648 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Management and Budget (OMB) has

exempted this regulatory action from

Executive Order 12866 review.

B. 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.

SIP approvals under section 110 and

subchapter I, part D of the Clean Air 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, the

Administrator certifies that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the Federal-State relationship

under the Clean Air Act, preparation of

a flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

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

427 U.S. 246, 255–66 (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, EPA must

undertake various actions in association

with 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 the private sector, of $100 million

or more. This Federal action approves

pre-existing requirements under state or

local law, and imposes no new Federal

requirements. Accordingly, no

additional costs to state, local, or tribal

governments, or 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, 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 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 7, 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, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Volatile organic compounds.

Dated: October 16, 1996.

William E. Muno,

Acting Regional Administrator.

Title 40 of the Code of Federal

Regulations, chapter I, part 52, subpart

KK, 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 KK—Ohio

2. Section 52.1870 is amended by

adding paragraph (c)(112) to read as

follows:

§ 52.1870 Identification of plan.

* * * * *

(c) * * *

(112) On August 29, 1996, the United

States Environmental Protection Agency

received from the Ohio Environmental

Protection Agency, changes to the

approved vehicle inspection and

maintenance (I/M) program which

control the release of volatile organic

compounds from vehicles. These

changes provide a repair spending cap

of $300 and a temporary hardship

extension of time up to 6 months for

owners to perform needed repairs on

vehicles which fail the I/M program test.

(i) Incorporation by reference.

(A) Rule 3745–26–01—Definitions

effective May 15, 1996.

(B) Rule 3745–26–12—Requirements

for motor vehicle owners in the

enhanced or opt-in enhanced

automobile inspection and maintenance

program, effective May 15, 1996.

[FR Doc. 97–194 Filed 1–3–97; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 52 and 81

[LA–34–1–7300; FRL–5670–4]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Louisiana;

Correction of Classification; Approval

of the Maintenance Plan;

Redesignation of Pointe Coupee

Parish to Attainment for Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On July 22, 1996, EPA

simultaneously published a direct final

notice of rulemaking and a notice of

proposed rulemaking in which EPA

published its decision to approve a

revision to the Louisiana State

Implementation Plan (SIP) to

redesignate Pointe Coupee Parish to

attainment for ozone. During the 30-day

comment period, EPA received an

adverse comment letter in response to

the July 22, 1996, rulemaking. This final

rule summarizes the comments and

EPA’s responses, and finalizes EPA’s

decision to correct the classification of

Pointe Coupee Parish from a serious to

a marginal ozone nonattainment area.

This action also approves the

redesignation of Pointe Coupee Parish,

Louisiana to attainment for ozone.

EFFECTIVE DATE: This action is effective

on December 20, 1996.

ADDRESSES: Copies of the State’s request

and other information relevant to this

action are available for inspection

during normal hours at the following

locations:

Environmental Protection Agency,

Region 6, Air Planning Section (6PD–

L), 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202–2733.

Air and Radiation Docket and

Information Center, Environmental

Protection Agency, 401 M Street,

S.W., Washington, D.C. 20460.

Louisiana Department of

Environmental Quality, Office of Air

Quality, 7290 Bluebonnet Boulevard,

Baton Rouge, Louisiana 70810.

Anyone wishing to review this

petition at the 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–
Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 649

L), Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202–2733, telephone (214)

665–7219.

SUPPLEMENTARY INFORMATION:

I. Background

On July 22, 1996, EPA published a

direct final rulemaking approving a

revision to the existing Louisiana SIP to

redesignate Pointe Coupee Parish to

attainment for ozone (61 FR 37833). At

the same time that EPA published the

direct final rule, a separate notice of

proposed rulemaking was published in

the Federal Register (61 FR 37875). This

proposed rulemaking specified that EPA

would withdraw the direct final rule if

adverse or critical comments were filed

on the rulemaking within 30 days of its

publication. The EPA received a letter

containing adverse comments regarding

the direct final rule on August 21, 1996,

and published the withdrawal of the

direct final rule on September 25, 1996

(61 FR 50238).

The specific rationale EPA used to

approve the redesignation of Pointe

Coupee Parish to attainment for ozone

was explained in the direct final rule

and will not be restated here. This final

rule addresses the comments received

during the public comment period and

announces EPA’s final action regarding

approval of the redesignation request.

