Federal Register / Vol. 72, No. 30 / Wednesday, February 14, 2007 / Proposed Rilles

PART 2-RULES OF PRACTICE IN

TRADEMARK CASES

1. The authority citation for 37 CFR

part 2 continues to read as follows:

Authority: 15 U.S.C. 1123, 35 U.S.C. 2,

unless otherwise noted.

2. Amend § 2.64 by revising

paragraphs (b) and (c)(1) to read as

follows:

§2.64 Final action.

(b)(1) During the three-month period

after issuance of a final action, the

applicant may request that the

examining attorney reconsider the final

action. The request must be filed

through TEAS. The filing of a request

for reconsideration will not extend the

time for filing an appeal or petitioning

the Director.

(2) During the six-month period after

issuance of a final action, the applicant

may submit amendments. Any such

amendments will be examined, and will

be entered if they comply with the rules

of practice in trademark cases and the

Act of 1946. The filing of such an

amendment will not extend the time for

filing an appeal or petitioning the

Director.

(c)(1) If an applicant in an application

under section 1(b) of the Act files an

amendment to allege use under § 2.76

during the six-month period aftdr

issuance of a final action, the examiner

shall examine the amendment. The

filing of such an amendment will not

extend the time for filing an appeal or

petitioning the Director.

Dated: February 8, 2007.

Jon W. Dudas,

Under Secretary of Commerce for Intellectual

Property and Director of the United States

Patent and Trademark Office.

[FR Doc. E7-2519 Filed 2-13-07; 8:45 am]

BILLING CODE 3510-16-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2007-0101; FRL-8277-9]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes: California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to grant a

request submitted by the State to

redesignate the South Coast from

nonattainment to attainment for the CO

National Ambient Air Quality Standards

(NAAQS). EPA is also proposing to

approve a state implementation plan

(SIP) revision for the South Coast

nonattainment area in California as

meeting the Clean Air Act (CAA)

requirements for maintenance plans for

carbon monoxide (CO). EPA is

proposing to find adequate and approve

motor vehicle emission budgets, which

are included in the maintenance plan.

Finally, EPA is proposing to approve the

California motor vehicle inspection and

maintenance (I/M) program as meeting

the low enhanced I/M requirements for

CO in the South Coast.

DATES: Comments must be received by

March 16, 2007.

ADDRESSES: Submit comments,

identified by docket number EPA-R09-

OAR-2007-0101, by one of the

following methods:

1. Agency Web site: http://

www.regulations.gov. EPA prefers

receiving comments through this

electronic public docket and comment

system. Follow the on-line instructions

to submit comments.

2. Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line

instructions.

3. E-mail: jesson.david@epa.gov

4. Mail or deliver: Marty Robin, Office

of Air Planning (AIR-2), U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco, CA 94105-3901.

Instructions: All comments will be

included in the public docket without

change and may be made available

online at http://www.regulations.gov,

including any personal information

provided, unless the comment includes

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by .statute. Information that

you consider CBI or otherwise protected

should be clearly ideritified7 as such and

should not be submitted through the

agency Web site, eRulemaking portal, or

e-mail. The agency Web site and

eRulemaking portal are anonymous

access systems, and EPA will not know

your identity or contact information

unless you provide it in the body of

your comment. If you send e-mail

directly to EPA, your e-mail address

will be automatically captured and"

included as part of the public comment.

If EPA cannot read your comment due

to technical difficulties and cannot

contact you for clarification, EPA may

not be able to consider your comment.

Docket: The index to the docket for

this action is available electronically at

http://www.regulations.gov and in hard

copy at EPA Region 9, 75 Hawthorne

Street, San Francisco, California. While

all documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and

some may not be publicly available in

either location (e.g., CBI). To inspect the

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

David Jesson, U.S. EPA Region 9, 415-

972-3961, david.jesson@epa.gov or

http ://www.epa.gov/region09/air/

actions.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms

"we," "us," and "our" mean U.S. EPA.

Table of Contents

I. Summary of Today's Proposed Action

II. CO SIPs for the South Coast

A. Requirements for Serious CO

Nonattainment Areas

B. Serious CO SIP for the South Coast

C. CO Maintenance Plan for the South

Coast

III. South Coast Redesignation to Attainment

A. Attainment of the NAAQS

1. Basis for Determining Attainment

2. Record of Attainment in the South Coast

B. Fully Approved Applicable

Implementation Plan Under CAA

Section 110(k) Meeting Requirements

Applicable for Purposes of Redesignation

Under Section 110 and Part D

1. Basic SIP Requirements Under CAA

Section 110

2. Clean Data Policy and Outstanding Part

D Requirements

a. Introduction

b. RFP and Attainment Demonstration

c. Contingency Provisions

(1) Introduction

(2) CAA Section 172(c)(9)

(3) CAA Section 187(g)(3)

d. Conclusion

3. TCMs to Offset Growth in Emissions

From VMT Increases

4. Requirement for Enhanced I/M Program

5. Wintertime Oxygenated Gasoline

Program

6. Conclusion

C. Improvement in Air Quality is Due to

Permanent and Enforceable Measures

D. Fully Approved Maintenance Plan

1. Applicable Requirements

2. Maintenance Plan Provisions a. Emissions Inventories for Attainment

Year and Future Years

b. Maintenance Demonstration c. Monitoring Network and Verification of

Continued Attainment

d. Contingency Provisions e. Commitment to Submit Subsequent

Maintenance Plan Revision

f. Motor Vehicle Emissions Budgets

g. Conclusion

IV. Proposed Action

V. Statutory and Executive Order Reviews

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I. Summary of Today's Proposed Action

We are proposing to approve the 2005

Carbon Monoxide Redesignation

Request and Carbon Monoxide

Maintenance Plan for the South Coast

Air Basin (Maintenance Plan) as

meeting the requirements of CAA

sections 107(d)(3)(E) and 175A, which

provide, in part, that plans must

demonstrate continued attainment for at

least 10 years and must include

contingency measures. The submittal

included evidence that the South Coast

attained the CO NAAQS in 2002 and

continues to attain the NAAQS. We are

also proposing to approve and find

adequate the motor vehicle emissions

budgets (MVEBs) submitted with the

Maintenance Plan.

We are proposing to approve the

request by the State of California to

redesignate the area to attainment for

CO under the provisions of CAA section

107(d)(3)(E). Section 107(d)(3)(E)

authorizes the EPA Administrator to

redesignate areas to attainment if the

area has attained the NAAQS due to

permanent and enforceable emission

reductions, and the approved SIP for the

area meets all of the applicable

requirements of CAA section 110 (basic

requirements applicable to SIPs

generally), Part D (special SIP

requirements applicable to

nonattainment areas), and 175A (SIP

requirements for maintenance areas).

As part of our proposed determination

that California has met applicable Part

D provisions, we propose to adapt to CO

nonattainment areas the provisions of

our Clean Data Policy, which was

initially established for ozone (see

discussion below in section III.B.2.).

Under the Clean Data Policy, certain

CAA Part D requirements-including

the requirements for developing

attainment demonstrations, reasonable

further progress (RFP) plans, reasonably

available control measures (RACM) and

contingency measures-no longer apply

because the area has already attained

the NAAQS.

Finally, because our interim approval

of California's I/M program for CO in

the South Coast expired on August 7,

1998, California has now submitted a

demonstration that the I/M program

meets the low-enhanced requirements

applicable to the South Coast CO

nonattainment area (see discussion in

section III.B.4.) We are proposing to

approve that demonstration.

H. CO SiPs for the South Coast

A. Requirements for Serious CO

Nonattainmen t Areas

The CAA was substantially amended

in 1990 to establish new planning

requirements and attainment deadlines

for the NAAQS, including CO.' Under

section 107(d)(1)(C) of the Act, areas

designated nonattainment prior to

enactment of the 1990 amendments,

including the South Coast, were

designated nofiattainment by operation

of law.2 Under section 186(a) of the Act,

each CO area designated nonattainment

under section 107(d) was also classified

by operation of law as either moderate

or serious, depending on the severity of

the area's air quality problem. CO areas

with design values at and above 16.5

ppm, such as the South Coast, were

classified as serious.

Section 172 of the Act contains

general requirements applicable to SIPs

for nonattainment areas. Sections 186

and 187 of the Act set out additional air

quality planning requirements for CO

nonattainment areas. The most

fundamental of these provisions is the

requirement that CO nonattainment areas submit by November 15, 1992, a

SIP demonstrating attainment of the

NAAQS as expeditiously as practicable,

but no later than the deadline applicable

to the area's classification: December 31,

1995, for moderate areas, and December

31, 2000, for serious areas like the South

Coast. CAA sections 186(a)(1), 187(a)(7),

and 187(b)(1). Such a demonstration

must include enforceable measures to

achieve emission reductions each year

leading to 'emissions at or below the

level predicted to result in attainment of

the NAAQS throughout the

nonattainment area. EPA has issued a General Preamble

describing the Agency's preliminary

views on howv EPA intends to act on

SIPs submitted under Title I of the Act.

See generally 57 FR 13498 (April 16,

1992) and 57 FR 18070 (April 28, 1992).

The reader should refer to the General

Preamble for a more detailed discussion

of EPA's preliminary interpretations of

the CAA's Title I requirements.

B. Serious CO SIP for the South Coast

On February 5, 1997, California

submitted a CO plan for the South

'Under section 109 of the CAA, EPA has

established primary, health-related NAAQS for CO:

9 parts per million (ppm) averaged over an 8-hour

period, and 35 ppm averaged over 1 hour.

Attainment of the 8-hour CO NAAQS is achieved

if not more than one non-overlapping 8-hour

average in any consecutive 2-year period per

monitoring site exceeds 9 ppm (values below 9.5

are rounded down to 9.0 and are not considered

exceedances). See 40 CFR 50.8; William G. Laxton,

Director Technical Support Di'ision, entitled

"Ozone and Carbon Monoxide Design Value

Calculations," dated June 18, 1990; and EPA's

General Preamble (see 57 FR 13535). 2 For a description of the boundaries of the Los

Angeles-South Coast Air Basin, see 40 CFR 81.305.

The nonattainment area includes all of Orange

County and the more populated portions of Los

Angeles, San Bernardino, and Riverside Counties.

