70490 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

A second comment raised a concern

as to whether exhibits should be

numbered, noting that there is no patent

interference rule requiring that exhibits

be numbered. Each exhibit needs to be

identified in some unique manner. All

interferences declared by the Board of

Patent Appeals and Interferences

(Board) at this time are subject to a

‘‘Standing Order’’ that requires that

exhibits be numbered.

The same comment noted that former

37 CFR 1.682 authorized placing a

publication in evidence without the

need for an affidavit. According to the

comment, affidavits will now be

necessary. Publications generally may

be placed in evidence in interference

cases without an affidavit. If an

objection is made by an opponent, e.g.,

for lack of authenticity, then under the

Board’s practice the party has a period

of time within which to supplement its

evidence by properly authenticating the

publication. The Board expects few, if

any, problems with the admissibility of

most printed publications given that

most parties will have no reason to

question the authenticity of most

printed publications.

Regulatory Flexibility Act

This rulemaking is procedural and is

not subject to the requirements of 5

U.S.C. 553 so no initial regulatory

flexibility analysis is required under 5

U.S.C. 603.

Executive Order 13132: Federalism

Assessment

This rulemaking does not contain

policies with federalism implications

sufficient to warrant preparation of a

Federalism Assessment under Executive

Order 13132 (August 4, 1999).

Executive Order 12866

This rulemaking has been determined

to be not significant for purposes of

Executive Order 12866 (September 30,

1993).

Paperwork Reduction Act

This interim rule creates no

information collection requirements

subject to the Paperwork Reduction Act

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

List of Subjects in 37 CFR Part 1

Administrative practice and

procedure, Inventions and patents.

For the reasons stated in the

preamble, the United States Patent and

Trademark Office amends 37 CFR Part

1 as follows:

PART 1—RULES OF PRACTICE IN

PATENT CASES

1. Amend the authority citation for 37

CFR Part 1 to read as follows:

Authority: 35 U.S.C. 2(b)(2), unless

otherwise noted.

2. Amend § 1.601(f) to revise

paragraph (f) to read as follows:

§ 1.601 Scope of rules, definitions.

* * * * *

(f) A count defines the interfering

subject matter between two or more

applications or between one or more

applications and one or more patents.

When there is more than one count,

each count shall define a separate

patentable invention. Any claim of an

application or patent that is designated

to correspond to a count is a claim

involved in the interference within the

meaning of 35 U.S.C. 135(a). A claim of

a patent or application that is

designated to correspond to a count and

is identical to the count is said to

correspond exactly to the count. A claim

of a patent or application that is

designated to correspond to a count but

is not identical to the count is said to

correspond substantially to the count.

When a count is broader in scope than

all claims which correspond to the

count, the count is a phantom count.

* * * * *

3. Revise § 1.606 to read as follows:

§ 1.606 Interference between an

application and a patent; subject matter of

the interference.

Before an interference is declared

between an application and an

unexpired patent, an examiner must

determine that there is interfering

subject matter claimed in the

application and the patent which is

patentable to the applicant subject to a

judgment in the interference. The

interfering subject matter will be

defined by one or more counts. The

application must contain, or be

amended to contain, at least one claim

that is patentable over the prior art and

corresponds to each count. The claim in

the application need not be, and most

often will not be, identical to a claim in

the patent. All claims in the application

and patent which define the same

patentable invention as a count shall be

designated to correspond to the count.

4. Amend § 1.671 to revise paragraphs

(a) and (e) to read as follows:

§ 1.671 Evidence must comply with rules.

(a) Evidence consists of affidavits,

transcripts of depositions, documents

and things.

* * * * *

(e) A party may not rely on an

affidavit (including exhibits), patent, or

printed publication previously

submitted by the party under § 1.639(b)

unless a copy of the affidavit, patent, or

printed publication has been served and

a written notice is filed prior to the

close of the party’s relevant testimony

period stating that the party intends to

rely on the affidavit, patent, or printed

publication. When proper notice is

given under this paragraph, the

affidavit, patent, or printed publication

shall be deemed as filed under

§ 1.640(b), § 1.640(e)(3), or § 1.672, as

appropriate.

* * * * *

Dated: November 9, 2000.

Q. Todd Dickinson,

Under Secretary of Commerce for Intellectual

Property and Director of the United States

Patent and Trademark Office.