II. Response to Public Comments

The EPA received an adverse

comment letter dated August 21, 1996,

from the Citizens Commission for Clean

Air in the Lake Michigan Basin, and

thus proceeded to withdraw the direct

final rule and adequately address each

comment. The EPA’s responses to each

comment are detailed below.

A. Comments on the Correction Action

Comment: The commenters challenge

the authority of the Administrator under

section 110(k)(6) of the Clean Air Act

(the Act) to reclassify an ozone

nonattainment area by asserting that the

original classification was made in

error. The EPA failed to pause and

consider section 110(k)(6) in

conjunction with section 107(d)(4)(A).

Response: The EPA disagrees with the

commenter’s contention that the

Administrator exceeded her authority in

correcting the classification of Pointe

Coupee Parish from serious to marginal.

Section 110(k)(6) of the Act clearly

allows the Administrator to revise an

area’s classification when a

determination is made that the original

classification was made in error. Section

107(d)(4)(A) of the Act discusses

nonattainment designations for ozone

and carbon monoxide. Section

107(d)(4)(A)(iv) of the Act requires that

the boundaries of any such area

classified as serious, severe, or extreme

nonattainment for ozone shall include

the entire Metropolitan Statistical Area

(MSA) or Consolidated Metropolitan

Statistical Area (CMSA), unless notice is

received by the Administrator from the

Governor of the State that additional

time is necessary to evaluate the

application of this clause. This notice

must be received within 45 days of the

initial classification. It should be noted

that MSA and CMSA boundaries are

established by the Bureau of the Census.

Section 107(d)(4)(A)(v) of the Act

further states that, in order to make a

finding that a portion of the MSA or

CMSA should be excluded from the

nonattainment area boundaries, the

Administrator should take into account

such factors as population density,

traffic congestion, commercial

development, meteorological

conditions, and pollution transport. The

EPA agrees that these requirements

must be considered when evaluating a

proposed change to an existing MSA’s

or CMSA’s boundary condition. As

detailed in the July 22, 1996, Federal

Register, EPA considered all of the

aforementioned factors prior to making

the decision to correct Pointe Coupee

Parish’s classification. However, it

should be noted once again that Pointe

Coupee Parish is not part of the Baton

Rouge CMSA, and thus the

requirements of 107(d)(4)(A)(iv) and

107(d)(4)(A)(v) of the Act do not

demand our consideration when

correcting this error under section

110(k)(6)of the Act.

B. Comments on the Urban Airshed

Modeling (UAM) Study

Comment: The Baton Rouge UAM

study utilized an outdated and

underestimated biogenic volatile

organic compound (VOC) inventory,

which recent EPA modeling guidance

and Ozone Transport Assessment Group

(OTAG) participants concluded

warranted replacement with the

Biogenic Emission Inventory System–2

(BEIS–2) inventory of biogenic VOCs.

The Baton Rouge UAM study would

likely not model nitrogen oxides (NOX)

reduction disbenefits if it incorporated

the BEIS–2 inventory.

Response: Biogenic hydrocarbon

emissions have been determined to play

an important role in the chemistry of

urban ozone formation, especially in

warm southern cities. In light of this,

the State developed the biogenic

emission inventory for the Baton Rouge

area based on area-specific data rather

than using EPA BEIS–2 program. The

area-specific land-use database used in

the biogenic emission development was

derived from four different sources: the

Louisiana Department of Transportation

and Development; a study of Baton

Rouge’s biogenic hydrocarbon emissions

by Carlos Cardolino and William

Chameides at the Georgia Institute of

Technology using LANDSAT imagery;

the U.S. Geological Survey’s geo-ecology

database; and the U.S. Forest Service’s

1991 forest statistics for the southeast

Louisiana parishes and forest statistics

of south delta Louisiana parishes. The

emission factors used in estimating

biogenic emissions in the Baton Rouge

area were obtained from the Rasmussen

and Khalil and Zimmermann studies of

biogenic sources. The emission factors

from the Rasmussen and Khalil and

Zimmermann studies were derived from

direct measurements of various types of

vegetation in the Baton Rouge and

Tampa Bay, Florida areas, respectively.

In addition, the correction factors

based on Guenther, et. al., were used to

adjust both temperature and solar

radiation for isoprene, while the

correction factors developed by Tingey,

et. al., were used to address temperature

concerns for alpha-pinene and betapinene. The EPA believes this approach

represents a site-specific approach

which describes the VOC biogenic

source inventory in Baton Rouge more

accurately than BEIS–2.

