Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Proposed Rules 26759 

required for the calendar year in which 

the loan is approved. The Administrator 

can waive the requirement that an audit 

be performed in the year in which the 

loan is approved if operations of the 

applicant have not yet started. 

(b) If a loan offer is accepted, the 

applicant will be required to submit 

quarterly financial and progress reports 

utilizing the Agency’s electronic 

reporting system. 

§ 1738.64 Applicable laws. 

(a) Applicants are required to comply 

with certain regulations on 

nondiscrimination and equal 

employment opportunity. See RUS 

Bulletin 1790–1, ‘‘Nondiscrimination 

Among Beneficiaries of RUS Programs’’

and RUS Bulletin 20–15:320–15, ‘‘Equal 

Employment Opportunity in 

Construction Financed with RUS 

Loans’’; 7 CFR parts 15 and 15b and 45 

CFR part 90. 

(b) Applicants are required to comply 

with all Federal, state and local laws, 

rules, regulations, ordinances, codes 

and orders. 

§§ 1738.65–1738.99 [Reserved] 

§ 1738.100 OMB control number. 

The information collection 

requirements in this part are approved 

by the Office of Management Budget 

(OMB) and assigned OMB control 

number 0572–0130. 

Dated: May 4, 2007. 

James M. Andrew, 

Administrator, Rural Utilities Service. 

[FR Doc. E7–9021 Filed 5–10–07; 8:45 am] 

BILLING CODE 3410–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R04–OAR–2006–0362–200702; FRL–

8312–6] 

Approval and Promulgation of 

Implementation Plans and 

Designations of Areas for Air Quality 

Planning Purposes; Kentucky: 

Redesignation of the Boyd County, 

Kentucky Portion of the HuntingtonAshland 8-Hour Ozone Nonattainment 

Area to Attainment for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On September 29, 2006, the 

Commonwealth of Kentucky 

(Kentucky), through the Kentucky 

Division for Air Quality (KDAQ), 

submitted a request to redesignate the 

Kentucky portion of the bi-state 

Huntington-Ashland 8-hour ozone 

nonattainment area to attainment for the 

8-hour National Ambient Air Quality 

Standard (NAAQS); and to approve a 

State Implementation Plan (SIP) 

revision containing a maintenance plan 

for the Kentucky portion of the bi-state 

Huntington-Ashland area. The bi-state 

Huntington-Ashland 8-hour ozone 

nonattainment area is comprised of one 

county in Kentucky (Boyd County) and 

two counties in West Virginia (Cabell 

and Wayne counties). In this action, 

EPA is proposing to approve Kentucky’s 

8-hour ozone redesignation request for 

Boyd County, which is the Kentucky 

portion of the bi-state HuntingtonAshland 8-hour ozone nonattainment 

area. Additionally, EPA is proposing to 

approve the 8-hour ozone maintenance 

plan for Boyd County, Kentucky, 

including the state motor vehicle 

emission budgets (MVEBs) for nitrogen 

oxides (NOX) and volatile organic 

compounds (VOCs). This proposed 

approval of Kentucky’s redesignation 

request is based on EPA’s determination 

that Kentucky has demonstrated that 

Boyd County, Kentucky has met the 

criteria for redesignation to attainment 

specified in the Clean Air Act (CAA), 

including the determination that the 

entire (both the Kentucky and West 

Virginia portions) Huntington-Ashland 

8-hour ozone nonattainment area has 

attained the 8-hour ozone standard. On 

May 17, 2006, the State of West Virginia 

submitted a redesignation request and 

maintenance plan for the West Virginia 

portion (Cabell and Wayne counties) of 

this 8-hour ozone area. EPA has taken 

action on West Virginia’s redesignation 

request and maintenance plan through a 

separate action. The final rulemaking 

approving the West Virginia submittal 

was published in the Federal Register 

on September 15, 2006. In this action, 

EPA is also providing the status of its 

transportation conformity adequacy 

determination for the new MVEBs for 

2018 that are contained in the 8-hour 

ozone maintenance plan for Boyd 

County, Kentucky. MVEBs for Cabell 

and Wayne counties in West Virginia 

are included in the West Virginia 

submittal. 

DATES: Comments must be received on 

or before June 11, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04–

OAR–2006–0362, by one of the 

following methods: 

(a) www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

(b) E-mail: LeSane.Heidi@epa.gov. 

(c) Fax: 404–562–9019. 

(d) Mail: EPA–R04–OAR–2006–0362 

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. 

(e) Hand Delivery or Courier: Heidi 

LeSane, 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. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2006–

0362. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

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. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 


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26760 Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Proposed Rules 

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 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. 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 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Heidi LeSane, 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. The 

telephone number is (404) 562–9074. 

Mrs. LeSane can also be reached via 

electronic mail at 

LeSane.Heidi@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Proposed Actions Is EPA Taking? 

II. What Is the Background for EPA’s 

Proposed Actions? 

III. What Are the Criteria for Redesignation? 

IV. Why Is EPA Proposing These Actions? 

V. What Is the Effect of EPA’s Proposed 

Actions? 

VI. What Is EPA’s Analysis of the Request? 

VII. What Are the Proposed State MVEBs for 

Boyd County, Kentucky? 

VIII. What Is the Status of EPA’s Adequacy 

Determination for the MVEBs for Boyd 

County, Kentucky? 

IX. Proposed Action on the Redesignation 

Request and Maintenance Plan SIP 

Revision Including Proposed Approval 

of the 2018 MVEBs 

X. Statutory and Executive Order Reviews 

I. What Proposed Actions Is EPA 

Taking? 

EPA is proposing to take three related 

actions, which are summarized below 

and described in greater detail 

throughout the notice of proposed 

rulemaking: (1) To redesignate Boyd 

County, Kentucky to attainment for the 

8-hour ozone NAAQS; (2) to approve 

Kentucky’s 8-hour ozone maintenance 

plan, including the associated MVEBs; 

and (3) to notify the public of the status 

of EPA’s adequacy determination for the 

Boyd County MVEBs. 

First, EPA is proposing to determine 

that the bi-state Huntington-Ashland 

8-hour ozone nonattainment area has 

attained the 8-hour ozone standard, and 

that the Boyd County, Kentucky portion 

has met the requirements for 

redesignation under section 107(d)(3)(E) 

of the CAA. The bi-state HuntingtonAshland 8-hour ozone area is comprised 

of one county in Kentucky (Boyd 

County) and two counties in West 

Virginia (Cabell and Wayne counties). 

Today’s proposal addresses only the 

Kentucky portion of the bi-state 

Huntington-Ashland 8-hour ozone area. 

In a separate rulemaking, EPA approved 

the redesignation request and 

maintenance plan for the West Virginia 

portion of this 8-hour ozone area (see 71 

FR 39618). EPA is now proposing to 

approve a request to change the legal 

designation of Boyd County, Kentucky 

from nonattainment to attainment for 

the 8-hour ozone NAAQS. 

Second, EPA is also proposing to 

approve Kentucky’s 8-hour ozone 

maintenance plan for Boyd County, 

Kentucky (such approval being one of 

the CAA criteria for redesignation to 

attainment status). The maintenance 

plan is designed to help keep the 

Huntington-Ashland area (of which 

Boyd County is a part) in attainment for 

the 8-hour ozone NAAQS through 2018. 

Consistent with the CAA, the 

maintenance plan that EPA is proposing 

to approve today also includes 2018 

state MVEBs for NOX and VOCs. 

Therefore, EPA is proposing to approve 

the 2018 state MVEBs that are included 

as part of Kentucky’s maintenance plan. 

These MVEBs apply only to Boyd 

County, Kentucky. MVEBs for Cabell 

and Wayne counties in West Virginia 

are included in the West Virginia 

submittal. 

Third, EPA is announcing the status 

of EPA’s Adequacy Process for the 

newly-established 2018 MVEBs for 

Boyd County, Kentucky. Through a 

separate action, MVEBs for West 

Virginia portion of this 8-hour ozone 

area were established (see 71 FR 39618). 

The Adequacy comment period for the 

Boyd County, Kentucky 2018 MVEBs 

began on June 21, 2006, with EPA’s 

posting of the availability of this 

submittal on EPA’s Adequacy Web site 

(http://www.epa.gov/otaq/ 

stateresources/transconf/currsips.htm). 

The Adequacy comment period for 

these 2018 MVEBs closed on July 21, 

2006. No requests for or adverse 

comments on this submittal were 

received during EPA’s Adequacy 

comment period. Please see section VIII 

of this rulemaking for further 

explanation of this process, and for 

more details on the MVEBs. 

Today’s notice of proposed 

rulemaking is in response to Kentucky’s 

September 29, 2006, SIP submittal 

which supersedes Kentucky’s June 7, 

2006, submittal that included a request 

for parallel processing. The September 

29, 2006, submittal requested 

redesignation of Boyd County, Kentucky 

as part of the bi-state HuntingtonAshland Area, and included a SIP 

revision addressing the specific issues 

summarized above, and the necessary 

elements for redesignation described in 

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

II. What Is the Background for EPA’s 

Proposed Actions? 

Ground-level ozone is not emitted 

directly by sources. Rather, emissions of 

NOX and VOCs react in the presence of 

sunlight to form ground-level ozone. 

