

hour standard provided there were 

adequate anti-backsliding provisions. 

The Court has established March 22, 

2007, as the date by which any 

rehearing petitions must be filed. 

III. What Are EPA’s Views on the 

Potential Effect of the Court’s Ruling on 

the Proposed Redesignation Actions 

Identified in This Action? 

This action sets forth EPA’s views on 

the potential effect of the Court’s ruling 

on the proposed redesignation actions 

that are the subject of this document. 

For the reasons set forth below, EPA 

does not believe that the Court’s ruling 

alters any requirements relevant to these 

proposed redesignations and does not 

prevent EPA from finalizing these 

redesignations. The EPA believes that 

the Court’s decision, as it currently 

stands or as it may be modified based 


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1Benzie County, MI, Grand Rapids, MI, Huron 

County, MI, Kalamazoo-Battle Creek, MI, LansingEast Lansing, MI, Benton Harbor, MI, Mason 

County, MI, Flint, MI. 

2CAA section 176(c)(4)(E) currently requires 

States to submit revisions to their SIPs to reflect 

certain Federal criteria and procedures for 

determining transportation conformity. 

Transportation conformity SIPs are different from 

the motor vehicle emissions budgets that are 

established in control strategy SIPs and 

maintenance plans. 

3 Grand Rapids (MI), the Genesee County portion 

of Flint (MI), Canton-Massillon (OH), the Ohio 

portion of Steubenville-Weirton (OH) EPA 

approved Michigan’s conformity SIP on December 

18, 1996 (61 FR 66609), and Ohio’s on May 30, 2000 

(65 FR 34395). 

upon any petition for rehearing that may 

be filed, imposes no impediment to 

moving forward with redesignation of 

these areas to attainment, because in 

either circumstance, redesignation is 

appropriate under the relevant 

redesignation provisions of the CAA 

and longstanding policies regarding 

redesignation requests. 

A. Areas Classified Under Subpart 1 

1. Possible Subpart 2 Requirements 

With respect to the 16 8-hour 

nonattainment areas EPA classified 

under Subpart 1 at the time of 

designation, EPA notes that the Court’s 

ruling rejected EPA’s reasons for 

classifying areas under subpart 1 for the 

8-hour standard and remanded that 

matter to the Agency. Consequently, it 

is possible that these areas could, during 

a remand to EPA, be reclassified under 

Subpart 2. Although any future decision 

by EPA to classify these areas under 

subpart 2 might trigger additional future 

requirements for such areas, EPA 

believes that this does not mean that 

redesignation of the areas that are the 

subject of this notice cannot now go 

forward. This belief is based upon: (1) 

EPA’s longstanding policy of evaluating 

redesignation requests in accordance 

with only the requirements due at the 

time the request was submitted; (2) 

consideration of the inequity of 

applying retroactively any requirements 

that might be applied in the future and, 

(3) with respect to certain of the areas 

that are the subject of this notice, the 

fact that the redesignation requests 

preceded even the earliest possible due 

dates of any requirements for Subpart 2 

areas. 

First, at the time the redesignation 

requests for the 16 Subpart 1 areas that 

are the subject of this notice were 

submitted, the areas were classified 

under Subpart 1 and were obligated to 

meet the Subpart 1 requirements. Under 

EPA’s longstanding interpretation of 

section 107(d)(3)(E) of the CAA, to 

qualify for redesignation, States 

requesting redesignation to attainment 

must meet only the relevant State 

Implementation plan (SIP) requirements 

that came due prior to the submittal of 

a complete redesignation request. 

September 4, 1992 Calcagni 

memorandum (‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division); See also 

Michael Shapiro Memorandum, 

September 17, 1993, and 60 FR 12459, 

12465–12466 (March 7, 1995) 

(redesignation of Detroit-Ann Arbor). 