Coast, Which had been adopted by the

South Coast Air Quality Management

District (SCAQMD) on November 15,

1996. Because the South Coast had

continuously achieved the 1-hour CO

NAAQS for more than 20 years, this

plan primarily addressed the 8-hour CO

NAAQS. On April 21, 1998 (63 FR

19661), we fully approved the SIP as

meeting the applicable CO requirements

for the South Coast, with the following

exceptions: (1) We took no action on the

plan with respect to the CAA section

187(b)(2) requirement for transportation

control neasures (TCMs) to offset any

growth in emissions from vehicle miles

traveled (VMT) or numbers of vehicles

trips; (2) we took no action on the plan

with respect to the contingency measure

requirements of CAA sections 172(c)(9)

and 187(a)(3); 3 (3) we granted interim

approval to the RFP provisions under

CAA sections 171(1), 172(c)(2), and

187(a)(7); (4) we granted interim

approval to the attainment

demonstration under CAA section

187(a)(7); and (5) we granted interim

approval to-the enhanced I/M program

required by CAA 187(a)(6), as discussed

below.

Interim approval is authorized under

section 348(c) of the National Highway

System Designation Act ("Highway

Act," Public Law 104-59, enacted on

November 28, 1995) for certain types of

I/M programs and, by extension, to SIP

provisions dependent upon reductions

from these I/M programs: We had

previously granted interim approval to

California's enhanced I/M program (62

FR 1160, January 8, 1997). Our 1997

interim approval established August 7,

1998, as the expiration of the approval

if by such date EPA had not approved

a SIP submittal demonstrating that the

credits claimed for the I/M program are

appropriate and the program is

otherwise in full compliance with the

applicable enhanced I/M requirements.

Because the State did not submit the

needed demonstration, the approval of

the I/M program and the South Coast

CO SIP with respect to RFP and

attainment demonstration expired on

August 7, 1998.

3 CAA section 172(c)(9) requires contingency

measures that would be implemented if an area fails

to make RFP or to attain the NAAQS by the

applicable deadline. For CO areas, CAA section

187[a)(3) requires contingency measures to be

implemented if any estimate of vehicle miles

traveled (VMT) in the area for any year prior to the

attainment year that is submitted in an annual

report under section 187(a)(2)(A) ("VMT tracking

report") exceeds the number predicted in the most

recent prior forecast or if the area fails to attain the

NAAQS by the attainment year.

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C. CO Maintenance Plan for the South

Coast

In 2002, the South Coast attained the

8-hour CO NAAQS,.and on March 4,

2005, the SCAQMD adopted the

Maintenance Plan, following 30-day

public notice (SCAQMD Board

Resolution No. 05-8). On February 24,

2006, the California Air Resources

Board (CARB) adopted the Maintenance

Plan (CARB Executive Order G-125-

332) and submitted it to EPA as a SIP

revision, along with a request that we

approve a redesignation request to

attainment (Letter from Lynn Terry,

CARB, to Wayne Nastri, EPA Region 9).

On August 11, 2006, CARB submitted

additional technical information

relating to the I/M program in the South

Coast (Letter from Kurt Karperos, CARB,

to Lisa Hanf, EPA Region 9). The

attachment to the letter addressed the

requirement associated with EPA's 1997

interim approval of the enhanced I/M

program under the Highway Act, by

demonstrating that the California smog

check program meets minimum

requirements applicable to an enhanced

I/M program for CO. In accordance with

CAA section 110(k)(1)(B), the submittal

became complete by operation of law on

August 25, 2006.

III. South Coast Redesignation to

Attainment

The criteria for approval of a

redesignation request are set out in CAA

section 107(d)(3)(E). We review the

State's request against each of these

criteria in our discussion below.

A. Attainment of the NAAQS

1. Basis for Determining Attainment

CAA section 107(d)(3)(E) requires that

we determine that the area has attained

the NAAQS. EPA makes the

determination as to whether an area's

air quality is meeting the CO NAAQS

based upon air quality data gathered at

CO monitoring sites in the

nonattainment area which have been

entered into the Air Quality System

(AQS) database, formerly known as the

Aerometric Information Retrieval

System (AIRS). This data is reviewed to

determine the area's air quality status in

accordance with 40 CFR 50.8; EPA

policy guidance as stated in a

memorandum from William G. Laxton,

Director Technical Support Division,

entitled "Ozone and Carbon Monoxide

Design Value Calculations," dated June

18, 1990; and EPA's General Preamble at

57 FR 13535.

The 8-hour and 1-hour CO design

values are used to determine attainment

of CO areas, and the design values are

determined by reviewing 8 quarters of

data, or a total of two complete calendar

years of data for an area. The 8-hour

design value is computed by first

finding the maximum and second

maximum (non-overlapping) 8-hour

values at each -monitoring site for each

year of the two calendar years prior to

and including the attainment date. Then

the higher of the "second high" values

is used as the design value for the

monitoring site, and the highest design

value among the various CO. monitoring

sites represents the CO design value for

-the area.

The CO NAAQS requires that not

more than one 8-hour average per year

equals or exceeds 9.5 ppm (values

below 9.5 are rounded down to 9 and

are not considered exceedances). If an

area has a design value that is equal to

or greater than 9.5 ppm, this means that

there was a monitoring site where the

second highest (non-overlapping) 8-

hour average was measured to be equal

- to or greater than 9.5 ppm in at least one

of the two years being reviewed to

determine attainment for the area. This

indicates that there were at least two

values above the NAAQS during one

year at that site and thus the NAAQS for

CO was not met. Conversely, an 8-hour

design value of less than 9.5 ppm

indicates that the area has attained the

CO NAAQS.

The 1-hour CO design value is

computed in the same manner. An area

attains the one-hour CO NAAQS if the

1-hour design value is less than 35.5

ppm.

2. Record of Attainment in the South

Coast

The Maintenance Plan presents the

attainment air quality data for the South

Coast's 22 monitoring stations in Table

2-2 on p. 8. During the period 2002-

2003, there was only one maximum 8-

hour average concentration above the

standard, a 10.1 ppm concentration

recorded at the Lynwood (South Central

Los Angeles) site on January 8, 2002,

under very stagnant conditions and a

strong inversion. The maximum 8-hour

concentration at Lynwood was 7.7 ppm

in 2001 and 7.3 ppm in 2003. There

were no exceedances of the 8-hour

NAAQS recorded in 2001 and 2003 at

any station, and the design value at all

stations for the periods 2001-2002 and

2002-2003 was well below the NAAQS.

'A review of data input to AQS

indicates that the South Coast has

continued to attain the CO NAAQS

-since 2003. The highest second

maximum 1-hour and 8-hour CO

concentrations measured at the various

monitoring stations during the 2004

through the first quarter of 2006 were

8.7 ppm and 6.1 ppm, respectively, both

recorded in 2004 at the Lynwofd2 station'

in south central Los Angeles County.

These values are well below the

corresponding CO NAAQS of 35 and 9

ppm. A "quick look" report generated

using AQS for the South Coast CO

monitoring stations for 2004 through the

third quarter of 2006 is included in the

docket for this proposed rule. The

Maintenance Plan indicates that the 1-

hour CO NAAQS has not been violated

for 25 years in the South Coast.

Based on the monitoring data

presented in the Maintenance Plan and

AQS data for the past two years, we

propose to determine that the South

Coast attained the CO NAAQS in 2002

and has continued to attain the NAAQS.

B. Fully Approved Applicable

Implementation Plan Under CAA

Section 110(k) Meeting Requirements

Applicable for Purposes of

Redesignation Under Section 110 and

Part D

Section 107(d)(3)(E)(ii) and (V) require

EPA to determine that the area has a

fully approved applicable SIP under

section 110(k) that meets all applicable

requirements under section 110 and Part

D for purposes of redesignation.

1. Basic SIP Requirements Under CAA

Section 110

The general SIP elements and

requirements set forth in section

110(a)(2) include, but are not limited to,

the following: Kubmittal of a SIP that

has been adopted by the state after

reasonable public notice and hearing;

provisions for establishment and

operation of appropriate procedures

needed to monitor ambient air quality;

implementation of a source permit

program; provisions for the

implementation of Part C requirement

for Prevention of Significant

Deterioration (PSD); provisions for the

implementation of Part D requirements

for New Source Review (NSR) permit

programs; provisions for air pollution

modeling; and provisions for public and

local agency participation in planning

and emission control rule development.

On numerous occasions over the past

35 years, CARB and SCAQMD have

submitted and we* have approved

provisions addressing the basic CAA

section 110 provisions. There are no

outstanding or disapproved applicable

SIP submittals with respect to the State

and SCAQMD. 4 We propose to conclude

4 The applicable SIP for CARB and South Coast

may be found at http://yosemite.epa.gov/r9/

r9sips.nsf/Casips?readform&state=California.

We note that SIPs must be fully approved only

with respet to applicable requirements for

purposes of rgdesignation in accordance with

section 107(d)(3)[E)(ii}. Thus, for example, CAA

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that CARB and SCAQMD have met all

SIP requirements for the South Coast

area applicable for purposes of

redesignation under section 110 of the

CAA (General SIP Requirements). With

the exceptions discussed below in

Sections IuI.B.2-4, the SIP for the South

Coast also has been approved as meeting

applicable requirements under Part D of

Title I of the CAA. See our approval of

the South Coast CO attainment SIP at 63,

FR 19661-2.

2. Clean Data Policy and Outstanding

Part D Requirements

a. Introduction

In some designated nonattainment

areas, monitored data demonstrates that

the NAAQS have already been achieved.

Based on its interpretation of the Act,

EPA has determined that certain SIP

submission requirements of part D,

subparts 1, 2, and 4 of the Act do not

apply and therefore do not require

certain submissions for an area that has

attained the NAAQS. These include RFP

requirements, attainment

demonstrations and contingency

measures, because these provisions have

the purpose of helping achieve

attainment of the NAAQS.