NOX and VOCs are referred to as 

precursors of ozone. The CAA 

establishes a process for air quality 

management through the NAAQS. 

On July 18, 1997, EPA promulgated a 

revised 8-hour ozone standard of 0.08 

parts per million (ppm). This new 

standard is more stringent than the 

previous 1-hour ozone standard. Under 

EPA regulations at 40 CFR part 50, the 

8-hour ozone standard is attained when 

the 3-year average of the annual fourth 

highest daily maximum 8-hour average 

ambient air quality ozone 

concentrations is less than or equal to 

0.08 ppm (i.e., 0.084 ppm when 

rounding is considered). (See, 69 FR 

23857 (April 30, 2004) for further 

information.) Ambient air quality 

monitoring data for the 3-year period 

must meet a data completeness 

requirement. The ambient air quality 

monitoring data completeness 

requirement is met when the average 

percent of days with valid ambient 

monitoring data is greater than 90 

percent, and no single year has less than 

75 percent data completeness as 

determined in Appendix I of part 50. 

Specifically, section 2.3 of 40 CFR part 

50, Appendix I, ‘‘Comparisons with the 

Primary and Secondary Ozone 

Standards’’ states: 

The primary and secondary ozone ambient 

air quality standards are met at an ambient 

air quality monitoring site when the 3-year 

average of the annual fourth-highest daily 

maximum 8-hour average ozone 

concentration is less than or equal to 0.08 

ppm. The number of significant figures in the 

level of the standard dictates the rounding 

convention for comparing the computed 3- 

year average annual fourth-highest daily 

maximum 8-hour average ozone 

concentration with the level of the standard. 

The third decimal place of the computed 

value is rounded, with values equal to or 

greater than 5 rounding up. Thus, a 

computed 3-year average ozone 


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concentration of 0.085 ppm is the smallest 

value that is greater than 0.08 ppm. 

The CAA required EPA to designate 

as nonattainment any area that was 

violating the 8-hour ozone NAAQS 

based on the three most recent years of 

ambient air quality data. The 

Huntington-Ashland 8-hour ozone 

nonattainment area was designated 

using 2001–2003 ambient air quality 

data. The Federal Register document 

making these designations was signed 

on April 15, 2004, and published on 

April 30, 2004 (69 FR 23857). The CAA 

contains two sets of provisions—subpart 

1 and subpart 2—that address planning 

and control requirements for ozone 

nonattainment areas. (Both are found in 

title I, part D.) Subpart 1 (which EPA 

refers to as ‘‘basic’’ nonattainment) 

contains general, less prescriptive, 

requirements for nonattainment areas 

for any pollutant—including ozone—

governed by a NAAQS. Subpart 2 

(which EPA refers to as ‘‘classified’’

nonattainment) provides more specific 

requirements for certain ozone 

nonattainment areas. Some 8-hour 

ozone nonattainment areas are subject 

only to the provisions of subpart 1. 

Other 8-hour ozone nonattainment areas 

are also subject to the provisions of 

subpart 2. Under EPA’s Phase 1 8-hour 

ozone implementation rule (69 FR 

23857) (Phase 1 Rule), signed on April 

15, 2004 and published on April 30, 

2004, an area was classified under 

subpart 2 based on its 8-hour ozone 

design value (i.e., the 3-year average of 

the annual fourth-highest daily 

maximum 8-hour average ozone 

concentrations), if it had a 1-hour design 

value at or above 0.121 ppm (the lowest 

1-hour design value in Table 1 of 

subpart 2). All other areas are covered 

under subpart 1, based upon their 

8-hour ambient air quality design 

values. 

Various aspects of EPA’s Phase 1 

8-hour ozone implementation rule were 

challenged in court and on December 

22, 2006, the U.S. Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit Court) vacated EPA’s Phase 1 

Implementation Rule for the 8-hour 

Ozone Standard. South Coast Air 

Quality Management Dist. (SCAQMD) v. 

EPA, 472 F.3d 882 (D.C. Cir. 2006). The 

D.C. Circuit Court held that certain 

provisions of EPA’s Phase I Rule were 

inconsistent with the requirements of 

the CAA. The Court rejected EPA’s 

reasons for implementing the 8-hour 

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 under the antibacksliding provisions of EPA’s 

regulations: (1) Nonattainment area New 

Source Review (NSR) requirements 

based on an area’s 1-hour nonattainment 

classification; (2) CAA section 185 

penalty fees for 1-hour 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; and (4) certain conformity 

requirements for certain types of federal 

actions. The D.C. Circuit Court upheld 

EPA’s authority to revoke the 1-hour 

standard provided that there were 

adequate anti-backsliding provisions in 

place. 

This section sets forth EPA’s views on 

the potential effect of the Court’s ruling 

on this redesignation action. For the 

reasons described throughout this notice 

of proposed rulemaking, EPA does not 

believe that the D.C. Circuit Court’s 

ruling alters any requirements relevant 

to the redesignation of the Kentucky 

portion of the Huntington-Ashland Area 

(Boyd County) so as to preclude 

redesignation, and does not prevent 

EPA from proposing to finalize, or 

finalizing, the Boyd County, Kentucky 

redesignation. EPA believes that the 

Court’s decision, as it currently stands 

or as it may be modified based upon the 

petitions for rehearing that have been 

filed, imposes no impediment to moving 

forward with redesignation of the 

Huntington-Ashland Area to attainment, 

because redesignation is appropriate 

under the relevant redesignation 

provisions of the CAA and longstanding 

policies regarding redesignation 

requests. 

The Huntington-Ashland Area was 

originally designated as moderate 

nonattainment for the 1-hour ozone 

standard on November 6, 1991 (56 FR 

56694). The Area was redesignated as 

attainment for the 1-hour ozone 

standard on June 29, 1995 (60 FR 

33748). On April 30, 2004, EPA 

designated the Huntington-Ashland 

Area (of which Boyd County is a part) 

as a ‘‘basic’’ 8-hour ozone 

nonattainment area. (69 FR 23857) 

The D.C. Circuit Court’s decision in 

2006 also addressed the 8-hour ozone 

classification scheme. The Court 

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 the Huntington-Ashland Area 

could, as a result of the remand to EPA, 

be reclassified under subpart 2. 

Although any future decision by EPA to 

classify this area under subpart 2 might 

trigger additional future requirements 

for the area, this does not mean that 

redesignation cannot go forward now. 

EPA’s position is based upon: (1) EPA’s 

longstanding policy of evaluating 

requirements in accordance with the 

requirements due at the time that the 

request is submitted; and (2) 

consideration of the inequity of 

retroactively applying any requirements 

that might be applied in the future. 

In September 2006, when Kentucky 

submitted its final redesignation 

request, the Huntington-Ashland Area 

was classified under subpart 1of the 

CAA, and was obligated to meet only 

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 SIP 

requirements that came due prior to the 

submittal of a complete redesignation 

request. See, ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992; see also, Michael Shapiro 

Memorandum, ‘‘SIP Requirements for 

Areas Submitting Requests for 

Redesignation to Attainment of the 

Ozone and Carbon Monoxide NAAQS 

On or After November 15, 1992,’’

Memorandum from Michael H. Shapiro, 

Acting Assistant Administrator for Air 

and Radiation, September 17, 1993; and 

60 FR 12459, 12465–66 (March 7, 1995) 

(redesignation of Detroit-Ann Arbor). 

See, Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004), which upheld this 

interpretation. See also, 68 FR 25418, 

25424, 25427 (May 12, 2003) 

(redesignation of St. Louis, Missouri). 

Moreover, it would be inequitable to 

retroactively apply any new SIP 

requirements that were not applicable at 

the time the request was submitted. The 

D.C. Circuit Court recognized the 

general inequity in retroactive 

rulemakings in Sierra Club v. Whitman, 

285 F. 3d 63 (D.C. Cir. 2002), in which 

the D.C. Circuit Court upheld a district 

court’s refusal 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. In Sierra Club, 

the D.C. Circuit Court stated, 

‘‘[a]lthough EPA failed to make the 

nonattainment determination within the 

statutory time frame, 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 


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1CAA section 176(c)(4)(E) 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. 

implementing air pollution prevention 

plans in 1997, even though they were 

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

Similarly, with regard to Kentucky’s 

redesignation request, it would be unfair 

to penalize Kentucky by retroactively 

applying to it for purposes of 

redesignation, additional SIP 

requirements under subpart 2 that were 

not in effect at the time it submitted its 

redesignation request, and that are not 

currently in effect, but that might be in 

effect as a result of the D.C. Circuit 

Court’s remand. 

With respect to the requirements 

under the 1-hour standard ozone 

standard, Boyd County, Kentucky was 

originally designated as moderate 

nonattainment for the 1-hour ozone 

standard in November 6, 1991 (56 FR 

56694). The Area was redesignated as 

attainment for the 1-hour ozone 

standard on June 29, 1995 (60 FR 

33748). Therefore, Boyd County, 

Kentucky was designated to attainment 

of the 1-hour ozone standard prior to its 

nonattainment designation for the 8- 

hour ozone standard. As a result, it is 

considered to be a 1-hour attainment 

area subject to a CAA section 175A 

maintenance plan for the 1-hour 

standard. The D.C. Circuit Court’s ruling 

does not impact redesignation requests 

for these types of areas for two main 

reasons. 