Comment: The Baton Rouge UAM

study lacked an updated chemistry

component (CB–4). The EPA would be

remiss in not reconsidering these

improvements in UAM capability and

reevaluating the accuracy of the Baton

Rouge UAM study.

Response: The updated CB–4 has

been developed for use with BEIS–2. As

explained above, the Louisiana

Department of Environmental Quality

(LDEQ) developed its VOC biogenic

inventory based on area-specific data

instead of the BEIS–2 program. In

addition, the updated chemistry

component was not available at the time

when LDEQ conducted the Baton Rouge

UAM study.

Comment: It appears unreasonable for

EPA to claim sufficient confidence in

the accuracy of the Baton Rouge UAM

study, that reliance upon it warrants

reclassification of Pointe Coupee under

section 110(k)(6) of the Act.

Response: The LDEQ used UAM

version IV, an EPA-approved

photochemical grid model, for

reclassification of Point Coupee under

section 110(k)(6) of the Act. The State

has followed EPA guidance on the

application of UAM. As required, the

State performed quality assurance

testing of model inputs and diagnostic

testing of the base meteorological
650 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

episode simulation to ensure that the

model functioned properly and that

accurate results were obtained for the

right reasons. The State applied a

number of performance evaluation

techniques such as diagnostic analyses

to examine the effects of uncertainty

and identify possible deficiencies in the

model input. The sensitivity analysis

investigated the sensitivity of the model

to the various model inputs and ensured

that the response of the model to

changes in the inputs was physically

realistic. In addition, the State

conducted a model performance

evaluation using graphical and

statistical analyses to demonstrate that

its model results acceptably replicated

the historical ozone episodes.

Comment: The commenters believe

that the Baton Rouge UAM study is

equivocal and disputed by other peerreviewed UAM studies and field

research. The commenters cited a recent

analysis prepared by ENVIRON

Corporation which reviewed the Baton

Rouge UAM study. This review

commented that the model-predicted

peak always occurred late in the

afternoon (5 p.m.), whereas the observed

peak occurred late in the morning (11

a.m. or noon). This suggested that there

were meteorological and/or chemical

phenomena occurring that were not

being captured by the model.

Response: The mistiming of the

observed peak with the simulated peak

at one monitoring site is not as

important a criterion in evaluating

performance as the model’s ability to

simulate the concentrations of the

observed peaks. The base case model

simulations provided a good

representation of the spatial and

temporal characteristics of the episodes

as a whole. There was good replication

of the average ozone concentration

throughout the entire domain and the

observed peaks were well simulated.

Model performance is judged by the

overall statistics at all the monitoring

sites, not by a microscale effect of the

model being able to simulate the exact

timing of the observed peak at one

monitoring site. All EPA model

performance criteria fell well within the

limits established by EPA to judge

model performance. The EPA has

confidence in the accuracy of the UAM

study and its results.

Comment: The commenters were

concerned that the Baton Rouge UAM

study excluded potentially significant

contributions of ozone precursor

emissions from Pointe Coupee in the

Baton Rouge boundary conditions.

Response: The LDEQ selected a large

modeling domain to ensure that it

allowed resolution of ozone and

precursor advection upwind and

downwind of the area of interest. The

Baton Rouge modeling domain covers

all or part of 20 parishes in Louisiana,

including Point Coupee Parish. The

ozone precursor emissions from all the

parishes in the Baton Rouge modeling

domain were taken into consideration in

the UAM study. The Baton Rouge

boundary conditions were based on

aircraft measurements, surface based

measurements, and EPA-recommended

background values.

C. Comments on the Redesignation

Action

Comment: The commenters noted that

between December 1, 1990, and June 1,

1995, EPA had approved approximately

forty-one (41) redesignation requests

nationwide. Several of these

redesignated areas, such as Kansas City,

Kansas/Missouri, Detroit, Michigan, San

Francisco, California, Charlotte, North

Carolina; Huntington-Ashland, West

Virginia/Kentucky, and Grand Rapids

violated the ozone standard after

redesignation. The commenters state

that the application of EPA’s diluted

redesignation guidance in reviewing

these maintenance plans contributed to

the violations. The commenters also

noted that the Baton Rouge area

observed 11 exceedances of the ozone

standard in 1995.