The Clean Data Policy is the subject

of two EPA memoranda setting forth our

interpretation of the provisions of the

section 110(a)(2)(D) requires that SIPs contain

certain measures to prevent sources in a state from

significantly contributing to air quality problems in

another state. However, the section 110(a)(2)(D)

requirements for a state are not linked with a

particular nonattainment area's designation and

classification in that state. EPA believes that the

requirements linked with a particular , .

nonattainment area's designation and classifications

are the relevant measures to evaluate in reviewing

a redesignation request. The transport SIP submittal

requirements, where applicable, continue to apply

to a state regardless of the designation of any one

particular area in the state.

Thus, we do not believe that these requirements

should be construed to be applicable requirements

for purposes of redesignation. In addition, EPA

believes that the other section 110 elements not

connected with nonattainment plan submissions

and not linked with an area's attainment status are

not applicable requirements for purposes of

redesignation. The State will still be subject to these

requirements after the South Coast area is

redesignated. The section 110 and Part D

requirements, which are linked with a particular

area's designation and classification, are the

relevant measures to evaluate in reviewing a

redesignation request. This policy is consistent with

EPA's existing policy on applicability of conformity

(i.e., for redesignations) and oxygenated fuels

requirement. See Reading, Pennsylvania, proposed

and final rulemakings 61 FR 53174-53176 (October

10, 1996), 62 FR 24816 (May 7, 1997); ClevelandAkron-Lorain, Ohio, final rulemaking 61 FR 20458

(May 7, 1996); and Tampa, Florida, final

rulemaking 60 FR 62748 (December 7, 1995). See

also the discussion on this issue in the Cincinnati

redesignation 65 FR 37890 (June 19, 2000), and in

the Pittsburgh redesignation 66 FR 50399 (October

19, 2001). EPA believes that section 110 elements

not linked to the area's nonattainment status are not

applicable for purposes of redesignation.

Act as they apply to areas that have

attained the relevant NAAQS. EPA also

finalized the statutory interpretation set

forth in the policy in a final rule, 40

CFR 51.918, as part of its Final Rule to

Implement the 8-hour Ozone National

Ambient Air Quality Standard-Phase 2

(Phase 2 Final Rule). See discussion in

the preamble to the rule at 70 FR 71645-

71646 (November 29, 2005). We have

also applied the same approach to the

interpretations of the provisions of

subparts 1 and 4 applicable to PM-10.

For detailed discussions of this

interpretation with respect to the CAA's

PM-10 requirements for RFP,

attainment demonstrations, and

contingency measures, see 71 FR 6352,

6354 (February 8, 2006]; 71 FR 13021,

13024 (March 14, 2006); 71 FR 27440,

27443-27444 (May 11, 2006); and 71 FR

40952, 40954 (July 19, 2006); and 71 FR

63642 (October 30, 2006).

EPA believes that the legal bases set

forth in detail in our Phase 2 Final rule,

our May 10, 1995 memorandum from

John S. Seitz, entitled "Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattain ment

Areas Meeting the Ozone National

Ambient Air Quality Standard" (Seitz

memo), and our December 14, 2004

memorandum from Stephen D. Page

entitled "Clean Data Policy for the Fine

Particle National Ambient Air Quality

Standards" (Page memo), are equally

pertinent to the interpretation of

provisions of subparts 1 and 3

applicable to CO. EPA's interpretation

of how the provisions of the Act apply

to areas with "clean data" is not

logically limited to ozone, PM-2.5, and

PM-10, because the rationale is not

dependent upon the type of pollutant.

Our interpretation that an area that is

attaining the standard is relieved of

obligations to demonstrate RFP and to

provide an attainment demonstration

and contingency measures pursuant to

part D of the CAA, pertains whether the

standard is CO, 1-hour ozone, 8-hour

ozone, PM-2.5, or PM-IO.

b. RFP and Attainment Demonstration

The reasons for relieving an area that

has attained the relevant standard of

certain part D, subpart 1 and 2 (sections

171 and 172) obligations, applies

equally as well to part D, subpart 3,

which contains specific attainment

demonstration and RFP provisions for

CO nonattainment areas. As we have

explained in the 8-hour ozone Phase 2

Final Rule, our ozone and PM-2.5 clean

data memoranda, and our approval of

PM-10 SIPs, EPA believes it is

reasonable to interpret provisions

regarding RFP and attainment

demonstrations, along with related

requirements, so as not to require SIP

submissions if an area subject to those

requirements is already attaining the

NAAQS (i.e., attainment of the NAAQS

is demonstrated with three consecutive

years of complete, quality-assured air

quality monitoring data for ozone and

PM, and two consecutive years for CO).

Three U.S. Circuit Courts of Appeals

have upheld EPA rulemakings applying

its interpretation of subparts 1 and 2

with respect to ozone. Sierra Club v.

EPA, 99 F.3d 1551 (10th Cir. 1996);

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

Cir. 2004); Our Children's Earth

Foundation v. EPA, N. 04-73032 (9th

Cir. June 28, 2005) (memorandum

opinion). It has been EPA's longstanding

interpretation that the general

provisions of part D, subpart 1 of the

Act (sections 171 and 172) do not

require the submission of SIP revisions

concerning RFP for areas already

attaining the ozone NAAQS. In the

General Preamble, we stated:

[Riequirements for RFP will not apply in

evaluating a request for redesignation to

attainment, since, at a minimum, the air

quality data for the area must show that the

area has already attainedrA showing that the

State will make RFP toward attainment will,

therefore, have no meaning at that point. 57

FR at 13564.

See also page 6 of the guidance

memorandum entitled "Procedures for

Processing Requests to Redesignate

Areas to Attainment" from John

Calcagni, Director., Air Quality

Management Division, Office of Air

Quality Planning and Standards, to

Regional Air Division Directors, dated

September 4, 1992 (Calcagni Memo,

available at http://www.epa.gov/ttnl

naaqs/ozone/ozonetech/940904.pdf).

EPA believes the same reasoning

applies to the CO RFP provisions of part

D, subpart 3.

With respect to RFP, CAA section

171(1) states that, for purposes of part D

of title I, RFP -

means such annual incremental reductions in

emissions of the relevant air pollutant as are

required by this part or may reasonably be

required by the Administrator for the

purpose of ensuring attainment of the

applicable NAAQS by the applicable date.

The stated purpose of RFP is to ensure

attainment by the applicable attainment

date, whether dealing with the general

RFP requirement of section 172(c)(2),

the ozone-specific RFP requirements of

sections 182(b) and (c), the PM-10

specific RFP requirements of section

189(c)(1), or the CO-specific RFP

requirements of section 187(a)(7).

Section 187(a)(7) states that the SIP

for moderate CO areas with a design

value greater than 12.7 must:

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provide a demonstration that the plan as

revised will provide for attainment of the

carbon monoxide NAAQS by the applicable

attainment date and provisions for such

specific annual emission reductions as are

necessary to attain the standard by that date.

This same requirement also applies to

serious CO areas in accordance with

CAA section 187(b)(1).

It is clear that once the area has

attained the standard, no further

specific annual emission reductions are

necessary or meaningful. With respect

to CO areas, this interpretation is

supported by language in section

187(d)(3), which mandates that a state

that fails to achieve the milestone must

submit a plan that assures that the state

achieves the "pecific annual reductions

in carbon monoxide emissions set forth

in the plan by the attainment date." 5

Section 187(d)(3) assumes that the

requirement to submit and achieve the

milestone does not continue after

attainment of the NAAQS.

If an area has in fact attained the

standard, the stated purpose of the RFP

and specific annual emissions

reductions requirements will have

already been fulfilled.6 The specific

5 AA section 187(d), CO Milestone, applies to

serious CO areas and requires:

(1) The state to submit a demonstration that the

area has achieved certain specific annual emission

reductions (187(d)(1));

(2) EPA to determine whether the demonstration

is adequate within 90 days (187(d)(2)); and

(3) the state to submit a plan revision within 9

months of EPA's notification that the state has not

met the milestone, such plan to implement CAA

section 182(g)(4) economic incentive and

transportation control programs sufficient to

achieve the specific annual emission reductions by

the attainment date (187(d)(3)).

EPA interprets these provisions consistent with

its interpretation of Section 182(g) in Subpart 2. See

May 10, 1995 Seitz Memorandum at p. 5. There,

EPA included in its identification of SIP submission

requirements linked with attainment and RFP

requirements the "Section 182(g) requirements

concerning milestones that are based on the section

182(b)(1) and 182(c)(2)(B) and (C) submissions." In

Subpar! 3, similarly, milestone requirements are

based on the section 187(a)(7) specific annual

emission reduction requirements.

6 For PM-10 areas, we have concluded that it is

a distinction without a difference that section

189(c)(1) speaks of the PM-10 nonattainment area

RFP requirement as one to be achieved until an area

is "redesignated as attainment", as opposed to

section 172(c)(2), which is silent on the period to

which the requirement pertains, or the ozone and

CO nonattainment area RFP requirements in

sections 182(b)(1) or 182(c)(2) for ozone and

187(a)(7) for CO, which refer to the RFP

requirements as applying until the "attainment

date", since, section 189(c)(1) defines RFP by

reference to section 171(1) of the Act. Reference to

171(1) clarifies that, as with the general RFP

requirements in section 172(c)(2) and the ozonespecific requirements of section 182(b)(1) and

182(c)(2) and the CO-specific requirements of

section 187(a)(7), the PM-specific requirements may

only be required for the purpose of ensuring

attainment of the applicable national ambient air

quality standard by the applicable date." 42 U.S.C.

annual emission reductions required are

only those necessary to attain the

standard by the attainment date. EPA

took this position with respect to the

general RFP requirement of section

172(c)(2) in the April-16, 1992 General

Preamble and also in the May 10, 1995

memorandum with respect to the

requirements of sections 182(b) and (c).

We are proposing to extend that

interpretation to the specific provisions

of part D, subpart 3.

With respect to the attainment

demonstration requirements of section

187(a)(7), an analogous rationale leads

to the same result. Section 187(a)(7)

requires that the State submit

a revision to provide, and a demonstration

that the plan as revised will provide for

attainment of the carbon monoxide NAAQS

by the applicable attainment date and

provisions for such specific annual emission

reductions as are necessary to attain the

standard by that date.