Sierra Club v. EPA, 375 F.3d 537 (7th 

Cir. 2004). See, e.g., also 68 FR 25424, 

25427 (May 12, 2003) (redesignation of 

St. Louis). At the time the redesignation 

requests were submitted, the 16 areas 

were not classified under Subpart 2 and 

no Subpart 2 requirements were 

applicable for purposes of 

redesignation. 

Moreover, it would be inequitable to 

retroactively apply any new SIP 

requirements that were not applicable at 

the time the request was submitted, but 

which might later become applicable. 

The DC Circuit has recognized the 

inequity in such retroactive rulemaking, 

See Sierra Club v. Whitman 285 F. 3d 

63 (DC Cir. 2002), in which the DC 

Circuit upheld a District Court’s ruling 

refusing to make retroactive an EPA 

determination of nonattainment that 

was past the statutory due date. Such a 

determination would have resulted in 

the imposition of additional 

requirements on the area. The Court 

stated: ‘‘Although EPA failed to make 

the nonattainment determination within 

the statutory timeframe, Sierra Club’s 

proposed solution only makes the 

situation worse. Retroactive relief would 

likely impose large costs on the States, 

which would face fines and suits for not 

implementing air pollution prevention 

plans in 1997, even though they were 

not on notice at the time.’’ Id. at 68. 

Similarly, here it would be unfair to 

penalize the areas included in this 

notice by applying to them for purposes 

of redesignation any additional SIP 

requirements under Subpart 2 that were 

not in effect at the time they submitted 

their redesignation requests, but that 

might apply in the future. 

Third, even if a future Subpart 2 

classification were applied to these 

areas retroactively, for many of the 

Subpart 1 areas subject to this notice, 

the Subpart 2 requirements would still 

not be considered applicable for 

purposes of redesignation. As set forth 

above, the applicable requirements for 

purposes of redesignation are only those 

that became due prior to submission of 

the redesignation request. In the case of 

eight of the areas subject to this 

rulemaking,1 the submission of the 

redesignation request preceded even the 

earliest possible due date of 

requirements for areas classified under 

Subpart 2 effective June 2004. These 

requests were all submitted before the 

earliest such submission date, which 

was June 15, 2006, for the emissions 

statement requirement under section 

182(a)(3)(B) and emissions inventories 

under section 182(a)(1). Thus for this 

additional reason alone these additional 

Subpart 2 requirements would not be 

applicable for purposes of evaluating 

redesignation requests for these areas. In 

addition, to the extent that areas had 

complied with the emissions statement 

requirement for the 1-hour standard 

under section 182(a)(3)(B), this could 

also be considered to satisfy the 

requirement under the 8-hour standard. 

2. Requirements Under the 1-Hour 

Standard 

With respect to the Court’s ruling 

regarding EPA’s revocation of the 1-hour 

standard, all of the Subpart 1 areas that 

are the subject of the pending 

redesignation actions were designated 

attainment or unclassifiable/ attainment 

or attainment subject to a maintenance 

plan for the 1-hour standard. Those 

areas designated attainment or 

unclassifiable/attainment were never 

designated nonattainment for the 1-hour 

standard. Thus, the provisions at issue 

in the antibacksliding portion of the 

Court’s decision never applied to these 

areas and would not apply. For those 

areas designated attainment subject to a 

CAA section 175A maintenance plan for 

the 1-hour standard, the Court’s ruling 

could be interpreted to require 

continuation of certain conformity 

requirements, such as the requirement 

to submit a transportation conformity 

SIP that addresses the 1-hour standard.2

EPA approved conformity SIPs for those 

subpart 1 areas in Michigan and Ohio 

that were attainment subject to a 

maintenance plan for the 1-hour 

standard.3

Moreover, under longstanding EPA 

policy, EPA interprets the conformity 

SIP requirements as not being 

applicable requirements for purposes of 

evaluating a redesignation request under 

section 107(d). See Wall v. EPA, 265 

F.3d 426 (6th Cir. 2001), (upholding this 

interpretation). See also 60 FR 62748 

(Dec. 7. 1995) (Tampa, FL 

redesignation). This is because state 

conformity rules are still required after 

redesignation and Federal conformity 

rules apply where State rules have not 

been approved. 40 CFR 93.151 and 40 


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CFR 51.390. Thus the decision in South 

Coast should not alter requirements for 

these areas that would preclude EPA 

from finalizing its proposed 

redesignations. 

