49154 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

Federal Register publication, EPA is

simultaneously proposing to approve

this SIP revision should adverse or

critical comments be filed. This action

will be effective November 18, 1997,

unless adverse or critical comments

concerning this action are submitted

and postmarked by October 20, 1997.

If EPA receives such comments, this

action will be withdrawn before the

effective date by publishing a

subsequent document that will

withdraw the final action. All public

comments received concerning this

action will then be addressed in a

subsequent final rule based on this

action serving as a proposed rule. The

EPA will not institute a second

comment period on this action. Any

parties interested in commenting on this

action should do so at this time. If no

such comments are received on this

action, the public is advised that this

action will be effective November 18,

1997.

Nothing in this action shall be

construed as permitting, allowing, or

establishing a precedent for any future

request for a revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., the EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. See 5 U.S.C.

603 and 604. Alternatively, the EPA

may certify that the rule will not have

a significant impact on a substantial

number of small entities. See 46 FR

8709. Small entities include small

businesses, small not-for-profit

enterprises, and governmental entities

with jurisdiction over populations of

less than 50,000.

The SIP approvals under section 110

and subchapter I, part D of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities. Moreover, due

to the nature of the Federal-State

relationship under the Act, preparation

of a regulatory flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of State

action. The Act forbids EPA from basing

its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256–66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, the EPA

must prepare a budgetary impact

statement to accompany any proposed

or final rule that includes a Federal

mandate that may result in estimated

costs to State, local, or tribal

governments in the aggregate; or to

private sector, of $100 million or more.

Under section 205, the EPA must select

the most cost-effective and least

burdensome alternative that achieves

the objectives of the rule and is

consistent with statutory requirements.

Section 203 requires the EPA to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The EPA has determined that the

approval action promulgated does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves preexisting requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, the

EPA submitted a report containing this

rule and other required information to

the U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

E. Petition for Judicial Review

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

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by November 18, 1997. Filing a

petition for reconsideration of this final

rule by the Regional Administrator does

not affect the finality of this rule for

purposes of judicial review; nor does it

extend the time within which a petition

for judicial review may be filed, or

postpone the effectiveness of this rule.

This action may not be challenged later

in proceedings to enforce its

requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Nitrogen dioxide, Ozone,

Volatile organic compounds.

Dated: August 12, 1997.

Jerry Clifford,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart SS—Texas

§ 52.2270 [Amended]

2. Section 52.2270 is amended by

removing and reserving paragraph

(c)(91).

[FR Doc. 97–24843 Filed 9–18–97; 8:45 am]

BILLING CODE 6560–50–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[AL–40–7142; FRL–5895–5]

Approval and Promulgation of

Implementation Plans for the State of

Alabama

Approval and Promulgation of

Implementation Plans for the State of

Alabama—Proposed Disapproval of the

Request to Redesignate the Birmingham,

Alabama (Jefferson and Shelby Counties)

Marginal Ozone Nonattainment Area to

Attainment and the Associated Maintenance

Plan.

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is disapproving the State

of Alabama’s request submitted through

the Alabama Department of

Environmental Management’s (ADEM)

to redesignate the Birmingham marginal

ozone nonattainment area (Jefferson and

Shelby Counties) to attainment and the

associated maintenance plan as a

revision to the state implementation

plan (SIP). Prior to the close of the

administrative record, EPA determined

that the area registered a violation of the

ozone national ambient air quality

standard (NAAQS). As a result, the

Birmingham area no longer meets the
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49155

statutory criteria for redesignation to

attainment of the ozone NAAQS.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: The interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day. Reference file

AL–40–7142. The Region 4 office may

have additional background documents

not available at the other locations.

Copies of documents relative to this

action are available for public

inspection during normal business

hours at the following locations:

Environmental Protection Agency,

Region 4, Air Planning Branch, 1

Forsyth, SW, Atlanta, Georgia 30303.

Kimberly Bingham, (404) 562–9038.

Alabama Department of Environmental

Management, 1751 Congressman,

W.L. Dickinson Drive, Montgomery,

Alabama 36109.

FOR FURTHER INFORMATION CONTACT:

Kimberly Bingham at (404) 562–9038.