[FR Doc. 00–30015 Filed 11–22–00; 8:45 am]

BILLING CODE 3510–16–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[MI75–7284a; FRL–6907–1]

Approval and Promulgation of State

Implementation Plans; Michigan

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: The United States

Environmental Protection Agency (EPA)

is adjusting the applicability date for

reinstating the 1-hour ozone National

Ambient Air Quality Standard (NAAQS)

in Allegan County, Michigan and is

determining that the area has attained

the 1-hour ozone NAAQS. This

determination is based on 3 consecutive

years of complete, quality-assured,

ambient air monitoring data for the

1997–1999 ozone seasons that

demonstrate the area has attained the

ozone NAAQS. On the basis of this

determination, EPA is also determining

that certain attainment demonstration

requirements, and certain related

requirements of part D of subchapter I

of the Clean Air Act (CAA), do not

apply to the Allegan area.

EPA is also approving the State of

Michigan’s request to redesignate

Allegan County to attainment for the 1-

hour ozone NAAQS. Michigan

submitted the redesignation request for

the Allegan area in two submittals dated

September 1, 2000 and October 13,

2000. In approving this redesignation

request, EPA is also approving the

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70491

State’s plan for maintaining the 1-hour

ozone standard for the next 10 years as

a revision to the Michigan State

Implementation Plan (SIP). In this direct

final rule, EPA is also notifying the

public that we believe the motor vehicle

emissions budgets for volatile organic

compounds (VOC) and oxides of

nitrogen (NOX) in the Allegan, MI

submitted maintenance plan are

adequate for conformity purposes and

approvable as part of the maintenance

plan.

In the proposed rules section of this

Federal Register, EPA is proposing

approval of, and soliciting comments

on, this SIP revision. If we receive

adverse comments on this action, we

will withdraw this final rule and

address the comments received in

response to this action in a final rule on

the related proposed rule. We will not

open a second public comment period.

Parties interested in commenting on this

action should do so at this time.

DATES: This ‘‘direct final’’ rule is

effective January 16, 2001, unless EPA

receives adverse written or critical

comments by December 26, 2000. If the

rule is withdrawn, EPA will publish

timely notice in the Federal Register.

ADDRESSES: Send written comments to:

Carlton T. Nash, Chief, Regulation

Development Section, Air Programs

Branch (AR–18J), United States

Environmental Protection Agency, 77

West Jackson Boulevard, Chicago,

Illinois 60604. (We recommend that you

telephone John Mooney at (312) 886–

6043 before visiting the Region 5

Office.)

A copy of the SIP revision is available

for inspection at the Office of Air and

Radiation (OAR) Docket and

Information Center (Air Docket 6102),

Room M1500, United States

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460,

(202) 260–7548.

FOR FURTHER INFORMATION CONTACT: John

M. Mooney, Regulation Development

Section (AR–18J), Air Programs Branch,

Air and Radiation Division, United

States Environmental Protection

Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604,

(312) 886–6043.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Adjustment of Applicability Date for

Reinstating the 1-Hour Ozone Standard

A. Why did EPA revoke the 1-hour ozone

standard in Allegan?

B. Why did EPA reinstate the 1-hour ozone

standard in Allegan?

C. What does reinstatement mean for

Allegan?

II. Determination of Attainment

A. What action is EPA taking?

B. Why is EPA taking this action?

C. What would be the effect of this action?

D. What is the background for this action?

E. Where is the public record and where

do I send comments?

III. Redesignation Request

A. What action is EPA taking?

B. What would be the effect of the

redesignation?

C. What is the background for this action?

D. What are the redesignation review

criteria?

E. What is EPA’s analysis of the request?

F. Where is the public record and where

do I send comments?

IV. Disclaimer Language Approving SIP

Revisions

V. What administrative requirements did

EPA consider?

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility

F. Unfunded Mandates

G. Submission to Congress and the

Comptroller General

H. National Technology Transfer and

Advancement Act

I. Petitions for Judicial Review

I. Adjustment of Applicability Date for

Reinstating the 1-Hour Ozone Standard

A. Why Did EPA Revoke the 1-hour

Ozone Standard in Allegan?

On June 5, 1998 (63 FR 31014), July

22, 1998 (63 FR 39432) and June 9, 1999

(64 FR 30911), the EPA revoked the 1-

hour ozone NAAQS in many areas

around the country in anticipation of

implementing the new 8-hour ozone

NAAQS that was established in 1997.

EPA revoked the 1-hour standard to

allow areas that were showing

attainment to redirect their focus toward

meeting the new 8-hour standard. On

June 9, 1999, the EPA revoked the 1-

hour standard for the Allegan area

because ozone monitors were showing

attainment of the ozone NAAQS.

B. Why Did EPA Reinstate the 1-hour

Ozone Standard in Allegan?

On May 14, 1999, the U.S. Court of

Appeals for the District of Columbia

Circuit issued a decision on the 8-hour

ozone NAAQS that blocked EPA’s

ability to implement the new standard.