First, there are no conformity 

requirements relevant for the 

Huntington-Ashland redesignation 

request, such as a transportation 

conformity SIP.1 It is EPA’s 

longstanding policy position that it is 

reasonable to interpret the conformity 

SIP requirements as not applying for 

purposes of evaluating a redesignation 

request under section 107(d) because 

state conformity rules are still required 

after redesignation, and federal 

conformity rules apply where state rules 

have not been approved. See, 40 CFR 

51.390; see also, Wall v. EPA, 265 F.3d 

426 (6th Cir. 2001) (upholding EPA’s 

interpretation). See also, 60 FR 62748 

(Dec. 7, 1995) (redesignation of Tampa, 

Florida). 

Second, with regard to the three other 

anti-backsliding provisions for the 

1-hour standard that the D.C. Circuit 

Court found were not properly retained, 

Boyd County, Kentucky is an attainment 

area subject to a maintenance plan for 

the 1-hour standard, and the NSR, 

contingency measure (pursuant to 

section 172(c)(9) or 182(c)(9)), and fee 

provision requirements no longer apply 

to this area because it was redesignated 

to attainment of the 1-hour standard. As 

a result, the decision in SCAQMD 

should not alter any requirements that 

would preclude EPA from finalizing the 

Boyd County portion of the HuntingtonAshland area to attainment for the 

8-hour ozone standard. 

As noted earlier, in 2005, the ambient 

ozone data for the Huntington-Ashland 

nonattainment area indicated no further 

violations of the 8-hour ozone standard, 

using data from the 3-year period of 

2003–2005 (with a 2003–2005 design 

value of 0.079 ppm), to demonstrate 

attainment. As a result, on September 

29, 2006, Kentucky requested 

redesignation of Boyd County, Kentucky 

to attainment for the 8-hour ozone 

NAAQS. The redesignation request 

includes three years of complete, 

quality-assured ambient air quality data 

for the ozone seasons (March 1st until 

October 31st) of 2003–2005, indicating 

that the 8-hour ozone NAAQS has been 

achieved for the entire HuntingtonAshland area. Under the CAA, 

nonattainment areas may be 

redesignated to attainment if sufficient, 

complete, quality-assured data is 

available for the Administrator to 

determine that the area has attained the 

standard and the area meets the other 

CAA redesignation requirements in 

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

III. What Are the Criteria for 

Redesignation? 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

107(d)(3)(E) of the CAA allows for 

redesignation providing that: (1) The 

Administrator determines that the area 

has attained the applicable NAAQS; (2) 

the Administrator has fully approved 

the applicable implementation plan for 

the area under section 110(k); (3) the 

Administrator determines that the 

improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the applicable SIP 

and applicable Federal air pollutant 

control regulations and other permanent 

and enforceable reductions; (4) the 

Administrator has fully approved a 

maintenance plan for the area as 

meeting the requirements of section 

175A; and, (5) the state containing such 

area has met all requirements applicable 

to the area under section 110 and part 

D of the CAA. 

EPA provided guidance on 

redesignation in the General Preamble 

for the Implementation of Title I of the 

CAA Amendments of 1990, on April 16, 

1992 (57 FR 13498), and supplemented 

this guidance on April 28, 1992 (57 FR 

18070). EPA has provided further 

guidance on processing redesignation 

requests in the following documents: 

1. ‘‘Ozone and Carbon Monoxide Design 

Value Calculations,’’ Memorandum from Bill 

Laxton, Director, Technical Support Division, 

June 18, 1990; 

2. ‘‘Maintenance Plans for Redesignation of 

Ozone and Carbon Monoxide Nonattainment 

Areas,’’ Memorandum from G.T. Helms, 

Chief, Ozone/Carbon Monoxide Programs 

Branch, April 30, 1992; 

3. ‘‘Contingency Measures for Ozone and 

Carbon Monoxide (CO) Redesignations,’’

Memorandum from G.T. Helms, Chief, 

Ozone/Carbon Monoxide Programs Branch, 

June 1, 1992; 

4. ‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’

Memorandum from John Calcagni, Director, 

Air Quality Management Division, September 

4, 1992 (hereafter referred to as the ‘‘Calcagni 

Memorandum’’); 

5. ‘‘State Implementation Plan (SIP) 

Actions Submitted in Response to Clean Air 

Act Deadlines,’’ Memorandum from John 

Calcagni, Director, Air Quality Management 

Division, October 28, 1992; 

6. ‘‘Technical Support Documents (TSDs) 

for Redesignation of Ozone and Carbon 

Monoxide (CO) Nonattainment Areas,’’

Memorandum from G.T. Helms, Chief, 

Ozone/Carbon Monoxide Programs Branch, 

August 17, 1993; 

7. ‘‘ State Implementation Plan (SIP) 

Requirements for Areas Submitting Requests 

for Redesignation to Attainment of the Ozone 

and Carbon Monoxide (CO) National 

Ambient Air Quality Standards (NAAQS) On 

or After November 15, 1992,’’ Memorandum 

from Michael H. Shapiro, Acting Assistant 

Administrator for Air and Radiation, 

September 17, 1993; 

8. ‘‘Use of Actual Emissions in 

Maintenance Demonstrations for Ozone and 

CO Nonattainment Areas,’’ Memorandum 

from D. Kent Berry, Acting Director, Air 

Quality Management Division, November 30, 

1993; 

9. ‘‘Part D New Source Review (Part D 

NSR) Requirements for Areas Requesting 

Redesignation to Attainment,’’ Memorandum 

from Mary D. Nichols, Assistant 

Administrator for Air and Radiation, October 

14, 1994; and 

10. ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National Ambient 

Air Quality Standard,’’ Memorandum from 

John S. Seitz, Director, Office of Air Quality 

Planning and Standards, May 10, 1995. 

IV. Why Is EPA Proposing These 

Actions? 

On September 29, 2006, Kentucky 

requested redesignation of the Kentucky 

portion (Boyd County) of the bi-state 

Huntington-Ashland 8-hour ozone 

nonattainment area to attainment for the 

8-hour ozone standard. EPA’s 

evaluation indicates that Kentucky has 


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demonstrated that Boyd County, 

Kentucky (as part of the HuntingtonAshland area) has attained the standard 

and has met the requirements for 

redesignation set forth in section 

107(d)(3)(E) of the CAA. EPA is also 

announcing the status of its adequacy 

determination for the 2018 state MVEBs, 

which is relevant to the requested 

redesignation. 

V. What Is the Effect of EPA’s Proposed 

Actions? 

EPA’s proposed actions establish the 

basis upon which EPA may take final 

action on these issues being proposed 

for approval today. Approval of 

Kentucky’s redesignation request would 

change the official designation of Boyd 

County, Kentucky for the 8-hour ozone 

NAAQS found at 40 CFR part 81. 

Approval of Kentucky’s request would 

also incorporate into the Kentucky SIP, 

a plan for maintaining the 8-hour ozone 

NAAQS in the Huntington-Ashland 

Area through 2018. The maintenance 

plan includes contingency measures to 

remedy future violations of the 8-hour 

ozone NAAQS. The maintenance plan 

also establishes state MVEBs of 1.18 

tons per day (tpd) for VOC and 1.30 tpd 

for NOX for the year 2018 for Boyd 

County, Kentucky. Approval of 

Kentucky’s maintenance plan would 

also result in approval of the state 

MVEBs. Additionally, EPA is 

announcing the status of its adequacy 

determination for the 2018 state MVEBs 

pursuant to 40 CFR 93.118(f)(1). 

VI. What Is EPA’s Analysis of the 

Request? 

EPA is proposing to make the 

determination that the Boyd County 

portion of the Huntington-Ashland 8- 

hour ozone nonattainment area has 

attained the 8-hour ozone standard, and 

that all other redesignation criteria have 

been met for that portion of the 

Huntington-Ashland 8-hour ozone area. 

EPA has made this determination with 

regard to West Virginia meeting the 

other redesignation criteria through a 

separate rulemaking (see 71 FR 39618). 

Therefore, the entire HuntingtonAshland area has air quality monitoring 

data showing attainment of the 8-hour 

ozone NAAQS. The basis for EPA’s 

determination for the Boyd County area 

is discussed in greater detail below. 

Criteria (1)—Boyd County Has Attained 

the 8-Hour Ozone NAAQS 

EPA is proposing to determine that 

the Boyd County portion of the 

Huntington-Ashland area has attained 

the 8-hour ozone NAAQS. For ozone, an 

area may be considered to be attaining 

the 8-hour ozone NAAQS if there are no 

violations, as determined in accordance 

with 40 CFR 50.10 and Appendix I of 

part 50, based on three complete, 

consecutive calendar years of qualityassured air quality monitoring data. To 

attain this standard, the 3-year average 

of the fourth-highest daily maximum 8- 

hour average ozone concentrations 

measured at each monitor within an 

area over each year must not exceed 

0.08 ppm. Based on the rounding 

convention described in 40 CFR part 50, 

Appendix I, the standard is attained if 

the design value is 0.084 ppm or below. 