SUPPLEMENTARY INFORMATION: On March

16, 1995, ADEM submitted a request to

EPA to redesignate the Birmingham,

Alabama, marginal ozone nonattainment

area to attainment. On that date, they

also submitted a maintenance plan for

the area as a revision to the Alabama

SIP.

According to section 107(d)(3)(E) of

the Clean Air Act (CAA), 42 U.S.C.

7407(d)(3)(E), redesignation requests

must meet five specific criteria in order

for EPA to redesignate an area from

nonattainment to attainment:

1. The Administrator determines that

the area has attained the ozone 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

implementation plan and applicable

Federal air pollution 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.

The EPA provided guidance on

redesignation in the General Preamble

for the Implementation of the Clean Air

Act Amendment of 1990, 57 FR 13498

(April 16, 1992), supplemented at 57 FR

18070 (April 28, 1992). The primary

memorandum providing further

guidance with respect to section

107(d)(3)(E) of the amended Act is dated

September 4, 1992, and issued by the

Director, Air Quality Management

Division, Subject: Procedures for

Processing Requests to Redesignate

Areas to Attainment (Calcagni

Memorandum).

The State submitted its request for

redesignation on March 16, 1995. The

request included information showing

that the Birmingham area had three

years of air quality attainment data from

1990–1993. The area continued to

maintain the ozone NAAQS through

1994. The submittal was rendered

administratively complete on April 11,

1995. Supplemental information was

submitted on July 21, 1995. A direct

final rule proposing approval of the

redesignation request was signed by the

Regional Administrator and forwarded

to the EPA Federal Register Office on

August 15, 1995 for publication. The

direct final rule as drafted contained a

thirty day period for public comment on

the proposed approval of the

redesignation request.

Prior to publication of the document,

EPA determined that the area registered

a violation of the ozone NAAQS on

August 18, 1995. EPA therefore directed

the Office of the Federal Register to

recall the proposed direct final rule

from publication. The ambient data

which formed the basis of the registered

violation was quality assured according

to established procedures for validating

such monitoring data. The State of

Alabama does not contest that the area

violated the NAAQS for ozone during

the 1995 ozone season. As a result, the

Birmingham area no longer meets the

statutory criteria for redesignation to

attainment of the ozone NAAQS found

in section 107(d)(3)(E)(I) of the CAA.

After the violations had been qualityassured, EPA issued a notice of

proposed rulemaking proposing to

disapprove the redesignation request, 62

FR 23421 (April 30, 1997). The

maintenance plan SIP revision is also

not approvable because its

demonstration is based on a level of

ozone precursor emissions in the

ambient air thought to represent an

inventory of emissions that would

provide for attainment and

maintenance. That underlying basis of

the maintenance plan’s demonstration is

no longer valid due to the violation of

the NAAQS that occurred during the

1995 ozone season.

The Administrator is prohibited

under section 107(d)(3)(E)(I) from

redesignating an area to attainment

when it has not attained the NAAQS.

Furthermore, section 107(d)(1)(A)

defines an attainment area as ‘‘any area

that meets’’ the NAAQS. Consequently,

if a violation occurs prior to EPA’s final

action on redesignation, the area is no

longer in attainment and does not meet

the definition of an attainment area

under section 107. In the September 4,

1992, policy memorandum of John

Calcagni, EPA stated: ‘‘Regions should

advise States of the practical planning

consequences if EPA disapproves the

redesignation request or if the request is

invalidated because of violations

recorded during EPA’s review.’’ See for

example, 59 FR 22757 dated May 3,

1994, disapproving the redesignation of

Richmond, Virginia due to violations

occurring after the proposed approval;

61 FR 50718 dated September 27, 1996,

disapproving the redesignation request

for the Kentucky portion of the

Cincinnati-Hamilton nonattainment

area; and 61 FR 19193 dated May 1,

1996, disapproving of the redesignation

request for Pittsburgh, Pennsylvania.

Request for Comments

EPA published a document on April

30, 1997, (62 FR 23421), proposing

disapproval of the maintenance plan

and redesignation request and soliciting

comments on the disapproval and

relevant issues. EPA received comments

on the proposal. Those comments and

the response thereto are summarized

below.