As with the RFP requirements, if an area

is already monitoring attainmeit of the

standard, EPA believes there is no need

for an area to make a further submission

containing additional measures to

achieve attainment. This is also

consistent with the interpretation of the

section 172(c) requirements provided by

EPA in the General Preamble, the Page

memo and of the section 182(b) and (c)

requirements set forth in the Seitz

memo. As EPA stated in the General

Preamble, no other measures to provide

for attainment would be needed by areas

seeking redesignation to attainment

since "attainment will have been

reached." (57 FR at 13564).

c. Contingency Provisions

(1) CAA Section 172(c)(9)

Other SIP submission requirements

are linked with these attainment

demonstration and RFP requirements,

and similar reasoning applies to them.

These requirements include the

contingency measure requirements of

CAA section 172(c)(9), and the special

contingency provisions applicable to

ozone and CO plans. Section 172(c)(9)

requires a State to submit contingency

measures that will be implemented if an

area fails to make "reasonable further

progress" or fails to attain by the

applicable attainment date. 7 Thus, the

section 7501(1). As discussed in the text of this

rulemaking, EPA interprets the RFP requirements,

in light of the definition of RFP in section 171(1),

to be a requirement that no longer applies once the

standard has been attained.

I RFP means "such annual incremental

reductions in emissions of the relevant air pollutant

as are required by this part or may reasonably be

required by the Administrator for the purpose of

ensuring attainment of the applicable national

ambient air quality standard by the applicable

date." CAA Section 171(1)..

stated purpose of the contingency

measure requirement is to* ensure RFP

(the purpose of which is to ensure

attainment by the applicable attainment

date) and attainment by the applicable

attainment date. If an area has in fact

attained the standard by the applicable

attainment date, the stated purpose of

the contingency measure requirement

will have already been fulfilled.

Consequently, we believe that the

requirement for a State to submit

revisions providing for measures to

meet the contingency provisions of

section 172(c)(9) no longer applies for

an area that we find as having attained

the relevant NAAQS by the applicable

attainment date.

We note that we took this view with

respect to the general contingency

measure requirement of section

172(c)(9) in our General Preamble. In

the General Preamble, we stated, in the

context of a discussion of the

requirements applicable to the

evaluation of requests to redesignate

nonattainment areas to attainment, that

the "section 172(c)(9) requirements for

contingency measures * * * no longer

apply when an area has attained the

standard and is eligible for

redesignation." See 57 FR 13498, at

13564 (April 16, 1992). See also

Calcagni memo, p. 6.

We propose to extend the same

reasoning to CO plans with respect to

the section 172(c)(9) contingency

provision requirements, since our

reasoning is equally applicable

regardless of the pollutant. Moreover,

just as we concluded that the pollutantspecific contingency measure

requirements of section 182(c)(9) for

ozone areas also no longer apply to

areas attaining the ozone NAAQS, we

propose below that the CO-specific

contingency provisions of section

187(a)(3) no longer apply at the time we

find that an area has attained the CO

NAAQS.

(2) CAA Section 187(a)(3)

Section 187(a)(3) requires contingency

measures to be implemented

if any estimate of vehicle miles traveled in

the area which is submitted in an annual

report under paragraph (2) exceeds the

number predicted in the most recent prior

forecast or if the area fails to attain the.

national primary ambient air quality standard

for carbon monoxide by the primary standard

attainment date.

Thus, the Act establishes two triggers

for implementation of contingency

measures required under this provision.

The first trigger is associated with CAA

section 187(a)(2), which requires plans

for areas with a design value above 12.7

ppm at the time of classification to

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include "a forecast of vehicle'miles

traveled in the nonattainment area

concerned for each year before the year

in which the plan projects the national

ambient air quality standard for carbon

monoxide to be attained in the area,"

along with

annual updates of the forecasts to be

submitted to the Administrator together with

annual reports regarding the extent to which

such forecasts proved to be accurate. Such

annual reports shall contain estimates of

actual vehicle miles traveled in each year for

which a forecast was required.

The plan's contingency measures must

be implemented "if the prior forecast

has been exceeded by an updated

forecast * * *." Both the forecasts and

reports are required only until the SIP's

projected attainment year. Following the

plan's projected attainment year, which

is the last year of the VMT forecasts, this

trigger disappears. The second trigger of the contingency

provision is a failure of the area to attain

the primary CO standard by the

applicable deadline, for the evident

purpose of ensuring that such an area

further reduces emissions as needed to

attain the NAAQS. Once an area has

actually attained the CO NAAQS, this

second trigger is clearly eliminated.

Thus, the CAA section 187(a)(3)

contingency provision has no further

practical effect when the two

contingency triggers cease to exist.

Moreover, the implicit goal of the

contingency provision, to reduce motor

vehicle-related CO emissions to the

extent needed to achieve annual

progress and eventual attainment,

would have been accomplished when

an area comes into attainment.

Therefore, we propose to conclude that

an area that is attaining the CO

standards is relieved of an obligation to

provide contingency measures pursuant

to CAA section 187(a)(3).

CAA section 187(b)(2) requires that

CO serious area plans include TCMs as

prescribed inCAA section .182(d)(1) for

ozone areas, except that the TCMs relate

to CO emissions rather than volatile

organic compound emissions. Section

182(d)(1) requires that plans for severe

ozone areas must include TCMs to be

implemented

to offset any growth in emissions from

growth in vehicle miles traveled or numbers

of vehicle trips in such area and to attain

reduction in motor vehicle emissions as necessary, in combination with other

emission reduction requirements of this

subpart, to comply with the requirements of.

subsection (b)(2)(B) and (c)(2)(B) (pertaining

to periodic emissions reduction

requirements).

The section 187(b)(2) TCMs are

required to be submitted if CO

emissions are expected to increase from

growth in VMT or vehicle trips, and to

meet RFP or attainment. For the same

reason that the requirement for RFP no

longer applies to an area that has

attained the NAAQS, the requirement

for measures to contribute to RFP no

longer applies following a finding of

attainment. Thus EPA interprets the

provisions of section 187(b)(2)(A) that

cross-reference section 182(d)(1) so as to

suspend those provisions pertaining to

periodic emissions reductions.

requirements for so long as the area is

attaining the standard. In a May 10,

1995 Seitz memorandum, we identified

as among those requirements that could

be. suspended upon finding of

attainment "the elements of the * * *

requirements of section 182(d)(1)(A)

concerning vehicle miles traveled that

are related to RFP requirements." (p. 2).

With respect to the requirement for

TCMs to offset any growth in emissions

from VMT, see Section 3 below.

d. Conclusion

As noted above, the South Coast area

does.not currently have an approved SIP

with respect to the requirements for

RFP, attainment, contingency

provisions, and TCMs related to RFP

requirements. However, we believe that,

for the reasons set forth here.and

established in our prior "clean data"

memoranda and rulemakings, a CO

nonattainment area that has "clean

data,' should be relieved of the part D,

subpart 3 obligations to provide an

attainment demonstration with specific

annual emission reductions pursuant to

CAA section 187(a)(7); the CAA section

187(d) milestone demonstration

requirement; contingency provisions

pursuant to CAA section 187(a)(3)); and

TCMs related to RFP requirements

pursuant to 187(b)(2); as well as the

attainment demonstration, RFP, and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act.

Here, as in both our 8-hour ozone

Phase 2 final rule and 1-hour ozone and

PM-2.5 clean data memoranda, we

emphasize that the suspension of-a

requirement to submit these SIP

revisions exists only for as long as a

nonattainment area continues to

monitor attainment of the standard. If

such an area experiences a violation of

the NAAQS, the basis for the

requirements being suspended would

no longer exist. Therefore, the area

would again be subject to a requirement

to submit the pertinent SIP revision or

revisions and would need to address

those requirements. Thus, a

determination that an area need not

submit one of the SIP submittals

amounts to no more than a suspension

of the requirement for so long as the

area continues to attain the standard.

However, once EPA ultimately

redesignates the area to attainment, the

area will be entirely relieved of these

requirements to the extent the

maintenance plan for the area does not

rely on them.

Should we at some future time'

determine that an area that had clean

data, but which has not yet been

redesignated as attainment for a

NAAQS, has violated the relevant

standard, the area would again be

required to submit the pertinent

requirements under the SIP for the area.

Attainment determinations under the

policy do not shield an area from other

required actions, such as provisions to

address pollution transport.

As set forth, above, we propose to find

that because the South Coast area has

continued to attain the NAAQS the

requirement of an attainment

demonstration, reasonable further

progress, milestone demonstration,

TCMs related to RFP, and contingency

measures no longer apply.

3. TCMs To Offset Growth in Emissions

From VMT Increases

As noted above, the section 187(b)(2)

TCMs are required to be submitted if CO

emissions are expected to increase from

growth in VMT or vehicle trips.

EPA has concluded that states are not

required to submit such measures if the

SIP includes a demonstration that,

despite any growth in projected VMT,

CO emissions will decline each year

through the attainment year. 8 In the

General Preamble, we state that: "If

projected total motor vehicle emissions

during the ozone season in one year are

not higher than during the ozone season

the year before, given the control

measures in the SIP, the VMT offset

requirement is satisfied." General -

Preamble at 57 FR 13522.

The 1997 CO Plan contains a

demonstration that CO emissions from

motor vehicles decline each year

through .the attainment year (Appendix

V, page V-5-4, Table 5-2 "Carbon

Monoxide Emissions (tons/day)

Projected from 1993 through 2000 for

the South Coast Air Basin"). This table

shows that no additional TCMs are

required to prevent an increase in

emissions associated with a growth in

VMT or trips, since emissions are

shown to decline each year through the

attainment year despite increases in

8

See, for example, EPA's final approval of

Illinois' VMT SIP at 60 FR 48896, 48897 (September

21, 1995).

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VMT and trip numbers.9 The

Maintenance Plan includes revised and

updated VMT forecasts for each year

from 1997 through 2006 (Table 4-1).

The Maintenance Plan also includes

revised and updated projected CO

emissions from motor vehicles from

1997 through 2006 (Table 4-2),- showing

a continuing sharp decline in CO

emissions despite the growth in VMT

and trips. Consequently, We conclude

that no TCMs are required to satisfy the

progress requirements of the Act or to

offset growth in CO emissions from

growth in VMT or xehicle trips. We

therefore propose to approve the 1997

CO Plan, and the update through the

year of attainment (2002) in the

Maintenance Plan, as meeting the

provisions of CAA section 187(b)(2).