B. Areas Classified Under Subpart 2: 

Muskegon and Cass County, MI 

1. Subpart 2 Requirements 

The two 8-hour nonattainment areas 

listed above are classified under subpart 

2 for the 8-hour standard. We do not 

believe that any part of the Court’s 

opinion could require that these subpart 

2 classifications be changed upon 

remand to EPA. However, even 

assuming that they may (and Muskegon 

and Cass County would be subject to a 

different classification under a 

classification scheme created in a future 

rule in response to the court’s decision) 

that would not prevent EPA from 

finalizing the proposed redesignation 

for these areas. For the same reasons set 

forth above with respect to the 

applicability of Subpart 2 requirements 

to areas that were classified Subpart 1 

at the time of submission of 

redesignation requests, any additional 

requirements that might apply based on 

that different classification would not be 

applicable for purposes of evaluating 

their redesignation requests. 

2. Requirements Under the 1-Hour 

Standard 

With respect to the 1-hour standard, 

since Cass County was never designated 

nonattainment for the 1-hour standard, 

there are no outstanding 1-hour 

nonattainment area requirements that it 

would be required to meet under the 

anti-backsliding requirements. 

Muskegon was a maintenance area 

under the 1-hour standard; thus, the 

conformity requirement is the only 

relevant anti-backsliding requirement 

that was at issue before the court. As 

noted above, EPA approved Michigan’s 

transportation conformity SIP on 

December 18, 1996 (61 FR 66609). Also, 

for the reasons set forth above with 

respect to the areas classified under 

Subpart 1, EPA believes that having an 

approved conformity SIP is not an 

applicable requirement for purposes of 

redesignation. 

IV. What Action Is EPA Proposing? 

Thus, for the reasons discussed above, 

EPA proposes that the Court’s ruling in 

South Coast, whether it stands as 

initially rendered or is modified based 

on any petition for rehearing or other 

further court proceeding, does not alter 

any requirements applicable for 

purposes of evaluating the redesignation 

requests for these areas that would 

prevent the Agency from finalizing its 

proposed determinations. 

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 

Order. 

B. Paperwork Reduction Act 

This action does not contain any 

information collection requirements 

subject to OMB review under the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. It does not contain any 

recordkeeping or reporting 

requirements. 

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 does not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The control numbers 

for EPA’s regulations 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 

that 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 proposed rule on small entities, 

small entity is defined as: (1) A small 

business as defined by 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

This proposed rule sets forth EPA’s 

views on the potential effect of the 

ruling of the U.S. Court of Appeals for 

the District of Columbia Circuit in South 

Coast Air Quality Management Dist. v. 

EPA, 472 F.3d. 882 (DC Cir. December 

22, 2006) on a number of areas proposed 

for redesignation of the 8-hour ozone 

standard. 

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 

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 1 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 


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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 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. 

The EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any 1 year. Since this proposed rule 

does not impose a mandate upon any 

source, this rule is not estimated to 

result in the expenditure by State, local 

and Tribal governments or the private 

sector of $100 million in any 1 year. 

Therefore, the Agency has not prepared 

a budgetary impact statement or 

specifically addressed the selection of 

the least costly, most cost-effective, or 

least burdensome alternative. Because 

small governments will not be 

significantly or uniquely affected by this 

rule, the Agency is not required to 

develop a plan with regard to small 

governments. Thus, this proposed rule 

is not subject to the requirements of 

sections 202, 203 and 205 of the UMRA. 

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 proposed 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 

action does not impose any new 

mandates on State or local governments. 