Comment #1—‘‘EPA inappropriately

considered monitored exceedances

which occurred after the redesignation

request was submitted. If the Agency

had considered only the monitor data

which preceded the redesignation

request, then EPA should have allowed

the direct final rule granting

redesignation which had been signed by

the regional administrator to be

published in the Federal Register. If

EPA had taken this action, then the

Birmingham area could possibly be

enjoying attainment status at this time.’’

Response—Section 107(d)(1)(A)(ii) of

the Act provides that an attainment area

is one that ‘‘meets’’ the NAAQS. Section

107(d)(3)(E)(I) of the Act prohibits EPA

from redesignating an area to attainment

unless EPA determines that the area

‘‘has attained’’ the NAAQS. By use of

the words ‘‘has attained’’ (in the present

perfect tense), Congress expressed its

intent that EPA may not redesignate an

area unless it determines that the area

is attaining the standard at the time EPA

takes its final action. It is not sufficient

that at some previous time the area

‘‘had’’ attained the NAAQS. EPA must

find that the area, in the words of the

statute, ‘‘has’’ attained the NAAQS.

Congress expressed the same intent in

the definition of an attainment area in

CAA section 107(d)(1)(A)(ii) as an area
49156 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

that meets the NAAQS. Therefore,

contrary to the commenters’ contention,

it was not ‘‘inappropriate’’ for EPA to

consider ‘‘exceedances which occurred

after the redesignation request was

submitted.’’ Indeed, EPA was obligated

to consider such data.

EPA’s redesignation policy (Calcagni

Memo) provides that if monitoring data

indicates a violation of the NAAQS

before a redesignation action is

effective, the redesignation should not

be approved. EPA may not lawfully

redesignate a nonattainment area to

attainment unless it is attaining the air

quality standard at the time EPA takes

its final action. Thus, it is not sufficient

that an area show that it had attained

the standard prior to submission of its

redesignation request. If, during the

pendency of EPA’s review of the

redesignation request, exceedances

occur that EPA determines constitute a

violation, EPA is obligated to consider

those in determining whether the area is

attaining the standard. Thus, EPA was

obligated to disapprove the request to

redesignate the Birmingham

nonattainment area, since it could not

determine that the area had attained the

standard at the time of the final

rulemaking.

EPA recently reaffirmed its adherence

to the principle that an area may not be

redesignated to attainment if it violates

the standard while its request for

redesignation is pending in a notice of

proposed correction to the designation

of LaFourche Parish, Louisiana (62 FR

38237, July 17, 1997). After publication

of a direct final notice approving the

area’s redesignation request, but prior to

its effective date, a violation of the

NAAQS for ozone was recorded at an

area monitor. The direct final notice

restated EPA’s interpretation of the

statute: ‘‘If the monitoring data records

a violation of the NAAQS before the

direct final action is effective, approval

of the redesignation will be withdrawn

and a proposed disapproval substituted

for the direct final approval (60 FR

43021–43022, August 18, 1995).

Nonetheless, EPA did not withdraw its

approval of the redesignation action,

and the area was redesignated to

attainment. EPA’s proposed correction

notice states that allowing the

redesignation to become effective was in

conflict with the statute, EPA policy,

and with the statement in the direct

final notice itself.

The LaFourche redesignation was also

at odds with other actions regarding

areas that EPA determined had violated

the NAAQS while their redesignation

requests were pending: Richmond,

Virginia, (59 FR 22757, May 3, 1994)

(final notice of disapproval); the

Pittsburgh-Beaver Valley nonattainment

area, (61 FR 19193, May 1, 1996) (final

notice of disapproval); the Kentucky

portion of the Cincinnati-Hamilton

nonattainment area, (61 FR 50718,

September 27, 1996) (final notice of

disapproval); and the Ohio portion of

the Cincinnati-Hamilton nonattainment

area, (62 FR 7194, February 18, 1997)

(notice of proposed disapproval).

Based on the statute, policy, and

history of EPA rulemakings, it is clear

that redesignating Birmingham to

attainment in the face of monitored

violations would be an error. EPA was

obliged to disapprove the request to

redesignate.

The United States Court of Appeals

for the Third Circuit recently upheld

EPA’s interpretation of its statutory

obligation to consider exceedances

occurring after submission of

redesignation requests. Southwestern

Pennsylvania Growth Alliance v.

