64284 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 97–31598 Filed 12–4–97; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[LA–41–1–7355, FRL–5899–8]

Designation of Areas for Air Quality

Planning Purposes; State of Louisiana;

Correction of the Designation for

Lafourche Parish

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; correction.

SUMMARY: On July 17, 1997, EPA

published a proposed rulemaking to

correct the designation of Lafourche

Parish, Louisiana, to nonattainment for

ozone (62 FR 38237). One adverse

comment letter was received during the

30-day comment period, and the issues

raised in that letter are addressed in this

document. Pursuant to the Clean Air

Act (the Act), which allows EPA to

correct its actions, EPA is today

correcting the designation of Lafourche

Parish to nonattainment for ozone.

DATES: This action is effective on

January 5, 1998.

ADDRESSES: Copies of the information

relevant to this action are available for

inspection during normal hours at the

following location: Environmental

Protection Agency, Region 6, Air

Planning Section (6PD–L), 1445 Ross

Avenue, Suite 700, Dallas, Texas 75202–

2733.

Anyone wishing to review this

document at the Region 6 EPA office is

asked to contact the person below to

schedule an appointment 24 hours in

advance.

FOR FURTHER INFORMATION CONTACT:

Lt. Mick Cote, Air Planning Section

(6PD–L), Environmental Protection

Agency, Region VI, 1445 Ross Avenue,

Dallas, Texas 75202–2733, telephone

(214) 665–7219.

SUPPLEMENTARY INFORMATION:

I. Background

The specific rationale EPA used to

correct the ozone designation of

Lafourche Parish was explained in the

proposed correction document (62 FR

38237, July 17, 1997) and will not be

restated here. This document announces

EPA’s final action regarding the

correction of Lafourche Parish to

nonattainment for ozone.

II. Response to Comments

The EPA received an adverse

comment letter dated August 15, 1997,

from the Louisiana Mid-Continent Oil

and Gas Association. The commentors

believed that EPA either failed to

consider or purposefully disregarded

several factors. The EPA’s responses to

these comments are detailed below.

Comment: EPA failed to consider the

odd shape of the parish and the location

of the monitor with respect to sources

in the parish.

Response: 40 CFR part 58, Ambient

Air Quality Surveillance, Appendices D

and E, describe EPA’s monitoring

network design and siting criteria for

State or Local Air Monitoring Stations

(SLAMS). The SLAMS make up the

ambient air quality monitoring network

which is required by 40 CFR 58.20 to be

provided for in the State

Implementation Plan (SIP). In general,

the SLAMS monitor in Thibodaux was

sited in accordance with 40 CFR part 58,

Appendices C and D, to measure the

maximum population exposure one

could reasonably expect to occur in the

Parish. The shape of Lafourche Parish

and the location of the major emission

points were taken into consideration by

the State and EPA to determine the

appropriate siting scales and monitoring

objectives for ozone in Lafourche Parish.

Comment: EPA failed to consider the

excellent compliance history of the

Parish.

Response: The EPA considered the

compliance history of Lafourche Parish,

prior to and during 1995, as part of our

evaluation and approval process for the

Parish’s ozone redesignation request.

But despite the prior compliance history

of Lafourche, the operative facts showed

a violation of the standard that

disqualified the area from redesignation

to attainment. The language of section

107 (d)(3)(E)(i) and (d)(1)(A) provides

that EPA may not redesignate an area

unless the Administrator determines

that the area has attained the standard.

This is reinforced by other sections of

the Act, including section 175A

maintenance plan requirements, and

section 172(c)(9) contingency measures.

The EPA has long interpreted this

language as requiring EPA to disapprove

redesignation requests for areas that

violate the standard while a

redesignation request is pending. See

Memorandum dated September 4, 1992,

entitled Procedures for Processing

Requests to Redesignate Areas to

Attainment, p. 5; Pittsburgh-Beaver

Valley nonattainment area (61 FR

19123, May 1, 1996); Richmond,

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

Birmingham, Alabama (62 FR 49154,

September 19, 1997), Northern

Kentucky portion of CincinnatiHamilton nonattainment area (61 FR

50718, September 27, 1996), and

Detroit-Ann Arbor, (60 FR 12459, March

7, 1995). See also the opinion of the

United States Court of Appeals for the

Third Circuit in Southwestern

Pennsylvania Growth Alliance v.

Browner, 121 F. 3rd. 106 (3rd Cir. 1997).