Thus, Executive Order 13132 does not 

apply to this rule. In the spirit of 

Executive Order 13132, and consistent 

with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comment on the proposed rule 

for this action 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 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’

This proposed rule does not have 

Tribal implications. It will not have 

substantial direct effects on Tribal 

governments, on the relationship 

between the Federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes, 

as specified in Executive Order 13175. 

This action does not have any direct 

effects on Indian Tribes. Thus, 

Executive Order 13175 does not apply 

to this proposed rule. The EPA 

specifically solicits additional comment 

on this proposed rule from Tribal 

officials where there are applicable 

Tribal lands in the affected areas. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘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 and safety risk 

that EPA has reason to believe may have 

a disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA 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 EPA. 

This proposed action is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because 

EPA does not have reason to believe that 

the environmental health risks or safety 

risks addressed by this proposed rule 

present a disproportionate risk or safety 

risk to children. This proposed rule sets 

forth EPA’s views regarding the 

potential effect of a recent Court’s 

ruling, vacating the Phase 1 Ozone 

Implementation rule, on previously 

proposed redesignation actions. 

Furthermore, at the time those actions 

were proposed in the Federal Register, 

it was determined that Executive Order 

13045 did not apply to those actions. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

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 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 voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, with 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking 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 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 


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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. 

The 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 

health or environmental protection, but 

instead merely sets forth EPA’s views on 

the potential effect of the ruling of the 

U.S. Court of Appeals for the District of 

Columbia Circuit in South Coast Air 

Quality Management Dist. v. EPA, 472 

F.3d 882 (DC Cir. December 22, 2006) 

on a number of areas proposed for 

redesignation of the 8-hour ozone 

standard. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen oxides, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

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

Dated: March 16, 2007. 

William L. Wehrum, 

Acting Assistant Administrator for Air and 

Radiation. 

[FR Doc. E7–5352 Filed 3–21–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 86 

[OAR–2005–0047; FRL–8290–3] 

RIN 2060–AL92 

Control of Air Pollution From New 

Motor Vehicles and New Motor Vehicle 

Engines; Regulations Requiring 

Onboard Diagnostic Systems on 2010 

and Later Heavy-Duty Engines Used in 

Highway Applications Over 14,000 

Pounds; Revisions to Onboard 

Diagnostic Requirements for Diesel 

Highway Heavy-Duty Vehicles Under 

14,000 Pounds 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Announcement of extension of 

comment period. 

SUMMARY: The EPA is announcing an 

extension of the public comment period 

within the context of our proposed 

heavy-duty onboard diagnostics (OBD) 

requirements. (72 FR 3200, January 24, 

2007) Specifically, we are extending the 

comment period for comments 

pertaining to the proposed service 

information availability requirements 

for engines used in highway vehicles 

over 14,000 pounds. These proposed 

requirements can be found in the 

proposed § 86.010–38(j). (72 FR 3322) 

The comment period will be extended 

from March 26, 2007 to May 4, 2007. We 

are extending the comment period in 

response to a request to do so from the 

Engine Manufacturers Association. 

DATES: Written comments pertaining to 

the proposed service information 

availability requirements of the 

proposed § 86.010–38(j) must be 

received on or before May 4, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OAR–2005–0047, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• Mail: Onboard Diagnostic (OBD) 

Systems on 2010 and Later Heavy-Duty 

Highway Vehicles and Engines, 

Environmental Protection Agency, 

Mailcode: 6102T, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, 

Attention Docket ID No. EPA–HQ–

OAR–2005–0047. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2005–

0047. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

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. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, 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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room B102, 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, and the telephone 

number for the Air Docket is (202) 566–

1742. 

FOR FURTHER INFORMATION CONTACT: U.S. 

EPA, National Vehicle and Fuel 

Emissions Laboratory, Assessment and 

Standards Division, 2000 Traverwood 

Drive, Ann Arbor, MI 48105; telephone 

(734) 214–4405, fax (734) 214–4816, email sherwood.todd@epa.gov. 

SUPPLEMENTARY INFORMATION: 

What Should I Consider as I Prepare 

My Comments for EPA? 

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 as 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. 


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