4. Requirement for Enhanced I/M

Program

The requirement for an enhanced

motor vehicle I/M program under CAA

section 187(a)(6) applies to the South

Coast by virtue of the area's designation

as a serious nonatfainment area for CO,

in accordance with CAA section

187(b)(1). On January 22, 1996, CARB

submitted a SIP revision to satisfy the

-requirements for basic and enhanced I/

M programs in the various ozone and

CO nonattainment areas in the State.

. On January 8, 1997 (62 FR 1150), we

approved the State's basic I/M program

as meeting the CAA section 182(b)(4)

requirement for moderate ozone areas,

within California, and the CAA section

187(a)(4) requirement for I/M program

corrections applicable to California's

moderate CO areas with a design value

of less than 12.7 ppm at the time of

classification. In the same rule, we

granted interim approval to the State's

enhanced I/M program under section

348(c) of the Highway Act, as meeting

the CAA section 182(c)(3) requirement

for serious and above ozone areas, and

CAA 187(a)(6) for serious CO areas. In accordance with the State's request,

we approved the I/M program as

meeting the high enhanced

requirements (see discussion below). As

provided in the Highway Act, the

interim approval was for a period of 18

months (i.e., until August 7, 1998), by

which time the approval would expire

unless we had approved a SIP

demonstrating that the credits claimed

for the program are appropriate and the

I/M program is otherwise in compliance

with the Clean Air Act. See 40 CFR

52.241.

When we subsequently ruled on the

South Coast CO SIP, we also granted

interim approval to the progress and

attainment provisions of the plan, since

fulfillment of those requirements

depended upon emission reductions

from the enhanced I/M program. (63 FR.

19661, April 21, 1998).

California failed to make the SIP

submittal required under the Highway

Act to substantiate the emission

reductions claimed for the enhanced I/

M program and, as. a result, the interim

approval of the enhanced I/M program

and the progress and attainment

demonstration provisions of the South

Coast CO SIP expired by operation of

law on August 7, 1998. In Section

III.B.2.b, we discuss this lapsed

approval and our interpretation that the

Clean Data Policy allows us to suspend

the requirements for progress and

attainment demonstration as they apply

to the South Coast CO SIP.

With the submittal of the South Coast

CO Maintenance Plan and redesignation

request, the State included a SIP

revision documenting that: (1) The I/M

program delivered CO emission

reductions sufficient, along with other

control measures, to lead to attainment

of the CO NAAQS in the South Coast,

and (2) the I/M program meets the-lowenhanced I/M performance

requirements. for CO in the South Coast.

The State's transmittal letter included

a table of the wintertime CO emissions

reduction benefits in the South Coast

from the current I/M program, along

with a copy of the September 2005

Report to the Legislature regarding

ARB's &"April 2004 Evaluation of the

California Enhanced Vehicle Inspection

and Maintenance (Smog Check)

Program." The table shows the

following reductions:

TABLE 1.-WINTER SEASON CO EMISSIONS REDUCTION BENEFITS IN THE SOUTH COAST AIR BASIN ASSOCIATED WITH

THE ENHANCED I/M PROGRAM

[In tons per day]

Year .......................................................

R eductions ............................................................................................................

1990 19931 2000 1 2006 2010

494 459 291 671 618

Because these substantial emission

reductions did, in fact, result in

attainment of the CO NAAQS in the

South Coast, we agree with the State

that the enhanced I/M program proved

adequate to meet attainment needs for

the area.

The State requests that we also now

determine that the program meets other

low enhanced I/M program

requirements. This would allow us to

conclude, for purposes of the

redesignation provisions of CAA section

107(d)(3)(E)(v), that the area has met the

applicable requirement for an enhanced

I/M program under CAA sections

187(a)(6) and 187(b)(1).

On September 18, 1995, we amended

our regulatory requirements for

5Motor vehicle VMT forecasts for each year are shown in Table 5-1. Despite this annual growth,

enhanced I/M programs (60 FR 48029).

Among other changes, we established a

low enhanced performance standard as

an option for areas subject to the

enhanced I/M requirement and meeting

the following requirements set out in 40

CFR 51.351(g) regarding RFP and

attainment: (1) The area is either not

subject to or has an approved SIP for

RFP in 1996, and (2) the area does not

have a disapproved post-1996 RFP plan

or a disapproved attainment plan for

ozone or CO. South Coast meets these

requirements because it has an

approved plan for RFP in 1996 for

ozone, (62 FR 1150, January 8, 1997)

and has no disapproved post-1996 RFP

plan or a disapproved attainment plan

for ozone or CO.

emissions from motor vehicles are shown in Table

5-2 to decline as follows: 1993-5909, 1994-5522,

The low enhanced I/M requirements

set out in 40 CFR 51.351(g), and further

described in the preamble, establish

specific program test elements generally

equivalent to those for a basic I/M

program, as set out in 40 CFR 51.352.

The key difference in test requirements

between the basic and the low enhanced

I/M program are two additional

requirements for low enhanced

programs: visual inspection of emission

control device inspections in

accordance with 40 CFR 51.351(g)(8),

and testing of light duty trucks rated up

to 8,500 pounds gross vehicle weight

rating (GVWR) as prescribed in 40 CFR

51.351(g)(5). Additionally, 40 CFR

51.351(b) requires on-road testing of

0.5% of the subject fleet or 20,000

1995-5135, 1996-4596, 1997-4057, 1998-3784,

1999-3511, 2000-3298.

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vehicles, whichever is less, and 40 CFR

51.351(c) requires inspectiori of all 1996

and later vehicles equipped with onboard diagnostics (OBD) systems.

As mentioned above, we fully

approved California's I/M program as

meeting the basic I/M performance

standard on January 8, 1997. 62 FR 1150

and 40 CFR 52.220(c)(234). California

has now shown that its I/M program

also meets the low enhanced I/M

performance standard and meets the

four requirements mentioned above. 10

(1) Since March 1984, the State has

required visual inspection of the

positive crankcase ventilation valve and

of the exhaust gas recirculation valve on

all vehicles subject to the I/M program,

in accordance with 40 CFR 51.351(g)(8).

See Health & Safety Code, Division 26,

Part 5, Section 44012(f); Title 16,

California Code of Regulations, Division

33, Bureau of Automotive Repair,

Article 5.5, Motor Vehicle Inspection

Program, section 3340.42; and BAR 97

Specifications sections 3.3.9 and 3.6.18. - (2) Since March 1984, the State I/M

program has applied to light duty trucks

rated up to 8,500 pounds GVWR, in

accordance with 40 CFR 51.351(g)(5).

See Health & Safety Code, Division 26,

Part 5, Section 44011, and Title 16,

California Code of Regulations, Division

33, Bureau of Automotive Repair,

Article 5.5, Motor Vehicle Inspection

Program, Section 3340.5.

(3) Since 1998, California has

conducted random roadside pullover

inspections in accordance with 40 CFR

51.351(b), under the authority of Health

& Safety Code, Division 26, Part 5,

Section 44081.

(4) Since 2002, California has

inspected 1996 and later OBD-equipped

vehicles in accordance with 40 CFR

51.351(c). See Health & Safety Code,

Division 26, Part 5, Section

44036(b)(10); Title 16, California Code

of Regulations, Division 33, Bureau of

Automotive Repair, Article 5.5, Motor

Vehicle Inspection Program, Section

3340.42; and BAR 97 Specifications,

Sections 2 and 3.

In summary, we conclude that: (1)

The State was entitled to elect to

implement a low enhanced I/M program

for CO in the South Coast; (2) the

program, as implemented by the State,

delivered actual CO emission reductions

sufficient (along with reductions from

other measures) to attain the CO

NAAQS in the South Coast; (3) the

State's program has been federally

approved as meeting the basic I/M

performance standard; and (4) the

1 See August 11, 2006, letter from Kurt Karperos,

CARB, to Lisa Hanf, EPA Region 9, for technical

information about this demonstration.

State's program meets the low enhanced:

I/M performance standard.

Consequently, we find that the State met

the CAA section 187(a)(6) and 187(b)(1)

enhanced I/M requirements that applied

to the South Coast CO nonattainment

area prior to and at the time of the

submission of the redesignation request.

Finally, we note that the State has

indicated that it intends to continue to

implement the enhanced I/M program

in the South Coast, and continued CO

emission reduction benefits from the

program are incorporated in the

projected emissions inventory that is

part of the maintenance demonstration

in the submitted maintenance plan.

5. Wintertime Oxygenated Gasoline

Program

Pursuant to CAA section 211(m), CO

nonattainment areas with design values

of 9.5 ppm or higher must implement a

wintertime oxygenated gasoline

program requiring that gasoline contain

not less than 2.7 percent oxygen by

weight. In addition, CAA section

187(b)(3) requires that all serious CO

areas implement such a program.

California submitted its motor vehicle

fuels regulations, including

requirements for wintertime oxygen

content, on November 15, 1994. We

approved the regulations on August 21,

1995, as meeting the applicable CAA

requirements. 60 FR 43379. The

requirements remain in effect in the

South Coast area, although the State has

amended the program in other areas.

6. Conclusion

For the reasons discussed above, we

propose to determine that all of the

provisions of CAA section 110 and part

D applicable to the South Coast CO area

for purposes of redesignatio'n have been

approved into the California SIP.

C. Improvement in Air Quality Is Due to

Permanent and Enforceable Measures

CAA section 107(d)(3)(E)(iii)

establishes that, as a prerequisite to

redesignation to attainment,

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 pollutant control

regulations and other permanent and

enforceable reductions * *

The Maintenance Plan provides

evidence that the meteorological

conditions for the years when the South

Coast attained the CO NAAQS were

more conducive to higher ambient CO

concentrations than the long term mean.

During the same period, daily VMT

increased at the normal rate of growth,

from 322.8 milli6n miles in 2001 to ! *

330.4 million miles in 2003, so activity

levels associated with motor vehicles,

the primary CO source in the South

Coast, were not abnormal. Maintenance

Plan, p. 6. Increasing CO emission

reductions associated with State and

Federal motor vehicle standards,

coupled with SCAQMD's CO emission

limits on stationary and area sources,

provide additional evidence that

attainment results from the SIP's

permanent and reliable controls on CO

emissions rather than favorable

meteorology or depressed activity

levels. The largest source of emissions

reductions during this period came from

progressively more stringent State

emission standards for cars, trucks,

buses, and nonroad equipment,

including forklifts, lawn and garden

equipment, and marine pleasurecraft. 11

We propose to find that this

prerequisite to redesignation has been

met.