That action left nearly 3,000 U.S.

counties without any federal public

health standard for ozone. To remedy

this situation, on July 20, 2000, EPA

published a final rulemaking action in

the Federal Register (65 FR 45181) to

reinstate the 1-hour standard in areas

where it had been revoked, including

Allegan.

C. What Does Reinstatement Mean for

Allegan?

For areas with clean air quality data,

like Allegan, the July 20, 2000

rulemaking (65 FR 45182) specifies that

reinstating the nonattainment

designation will occur 180 days after

EPA published the rulemaking, on

January 16, 2001. EPA believes that it is

appropriate to provide nonattainment

areas with clean air quality data since

revocation additional time to complete

the redesignation process. Therefore,

EPA delayed the applicability date of

the final rule for 180 days for areas that

were designated nonattainment at the

time of revocation and continue to have

clean data, to allow States to submit

redesignation requests and EPA time to

act on them prior to the January 16,

2001 applicability date. The July 20,

2000 rule specifies a procedure by

which EPA can synchronize the

effective date of the reinstatement and

the redesignation. EPA is using that

procedure in this action.

II. Determination of Attainment

A. What Action Is EPA Taking?

The EPA is determining that the

Allegan ozone nonattainment area has

attained the NAAQS for ozone. On the

basis of this determination, EPA is also

determining that certain CAA

requirements do not apply to the

Allegan area as long as it continues to

attain the ozone NAAQS. These

requirements are (section 172(c)(1))

attainment demonstration requirements

and (section 172(c)(9)) contingency

measure requirement.

B. Why Is EPA Taking This Action?

EPA believes it is reasonable to

interpret provisions regarding

attainment demonstrations and certain

related provisions to not require SIP

submissions, as described further below,

if an ozone nonattainment area subject

to those requirements is monitoring

attainment of the ozone standard (i.e.,

attainment of the NAAQS is

demonstrated with three consecutive

years of complete, quality-assured, air

quality monitoring data). EPA made this

interpretation, and described our legal

rationale for it in a memo from John

Seitz dated May 10, 1995. EPA is basing

the determination that Allegan County

has attained the ozone standard upon

three years of complete, quality-assured,

ambient air monitoring data for the 1997

to 1999 ozone seasons recorded at the

Allegan monitoring site. These data

demonstrate that Allegan County has

attained the ozone NAAQS. Preliminary

ozone monitoring data for 2000

70492 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

continue to show that this area is

attaining the ozone NAAQS.

C. What Would Be the Effect of This

Action?

The requirements of section 172(c)(1)

concerning the submission of a plan to

ensure reasonable further progress (RFP)

plan and the ozone attainment

demonstration and the requirements of

section 172(c)(9) concerning

contingency measures for RFP or

attainment will not apply to Allegan

County.

The State must continue to operate an

appropriate air quality monitoring

network, in accordance with 40 CFR

part 58, to verify the attainment status

of the area.

The determination in this document

does not shield an area from future EPA

action to require emissions reductions

from sources in the area where there is

evidence, such as photochemical grid

modeling, showing that emissions from

sources in the area contribute

significantly to nonattainment in, or

interfere with maintenance by, any

other states with respect to the NAAQS

(see section 110(a)(2)(D)). The EPA has

authority under sections 110(a)(2)(A)

and 110(a)(2)(D) of the CAA to require

such emission reductions if necessary

and appropriate to deal with transport

situations.

D. What Is the Background for This

Action?

The EPA believes it is reasonable to

interpret provisions regarding RFP and

attainment demonstrations and certain

related provisions to not require SIP

submissions if an ozone nonattainment

area subject to those requirements is

monitoring attainment of the ozone

standard (i.e., attainment of the NAAQS

demonstrated with three consecutive

years of complete, quality-assured, air

quality monitoring data). EPA has

interpreted the general provisions of

subpart 1 of part D of Subchapter I

(sections 171 and 172) as not requiring

the submission of SIP revisions

concerning RFP, attainment

demonstrations, or contingency

measures, as explained in a

memorandum from John S. Seitz,

Director, Office of Air Quality Planning

and Standards, entitled ‘‘Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard,’’ dated

May 10, 1995 (See Sierra Club v. EPA,

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

The attainment demonstration

requirements of section 182(b)(1) are

that the plan provide for ‘‘such specific

annual reductions in emissions * * * as

necessary to attain the national primary

ambient air quality standard by the

attainment date applicable under the

CAA.’’ If an area has in fact monitored

attainment of the relevant NAAQS, 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 certain section

172(c) requirements provided by EPA in

the General Preamble to Title I of the

Clean Air Act Amendments of 1990

(1990 Act). As EPA stated in the

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 13564). Upon

attainment of the NAAQS, the focus of

state planning efforts shifts to the

maintenance of the NAAQS and the

development of a maintenance plan

under section 175A.