The Lafourche direct final approval

notice itself stated: ‘‘If the monitoring

data records a violation of the NAAQS

before the direct final action is effective,

the direct final approval of the

redesignation will be withdrawn and a

proposed disapproval substitute for the

direct final approval.’’ (60 FR 43021–

22). Although such a violation was

recorded during the comment period,

EPA failed to withdraw the approval

and substitute a disapproval, as it

acknowledged would have been the

appropriate course of action. The EPA’s

position is consistent with 40 CFR

section 50.9, which states that the

NAAQS for ozone is attained ‘‘when the

expected number of days per calendar

year with maximum hourly average

concentrations above 0.12 parts per

million[] is equal to or less than 1, as

determined by Appendix H.’’ Appendix

H explains the methodology for

determining ‘‘attainment’’ of the ozone

standard. If there are more than three

exceedances over a three-year period at

any of the monitoring sites, the area has

not attained the standard.

The United States Court of Appeals

for the Third Circuit, in evaluating

EPA’s disapproval of a redesignation

request for an area that violated the

standard while its request was pending,

stated: ‘‘we accept the view that the EPA

may not redesignate an area if the EPA

knows that the area is not meeting the

NAAQS. The EPA’s redesignation of the

Lafourche Parish redesignation was thus

not proper.’’ Southwestern Pennsylvania

Growth Alliance v. Browner, 121 F.3rd

at 114. The commenters also

complained that 1995 was an unusually

warm year. But even if this were the

case, this provides no grounds for

excluding quality-assured monitored

exceedances of the ozone standard. The

EPA’s applicable regulations governing

ozone attainment provide no basis for

excluding data due to exceptionally hot

weather. 40 CFR section 50.9 appendix

D and H and part 58. See Birmingham,

62 FR 49154, and the discussion

contained therein.

Comment: The EPA failed to consider

Lafourche Parish’s performance with

respect to the new 8-hour ozone

standard.

Response: Compliance with the new

8-hour ozone standard is irrelevant to
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64285

the issues in this rulemaking, which

concerns only the area’s failure to meet

the 1-hour standard. The EPA’s action

here concerns only the requirement to

meet the 1-hour standard. It should be

noted, however, that data collected from

1993–1995 and 1994–1996 indicate that

Lafourche Parish would also be in

violation of the new 8-hour standard.

Comment: The EPA did not consider

the time it took to complete the entire

review process, from draft SIP to final

notice.

Response: The EPA assumes the

commentors are referring to the time it

took to develop and act upon the

redesignation request for Lafourche

Parish. The Louisiana Department of

Environmental Quality (LDEQ)

submitted its initial redesignation

request for Lafourche Parish during the

Summer of 1993. However, the plan was

found to be deficient in several areas,

and did not demonstrate maintenance of

the ozone standard. The EPA had the

option to disapprove this initial request,

or ask LDEQ to revise the request and

resubmit the revision to us. The LDEQ

submitted a revised redesignation

request for Lafourche Parish to EPA on

November 18, 1994. The direct final

approval of that revised maintenance

plan and redesignation request appeared

in the Federal Register on August 18,

1995, some months after receiving the

revised request. Although the entire

period of EPA’s review, measured from

the date of the original redesignation

request, was more than eighteen months

(though EPA took less than that time

period to consider the revised request),

this does not alter EPA’s authority to

consider violations that occurred while

its review was pending. Southwestern

Pennsylvania Growth Alliance v.

Browner, supra.

Comment: The EPA failed to consider

the uniqueness of the weather trends

and purposefully disregarded the clear

and convincing demonstration by LDEQ

of transport in 1995.

Response: the LDEQ submitted a

modeling demonstration to EPA on July

31, 1996, to support its belief that the

exceedances in Lafourche Parish in

1995 were the result of transport from

the Baton Rouge area. As discussed in

the September 5, 1996, response letter to

LDEQ, EPA concluded that the

modeling demonstration did not prove

the overwhelming transport theory.

Further, whether the cause of the ozone

violation in 1995 was due to transport

or local sources, the regulatory result

would be the same, and would still

result in a designation of nonattainment.

The EPA carries the responsibility to

protect and inform the public about

health issues which, in the case of

Lafourche Parish’s violation of the

ozone standard, require us to correct our

rulemaking error and designate the area

back to nonattainment. As in the case of

the Pittsburgh-Beaver Valley

nonattainment area that was the subject

of the Southwestern Pennsylvania

Growth Alliance case, there is here no

adequate technical demonstration

supporting a claim of transportdominated nonattainment. See SWPGA

v. Browner. supra. Moreover, even if

there had been such a demonstration,

the Act provides that an attainment area

is one that ‘‘meets’’ the NAAQS, and

EPA is prohibited from redesignating an

area to attainment unless it determines

that the area ‘‘has attained’’ the NAAQS.