Browner, No. 96–3364 (July 28, 1997).

The Court affirmed the application of

this interpretation even as to

exceedances that occurred more than

eighteen months after the submission of

a redesignation request.

Comment #2—‘‘In our opinion, EPA

failed to consider appropriately the

local extreme weather conditions which

occurred during the summer of 1995

and the associated ozone exceedances.

ADEM pointed out to EPA that July

1995 had more days above 95 degrees

Fahrenheit than any July in over 60

years and that August 1995 was the

hottest August on record. The nine day

period between August 10 and August

18 is the third highest such event in

over 60 years. Seven of the eleven

exceedances measured in Birmingham

in 1995 occurred during this nine day

period.’’

Comment #3—‘‘It is EPA’s own policy

to consider exceptional weather events

regarding achievement of ozone air

quality standards. Yet, EPA stated in a

January 11, 1996, letter to ADEM that

the summer of 1995 was not the hottest

summer in the last ten years nationally,

and that the conditions during 1995

cannot be considered an exceptional

weather event.’’

Responses—The commenters

contended that even if EPA were correct

in considering violations that occurred

after the redesignation request was

submitted, EPA should have found such

exceedances ‘‘attributable to extreme

weather.’’ But even if 1995 were

determined to have been an

exceptionally hot year for Birmingham

(and 1990, only five years earlier, was

even hotter), this provides no grounds

for excluding quality-assured monitored

exceedances of the ozone standard.

EPA’s applicable regulations governing

ozone attainment provide no basis for

excluding data due to exceptionally hot

weather (See 40 CFR 50.9 Appendix D

and H and part 58). By contrast, the

regulations regarding particulate matter

expressly authorize adjustments to take

into account exceptional events (See 40

CFR 50.6 and Appendix K, section 2.4

‘‘Adjustments for Exceptional Events

and Trends’’). The methods used by

EPA to determine whether an area is

attaining the ozone standard were

decided upon through notice and

comment rulemaking and EPA is bound

by those methods until they are changed

through further rulemaking on that

subject.

EPA’s ‘‘Guideline on the

Identification and Use of Air Quality

Data Affected by Exceptional Events’’

sets forth guidance regarding

exceptional events that may sufficiently

influence the data for various criteria

pollutants so as to provide a basis for

possible exclusion of data for various

regulatory purposes. ‘‘The guideline has

no regulatory or legal significance

regarding use of any air quality data.

Use or non-use of air quality data,

whether flagged or not, must be subject

to full public disclosure and rulemaking

procedures.’’ Guideline at 5. Thus, use

or non-use of the data is determined by

the appropriate statutory or regulatory

authority, which does not provide for

exclusion of ozone data based on hot

weather. Moreover, only one of the l8

exceptional events defined in the

Guideline applies to ozone data—

stratospheric ozone intrusion. A

stratospheric ozone intrusion occurs

when a parcel of air originating in the

stratosphere falls directly to the surface

of the earth (such as occasionally

happens during severe thunderstorms).

Such events are infrequent, very

localized, and of short duration. No

allegation that a stratospheric ozone

intrusion occurred has been made with

respect to Birmingham. Other

climatological occurrences, including

stagnations and inversions, were

considered and rejected as possible

exceptional events for data flagging

purposes. Thus, neither EPA’s

regulations nor guidance furnish a

justification for excluding quality

assured ozone exceedances from

consideration based upon a finding that

they are an ‘‘extreme weather event’’

due to hot weather. It is undisputed that

Birmingham experienced eleven

exceedances during the summer of

1995.

Hot weather does not provide a basis

for excluding documented exceedances

from consideration. While EPA

recognizes that high temperatures can
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49157

play a role in ozone formation, quality

assured data reflect the quality of the air

people are breathing. Exceedances of the

standard have been determined to cause

measurable health effects in healthy

individuals. Compliance with the ozone

NAAQS is determined using three

consecutive years of data to account for

year-to-year variations in emissions and

meteorological conditions. These

determinations were made pursuant to

long-standing EPA regulations, and this

rulemaking is not the appropriate forum

for comments regarding the ozone

standard or the methodology for

determining attainment of the standard.