D. Fully Approved Maintenance Plan

CAA section 107(d)(3)(E)(iii) requires

that, before we redesignate an area to

attainment, we must have "fully

approved a maintenance plan for the

area as meeting the requirements of

section 175A * * *."

1. Applicable Requirements

Section 175A of the CAA sets forth

the elements of a maintenance plan for

areas seeking redesignation from

nonattainment to attainment. The

maintenance plan must demonstrate

continued attainment of the applicable

NAAQS for at least ten years after the

Administrator approves a redesignation

to attainment. Eight years after the

promulgation of the redesignation, the

State must submit a revised

maintenance plan that demonstrates

continued attainment for the subsequent

ten-year period following the initial tenyear maintenance period. To address the

possibility of future NAAQS violations,

the maintenance plan must contain

contingency measures, with a schedule

"Documentation on these and other California

mobile souce standards may be found at: http://

www.arb.ca.gov/msprog/msprog.htm. EPA has

acted over the years to waive Federal preemption

of State standards for California's motor vehicle

standards as authorized by CAA section 209(b) and

nonroad engine standards as authorized by CAA

section 209(e)(2). Under these CAA sections, EPA

must grant the waiver unless the Adminsitrator

finds that: (1) Califronia's determination that its

standards, in the aggregate, are at least as protective

of public health and welfare as applicable Federal

standards is arbitrary and capricious; (2) California

does not need such State standards to meet

compelling and extraordinary conditions; or (3)

California's standards and accompanying

enforcement procedures are not consistent with

section 202(a) [or 209 for nonroad] of the CAA.

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for adoption and implementation, that

are adequate to assure prompt

correction of a violation.

We have issued guidance on

maintenance plans, including most

notably: (1) The General Preamble (57

FR 13498, April 16, 1992), and (2) the

Calcagni memo. In this action, we

propose to approve the Maintenance

Plan because we believe that it meets

the requirements of CAA section 175A

and is consistent with the documents

referenced above and other documents

identified in the discussion below.

2. Maintenance Plan Provisions

a. Emissions Inventories for Attainment

Year and Future Years

The Maintenance Plan includes

emissions inventories for the attainment

year (2002) and for future years 2005,

2010, and 2015, along with motor

vehicle emissions for 2020. The

methodologies for the inventories are

discussed on pages 14-16, including an

extensive discussion of adjustments to

projected mobile source emissions to

reflect the impact of possible

suspension of wintertime oxygenate "

requirement for gasoline in the South

Coast.' 2 Table 2 below reproduces

emissions data primarily from Table 3-

2 of the Maintenance Plan. For 2020, the

onroad emissions data are presented in

Attachment 3 to the plan. Attachment 3

provides winter emissions for motor

vehicles under two scenarios, SCAG

2001 RTP baseline case (1078 tpd) and

SCAG 2001 RTP plan case (941 tpd).

The Maintenance Plan does not include

inventories for stationary, areawide, and

nonroad sources for 2020. In Table 2,

the 2020 projected emissions are

derived from CARB's latest annual

updated emissions analysis for these

inventory categories. The data are taken

from The California Almanac of

Emissions and Air Quality, 2006

Edition, Table 4-10,

available at: http://www.arb.ca.govl

aqd/almanac/almanaco6/chap406.htm.

TABLE 2.-SOUTH COAST PROJECTED WINTER CO EMISSIONS INVENTORY

[In tons per day]

Category '2002 2005 2010 2015 2020

Stationary ................................................................ 53 55 59 64 69

A reaw ide ..............................................................................................................

315 318 325 332 7,9

O nroad ...............................................................................................................

3402 2668 2018 1428 1078

Onroad with oxygenated fuel adjustment .......................................................................................

3402 2668 3041 1444

N onroad ..............................................................................................................

1065 987 912 890 953

Nonroad with oxygenated fuel adjustment ...................................................................... t ............... 1065 987 921 899

Total ........................................................................... .............................................................. 4835 4028 3346 2739 .2179

The table shows that maintenance of

the NAAQS would be expected

primarily from large reductions in the

onroad category, which result from the

turnover of cars and trucks, as older and

more polluting vehicles are retired and

replaced with newer and much cleaner

vehicles.

The projected 2015 and 2020 onroad

emissions were generated using CARB's

motor vehicle emissions factor model,

EMFAC2002v2.2, interpolating vehicle

populations from calendar year 2010

and 2020 populations, as set oiit in

Maintenance Plan, Attachment 2 (CO

Modeling Attainment Demonstration

Extracted from the 2003 Air Quality

Management Plan, Appendix V, Section

4), Attachment 3 (CARB Assessment

549: South Coast Air Basin CO

Maintenance Plan Winter Emissions).

EMFAC2002v2.2 was the most recent

EPA-approved.motor vehicle emissions

factor model at the time the

Maintenance Plan was prepared, but

12 Section 3.1.2 of the Maintenance Plan discusses

the possibility that the State might determine in

future to rescind the wintertime oxygenated fuel

requirement as a primary measure. As discussed

below, data from the California Almanac of

Emissions and Air Quality, 2006 Edition, were used

to complete the emissions profile for 2020. The

Almanac does not provide projected emissions for

a future scenario in which the wintertime

oxygenated fuel requirement is shifted from a

CARB expects to update the model in

the near future as part of the preparation

of SIPs due to be submitted by the State

in 2007.13 Other aspects of the

emissions inventory were current,

accurate, and complete at the time of

plan preparation, and comply with

applicable EPA guidance on the

preparation of emission inventories. We

therefore propose to approve the

MaintenancePlan with respect to its

emissions inventories.

b. Maintenance Demonstration

CAA section 175A(a) requires that the

maintenance plan "provide for the

maintenance of the national primary

ambient air quality standard for such air

pollutant in the area concerned for at

least 10 years after the redesignation."

Generally, a state may demonstrate

maintenance of the CO NAAQS by

either showing that future emissions

will not exceed the level of the

attainment inventory or by modeling to

primary measure to a contingency measure.

Therefore, the 2020 column in Table 2 does not

show these projections. If the State wishes in future

to change the wintertime oxygenated fuel program

from an active measure to a contingency measure,

the State will need at that time to update the

quantification of the impact on CO emissions, and

demonstrate that the proposed revision will not

interfere with continued maintenance or any other

applicable requirement.

show that the future mix of sources and

emissions rates will not cause a

violation of the NAAQS. For areas that

are required under the Act to submit

modeled attainment demonstrations, the

maintenance demonstration should use

the same type of modeling. Calcagni

memo, p. 9. Because the design value

for the South Coast exceeded 12.7 ppm

and the area is classified as serious,

modeling would have been required as

part of the attainment demonstration

under CAA section 187(b)(7)(i). The

Maintenance Plan includes a modeled

maintenance demonstration.14

The modeling demonstration is

discussed on pages 12-13 of the

Maintenance Plan, and at more length in

Attachment 2. Regional modeling used

the Comprehensive Air Quality Model

(CAMx) and an October 31-November 1,

1997 meteorological episode, which

ranked in the 98th percentile in

stagnation severity. Additional hot-spot

roadway intersection modeling using

13 We approved the use of EMFAC2002 to

estimate motor vehicle emissions on April 2, 2003

(68 FR 15720).

14 However, where there is a determination of

attainment, the requirement for an attainment

demonstration is suspended and demonstrations of

maintenance can be either by emissions inventory

or modeling. See Wall v. EPA, 265 F.3d 426, 435-

436 (6th Cir. 2001).

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the CAL3QHC model was used to

demonstrate attainment at high-volume

intersections. The modeling estimated

the South Coast CO carrying capacity to

be 4,527 tpd. For the 2005 emissions

inventory level of 4028, modeling

predicted the 8-hour maximum

concentration to be 7.8 ppm, and the 1-

hour maximum to be 8.5 ppm.

Concentrations still further below the

NAAQS are associated with the 2015

and 2020 inventory levels, primarily

due to significant reductions in the

dominant motor vehicle emissions

category (2668 tpd in 2005, 1428 in

2015, and 1078 in 2020)..The

demonstration covers a 13-year period

(from 2007 through 2020), although

primarily referencing the 2015 year.

The CAMx modeling approach used

in the Maintenance Plan is an EPAapproved model and the modeling

performance is fully acceptable.

Moreover, the declining projected

emissions inventories for the span of the

maintenance demonstration also

support continued maintenance of the

NAAQS. We therefore propose to

approve the demonstration of

maintenance.

c. Monitoring Network and Verification

of Continued Attainment

The Calcagni Memo provides that

areas must continue to operate an air

quality monitoring network to verify

attainment. CO is currently monitored

in accordance with 40 CFR Part 50,

Appendix C and 40 CFR Part 58 at 22

stations. SCAQMD continues to assure

the quality of the measured data by

conducting routine calibrations, pre-run

and post-run test procedures, and

routine service checks. The District also

completes an annual review of the

monitoring network'to document

continued compliance with siting

criteria. The SCAQMD commits in the

Maintenance Plan to verify continued

maintenance by daily analysis of air

quality data collected (pp. 22-23).

Furthermore, the District commits to a

formal review of the Maintenance Plan

in 2007 and 2010 (p. 24). We propose

to approve the Maintenance Plan with

respect to the obligation to continue to

monitor and verify attainment.

d. Contingency Provision

CAA section 175A(d) requires that

maintenance plans include provisions

that EPA deems are necessary to assure

that the State will promptly correct any

NAAQS violation, and further requires

that such provisions include a

requirement that the State will

implement all measures contained in

the SIP before redesignation. We have

concluded that contingency measures

need not be new measures that would

be triggered by a violation, but may

consist of early implementation of measures that provide surplus

reductions beyond those needed for

attainment or maintenance. See "Early

Implementation of Contingency

Measures for Ozone and Carbon

Monoxide (CO) Nonattainment Areas,"

memo from G.T. Helms to EPA Air

Branch Chiefs, August 13, 1993.