The data must be collected and qualityassured in accordance with 40 CFR part 

58, and recorded in the EPA Air Quality 

System (AQS). The monitors generally 

should have remained at the same 

location for the duration of the 

monitoring period required for 

demonstrating attainment. 

EPA reviewed ozone monitoring data 

from ambient ozone monitoring stations 

in the Huntington-Ashland area for the 

ozone season from 2003–2005. This data 

has been quality assured and is recorded 

in AQS. The fourth high averages for 

2003, 2004 and 2005, and the 3-year 

average of these values (i.e., design 

value), are summarized in the following 

table: 

TABLE 1.—ANNUAL 4TH MAX HIGH AND DESIGN VALUE FOR 8-HOUR OZONE FOR HUNTINGTON-ASHLAND AREA

[Parts per million, ppm] 

Year Huntington 

(Cabell County) 

Ashland 

(Boyd County) 

2003 ............................................................................................................................................................. 0.080 0.088 

2004 ............................................................................................................................................................. 0.066 0.068 

2005 ............................................................................................................................................................. 0.082 0.082 

Design Value ............................................................................................................................................... 0.076 0.079 

As discussed above, the design value 

for an area is the highest design value 

recorded at any monitor in the area. 

Therefore, the design value for the 

Huntington-Ashland area is 0.079 ppm, 

which meets the standard as described 

above. Additionally, preliminary air 

quality data from the 2006 monitoring 

season indicates that the HuntingtonAshland Area is continuing to attain the 

8-hour ozone standard. As discussed in 

more detail below, KDAQ has 

committed to continue monitoring in 

this area in accordance with 40 CFR part 

58. The data submitted by Kentucky 

provides an adequate demonstration 

that Boyd County (as a part of the 

Huntington-Ashland area) has attained 

the 8-hour ozone NAAQS. 

Criteria (2)—Kentucky Has a Fully 

Approved SIP Under Section 110(k) for 

Boyd County and Criteria (5)—Kentucky 

Has Met All Applicable Requirements 

Under Section 110 and Part D of the 

CAA 

Below is a summary of how these two 

criteria were met. 

EPA has determined that Kentucky 

has met all applicable SIP requirements 

for the Boyd County under section 110 

of the CAA (general SIP requirements). 

EPA has also determined that the 

Kentucky SIP satisfies the criterion that 

it meets applicable SIP requirements 

under part D of title I of the CAA 

(requirements specific to subpart 1 basic 

8-hour ozone nonattainment areas) in 

accordance with section 107(d)(3)(E)(v). 

In addition, EPA has determined that 

the SIP is fully approved with respect to 

all applicable requirements in 

accordance with section 107(d)(3)(E)(ii). 

In making these determinations, EPA 

ascertained which requirements are 

applicable to the area and that if 

applicable, they are fully approved 

under section 110(k). SIPs must be fully 

approved only with respect to 

applicable requirements. 

a. Boyd County, Kentucky Has Met All 

Applicable Requirements Under Section 

110 and Part D of the CAA 

The September 4, 1992, Calcagni 

Memorandum (see ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992) describes EPA’s 

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

Consistent with this interpretation, to 

qualify for redesignation, states 


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requesting redesignation to attainment 

must meet only the relevant CAA 

requirements that come due prior to the 

submittal of a complete redesignation 

request. See also, Michael Shapiro 

Memorandum (‘‘SIP Requirements for 

Areas Submitting Requests for 

Redesignation to Attainment of the 

Ozone and Carbon Monoxide NAAQS 

On or After November 15, 1992,’’

September 17, 1993), and 60 FR 12459, 

12465–66 (March 7, 1995) 

(redesignation of Detroit-Ann Arbor, 

Michigan). Applicable requirements of 

the CAA that come due subsequent to 

the area’s submittal of a complete 

redesignation request remain applicable 

until a redesignation is approved, but 

are not required as a prerequisite to 

redesignation. See, section 175A(c) of 

the CAA; Sierra Club, 375 F.3d 537 (7th 

Cir. 2004); see also, 68 FR 25424, 25427 

(May 12, 2003) (redesignation of St. 

Louis, Missouri). 

General SIP requirements: Section 

110(a)(2) of title I of the CAA delineates 

the general requirements for a SIP, 

which include enforceable emissions 

limitations and other control measures, 

means, or techniques, provisions for the 

establishment and operation of 

appropriate devices necessary to collect 

data on ambient air quality, and 

programs to enforce the limitations. 

General SIP elements and requirements 

are delineated in section 110(a)(2) of 

title I, part A of the CAA. These 

requirements include, but are not 

limited to, the following: submittal of a 

SIP that has been adopted by the state 

after reasonable public notice and 

hearing; provisions for establishment 

and operation of appropriate procedures 

needed to monitor ambient air quality; 

implementation of a source permit 

program; provisions for the 

implementation of part C requirements 

(Prevention of Significant Deterioration 

(PSD)) and provisions for the 

implementation of part D requirements 

(New Source Review (NSR) permit 

programs); provisions for air pollution 

modeling; and provisions for public and 

local agency participation in planning 

and emission control rule development. 

Section 110(a)(2)(D) requires that SIPs 

contain certain measures to prevent 

sources in a state from significantly 

contributing to air quality problems in 

another state. To implement this 

provision, EPA has required certain 

states to establish programs to address 

the transport of air pollutants (NOX SIP 

Call, Clean Air Interstate Rule (CAIR)). 

EPA has also found, generally, that 

states have not submitted SIPs under 

section 110(a)(1) to meet the interstate 

transport requirements of section 

110(a)(2)(D)(i). However, the section 

110(a)(2)(D) requirements for a state are 

not linked with a particular 

nonattainment area’s designation and 

classification in that state. EPA believes 

that the requirements linked with a 

particular nonattainment area’s 

designation and classifications are the 

relevant measures to evaluate in 

reviewing a redesignation request. The 

transport SIP submittal requirements, 

where applicable, continue to apply to 

a state regardless of the designation of 

any one particular area in the state. 

Thus, we do not believe that the CAA’s 

interstate transport requirements should 

be construed to be applicable 

requirements for purposes of 

redesignation. 

In addition, EPA believes that the 

other section 110 elements not 

connected with nonattainment plan 

submissions and not linked with an 

area’s attainment status are not 

applicable requirements for purposes of 

redesignation. The area will still be 

subject to these requirements after the 

area is redesignated. The section 110 

and part D requirements, which are 

linked with a particular area’s 

designation and classification, are the 

relevant measures to evaluate in 

reviewing a redesignation request. This 

approach is consistent with EPA’s 

existing policy on applicability (i.e., for 

redesignations) of conformity and 

oxygenated fuels requirements, as well 

as with section 184 ozone transport 

requirements. See, Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996), (62 FR 24826, May 7, 

1997); Cleveland-Akron-Loraine, Ohio, 

final rulemaking (61 FR 20458, May 7, 

1996); and Tampa, Florida, final 

rulemaking at (60 FR 62748, December 

7, 1995). See also, the discussion on this 

issue in the Cincinnati, Ohio 

redesignation (65 FR 37890, June 19, 

2000), and in the Pittsburgh, 

Pennsylvania redesignation (66 FR 

50399, October 19, 2001). 

EPA believes that section 110 

elements not linked to the area’s 

nonattainment status are not applicable 

for purposes of redesignation. Any 

section 110 requirements that are linked 

to the part D requirements for 8-hour 

ozone nonattainment areas are not yet 

due, since, as explained below, no part 

D requirements for 8-hour standard 

became due prior to submission of the 

redesignation request. Therefore, as 

discussed above, for purposes of 

redesignation, they are both considered 

applicable requirements. Nonetheless, 

EPA notes that it has previously 

approved provisions into the Kentucky 

SIP addressing section 110 elements 

(See 47 FR 30059, July 12, 1982). EPA 

believes that the section 110 SIP 

approved for the 1-hour ozone NAAQS 

is also sufficient to meet the 

requirements under the 8-hour ozone 

NAAQS (as well as satisfying the issue 

raised by the D.C. Circuit Court in the 

SCAQMD case). 

Part D requirements: EPA has also 

determined that the Kentucky SIP meets 

applicable SIP requirements under part 

D of the CAA since no requirements 

became due prior to the submission of 

the area’s redesignation request. 

Sections 172–176 of the CAA, found in 

subpart 1 of part D, set forth the basic 

nonattainment requirements applicable 

to all nonattainment areas. Section 182 

of the CAA, found in subpart 2 of part 

D, establishes additional specific 

requirements depending on the area’s 

nonattainment classification. Subpart 2 

is not applicable to the Boyd County, 

Kentucky area. 

Part D, subpart 1 applicable SIP 

requirements: For purposes of 

evaluating this redesignation request, 

the applicable part D, subpart 1 SIP 

requirements for all nonattainment areas 

are contained in sections 172(c)(1)–(9). 