Response: To date EPA has

redesignated a total of 41 areas to

attainment for ozone. Of these areas,

only five (Detroit, Michigan, Memphis,

Tennessee, San Francisco, California,

Kansas City, Kansas-Missouri, and

Lafourche Parish, Louisiana)

subsequently monitored violations of

the ozone standard. The EPA believes

that this demonstrates that for the vast

majority of instances the redesignation

policy is appropriate, since most of the

redesignated areas have not violated the

ozone standard to date. Furthermore,

the Act and Congress contemplated that

such events may occur and therefore,

required that the Administrator fully

approve a maintenance plan for the area

consistent with the requirements of

section 175A of the Act before the area

can be redesignated to attainment.

Section 175A(d) of the Act requires that

a maintenance plan contain contingency

provisions deemed necessary by the

Administrator to assure that the State

will promptly correct any violation of

the standard which occurs after the

redesignation of the area to attainment.

Clearly, the Act and Congress

anticipated that areas redesignated to

attainment may violate the National

Ambient Air Quality Standard (NAAQS)

in the future and ensured that control

measures to remedy the violation are

available. Areas redesignated to

attainment have approved maintenance

plans with contingency measures that

are and will be implemented in order to

address any violations monitored in the

area after redesignation. The

maintenance plans for these areas were

deemed appropriate and adequate for

purposes of addressing a future

violation as they were fully approved

into the area’s SIPs. Furthermore, if the

contingency measures implemented by

the State do not address future

violations of the NAAQS, EPA has the

authority to call for a plan revision

requiring the adoption of additional

control measures and/or redesignate the

area to nonattainment which in turn

would require the area to adopt and

implement additional control measures

appropriate for its classification. See

sections 110(k)(5) and 107(d)(3).

Comment: The commenters state that

EPA should stay approval of the

redesignation until all specified Act

requirements are met. Further, EPA

should stay action on ozone

redesignation requests from States

participating in the OTAG until regional

ozone precursor emission strategies are

proposed and implemented.

Response: As discussed in the July 22,

1996, rulemaking action, EPA has

identified five general criteria which

must be met prior to any approval of a

redesignation request. Redesignation

requests which meet these five criteria

have demonstrated compliance with the

ozone standard and all the necessary

requirements of the Act. As discussed in

the July 22, 1996, rulemaking action,

EPA believes that the Pointe Coupee

Parish redesignation request has met all

of the Act requirements and the

redesignation criteria. Therefore, EPA is

compelled to approve the request.

However, it should be noted that

redesignation to attainment does not

necessarily preclude an area from any

future control strategy developed by

OTAG.

Comment: Exception was taken to the

use of EPA’s redesignation guidance,

entitled Reasonable Further Progress;

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard (Seitz

memo), John S. Seitz, Director, Office of

Air Quality Planning and Standards

(OAQPS), dated May 10, 1995. The

Pointe Coupee redesignation is

exempted from sections 172(c)(2) and

172(c)(6) of the Act, apparently

pursuant to the Seitz memo. The EPA

apparently utilized the 1995 Seitz memo

in determining that Pointe Coupee

Parish had attained the ozone standard.
Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 651

Response: The EPA’s interpretation of

the requirements of sections 172(c)(2)

and (c)(6) of the Act was not based upon

the May 10, 1995 Seitz memo, but rather

upon the consistent rationale articulated

much earlier in the General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990 (57

FR 13498) and the guidance

memorandum entitled Procedures for

Processing Requests to Redesignate

Areas to Attainment (Calcagni memo),

dated September 4, 1992. As the Tenth

Circuit recently observed:

In that preamble, the Environmental

Protection Agency determined that certain

general nonattainment plan requirements do

not apply in evaluating a request for

redesignation to attainment under

circumstances where (1) an area has in fact

monitored attainment of the standard, and (2)

those requirements are expressly linked by

statutory language with the notion of

reasonable further progress. See 57 FR 13564.

The Environmental Protection Agency

rezoned that when an area requests

redesignation to attainment status, ‘‘at a

minimum, the air quality data for the area

must show that the area has already attained

[the National Ambient Air Quality

Standards]. Showing the State will make

[reasonable further progress] towards

attainment will, therefore, have no meaning

at that point.’’