Thus, even if an area’s nonattainment

can be demonstrated to be caused by

overwhelming transport, that does not

entitle the area to be redesignated to

attainment. This is made clear by the

provisions of section 182(h), which

establishes ‘‘rural transport’’ areas. In

this section, Congress addressed the

situation confronted by the most

pristine areas which fail to meet the

NAAQS, but make no significant

contribution to the ozone concentrations

in their area. For these areas, Congress

provided some relief in the form of

relaxed control requirements; however,

Congress insisted on retaining the

‘‘nonattainment’’ designation for these

areas that fail to meet the NAAQS due

to overwhelming transport. Thus,

although Congress provided relief for

these areas, it did not change their

nonattainment designations. In contrast,

Congress did provide that transport may

be taken into account in the

classification of nonattainment areas

(Act section 181(a)(4)). Thus Congress

expressed its intent to allow limited

adjustments for transport in the context

of classifying nonattainment areas, but

not for redesignations. See the

discussion of this issue in SWPGA v.

Browner.

Comment: The EPA did not consider

or purposefully disregarded the

President’s directive to be flexible and

minimize paperwork.

Response: On July 16, 1997, the

President of the United States issued a

Presidential Directive entitled

Memorandum for the Administrator of

the Environmental Protection Agency.

This Presidential Directive required

EPA to maximize common sense,

flexibility, and cost-effectiveness when

implementing the 8-hour ozone

standard. However, this Presidential

Directive also stated that the 1-hour

standard will continue to apply in areas

where air quality does not meet the

current standard (62 FR 38421, July 18,

1997).

Comment: The EPA failed to consider

the unnecessary paperwork and review

burdens on LDEQ and EPA since

compliance with both standards is

expected by year-end 1998.

Response: This action will entail no

unnecessary paperwork and review

burdens. If the area attains the 1-hour

standard and the 8-hour standard in the

future, it will be eligible for appropriate

designation to attainment of the 8-hour

standard and revocation of the 1-hour

standard.

III. Final Action

The EPA issued a direct final rule

promulgating a change to the

designation of Lafourche Parish,

Louisiana, to attainment for ozone, and

amended 40 CFR parts 52 and 81

accordingly (60 FR 43020, August 18,

1995). In today’s action, EPA is

correcting this error by changing the

designation of Lafourche Parish to an

ozone nonattainment area, and

classifying it as an incomplete data area.

Today’s action also amends 40 CFR

parts 52 and 81 to reflect the change in

designation. These actions are being

taken in accordance with section

110(k)(6) of the Act.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget

has exempted this regulatory action

from E.O. 12866 review.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA),

5 U.S.C. 600 et seq., requires any

Federal agency, when it develops a rule,

to identify and address the impact of the

rule on the small businesses and other

small entities that will be subject to the

rule (5 U.S.C. 603 and 604). This

requirement applies to any rule subject

to notice-and-comment rulemaking

requirements, unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities (605(b)).

Besides small businesses, small entities

include small governments with

jurisdictions of less than 50,000 people

and small nonprofit organizations. The

Regulatory Flexibility Act requirement

applies to any rule subject to notice and

comment rulemaking requirements.

As set forth in the proposal, 62 FR

38238–239, this action is not subject to

notice-and-comment rulemaking

requirements, and therefore is also not

subject to the RFA requirement to

prepare regulatory flexibility analyses.

Moreover, this action will not establish

any requirements applicable to small

entities. It simply corrects the
64286 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

designation of the area by restoring the

nonattainment designation that was

erroneously changed to attainment. The

RFA requires analyses of a rule’s

requirements as they would apply to

small entities. If the rule does not apply

to small entities, an RFA analysis is

inapplicable.

Further, it is unlikely that this action

will result in State imposition of control

requirements that are different from

those applicable in Lafourche Parish

before the erroneous change in

designation status. Under Title I of the

Act, States are primarily responsible for

establishing control requirements

needed to attain and maintain the

NAAQS. Louisiana has adopted an

implementation plan that includes

control requirements that apply to

particular sources or categories of

sources, depending on a number of

factors, including the designation status

of the area in which a source is located.

As a result of today’s action, Louisiana

will once again have to apply some of

those control programs in Lafourche

Parish. Some of those programs may

ultimately impose requirements on

small entities in the Parish. However,

these controls were applicable before

the erroneous designation to attainment;

correcting that mistake will only put the

small entities in that area in the place

they were prior to the mistake being

made.

Beyond that, the purpose of the RFA

is to promote Federal agency efforts to

tailor a rule’s requirements to the scale

of the small entities that will be subject

to it. That purpose cannot be served in

the case of State control requirements.

Some of the control requirements

included in States’ SIPs are prescribed

to some extent by the Act. Even so, the

only issue before EPA in actions such as

this one is the proper designation of a

particular area. The implementation

consequences of a designation are

beyond the scope of such actions, and

indeed, beyond EPA’s reach to the

extent they are dictated by the Act itself

or are left to States’ discretion. In light

of all the above, if the RFA were

applicable to this action, the Agency

would certify that it will not have a

significant economic impact on a

substantial number of small entities.

C. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, 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.