A thorough discussion of the 

requirements contained in section 172 

can be found in the General Preamble 

for Implementation of Title I (57 FR 

13498). No requirements applicable for 

purposes of redesignation under part D 

became due prior to the submission of 

the redesignation request, and therefore 

none are applicable to the area for 

purposes of redesignation. For example, 

the requirements for an attainment 

demonstration that meets the 

requirements of section 172(c)(1) are not 

yet applicable, nor are the requirements 

for Reasonably Achievable Control 

Technology (RACT) and Reasonably 

Available Control Measures (RACM) 

(section 172(c)(1)), reasonable further 

progress (RFP) (section 172(c)(2)), and 

contingency measures (section 

172(c)(9)). 

In addition to the fact that no part D 

requirements applicable for purposes of 

redesignation became due prior to 

submission of the redesignation request 

and therefore are not applicable, EPA 

believes it is reasonable to interpret the 

conformity and NSR requirements as 

not requiring approval prior to 

redesignation. 

Section 176 Conformity 

Requirements: Section 176(c) of the 

CAA requires states to establish criteria 

and procedures to ensure that Federally 

supported or funded projects conform to 

the air quality planning goals in the 

applicable SIP. The requirement to 

determine conformity applies to 

transportation plans, programs and 

projects developed, funded or approved 


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under title 23 of the United States Code 

(U.S.C.) and the Federal Transit Act 

(‘‘transportation conformity’’) as well as 

to all other Federally supported or 

funded projects (‘‘general conformity’’). 

State conformity revisions must be 

consistent with Federal conformity 

regulations relating to consultation, 

enforcement and enforceability that the 

CAA required the EPA to promulgate. 

EPA believes it is reasonable to 

interpret the conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) because 

state conformity rules are still required 

after redesignation and Federal 

conformity rules apply where state rules 

have not been approved. See, Wall, 265 

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

interpretation. See also, 60 FR 62748 

(Dec. 7, 1995, Tampa, Florida). 

EPA has also determined that areas 

being redesignated need not comply 

with the requirement that a NSR 

program be approved prior to 

redesignation, provided that the area 

demonstrates maintenance of the 

standard without a part D NSR program 

in effect since PSD requirements will 

apply after redesignation. The rationale 

for this view is described in a 

memorandum from Mary Nichols, 

Assistant Administrator for Air and 

Radiation, dated October 14, 1994, 

entitled ‘‘Part D New Source Review 

(Part D NSR) Requirements for Areas 

Requesting Redesignation to 

Attainment.’’ Kentucky has 

demonstrated that the area will be able 

to maintain the standard without a part 

D NSR program in effect, and therefore, 

Kentucky need not have a fully 

approved part D NSR program prior to 

approval of the redesignation request. 

EPA most recently approved Kentucky’s 

NSR program (including a 

nonattainment NSR and PSD program) 

in the Kentucky SIP on July 11, 2006 (71 

FR 38990). Kentucky’s PSD program 

will become effective in Boyd County, 

Kentucky upon redesignation to 

attainment. See, rulemakings for Detroit, 

Michigan (60 FR 12467–12468, March 7, 

1995); Cleveland-Akron-Lorraine, Ohio 

(61 FR 20458, 20469–70, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); Grand Rapids, 

Michigan (61 FR 31834–31837, June 21, 

1996). Thus, Boyd County, Kentucky 

has satisfied all applicable requirements 

for purposes of redesignation under 

section 110 and part D of the CAA. 

b. The Area Has a Fully Approved 

Applicable SIP Under Section 110(k) of 

the CAA 

EPA has fully approved the applicable 

Kentucky SIP for Boyd County under 

section 110(k) of the CAA for all 

requirements applicable for purposes of 

redesignation. EPA may rely on prior 

SIP approvals in approving a 

redesignation request, see Calcagni 

Memorandum at p. 3; Southwestern 

Pennsylvania Growth Alliance v. 

Browner, 144 F.3d 984, 989–90 (6th Cir. 

1998); Wall, 265 F.3d 426 (6th Cir. 

2001), plus any additional measures it 

may approve in conjunction with a 

redesignation action. See, 68 FR 25426 

(May 12, 2003) and citations therein. 

Following passage of the CAA of 1970 

by the U.S. Congress, Kentucky adopted 

and submitted, and EPA has fully 

approved at various times, provisions 

addressing the various 1-hour ozone 

standard SIP elements applicable in the 

Boyd County, Kentucky (60 FR 33748, 

June 29, 1995). 

As indicated above, EPA believes that 

the section 110 elements not connected 

with nonattainment plan submissions 

and not linked to the area’s 

nonattainment status are not applicable 

requirements for purposes of 

redesignation. EPA also believes that 

since the part D requirements applicable 

for purposes of redesignation did not 

become due prior to submission of the 

redesignation request, they also are 

therefore not applicable requirements 

for purposes of redesignation. 

Criteria (3)—The Air Quality 

Improvement in the Boyd County 

Portion of the Huntington-Ashland 8- 

hour Ozone Area Is Due to Permanent 

and Enforceable Reductions in 

Emissions Resulting From 

Implementation of the SIP and 

Applicable Federal Air Pollution 

Control Regulations and Other 

Permanent and Enforceable Reductions 

EPA believes that Kentucky has 

demonstrated that the observed air 

quality improvement in the area is due 

to permanent and enforceable 

reductions in emissions resulting from 

implementation of the SIP, Federal 

measures, and other state-adopted 

measures. EPA has determined that the 

implementation of the following 

permanent and enforceable emissions 

controls, that occurred from 2001–2005, 

have reduced local NOX and VOC 

emissions and brought the area into 

attainment: 

2001–2005 EMISSION REDUCTION

PROGRAMS

Highway Mobile Source Reductions: 

Federal Motor Vehicle Control Programs 

(FMVCP) 

Lower Reid Vapor Pressure 

Fleet Turnover of Automobiles 

2001–2005 EMISSION REDUCTION

PROGRAMS—Continued 

Tier 2 Vehicle Emissions and Fuel Standards 

Heavy Duty Engine and Vehicle Fuel 

Standards 

Point Source Emissions Reductions: 

Reasonably Available Control Measures 

(RACM) 

Maximum Available Control Technology 

(MACT) 

Non-Highway Mobile Source Reductions: 

Small Spark-Ignition engines 

Large Spark-Ignition engines 

Locomotives 

Land based diesel engines 

Additional Reductions: 

NOX SIP Call Reductions 

Notably, no credit specific emission 

reduction is being claimed in the SIP for 

the NOX SIP Call reductions although 

this program has resulted in measurable 

emissions reductions. 

Kentucky has demonstrated that the 

implementation of permanent and 

enforceable emissions controls have 

reduced local VOC and NOX emissions. 

Most of the reductions are attributable 

to Federal programs such as EPA’s Tier 

2/Low Sulfur Gasoline program and 

other national clean fuel programs that 

began implementation in 2004. 

Additionally, Kentucky has indicated in 

its September 2006 submittal that the 

Huntington-Ashland area has benefited 

from emissions reductions that have 

been achieved and will continue to be 

achieved through the implementation of 

the NOX SIP Call, beginning in 2002. 

Kentucky has further demonstrated that 

year-to-year meteorological changes and 

trends are not the likely source of the 

overall, long-term improvements in 

ozone levels. In addition, the following 

non-highway mobile source reduction 

programs were implemented during the 

2002–2004 period: Small spark-ignition 

engines, large-spark ignition engines, 

locomotives and land-base diesel 

engines. EPA believes that permanent 

and enforceable emissions reductions, 

in and surrounding the nonattainment 

area, are the cause of long-term 

improvements in ozone levels, and are 

the cause of the Huntington-Ashland 

Area achieving attainment of the ozone 

standard. 

Criteria (4)—The Area Has a Fully 

Approved Maintenance Plan Pursuant 

to Section 175A of the CAA 

In its request to redesignate the Boyd 

County, Kentucky area (as part of the 

Huntington-Ashland 8-hour ozone 

nonattainment area) to attainment, 

KDAQ submitted a SIP revision to 

provide for the maintenance of the 8- 

hour ozone NAAQS in the Boyd County, 


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Kentucky area for at least 10 years after 

the effective date of redesignation to 

attainment. 

a. What is required in a maintenance 

plan? 

Section 175A of the CAA sets forth 

the elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after the Administrator approves a 

redesignation to attainment. Eight years 

after the redesignation, Kentucky must 

submit a revised maintenance plan 

which demonstrates that attainment will 

continue to be maintained for the 10 

years following the initial 10-year 

period. To address the possibility of 

future NAAQS violations, the 

maintenance plan must contain such 

contingency measures, with a schedule 

for implementation as EPA deems 

necessary to assure prompt correction of 

any future 8-hour ozone violations. 

Section 175A of the CAA sets forth the 

elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. The 

Calcagni Memorandum provides 

additional guidance on the content of a 

maintenance plan. The Calcagni 

Memorandum explains that an ozone 

maintenance plan should address five 

requirements: The attainment emissions 

inventory, maintenance demonstration, 

monitoring, verification of continued 

attainment, and a contingency plan. As 

is discussed more fully below, 

Kentucky’s maintenance plan includes 

all the necessary components and is 

approvable as part of the redesignation 

request. 

b. Attainment Emissions Inventory 

In coordination with West Virginia, 

Kentucky selected 2004 as ‘‘the 

attainment year’’ for Boyd County (as 

part of the Huntington-Ashland 8-hour 

ozone area) for the purposes of 

demonstrating attainment of the 8-hour 

ozone NAAQS. This attainment 

inventory identifies the level of 

emissions in the area which is sufficient 

to attain the 8-hour ozone standard. 