See 57 FR 13564. Sierra Club v. EPA,

No. 95–9541 (10th Cir. November 13,

1996) Slip Opinion at 12–13.

Similarly, the General Preamble found

that, with respect to section 172(c)(6)of

the Act, ‘‘since attainment will have

been reached, no other measures are

needed to provide for attainment.’’ See

57 FR 13564.

The Calcagni memo reiterated EPA’s

reading of sections 172 (c)(2) and (c)(6)

of the Act. The Calcagni memo stated

that ‘‘the requirements for reasonable

further progress * * * and other

measures needed for attainment will not

apply for redesignations because they

only have meaning for areas not

attaining the standard.’’ See Calcagni

memo at page 6.

The commenters cite the May 10,

1995, Seitz memo as the basis for EPA’s

interpretation that sections 172 (c)(2)

and (c)(6) do not require area to adopt

additional control strategies if that area

has attained the standard. However, this

cite is misdirected. Although the May

10, 1995, Seitz memo and

determinations that rely upon it are ‘‘a

logical extension of EPA’s original,

general interpretation of the 1990 Clean

Air Act Amendments’’ Sierra Club v.

EPA, supra at 13, the Seitz memo

concerns provisions applicable to

designations of moderate and above.

Thus, EPA does not rely upon the Seitz

memo here, but rather upon the

longstanding rationale articulated in the

General Preamble and the Calcagni

memo.

Comment: The Administrative

Procedures Act (APA) requires that

‘‘substantive rules of general

applicability’’ be subjected to public

comment before promulgation. The

EPA’s guidance interpreting section

107(d)(3)(E) of the Act’s requirements

constitutes substantive rules of general

applicability and thus, required to be

subjected to public comment.

Response: The EPA’s reference to and

reliance on guidance documents

interpreting section 107(d)(3)(E) of the

Act, all of which are either published or

publicly available and a part of the

record of the July 22, 1996, rulemaking

and this rulemaking, is in no way illegal

under provisions of either the Act or the

APA. The commenters cite the APA’s

requirement that ‘‘substantive rules of

general applicability’’ be published in

the Federal Register and subject to

public comment before promulgation.

These documents do not purport to be

anything but guidance. That is precisely

why EPA instituted a notice and

comment rulemaking to take comment

on its statutory interpretations and

factual determinations in order to make

a binding and enforceable determination

regarding the Pointe Coupee

reclassification and redesignation. The

EPA explained the legal and factual

basis for its rulemaking in the July 22,

1996, rulemaking and afforded the

public a full opportunity to comment on

EPA’s proposed interpretation and

determination fully consistent with the

applicable procedural requirements of

the APA.

Comment: The 1993 Nichols and 1995

Seitz memoranda are inconsistent with

earlier redesignation guidance (General

Preamble, Calcagni and Shapiro

memoranda) pertaining to required SIP

revisions for redesignations.

Response: The October 1994 Nichols

memorandum and the May 1995 Seitz

memorandum represented

modifications of earlier policies. That

does not necessarily mean these

memoranda were by any means

completely inconsistent with prior

policies. For example, the May 1995

Seitz memorandum interpreted the

more specific RFP requirements of

section 182(b)(1) of the Act in a manner

consistent with EPA’s previous

interpretation of the more general

section 171 and 172 Act requirements.

Furthermore, EPA notes that it is

permissible to revise its policies

provided that the revised policies, as is

the case with these, are legally justified

and reasonable.

Comment: Exempting marginal ozone

nonattainment areas from compliance

with applicable Title I, part D

requirements, for purposes of

facilitating redesignation requests for

these areas is inconsistent and illegal

under section 107(d)(3)(E) of the Act.

Response: The EPA has not exempted

marginal ozone nonattainment areas

from the applicable requirements of

Title I, part D of the Act. As discussed

in the July 22, 1996, rulemaking action,

Pointe Coupee would be subject to the

marginal requirements of section 182(a)

of the Act rather than section 182(c) of

the Act. Therefore, in order to be

redesignated, the State must have met

the applicable requirements of subpart 1

of part D—specifically sections 172(c)

and 176 of the Act, as well as the

applicable requirements of subpart 2 of

part D. As explained in the July 22,

1996, Federal Register (61 FR 37835),

EPA evaluated the redesignation request

against those applicable part D

requirements and determined that those

requirements had been met.