The EPA has determined that this

action 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 simply corrects an

error in the designation for the reasons

described above and does not, in itself,

impose any mandates.

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, 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 this rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. section 804(2).

E. Petitions 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 February 3, 1998. 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) of the Act.

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental regulations, Ozone,

Reporting and recordkeeping, Volatile

organic compounds.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks and

wilderness areas, Designation of areas

for air quality planning purposes.

Dated: November 26, 1997.

Jerry Clifford,

Acting Regional Administrator.

40 CFR parts 52 and 81 are 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 T—Louisiana

2. Under § 52.975, paragraph (f) is

added to read as follows:

§ 52.975 Redesignations and maintenance

plans; ozone.

* * * * *

(f) Lafourche Parish, Louisiana, is

designated back to nonattainment for

ozone. The original classification of

incomplete data is retained.

PART 81—[AMENDED]

3. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

4. In § 81.319, the ozone table is

amended by revising the entry for

Lafourche Parish to read as follows:

§ 81.319 Louisiana.

* * * * *

LOUISIANA—OZONE

Designated area

Designation Classification

Date 1 Type Date Type

* * * * * * *

Lafourche Area:

Lafourche Parish ............................................................................ January 5, 1998 Nonattainment .. .......................... Incomplete data
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64287

LOUISIANA—OZONE—Continued

Designated area

Designation Classification

Date 1 Type Date Type

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.

[FR Doc. 97–31912 Filed 12–4–97; 8:45 am]

BILLING CODE 6560–50–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 180 and 185

[OPP–300587; FRL–5754–5]

RIN 2070–AB78

Maleic hydrazide; Pesticide Tolerances

for Emergency Exemptions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes

time-limited tolerances for residues of

maleic hydrazide (1,2-dihydro-3,6-

pyridazinedione) in or on rice

commodities as well as tolerances for

secondary residues in animal

commodities. This action is in response

to EPA’s granting of an emergency

exemption under section 18 of the

Federal Insecticide, Fungicide, and

Rodenticide Act authorizing use of the

pesticide on rice in Louisiana. This

regulation establishes a maximum

permissible level for residues of maleic

hydrazide in these food commodities

pursuant to section 408(l)(6) of the

Federal Food, Drug, and Cosmetic Act,

as amended by the Food Quality

Protection Act of 1996. The tolerances

will expire and are revoked on

September 30, 1998.

DATES: This regulation is effective

December 5, 1997. Objections and

requests for hearings must be received

by EPA on or before February 3, 1998.

ADDRESSES: Written objections and

hearing requests, identified by the

docket control number, [OPP–300587],

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–

300587], must also be submitted to:

Public Information and Records

Integrity Branch, Information Resources

and Services Division (7502C), 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 5.1/6.1 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–

300587]. 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: Stephen Schaible, 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) 308–9362, e-mail:

schaible.stephen@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: EPA, on

its own initiative, pursuant to section

408(e) and (l)(6) of the Federal Food,

Drug, and Cosmetic Act (FFDCA), 21

U.S.C. 346a(e) and (l)(6), is establishing

tolerances for residues of the herbicide

maleic hydrazide (1,2-dihydro-3,6-

pyridazinedione), in or on rice, grain at

105 part per million (ppm); rice, straw

at 75 ppm; rice, hulls at 240 ppm; and

rice, bran at 180 ppm. Additionally, the

Agency is establishing tolerances for

secondary residues in milk at 1.0 ppm;

at 2.5 ppm in meat, 7 ppm in liver, 32

ppm in kidney, and 3 ppm in fat of

cattle, goats, hogs, horses, and sheep; at

0.5 ppm in meat, liver, and fat of

poultry; 1.4 ppm in poultry meat

byproducts; and 0.5 ppm in eggs. These

tolerances will expire and are revoked

on September 30, 1998. EPA will

publish a document in the Federal

Register to remove the revoked

tolerances from the Code of Federal

Regulations.

I. Background and Statutory Authority

The Food Quality Protection Act of

1996 (FQPA) (Pub. L. 104–170) was

signed into law August 3, 1996. FQPA

amends both the Federal Food, Drug,

and Cosmetic Act (FFDCA), 21 U.S.C.

301 et seq., and the Federal Insecticide,

Fungicide, and Rodenticide Act

(FIFRA), 7 U.S.C. 136 et seq. The FQPA

amendments went into effect

immediately. Among other things,

FQPA amends FFDCA to bring all EPA

pesticide tolerance-setting activities

under a new section 408 with a new

safety standard and new procedures.

These activities are described below and

discussed in greater detail in the final

rule establishing the time-limited

tolerance associated with the emergency

exemption for use of propiconazole on

sorghum (61 FR 58135, November 13,

1996)(FRL–5572–9).

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

certainty that no harm will result to

infants and children from aggregate