Even if temperatures were unusually

high in 1995 (and they were not as high

as in 1990), in light of the methodology

used to determine attainment of the

ozone NAAQS, there is no basis for

ignoring the violations monitored

during the time period. Because the area

has not adequately reduced its VOC and

NOX emissions, it is subject to ozone

exceedances whenever meteorological

conditions are conducive to ozone

formation. The nine exceedances that

occurred in the Birmingham area in

1996 proves that temperature is not the

only precursor for ozone formation. One

of the goals of the CAA is to minimize

the health risks that people encounter.

Since meteorological conditions cannot

be controlled, the way to reduce health

risks due to ozone in the Birmingham

area is to reduce the anthropogenic

emissions of VOC and NOX. (See 61 FR

19193, 191195–19197, May 1, 1996)

(disapproval of Pittsburgh-Beaver Valley

request for redesignation to attainment

for ozone).

Moreover, in a study entitled ‘‘Clean

Air Act Ozone Design Value Study,

Final Report, dated December, 1994

EPA considered the impact of

meteorology in ozone formation and

found that ‘‘high temperature by itself is

not sufficient to produce high ozone

concentrations’’ (pages 7–18). It also

determined ozone design values should

not be adjusted for meteorology, since

‘‘compliance with the ozone standard is

judged on the basis of the actual

ambient air quality measurements. It is

the actual ambient air quality, not a

hypothetical adjusted value, which is of

concern with respect to the potential for

adverse health impacts.’’ It concluded

that a meteorologically adjusted design

value may not be the best indicator of

the air people actually breathe, and is a

major departure from current EPA

policy.

In Southwestern Pennsylvania Growth

Alliance v. Browner, No. 96.3364 (July

28, 1997), the United States Court of

Appeals for the Third Circuit recently

rejected petitioners’ argument that an

allegation that exceedances were caused

by transport should result in excluding

data from consideration in redesignation

actions.

‘‘Accordingly, we accept the EPA’s

position that the origin of the ozone that

caused exceedances at issue is legally

irrelevant.’’ Similarly, here, the

allegation that hot weather may have

contributed to exceedances is legally

irrelevant.

Final Action

EPA is disapproving the State of

Alabama’s March 16, 1995,

redesignation request and maintenance

plan SIP revision. The Agency has

reviewed this request for redesignation

and approval of the maintenance plan as

a revision of the Federally-approved SIP

for conformance with the provisions of

the CAA. The Agency has determined

that this action does not conform with

the statute as amended and should be

disapproved.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Executive Order 12866

The Office of Management and Budget

(OMB) has reviewed this regulatory

action pursuant to E.O. 12866.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

EPA’s disapproval of the State request

under section 110 and subchapter I, part

D of the CAA does not affect any

existing requirements applicable to

small entities. Any pre-existing federal

requirements remain in place after this

disapproval. Federal disapproval of the

state submittal does not affect its stateenforceability. Moreover, EPA’s

disapproval of the submittal does not

impose any new Federal requirements.

Therefore, EPA certifies that this

disapproval action does not have a

significant impact on a substantial

number of small entities because it does

not remove existing requirements and

impose any new Federal requirements.

EPA’s denial of the State’s

redesignation request under section

107(d)(3)(E) of the CAA does not affect

any existing requirements applicable to

small entities nor does it impose new

requirements. The area retains its

current designation status and will

continue to be subject to the same

statutory requirements. Therefore, the

Regional Administrator certifies that the

disapproval of the redesignation request

will not affect a substantial number of

small entities.

Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the

disapproval action promulgated does

not include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

disapproves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by section

804(2).
49158 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

Petitions for Judicial Review

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

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by November 18, 1997. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: September 5, 1997.

A. Stan Meiburg,

Acting Regional Administrator.

Chapter I, title 40, Code of Federal

Regulations, is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart B—Alabama

2. Section 52.66 is added to read as

follows:

§ 52.66 Control Strategy: Ozone.

The redesignation request submitted

by the State of Alabama, on March 16,

1995 for the Birmingham marginal

ozone nonattainment area from

nonattainment to attainment was

disapproved on September 19, 1997.