D. Miscellaneous Comments

Comment: There is a strong argument

that the Louisiana State and Local Air

Monitoring Network is inadequate for

Pointe Coupee Parish.

Response: The Air quality

surveillance plan developed for the

Baton Rouge area included Pointe

Coupee Parish. The EPA evaluated the

established air quality monitoring

network and the surveillance plan

against the 40 CFR part 58 Ambient Air

Quality Surveillance requirements,

determined its compliance with all

applicable part 58 requirements, and

approved the plan. The EPA performs

annual reviews of this established air

quality surveillance plan to ensure its

continued compliance with part 58. The

EPA believes that the current

monitoring location in New Roads

adequately represents ambient ozone

levels in Pointe Coupee Parish.

III. Final Rulemaking Action

In this final action EPA is

promulgating a revision to the Louisiana

SIP and the Code of Federal

Regulations, parts 52 and 81, to correct

the classification of Pointe Coupee

Parish from serious to marginal, and to

redesignate the Parish to attainment for

ozone. This redesignation request was

submitted by the Governor to EPA by

letter dated December 20, 1995.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific
652 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

This action has been classified for

signature by the Administrator under

the procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget has exempted this

regulatory action from E.O. 12866

review.

B. 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. See 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-forprofit enterprises, and government

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 any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

Act, preparation of a flexibility analysis

would constitute Federal inquiry into

the economic reasonableness of State

action. The Act forbids EPA to base its

actions concerning SIPs on such

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

EPA, 427 U.S. 246, 255–66 (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, 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 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 Federal 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. 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 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 March 7, 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) 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

requirements, Volatile organic

compounds.

40 CFR Part 81

Air Pollution control, Designation of

areas for air quality planning purposes.

Dated: December 20, 1996.

Carol M. Browner,

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 T—Louisiana

2. Section 52.970 is amended by

adding paragraph (c)(70) to read as

follows:

§ 52.970 Identification of Plan.

* * * * *

(c) * * *

(70) The Louisiana Department of

Environmental Quality submitted a

redesignation request and maintenance

plan for Pointe Coupee Parish on

December 20, 1995. The redesignation

request and maintenance plan meet the

redesignation requirements in section

107(d)(3)(E) of the Act as amended in

1990. The redesignation meets the

Federal requirements of section

182(a)(1) of the Clean Air Act as a

revision to the Louisiana ozone State

Implementation Plan for Pointe Coupee

Parish. The EPA therefore approved the

request for redesignation to attainment

with respect to ozone for Pointe Coupee

Parish on December 20, 1996.

(i) Incorporation by reference. Letter

dated August 31, 1995, from Mr.

Gustave Von Bodungen, P.E., Assistant

Secretary, Louisiana Department of

Environmental Quality, transmitting a

copy of the Pointe Coupee Parish

maintenance plan for the EPA’s

approval.

(ii) Additional material. (A) Letter

dated August 28, 1995, from Governor

Edwin E. Edwards of Louisiana to Ms.

Jane Saginaw, Regional Administrator,

requesting the reclassification and

redesignation of Pointe Coupee Parish to

attainment for ozone.

(B) The ten year ozone maintenance

plan, including emissions projections

and contingency measures, submitted to

EPA as part of the Pointe Coupee Parish

redesignation request on December 20,

1995.

3. Section 52.975 is amended by

adding paragraph (d) to read as follows:

§ 52.975 Redesignations and Maintenance

Plans: Ozone.

* * * * *

(d) Approval—The Louisiana

Department of Environmental Quality

submitted a redesignation request and

maintenance plan for Pointe Coupee

Parish on December 20, 1995. The

redesignation request and maintenance
Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 653

plan meet the redesignation

requirements in section 107(d)(3)(E) of

the Act as amended in 1990. The

redesignation meets the Federal

requirements of section 182(a)(1) of the

Clean Air Act as a revision to the

Louisiana ozone State Implementation

Plan for Pointe Coupee Parish. The EPA

therefore approved the request for

redesignation to attainment with respect

to ozone for Pointe Coupee Parish on

December 20, 1996.

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. In § 81.319, the ozone table is

amended by revising the entry for the

Baton Rouge area and by adding an

entry for the Pointe Coupee area to read

as follows:

§ 81.319 Louisiana.