Kentucky began development of this 

attainment inventory by first developing 

a baseline emissions inventory for the 

Boyd County. The year 2002 was chosen 

as the base year for developing a 

comprehensive ozone precursor 

emissions inventory for which projected 

emissions could be developed for 2004, 

2005, 2008, 2011, 2014, 2017, and 2018. 

Non-road mobile emissions were 

calculated using the most recent nonroad model. On-road mobile source 

emissions were calculated using EPA’s 

MOBILE6.2 emission factors model. The 

2004 VOC and NOX emissions (as well 

as the emissions for other years) for 

Boyd County, Kentucky were developed 

consistent with EPA guidance, and are 

summarized in the table in the 

following subsection. 

c. Maintenance Demonstration 

The September 29, 2006, final 

submittal includes a maintenance plan 

for the Boyd County area. This 

demonstration: 

(i) Shows compliance and maintenance of 

the 8-hour ozone standard by providing 

information to support the demonstration 

that current and future emissions of VOC and 

NOX remain at or below attainment year 2004 

emissions levels. The year 2004 was chosen 

as the attainment year because it is one of the 

most recent three years (i.e., 2003, 2004, and 

2005) for which the Huntington-Ashland area 

has clean air quality data for the 8-hour 

ozone standard. 

(ii) Uses 2004 as the attainment year and 

includes future emission inventory 

projections for the 2005, 2008, 2011, 2014, 

2017 and 2018. 

(iii) Identifies an ‘‘out year,’’ at least 10 

years after the time necessary for EPA to 

review and approve the maintenance plan. 

Per 40 CFR part 93, a MVEB was established 

for the last year of the maintenance plan 

(2018). See section VII below. 

(iv) Provides the following actual and 

projected emissions inventories for the Boyd 

County portion of the Huntington-Ashland 

nonattainment area. 

TABLE 2.—BOYD COUNTY VOC EMISSIONS

[Tons per day] * 

Source category 2004 2005 2008 2011 2014 2017 2018 

Point ............................. 17.52 17.76 18.49 19.09 19.81 20.54 20.79 

Area .............................. 2.97 2.97 2.97 2.97 2.97 2.97 2.97 

Mobile ** ....................... 2.50 2.28 1.91 1.63 1.38 1.23 1.18 

Nonroad ....................... 0.71 0.68 0.61 0.56 0.55 0.56 0.56 

Total ...................... 23.70 23.69 23.98 24.25 24.71 25.30 25.50 

* See further information in Section VI(4)(e) Verification of Continued Attainment. 

** Calculated using MOBILE 6.2. 

TABLE 3.—BOYD COUNTY NOX EMISSIONS

[Tons per day] * 

Source category 2004 2005 2008 2011 2014 2017 2018 

Point ............................. 16.17 16.35 16.90 17.37 17.92 18.48 18.68 

Area .............................. 0.09 0.10 0.10 0.10 0.10 0.10 0.10 

Mobile ** ....................... 3.79 3.60 2.98 2.36 1.79 1.41 1.30 

Nonroad ....................... 1.83 1.81 1.71 1.63 1.54 1.48 1.47 

Total ...................... 21.89 21.86 21.69 21.46 21.35 21.47 21.55 

* See further information in Section VI(4)(e) Verification of Continued Attainment. 

** Calculated using MOBILE 6.2. 

Although the Kentucky SIP 

submission provided VOC and NOX

emissions for the attainment and future 

years for Boyd County, EPA considers 

emissions from the entire HuntingtonAshland area for a demonstration of 

maintenance. Maintenance is 

demonstrated if the future year NOX and 

VOC emission for the entire area 

remains at or below the level of the 

attainment year emissions. Both 

Kentucky and West Virginia chose 2004 


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for their ‘‘attainment year’’ for this area. 

While the VOC emissions for the Boyd 

County, Kentucky portion of the 

Huntington-Ashland area indicate a 

steady increase of emissions beyond the 

attainment year, it is important to note 

that this area is comprised of three 

counties for which emissions should be 

considered. EPA’s review of VOC 

emissions for the entire area indicates 

that these emissions are 47.40 tpd in 

2004, and 45.20 tpd in 2018, which is 

an overall downward trend in emissions 

for the area. Similarly, EPA’s review of 

NOX emissions for the entire area also 

indicates an overall downward trend in 

emissions for the area, with a total of 

59.29 tpd in 2004 and 48.55 tpd in 2018. 

Therefore, it is highly likely that 

maintenance of the 8-hour ozone 

standard will be maintained in the 

future for the Huntington-Ashland area. 

d. Monitoring Network 

There are currently two monitors 

measuring ozone in the HuntingtonAshland 8-hour ozone area (one in 

Cabell County, West Virginia and one in 

Boyd County, Kentucky). KDAQ has 

committed in the maintenance plan to 

continue operation of the monitor in 

Boyd County in compliance with 40 

CFR part 58, and has addressed the 

requirement for monitoring. West 

Virginia has provided a similar 

commitment for the monitor in Cabell 

County, West Virginia. 

e. Verification of Continued Attainment 

Kentucky has the legal authority to 

enforce and implement the 

requirements of the ozone maintenance 

plan for the Boyd County, Kentucky 

area. This includes the authority to 

adopt, implement and enforce any 

subsequent emissions control 

contingency measures determined to be 

necessary to correct future ozone 

attainment problems. 

Kentucky will track the progress of 

the maintenance plan by performing 

future reviews of actual emissions for 

the area using the latest emissions 

factors, models and methodologies. For 

these periodic inventories Kentucky 

will review the assumptions made for 

the purpose of the maintenance 

demonstration concerning projected 

growth of activity levels. If any of these 

assumptions appear to have changed 

substantially, Kentucky will re-project 

emissions. Following the redesignation 

of the area, sources are prohibited from 

reducing emission controls already in 

place when attainment is achieved 

unless EPA approves a SIP revision 

consistent with section 110 of the CAA. 

Kentucky and EPA have instituted the 

following programs that will remain 

enforceable and are included as part of 

Kentucky’s September 2006 SIP 

submittal, to maintain air quality which 

meets the NAAQS for the 8-hour ozone 

standard. 

• All new major VOC or NOX sources 

locating in Kentucky shall as a 

minimum apply control procedures that 

are reasonable, available, and practical; 

• All major modifications to existing 

major VOC or NOX sources are subject 

to RACM requirements as well as the 

BACT requirement of the Kentucky 

Division of Air Quality PSD regulations; 

• Federal Motor Control Standards 

apply in Kentucky; 

• Transportation Conformity 

Requirements; 

• PSD Requirements; 

• Federal Controls on certain nonroad 

engines (e.g. diesel and other Federal 

requirements, industrial diesel 

equipment, locomotives) after 2000; 

• Federal controls on the VOC 

content for Architectural and 

Maintenance Paints, Auto Body Shops 

and Consumer Products. 

In addition to these measures, 

Kentucky explains that more controls 

are expected to occur in the Boyd 

County area which are not factored into 

the projected future year emissions 

analyses. For example, a major refinery, 

Marathon Ashland Oil Cattlesburg is 

undergoing a project entitled the 

Refinery Modernization Project, which 

involves new operational and emissions 

limitations. The proposed Refinery 

Modernization Project involves 

installation of new equipment and 

upgrading of existing equipment. The 

following emission reductions were 

expected to occur from the Ashland 

Project by 2006: 

• PM 33 tons per year (decrease) 

• PM10 33 tons per year (decrease) 

• SO2 3,605 tons per year (decrease) 

• NOX 730 tons per year (decrease) 

• CO 4 tons per year (decrease) 

• VOC 64 tons per year (decrease) 

When these reductions are factored 

into future emission inventories, the 

totals for the emission inventories for 

Boyd County are expected to decrease. 

f. Contingency Plan 

The contingency plan provisions are 

designed to promptly correct any 

violation of the NAAQS that occurs after 

redesignation. Section 175A of the CAA 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to assure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation, and a time limit for 

action by the state. A state should also 

identify specific indicators to be used to 

determine when the contingency 

measures need to be implemented. The 

maintenance plan must include a 

requirement that a state will implement 

all measures with respect to control of 

the pollutant that were contained in the 

SIP before redesignation of the area to 

attainment in accordance with section 

175A(d). This requirement is met 

because all SIP measures are retained 

for maintenance. Kentucky’s submittal 

satisfies all the contingency plan 

requirements described in section 175A 

of the CAA. 

In the September 29, 2006, final 

submittal, Kentucky affirms that a 

combination of all programs instituted 

by Kentucky and EPA have resulted in 

cleaner air in the Huntington-Ashland 

area and the anticipated future benefits 

from these programs are expected to 

result in continued maintenance of the 

8-hour ozone NAAQS in this area. 

Sources are prohibited from terminating 

emissions controls following the 

redesignation of Boyd County unless 

EPA approves a SIP revision consistent 

with section 110 of the CAA. The 

contingency plan includes tracking and 

triggering mechanisms to determine 

when contingency measures are needed 

and a process of developing and 

adopting appropriate control measures. 