The Maintenance Plan takes this

approach, providing a large margin of

emissions from fully adopted State

regulations, such as tighter emission

standards for all categories of motor

vehicles and for nonroad engines, such

as forklifts, lawn and garden equipment,

and marine pleasure craft. See

discussion above in Section III.C.,

providing a more extensive list of

measures, referencing the extensive

CARB documentation available for each

measure, and discussing the EPA waiver

process applicable to these California

mobile source standards. There is no

reason to expect that these standards,

which are all currently in effect, will be

relaxed in the future. Nor is there reason

to believe that compliance will be

inadequate, since CARB has for many

decades maintained a successful

enforcement program. For details on

CARB's mobile source enforcement

program for new and existing vehicles

and engines, see: http://www.arb.ca.govenf/enf.htm.

As a result, the predicted emissions

for 2015 are approximately 43 percent

below the 2002 attainment year

emissions levels, and this margin of

excess reductions is projected to

increase further in future years due to

the State's progressively tighter

emissions standards for new mobile

source engines coupled with fleet

turnover of the onroad and nonroad

fleet.

The SCAQMD and CARB have

committed to continue to implement all

existing measures to achieve permanent,

enforceable CO emission reductions that

will further reduce CO levels

(Maintenance Plan, Chapters 2 and 3;

CARB's letter to EPA dated February 24,

2006). The Maintenance Plan does

evaluate, however, the relatively small

emissions impact of a possible future

decision to suspend implementation of

the wintertime oxygenate program in

the South Coast (see Table 2 above). The

methodology and assumptions for

calculating the impact are discussed at

15 The MVEB for 2020 was clarified in letters from dated February 2, 2007, and from Laid Tisopulos,

Sylia Oey, CARB, to Dave Jeasson, EPA Region 9, SCAQMD, to Dave Jesson, dated February 2, 2007,

length on pp. 15-16 and in Attachment

A to the Maintenance Plan. If the State

decides in future to suspend the

wintertime oxygenated fuel

requirement, the State would need to

submit a SIP revision complying with

applicable CAA requirements.

For the above reasons, we propose to

approve the contingency provisions in

the Maintenance Plan as meeting the

requirements of CAA section 175A(d).

e. Commitment To Submit Subsequent

Maintenance Plan Revisons

CAA section 179A(b) provides that

States shall submit a commitment to

submit a SIP revision 8 years after

redesignation providing for maintaining

the NAAQS for an additional 10 years.

SCAQMD has made this commitment as

part of the Maintenance Plan (see p. 22),

and we propose to approve it.

f. Motor Vehicle Emissions Budgets

Transportation conformity is required

by section 176(c) of the CAA. Our

transportation conformity rule (codified

in 40 CFR part 93, subpart A) requires

that transportation plans, programs, and

projects conform to SIPs and establishes

the criteria and procedures for

determining whether or not they do so.

Conformity to the SIP means that

transportation activities will not

produce new air quality violations,

worsen existing violations, or delay

timely attainment of the national

ambient air quality standards.

Maintenance plan submittals must

specify the maximum emissions of

transportation-related CO emissions

allowed in the last year of the

maintenance period, i.e., the motor

vehicle emissions budget (MVEB). The

submittal must also demonstrate that

these emissions levels, when considered

with emissions from all other sources,

are consistent with maintenance of the

NAAQS. In order for us to find these

emissions levels or "budgets" adequate

and approvable, the submittal must

meet the conformity adequacy

provisions of 40 CFR 93.118(e)(4) and

(5), and be approvable under all

pertinent SIP requirements. For more

information on the transportation

conformity requirement and applicable

policies on MVEBs, please visit our

transportation conformity Web site at:

http://www.epa.gov/otaql

stateresources/transconf/index.htm.

The Maintenance Plan includes the

CO MVEBs shown in Table 3 below.

The budgets are based on Table 3-5 of

the plan and other documentation in

Section 3.1.3 of the plan.15 See also the

and an e-mail from Jonathan Nadler, SCAG, to Dave

Jesson, dated February 2, 2007.

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discussion of projected emissions in-,

Section III.D.2.a., above.

TABLE 3.-SOUTH COAST CO MAINTENANCE PLAN MOTOR VEHICLE EMISSIONS BUDGETS

[Winter season emissions in tons per day]

Category 2005 2010 2015 2020

Total Air Basin Emissions .................................................................. 4028 3346 2739 2179

M otor Vehicle Em issions .......................................................................................

2668 2041 1444 1078

S afety M argins ..............................................................................................

220 96 693 1059

Motor Vehicle Em issions Budgets ..................................................................................

2888 2137 2137 2137

Total Air Basin Emissions with Safety Margin ............................................. 4248 3442 3432 3196

M odeled Air Basin Em issions .....................................................................................

4528 4528 4528 4528

In setting MVEBs, States generally use

motor vehicle emission inventories.

California took this approach, for

example, in the 1997 CO attainment

plan. California need not, however, cap

MVEBs at projected motor vehicle

emissions levels. Because overall

projected levels of emissions from all

sources are expected to be less than the

-levels necessary to maintain the CO

NAAQS, California has a "safety

margin" that the State may use to set

MVEBs at a higher level. As long as

emissions from all sources are lower

than needed to provide for continued "

maintenance, the State may allocate

additional emissions to future mobile

source growth by assigning a portion of

the safety margin to the MVEBs (see 40

CFR 93.124). California stated in the

Maintenance Plan that the safety.

margins described in Table 3 above are

allocated to the MVEBs. Attainment was achieved in 2002

when the CO emissions level in the

basin was 4835 tpd. The modeled

attainment level is 4527 tpd. As can be

seen from Table 3, total basin emissions,

with the safety margin, are substantially

below actual and modeled attainment

levels. Thus, the safety margins comply

with the requirement that the budgets

with safety margins are lower than the

maintenance level.

The criteria by which we determine

whether a SIP's MVEBs are adequate

and approvable for conformity purposes

are outlined in 40 CFR 93.118(e)(4) and

(5). The following paragraphs provide

our review of the budgets in the

Maintenance Plan against our adequacy

criteria and provide the basis for our

proposed appioval of the MVEBs.

Under 40 CFR 93.118(e)(4)(i), we.

review a submitted plan to determine

whether the plan was endorsed by the

Governor (or designee) and was subject

to a public hearing. The February 24,

2006 transmittal letter for the

Maintenance Plan was signed by the

CARB Executive Officer, the Governor's

-designee for SIP purposes. CARE

Executive Order G-125-332 provides

evidence of State adoption and legal

authority. SCAQMD's April 19, 2005

transmittal letter documents that the

District held a public hearing on the

Maintenance Plan on March 4, 2005,

after proper public notice. Therefore, we

propose to conclude that the submitted

plan meets the criterion under 40 CFR

93.118(e)(4)(i).

Under 40 CFR,93.118(e)(4)(ii), we

review a submitted plan to determine

whether the plan was developed

through consultation with Federal, State

and local agencies and whether full

implementation plan documentation

was provided to EPA and EPA's stated

concerns, if any, were addressed.

Consultation for development of this

plan largely consisted of public

meetings (page 75 of the plan);

discussions with Federal, State, and

local transportation planning agencies;

and a public hearing, preceded by

notices that were published in

newspapers of general circulation.

Documentation was provided to EPA

and EPA's stated concerns were

addressed. We propose to conclude that

this consultation is sufficient for the

purposes of 40 CFR 93.118(e)(4)(ii).

Under 40 CFR 93.118(e)(4)(iii), we

review a submitted plan to determine

whether the MVEBs are clearly

identified and precisely quantified. The

Maintenance Plan clearly identifies and

precisely quantifies the CO MVEBs as

shown in Table 3 above. The budgets

are derived from EMFAC2002 with

travel activity data provided by the

Southern California Association of

Governments (SCAG). The methodology

and rationale for determining the

MVEBs is discussed on pages 17.

through 22 of the plan. This portion of

the plan also indicates that modeling

- sensitivity analyses confirm that the

budgets would provide for maintenance

even assuming possible changes in

future to the estimation of motor vehicle

emissions. We propose that the plan

thereby meets the adequacy criterion

under 40 CFR 93.118(e)(4)(iii).

Under 40 CFR 93.118(e)(4)(iv), we

review a submitted plan to determine

whether the MVEBs, when considered

together with all other emissions

sources, are consistent with applicable

requirements for reasonable further

progress, attainment, or maintenance

-(whichever is relevant to a given SIP

submission). The Maintenance Plan

shows how the MVEBs and related

safety margins are consistent with

maintenance of the CO NAAQS through

2015 (see pages 12 through 16 of the

Maintenance Plan) and 2020 (see "

Attachment 3). In particular, Table 3-1,

3-2, 3-4, and 3-6 of the Maintenance

Plan show the extent-to which

maximum future year emissions

(including the budget safety margins)

fall below emissions for the 2002

attainment year and below the modeled

2003 emissions, which are associated

with ambient concentration levels that

are below both the 1-hour and 8-hour

NAAQS. "Assessment 549" on page 74

of the plan shows that this trend of

lower CO emissions continues through

2020, despite projected VMT increases.

Consequently, we propose to find that

the plan meets this criterion for

adequacy.

Under 40 CFR 93.118(e)(4)(v), we

review a plan to determine whether the

M'VBs are consistent with and clearly

related to the emissions inventory and

the control measures in the submitted

control strategy plan or maintenance

plan. The Maintenance Plan contains no

new measures but the budgets

appropriately reflect the State's adopted

emissions standards, fuel regulations,

and the vehicle inspection and

maintenance program, as applicable to

the area. Thus, we propose to conclude

that the submitted plan meets this

criterion for adequacy.

Under 40 CFR 93.118(e)(4)(vi), we

review a submitted plan to determine

whether revisions to previously

submitted plans explain and document

any changes to previously submitted

budgets and control measures; impacts

on point and area source emissions; any

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changes to established safety margins;

and reasons for the changes (including

the basis for any changes related to

emissions factors or estimates of vehicle

miles traveled). The Maintenance Plan

explains and documents the various

changes that have been made to the CO

emissions inventories, etc.16 Thus, we

propose to find that the submitted plan

meets this criterion for adequacy.