[FR Doc. 97–24942 Filed 9–18–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 180

[OPP–300550; FRL–5744–2]

RIN 2070–AB78

Cloransulam-methyl; Pesticide

Tolerances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes

tolerances for residues of cloransulammethyl in or on soybeans, soybean

forage and soybean hay. DowElanco

requested this tolerance under the

Federal Food, Drug and Cosmetic Act

(FFDCA), as amended by the Food

Quality Protection Act of 1996 (Pub. L.

104–170).

DATES: This regulation is effective

September 19, 1997. Objections and

requests for hearings must be received

by EPA on or before November 18, 1997.

ADDRESSES: Written objections and

hearing requests, identified by the

docket control number, [OPP–300550],

must be submitted to: Hearing Clerk

(1900), Environmental Protection

Agency, Rm. M3708, 401 M St., SW.,

Washington, DC 20460. Fees

accompanying objections and hearing

requests shall be labeled ‘‘Tolerance

Petition Fees’’ and forwarded to: EPA

Headquarters Accounting Operations

Branch, OPP (Tolerance Fees), P.O. Box

360277M, Pittsburgh, PA 15251. A copy

of any objections and hearing requests

filed with the Hearing Clerk identified

by the docket control number, [OPP–

300550], must also be submitted to:

Public Information and Records

Integrity Branch, Information Resources

and Services Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. In person, bring

a copy of objections and hearing

requests to Rm. 1132, CM #2, 1921

Jefferson Davis Hwy., Arlington, VA.

A copy of objections and hearing

requests filed with the Hearing Clerk

may also be submitted electronically by

sending electronic mail (e-mail) to: oppdocket@epamail.epa.gov. Copies of

objections and hearing requests must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption. Copies of objections and

hearing requests will also be accepted

on disks in WordPerfect 5.1 file format

or ASCII file format. All copies of

objections and hearing requests in

electronic form must be identified by

the docket control number [OPP–

300550]. No Confidential Business

Information (CBI) should be submitted

through e-mail. Electronic copies of

objections and hearing requests on this

rule may be filed online at many Federal

Depository Libraries.

FOR FURTHER INFORMATION CONTACT: By

mail: James A. Tompkins, Registration

Division 7505C, Office of Pesticide

Programs, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460. Office location, telephone

number, and e-mail address: Crystal

Mall #2, 1921 Jefferson Davis Hwy.,

Arlington, VA, (703) 305-5697, e-mail:

tompkins.jim@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: In the

Federal Register of March 26, 1997 (52

FR 14421)(FRL–5592–8), EPA, issued a

notice pursuant to section 408 of the

Federal Food, Drug, and Cosmetic Act

(FFDCA), 21 U.S.C. 346a(e) announcing

the filing of a pesticide petition (PP)

5F4560 for tolerance by DowElanco,

9330 Zionville Road, Indianapolis, IN

46268-1054. This notice included a

summary of the petition prepared by

DowElanco. There were no comments

received in response to the notice of

filing.

The petition requested that 40 CFR

180 be amended by establishing

tolerances for residues of the herbicide

cloransulam-methyl, N-(2-

carboxymethyl-6-chlorophenyl)-5-

ethoxy-7-fluoro-(1,2,4)-triazolo[1,5c]-

pyrimidine-2-sulfonamide, in or on

soybean seed at 0.02 parts per million

(ppm), soybean forage at 0.1 ppm, and

soybean hay at 0.2 ppm. The tolerance

expression is being editorially amended

to read cloransulam-methyl plus its

acid, cloransulam, calculated as parent

ester.

I. Risk Assessment and Statutory

Findings

New section 408(b)(2)(A)(i) of the

FFDCA allows EPA to establish a

tolerance (the legal limit for a pesticide

chemical residue in or on a food) only

if EPA determines that the tolerance is

‘‘safe.’’ Section 408(b)(2)(A)(ii) defines

‘‘safe’’ to mean that ‘‘there is a

reasonable certainty that no harm will

result from aggregate exposure to the

pesticide chemical residue, including

all anticipated dietary exposures and all

other exposures for which there is

reliable information.’’ This includes

exposure through drinking water and in

residential settings, but does not include

occupational exposure. Section

408(b)(2)(C) requires EPA to give special

consideration to exposure of infants and

children to the pesticide chemical

residue in establishing a tolerance and

to ‘‘ensure that there is a reasonable