The primary trigger is a measured 

violation of the 8-hour ozone NAAQS. 

If there is a measured violation of the 

8-hour ozone NAAQS in Boyd County, 

Kentucky commits to develop 

regulations for at least one of the 

following control measures for 

submission to the EPA within nine 

months. All regulatory programs will be 

implemented within 18 months from a 

measured violation. Kentucky will 

consider one or more of the measures 

contained in the list of potential 

contingency measures below. 

The secondary triggers in the 

contingency plan are (1) if a measured 

value of the fourth highest maximum is 

0.087 ppm or greater at the Boyd County 

monitor in a single ozone season, or (2) 

if periodic emission inventory updates 

reveal excessive or unanticipated 

growth greater than 10 percent in ozone 

precursor emissions. If either of these 

two triggers are met, Kentucky will 

evaluate existing control measures to 

determine if any further emission 

reduction measures should be 

implemented at that time. 

Potential Contingency Measures: 

• Implementation of a program to 

require additional emission reductions 

on stationary source; 


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• Implementation of a program to 

enhance inspection of stationary sources 

to ensure emission control equipment is 

functioning properly; 

• Open burning restrictions during 

ozone season; 

• High-volume, low pressure spray 

guns and low VOC degreaser solvents; 

• Implementation of incentives for 

alternative fuels programs; 

• Restriction of certain roads or lanes 

to, or construction of such roads or 

lanes for use by, passenger buses or high 

occupancy vehicles; 

• Trip-reduction ordinances; 

• Employer-based transportation 

management plans including incentives; 

• Programs to limit or restrict vehicle 

use in downtown areas, or other areas 

of emission concentration particularly 

during periods of peak use; 

• Programs for new construction and 

major reconstructions of paths or tracks 

for use by pedestrians or by nonmotorized vehicles when economically 

feasible and in the public interest. 

EPA has concluded that the 

maintenance plan adequately addresses 

the five basic components of a 

maintenance plan: Attainment 

inventory, maintenance demonstration, 

monitoring network, verification of 

continued attainment, and a 

contingency plan. The maintenance 

plan SIP revision submitted by 

Kentucky for Boyd County meets the 

requirements of section 175A of the 

CAA and is approvable. 

VII. What Are the Proposed State 

MVEBs for Boyd County, Kentucky? 

Under the CAA, states are required to 

submit, at various times, control strategy 

SIPs and maintenance plans in ozone 

areas. These control strategy SIPs 

(reasonable further progress SIPs and 

attainment demonstration SIPs etc.) and 

maintenance plans create MVEBs for 

criteria pollutants and/or their 

precursors to address pollution from 

cars and trucks. Per 40 CFR part 93, a 

MVEB is established for the last year of 

the maintenance plan. The MVEB is the 

portion of the total allowable emissions 

in the maintenance demonstration that 

is allocated to highway and transit 

vehicle use and emissions. See, 40 CFR 

93.101. The MVEB serves as a ceiling on 

emissions from an area’s planned 

transportation system. The MVEB 

concept is further explained in the 

preamble to the November 24, 1993, 

transportation conformity rule (58 FR 

62188). The preamble also describes 

how to establish the MVEB in the SIP 

and revise the MVEB. 

Kentucky and West Virginia have 

elected to develop separate state MVEBs 

to cover their individual portions of the 

Huntington-Ashland 8-hour ozone area. 

As required, Kentucky is only 

establishing state MVEBs for NOX and 

VOC for the last year of the maintenance 

plan (2018). EPA is now proposing to 

approve these state MVEBs. The state 

MVEBs for Boyd County, Kentucky are 

defined in the table below. 

TABLE 4.—BOYD COUNTY 2018 

MVEBS

[Tons per day] 

NOX VOC 

1.30 1.18 

Through this rulemaking, EPA is 

proposing to approve the 2018 state 

MVEBs for NOX and VOCs for Boyd 

County, Kentucky because EPA has 

determined that the HuntingtonAshland area maintains the 8-hour 

ozone standard with emissions at the 

levels of the budgets. As mentioned 

above, these MVEBs will be separate 

state area budgets for Boyd County, 

Kentucky. West Virginia established 

MVEBs for the remainder of the 

Huntington-Ashland 8-hour ozone area 

(i.e., Cabell and Wayne counties) 

through the 8-hour ozone maintenance 

plan that was submitted with West 

Virginia’s request for redesignation. 

Through a separate rulemaking, EPA 

found adequate and approved the 

MVEBs for the West Virginia portion of 

this 8-hour ozone area (see 71 FR 

39618). Once the new state MVEBs for 

Boyd County, Kentucky (the subject of 

this rulemaking) are approved or found 

adequate (whichever is done first), they 

must be used for future transportation 

conformity determinations. As is 

discussed in greater detail below, EPA 

is also announcing the status of its 

adequacy determination for the 

proposed 2018 MVEBs for Boyd County, 

Kentucky pursuant to 40 CFR 

93.118(f)(1). 

VIII. What Is the Status of EPA’s 

Adequacy Determination of the MVEBs 

for Boyd County, Kentucky? 

Under section 176(c) of the CAA, new 

transportation projects, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the part of the State’s air quality plan 

that addresses pollution from cars and 

trucks. ‘‘Conformity’’ to the SIP means 

that transportation activities will not 

cause new air quality violations, worsen 

existing violations, or delay timely 

attainment of the NAAQS. If a 

transportation plan does not ‘‘conform,’’

most new projects that would expand 

the capacity of roadways cannot go 

forward. Regulations at 40 CFR part 93 

set forth EPA policy, criteria, and 

procedures for demonstrating and 

assuring conformity of such 

transportation activities to a SIP. The 

regional emissions analysis is one, but 

not the only, requirement for 

implementing transportation 

conformity. Transportation conformity 

is a requirement for nonattainment and 

maintenance areas. Maintenance areas 

are areas that were previously 

nonattainment for a particular NAAQS 

but have since been redesignated to 

attainment with a maintenance plan for 

that NAAQS. 

When reviewing submitted ‘‘control 

strategy’’ SIPs or maintenance plans 

containing MVEBs, EPA must 

affirmatively find the MVEB contained 

therein ‘‘adequate’’ for use in 

determining transportation conformity. 

Once EPA affirmatively finds the 

submitted MVEB is adequate for 

transportation conformity purposes, that 

MVEB can be used by state and Federal 

agencies in determining whether 

proposed transportation projects 

‘‘conform’’ to the SIP as required by 

section 176(c) of the CAA. 

EPA’s substantive criteria for 

determining ‘‘adequacy’’ of an MVEB 

are set out in 40 CFR 93.118(e). The 

process for determining ‘‘adequacy’’

consists of three basic steps: Public 

notification of a SIP submission, a 

public comment period, and EPA’s 

adequacy finding. This process for 

determining the adequacy of submitted 

SIP MVEBs was initially outlined in 

EPA’s May 14, 1999 guidance, 

‘‘Conformity Guidance on 

Implementation of March 2, 1999, 

Conformity Court Decision.’’ This 

guidance was finalized in the 

Transportation Conformity Rule 

Amendments for the ‘‘New 8-Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards and Miscellaneous 

Revisions for Existing Areas; 

transportation conformity rule 

amendments—Response to Court 

Decision and Additional Rule Change’’

on July 1, 2004 (69 FR 40004). EPA 

follows this guidance and rulemaking in 

making its adequacy determinations. 

Kentucky’s maintenance plan 

submission contained new VOC and 

NOX MVEBs for Boyd County, Kentucky 

for the year 2018. The availability of the 

Kentucky SIP submission with the Boyd 

County MVEBs was announced for 

public comment on EPA’s adequacy 

Web page on June 21, 2006 at: http:// 

www.epa.gov/otaq/stateresources/ 

transconf/currsips.htm. The EPA public 

comment period on adequacy of the 

2018 MVEBs for the Boyd County, 

Kentucky closed on July 21, 2006. EPA 

did not receive any adverse comments 


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Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Proposed Rules 26769 

regarding the MVEBs or requests for the 

submittal. 

EPA’s current intentions are to make 

its determination of the adequacy of the 

2018 MVEBs for Boyd County, Kentucky 

for transportation conformity purposes 

in the final rulemaking on the 

redesignation of the Boyd County, 

Kentucky portion of the HuntingtonAshland 8-hour ozone area. If EPA finds 

the 2018 MVEBs adequate and approves 

the 2018 MVEBs in the final rulemaking 

action, the new MVEBs must be used for 

future transportation conformity 

determinations. The new 2018 MVEBs, 

if found adequate and approved in the 

final rulemaking, will be effective the 

date of publication of EPA’s final 

rulemaking in the Federal Register. For 

required regional emissions analysis 

years that involve the year 2017 or 

before, the applicable budget for the 

purposes of conducting transportation 

conformity will be the MVEBs for Boyd 

County from the Huntington-Ashland 

1-hour ozone maintenance plan. For 

required regional emissions analysis 

years that involve 2018 or beyond, the 

applicable budgets are defined in 

section VII of this rulemaking. 