Under 40 CFR 93.118(e)(5), we review

the State's compilation of public

comments and response to comments

that are required to be submitted with

any SIP revision. Attachments 6 and 7

of the Maintenance Plan submittal

provide transcripts and minutes of the

public hearing, during which there was

a single comment, supporting adoption

of the plan. We reviewed this

compilation and concluded that the

comment does not affect our proposed

approval of the MVEBs. Thus, we

propose that the Maintenance Plan

meets this criterion for adequacy.

Therefore, we propose to approve the

CO MVEBs contained in the submitted

Maintenance Plan because the plan and

budgets meet the requirements under 40

CFR 93.118(e)(4) and (5) and because we

find that ARB has met all statutory

requirements for submittals of

maintenance plans under sections 110

and part D of the Act. Should we

finalize our approval, the Southern

California Association of Governments

(SCAG) and the U.S. Department of

Transportation must use these new CO

MVEBs from the Maintenance Plan for

futuretransportation conformity

determinations. We are also announcing

our proposed approval on our

conformity adequacy Web site: http:!!

www.epa.govlotaq/stateresources/

transconflcurrsips.htm.

In the submittal letter dated February

24, 2006, CARB requested that we limit

the duration of any final approval of the

MVEBs in the Maintenance Plan to last

only until the effective date of future

EPA adequacy findings for replacement

budgets. This would mean that if CARB

decides to amend the CO MVEBs

sometime in the future, then the new

MVEBs would become effective as soon

as EPA determined adequacy, rather

than after comprehensive rulemaking

(which is a longer process).

CARB had made a similar request,

and EPA granted it, in connection with

the MVEBs in other plans submitted by

the State (see 67 FR 69139, November

16 The most significant technical difference

between the attainment SIP and the maintenance

plan is the change from EMFAC7G to

EMFAC2002v2.2, which results in a significant

improvement in the quantification of motor vehicle

emissions, and updates to SCAG's growth

projections.

15, 2002). That prior CARB request was

accompanied by significant

documentation that demonstrated why

limiting the duration of our MVEB

approval provided an advantage to air

quality and public health protection.

With the current request, however,

CARB has not provided supporting

documentation to address our criteria

for granting limited approval. The

criteria are set out on page 69141 of the

rulefiaking, and include: (1) State

acknowledgment that its current

budgets are outdated or deficient; (2)

State commitment to update the budgets

as part of a comprehensive update of its

SIP; and (3) State request that we limit

the duration of the approval of the

State's current approved SIP. We note

that CARB's request to limit the

duration of the approvals of the MVEBs

was contained only in the submittal

letter and the request is not, therefore,

considered a part of the maintenance

plan itself. Therefore, our denial of

ARB's request does not affect our

approval of the plan or the budgets

contained therein.

g. Conclusion

Because the Maintenance Plan

satisfies applicable CAA requirements,

we propose to approve it under section

175A.

IV. Proposed Action

We are proposing to approve the 2005

Carbon Monoxide Redesignation

Request and Carbon Monoxide

Maintenance Plan for the South Coast

Air Basin as meeting the requirements

of CAA section 175A. We are proposing

to find adequate the MVEBs and to

approve the budgets under CAA section

176(c).

We are also proposing to approve the

State's request to redesignate the area to

attainment for CO under the provisions

of CAA section 107(d)(3)(E). As

prerequisite.to this action, we are

proposing to find that the area has

attained the NAAQS due to permanent

and enforceable emission reductions

under the'SIP, and that the SIP for the

area meets all of the requirements of

CAA section 110, Part D, and section

175A applicable for purposes of

redesignation.

As part of our proposed determination

that the South Coast area has met

applicable Part D provisions, we are

proposing to adapt to CO areas the

provisions of our Clean Data Policy,

which we have established for 1-hour

ozone, PM-IO, 8-hour ozone, and PM2.5 areas. Under our proposed extension

of the Clean Data Policy to CO, we are

proposing to interpret certain CAA Part

D provisions as suspending the

requirements for submission of RFP,

attainment demonstrations, contingency

measures, and TCMs related to RFP due

to the fact that the South Coast has

already attained the CO NAAQS. We are

proposing to approve the 1997 CO plan

and the Maintenance Plan as meeting

the requirements of CAA section

187(b)(2) relating to TCMs to offset

emissions associated with growth in

VMT and vehicle trips.

Finally, because our interim approval

of California's I/M program for CO in

the South Coast expired on August 7,

1998, California has now submitted a

demonstration that the I/M program

meets the low-enhanced requirements

applicable to the South Coast CO

nonattainment area. We are proposing to

approve that demonstration and to

conclude that the State has satisfied the

CAA section 187(a)(6) and 187(b)(1)

enhanced I/M requirements that applied

to the South Coast CO nonattainment

area.

V. Statutory and Executive Order

Reviews I

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a "significant regulatory

action" and therefore is not subject to

review by the Office of Management and

Budget. For'this reason, this action is

also not subject to Executive Order

13211, "Actions Concerning Regulations

That Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This proposed action merely

proposes to approve state law as

meeting'Federal requirements and to

redesignate the area to attainment for air

quality planning purposes, and imposes

no additional requirements beyond

those imposed by state law.

Accordingly, the Administrator certifies

that this proposed rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

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

proposes to approve pre-existing

requirements under state law and does

not impose any additional enforceable

duty beyond that required by state law,

it does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4).

This proposed rule also does not have

tribal implications because it will not

have a substantial direct effect on one or

more Indian tribes, on the relationship

between the Federal Government and

Indian tribes,' or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

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Federal Register / Vol. 72, No. 30/Wednesday, February 14, 2007 / Proposed Rules

(65 FR 97249, November 9, 2000). This

proposed action also does not have

Federalism implications because it does

not have substantial direct effects on the

States, on the relationship between the

.national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

proposes to approve a State rule

implementing a Federal standard and to

redbsignate the area to attainment for air

quality planning purposes, and does not

alter the relationship or the distribution

of power and responsibilities

established in the CAA. This proposed

rule also is not subject to Executive

'-Order 13045 "Protection of Children

from Environmental Health Risks and

Safety Risks" (62 FR 19885, April 23,

1997), because it proposes to approve a

state plan implementing a Federal

Standard and to redesignate the area to

attainment for air quality planning.

purposes. EPA interprets EO 13045 as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the EO has the

potential to influence the regulation.

This proposed rule is not subject to.EO

13045 because it proposes to approve a

State plan and to redesignate the area to

attainment for air quality planning

purposes.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the state to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission

or redesignation request, to use VCS in

place of a SIP submission that otherwise

satisfies the provisions of the Clean Air

Act. Thus, the requirements of section

12(d) of the National Technology

Transfer and Advancement Act of 1995

(15 U.S.C. 272 note) do not apply. This

proposed rule does not impose an

information collection burden under .the

provisions of the. Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Carbon monoxide, Reporting

and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: February 6, 2007.

Laura Yoshii,

Acting Regional Administrator, Region 9.

[FR Doc. E7-2538 Filed 2-13-07; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants; 90-Day Finding on A

Petition to List Astragalus debequaeus

(DeBeque milkvetch) as Threatened or

Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of 90-day petition

finding.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), announce a

90-day finding on a petition to list

Astragalus debequaeus (DeBeque

milkvetch) as threatened or endangered

under the Endangered Species Act of

1973, as amended (Act). We find that

the petition does not present substantial

scientific or commercial information

indicating that listing A. debequaeus

may be warranted. Therefore, we will

not be initiating a further status review

in response to this petition. We ask the

public to submit to us any new

information that becomes available

Concerning the status of A. debequaeus

or threats to its habitat at any time. This

information will help us monitor and

encourage the conservation of the

species.

DATES: The finding announcea in this

document was made on February 14,

2007. You may submit new information

concerning this species for our

consideration at any time.

ADDRESSES: The complete supporting

file for this finding is available for

public inspection, by appointment,

during normal business hours at the

Western Colorado Field Office, U.S.

Fish and Wildlife Service, 764 Horizon

Drive, Building B, Grand Junction, CO

81506. Submit new information,

materials, comments, or questions

concerning this species to us at the

address above.

FOR FURTHER INFORMATION CONTACT:

Allan R. Pfister, Field Supervisor,

Western Colorado Field Office (see

ADDRESSES section) (telephone 970-

243-2778, extension 29; facsimile 970-

245-6933). Persons who use a

telecommunications device for the deaf

(TDD) may call the Federal Information

Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

Section 4(b)(3)(A) of the Act requires

that we make a finding on whether a

petition to list, delist, or reclassify a

species presents substantial scientific or

commercial information indicating that

the petitioned action may be warranted.

We are to base this finding on

information provided in the petition,

supporting information submitted with

the petition, and information otherwise

available in our files at the time we

make the determination. To the.

maximum extent practicable, we are to

make this finding within 90 days of our receipt of the petition and publish our

notice of this finding promptly in the

Federal Register.

Our standard for substantial

information within the Code of Federal

Regulations (CFR) with regard to a 90-

day petition finding is "that amount of

information that would lead a

reasonable person to believe that the

measure proposed in the petition may

be warranted" (50 CFR 424.14(b)). If we

find that substantial information was

presented, we are required to promptly

commence a review of the status of the

species.

In making this finding, we rely on

information provided by the petitioner

and evaluate that information in

accordance with 50 CFR 424.14(b). Our

90-day finding process under section

4(b)(3)(A) of the Act and section

424.14(b) of our regulations is limited to

a determination of whether the

information in the petition meets the "substantial information" threshold. A

substantial finding should be made

when the Service deems that adequate

and reliable information has been

presented that would lead a reasonable

person to believe that the petitioned

action may be warranted.

On October 26, 2004, we received a

formal petition, dated October 25, 2004,

submitted by the Center for Native

Ecosystems and the Colorado Native

Plant Society (2004), requesting that we

list Astragalus debequaeus as

threatened or endangered, and designate

critical habitat concurrently. The

petition identified itself as such and

included the requisite identification

information for the petitioners, as

required in 50 CFR 424.14(a). We

acknowledged receipt of the petition in

a January 20, 2005, letter to Mr. Joshua

Pollock. In that letter, we advised the

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