* * * * *

LOUISIANA—OZONE

Designated area

Designation Classification

Date 1 Type Date 1 Type

Baton Rouge Area:

Ascension Parish .................................................................... ................................ Nonattainment ....... ................................ Serious.

East Baton Rouge Parish ....................................................... ................................ Nonattainment ....... ................................ Serious.

Iberville Parish ........................................................................ ................................ Nonattainment ....... ................................ Serious.

Livingston Parish .................................................................... ................................ Nonattainment ....... ................................ Serious.

West Baton Rouge Parish ...................................................... ................................ Nonattainment ....... ................................ Serious.

* * * * * * *

Pointe Coupee Area:

Pointe Coupee Parish ............................................................. Dec. 20, 1996 ........ ................................ ................................

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

* * * * *

[FR Doc. 97–42 Filed 1–3–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 24

[WT Docket No. 96–148; GN Docket No. 96–

113; FCC 96–474]

Geographic Partitioning and Spectrum

Disaggregation by Commercial Mobile

Radio Services Licensees; and

Implementation of Section 257 of the

Communications Act; Elimination of

Market Entry Barriers

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: In this Report and Order in

WT Docket No. 96–148, the Commission

adopts rules concerning geographic

partitioning and spectrum

disaggregation by broadband personal

communications service (PCS)

licensees. The rules adopted for

broadband PCS will permit partitioning

and disaggregation by all broadband

PCS licensees. This will provide

broadband PCS licensees with desirable

flexibility to determine the amount of

spectrum they will occupy and the

geographic area they will serve. Such

flexibility will: facilitate the efficient

use of spectrum by providing licensees

with the flexibility to make offerings

directly responsive to market demands

for particular types of service; increase

competition by allowing market entry

by new entrants; and expedite the

provision of service to areas that

otherwise may not receive broadband

PCS service in the near term.

EFFECTIVE DATE: March 7, 1997.

FOR FURTHER INFORMATION CONTACT:

Shaun A. Maher, Commercial Wireless

Division, Wireless Telecommunications

Bureau at (202) 418–0620.

SUPPLEMENTARY INFORMATION: This

Report and Order in WT Docket No. 96–

148 and GN Docket No. 96–113, adopted

on December 13, 1996, and released

December 20, 1996, is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room 234, 1919 M Street, N.W.,

Washington, D.C. The complete text

may also be purchased from the

Commission’s copy contractor,

International Transcription Service,

Inc., 2100 M Street, N.W., Suite 140,

Washington, D.C. 20037, (202) 857–

3800. Synopsis of Report and Order.

I. Background

1. The Commission’s initial

regulations and policies for broadband

PCS were adopted in the Broadband

PCS Second Report and Order,

Amendment of the Commission’s Rules

to Establish New Personal

Communications Services, GEN Docket

No. 90–314, Second Report and Order,

58 FR 59174 (November 8, 1993)

(Broadband PCS Second Report and

Order), and amended in the Broadband

PCS Memorandum Opinion and Order,

Amendment of the Commission’s Rules

to Establish New Personal

Communications Services, GEN Docket

No. 90–314, Memorandum Opinion and

Order, 59 FR 32830 (June 24, 1994)

(Broadband PCS Memorandum Opinion

and Order). In the Broadband PCS

Memorandum Opinion and Order, the

Commission declined to adopt

unrestricted geographic partitioning for

broadband PCS based on its concern

that licensees might use partitioning as

a means of circumventing construction

requirements. However, the

Commission stated that it would

consider the issue of geographic

partitioning for rural telephone

companies (rural telcos) and other

designated entities in a future

proceeding to establish competitive

bidding rules for broadband PCS. The

Commission then permitted broadband

PCS geographic partitioning for rural

telcos in the Competitive Bidding Fifth

Report and Order, Implementation of

Section 309(j) of the Communications

Act—Competitive Bidding, PP Docket

No. 93–253, Fifth Report and Order, 59

FR 37566 (July 22, 1995) (Competitive

Bidding Fifth Report and Order). The

Commission observed that partitioning

was one method to satisfy Congress’

mandate to provide an opportunity for

rural telcos to participate in the

provision of broadband PCS. The

Commission also found that rural telcos

could take advantage of their existing

infrastructure to provide broadband PCS

services, thereby speeding service to

rural areas. In the Competitive Bidding

Further Notice of Proposed Rule

Making, Implementation of Section