IX. Proposed Actions on the 

Redesignation Request and the 

Maintenance Plan SIP Revision 

Including Proposed Approval of the 

2018 MVEBs 

Today, EPA is proposing to determine 

that Boyd County, Kentucky has met the 

criteria for redesignation from 

nonattainment to attainment for the 8- 

hour ozone NAAQS. Further, EPA is 

proposing to approve Kentucky’s 

redesignation for Boyd County, 

Kentucky (as a part of the HuntingtonAshland 8-hour ozone area). In a 

separate action, EPA approved the 8- 

hour ozone redesignation of the West 

Virginia portion of this area from 

nonattainment to attainment. See, 71 FR 

54421 (September 15, 2006). After 

evaluating Kentucky’s SIP submittal 

requesting redesignation, EPA has 

determined that it meets the 

redesignation criteria set forth in section 

107(d)(3)(E) of the CAA. EPA believes 

that the redesignation request and 

monitoring data demonstrate that the 

Boyd County portion of the HuntingtonAshland area has attained the 8-hour 

ozone standard. 

EPA is also proposing to approve the 

September 29, 2006, SIP revision 

containing Kentucky’s 8-hour ozone 

maintenance plan for Boyd County, 

Kentucky. The maintenance plan 

includes state MVEBs for 2018, among 

other requirements. EPA is proposing to 

approve the 2018 MVEBs for Boyd 

County because the maintenance plan 

demonstrates that expected emissions 

for the area in 2018, including the 2018 

MVEBs plus the estimated emissions for 

all other source categories, will continue 

to maintain the 8-hour ozone standard. 

Further, as part of today’s action, EPA 

is providing the status of its adequacy 

determination for the 2018 MVEBs for 

Boyd County in accordance with 40 CFR 

93.118(f)(1). Within 24 months from the 

effective date of EPA’s adequacy finding 

for the MVEBs, or the publication date 

for the final rule for this action, the 

transportation partners will need to 

demonstrate conformity to these new 

MVEBs pursuant to 40 CFR 93.104(e) as 

effectively amended by section 

172(c)(2)(E) of the CAA as added by the 

Safe, Accountable, Flexible, Efficient 

Transportation Equity Act—A Legacy 

for Users (SAFETEA–LU), which was 

signed into law on August 10, 2005. 

X. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

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

22, 2001). This proposed action merely 

proposes to approve state law as 

meeting Federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. 

Redesignation of an area to attainment 

under section 107(d)(3)(e) of the CAA 

does not impose any new requirements 

on small entities. Redesignation is an 

action that affects the status of a 

geographical area and does not impose 

any new regulatory requirements on 

sources. Accordingly, the Administrator 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Because this rule 

proposes to approve pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). 

This proposed rule also does not have 

tribal implications because it will not 

have a substantial direct effect on one or 

more Indian tribes, 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 by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action merely 

affects the status of a geographical area, 

does not impose any new requirements 

on sources, or allow a state to avoid 

adopting or implementing other 

requirements and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This proposed rule also 

is not subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant and because the Agency does 

not have reason to believe that the rule 

concerns an environmental health risk 

or safety risk that may 

disproportionately affect children. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

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. Redesignation is an 

action that affects the status of a 

geographical area but does not impose 

any new requirements on sources. 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 proposed 

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.). 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 


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26770 Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Proposed Rules 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: May 3, 2007. 

J.I. Palmer, Jr., 

Regional Administrator, Region 4. 

[FR Doc. E7–9130 Filed 5–10–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 070427094–7094–01;I.D. 

042407A] 

RIN 0648–AV50 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

Multispecies Fishery; Allocation of 

Trips to Closed Area II Yellowtail 

Flounder Special Access Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS announces that the 

Administrator, Northeast Region, NMFS 

(Regional Administrator), is proposing 

to allocate zero trips in the Closed Area 

(CA) II Yellowtail Flounder Special 

Access Program (SAP) during the 2007 

fishing year (FY) (i.e., May 1, 2007, 

through April 30, 2008). The Regional 

Administrator has determined that the 

available catch of Georges Bank (GB) 

yellowtail flounder is insufficient to 

support a minimum level of fishing 

activity within the CA II Yellowtail 

Flounder SAP for FY 2007. The intent 

of this action is to help achieve 

optimum yield (OY) in the fishery by 

maximizing the utility of available GB 

yellowtail flounder TAC throughout FY 

2007. 

DATES: Comments must be received on 

or before 5 p.m., local time, May 29, 

2007. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Written comments (paper, disk, or 

CD-ROM) should be sent to Patricia A. 

Kurkul, Regional Administrator, 1 

Blackburn Drive, Gloucester, MA 01930. 

Mark the outside of the envelope, 

‘‘Comments on CA II YT SAP.’’

• Comments also may be sent via 

facsimile (fax) to (978) 978–9135. 

• E-mail: YellowtailSAP@Noaa.gov 

Include in the subject line the following 

‘‘Comments on CA II YT SAP.’’

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Mark Grant, Fishery Management 

Specialist, phone: (978) 281–9218, fax: 

(978) 281–9135, e-mail: 

Mark.Grant@noaa.gov. 

SUPPLEMENTARY INFORMATION: The final 

rule implementing Framework 

Adjustment (FW) 40B (70 FR 31323; 

June 1, 2005), authorized the Regional 

Administrator to allocate the total 

number of trips into the CA II Yellowtail 

Flounder SAP based upon several 

criteria, including: GB yellowtail 

flounder total allowable catch (TAC) 

level, as established through the U.S./ 

Canada Resource Sharing 

Understanding; and the amount of GB 

yellowtail flounder caught outside of 

the SAP. A formula was developed in 

FW 40B to assist the Regional 

Administrator in determining the 

appropriate number of trips for this SAP 

on a yearly basis. The formula is 

intended to allow the SAP to be 

adjusted for changing stock conditions 

to help achieve OY for GB yellowtail 

flounder. 

FW 40B authorized the Regional 

Administrator to allocate zero trips to 

this SAP if the available GB yellowtail 

flounder catch (GB yellowtail flounder 

TAC projected catch of GB yellowtail 

flounder outside the SAP) is not 

sufficient to support 150 trips with a 

15,000–lb (6,804–kg) trip limit (i.e., if 

the available GB yellowtail catch is less 

than 1,021 mt), as required. The 

proposed U.S./Canada GB yellowtail 

flounder TAC for 2007, as 

recommended by the Transboundary 

Management Guidance Committee and 

the Council, is 900 mt (72 FR 10967; 

March 12, 2007). During FY 2006, 

vessels fishing outside of the SAP 

landed over 1,500 mt of GB yellowtail 

flounder. Therefore, based on the 

proposed 900–mt U.S./Canada GB 

yellowtail flounder TAC, assuming 

similar fishing behavior in 2007, and 

using the criteria specified under 

§ 648.85(b)(3)(vii) to determine the 

appropriate number of trips for FY 2007, 

the Regional Administrator has 

determined that there will be 

insufficient GB yellowtail flounder TAC 

to support the CA II Yellowtail Flounder 

SAP for FY 2007 (900 mt – 1,500 mt 

<1,020 mt). Therefore, a limit of zero 

trips is proposed for FY 2007. 

Classification 

Pursuant to section 304 (b)(1)(A) of 

the Magnuson-Stevens Act, I have 

determined that this proposed rule is 

consistent with the NE Multispecies 

FMP, other provisions of the MagnusonStevens Act, and other applicable law, 

subject to further consideration after 

public comment. 

This proposed rule has been 

determined to be not significant for the 

purposes of Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration (SBA) 

that this proposed rule, if adopted, 

would not have a significant economic 

impact on a substantial number of small 

entities. As a result, an initial regulatory 

flexibility analysis is not required and 

none has been prepared. 

The SBA size standard for small 

commercial fishing entities is $ 4.0 

million in gross receipts. Individuals 

that would be impacted by this 

proposed action include all limited 

access NE multispecies DAS permit 

holders. All commercial fishing entities 

affected by this proposed rule would fall 

under the SBA size standard for small 

commercial fishing entities and there 

would be no disproportionate impacts 

between small and large entities. The 

proposed action would affect a 

substantial number of small entities, as 

approximately 66 percent of the vessels 

affected by this action (i.e., 100 out of 

150) had participated in the CA II 

Yellowtail Flounder SAP when it was 

open during FY 2004. However, the 

proposed action will not significantly 

reduce profit for affected vessels. 

The proposed allocation of zero trips 

into the SAP would help ensure that the 

GB yellowtail flounder TAC is available 

throughout the fishing year, minimizing 

the impacts of depressed prices that 

could otherwise be caused by temporary 

floods of yellowtail flounder on the 

market, and therefore would help avoid 

the premature closing of the Eastern 

U.S./Canada Area due to catching the 

available GB yellowtail flounder TAC. 

This would enable vessels greater 

opportunity to fully harvest the 

available GB cod and GB haddock TAC 

allocated to the Eastern U.S./Canada 

Area and to achieve the full economic 

benefit from the U.S./Canada 

Management Area by more efficiently 

using the small GB yellowtail flounder 

TAC. Analysis prepared for FW 40B 

indicates that flexibility for vessels to 

target species other than yellowtail 

flounder is seen as critical to 

maintaining the profitability of vessel 

operations within the U.S./Canada 


sroberts on PROD1PC70 with PROPOSALS