Similarly, the EPA has previously

interpreted the contingency measure

requirement of section 172(c)(9) as no

longer applying once an area has

attained the standard since those

‘‘contingency measures are directed at

ensuring RFP and attainment by the

applicable date’’ (57 FR 13564). EPA has

exercised this policy most recently in

approvals for the Cincinnati, OH and

Muskegon, MI areas (65 FR 37879 and

65 FR 52651).

The EPA has reviewed the ambient air

monitoring data for ozone (consistent

with the requirements contained in 40

CFR part 58 and recorded in AIRS) for

Allegan County from the 1997 through

1999 ozone seasons, as recorded at the

Allegan monitoring site. This data is

summarized in Table 1 of this document

covering EPA’s analysis of the

redesignation request. Preliminary

monitoring data for 2000 show the area

continues to attain the 1-hour ozone

NAAQS. On the basis of this review,

EPA determines that this area has

attained the 1-hour ozone standard

during the 1997–1999 period, which is

the most recent three-year time period

of air quality monitoring data. The State

therefore is not required to submit an

attainment demonstration, RFP, or a

section 172(c)(9) contingency measure

plan.

E. Where Is the Public Record and

Where Do I Send Comments?

The official record for this direct final

rule is at the addresses in the ADDRESSES

section at the beginning of this

document. The addresses for sending

comments are also provided in the

ADDRESSES section at the beginning of

this document. If we receive adverse

comments on this action, we will

withdraw this final rule and address the

comments received in response to this

action in a final rule on the related

proposed rule. We will not open a

second public comment period. Parties

interested in commenting on this action

should do so at this time.

III. Redesignation Request

A. What Action Is EPA Taking?

The EPA is approving the

redesignation request for the Allegan

area because three years of ambient

monitoring data demonstrate that the

ozone NAAQS has been attained and

the area has satisfied the other

requirements for redesignation. The

EPA is approving the maintenance plan

submitted by the Michigan Department

of Environmental Quality (MDEQ) as a

revision to the SIP. The EPA is also

notifying the public that we believe the

motor vehicle emissions budgets for

VOC and NOX are adequate for

conformity purposes and approvable as

part of the maintenance plan.

B. What Would Be the Effect of the

Redesignation?

The redesignation would change the

official designation of Allegan County

from nonattainment to attainment for

the 1-hour ozone standard. It would also

put a plan in place to maintain the 1-

hour ozone standard for the next 10

years. This plan includes contingency

measures to correct any future

violations of the 1-hour ozone standard.

It also includes motor vehicle emissions

budgets for VOC and NOX which would

be used in any conformity

determination that is made on or after

the effective date of the maintenance

plan approval.

C. What Is the Background for This

Action?

The EPA originally designated the

Allegan area as an ozone nonattainment

area under section 107 of the 1977 CAA

on March 3, 1978 (43 FR 8962). The

EPA revisited this original designation

in 1991 to reflect new designation

requirements contained in the 1990 Act.

On November 6, 1991 (56 FR 56694), the

EPA designated Allegan County as an

ozone nonattainment area. At the time

of the 1991 designations, up to date

monitoring data was not available for

this area, nor had the State completed

a redesignation request showing that it

complied with the requirements of

section 107 of the Act. Based on this,

the EPA designated the area as

nonattainment, but did not establish a

nonattainment classification,

establishing the area as an incomplete

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70493

data ozone nonattainment area. The

preamble for the original designation

contains more detail on this action (56

FR 56694).

The Allegan area has since recorded

three years of complete, quality-assured,

ambient air quality monitoring data for

1997–1999, thereby demonstrating that

the area has attained the 1-hour ozone

NAAQS.

On September 1, 2000, the State of

Michigan submitted a redesignation

request and section 175A maintenance

plan for the Allegan ozone

nonattainment area. This revised plan

includes updated emissions inventory

calculations and air quality monitoring

data.

D. What Are the Redesignation Review

Criteria?

The CAA provides the requirements

for redesignating a nonattainment area

to attainment. Specifically, section

107(d)(3)(E) allows for redesignation

providing that: (1) The Administrator

determines that the area has attained the

NAAQS; (2) the Administrator has fully

approved the applicable

implementation plan for the area under

section 110(k); (3) the Administrator

determines that the improvement in air

quality is due to permanent and

enforceable reductions in emissions

resulting from implementation of the

applicable state implementation plan

and applicable federal air pollutant

control regulations and other permanent

and enforceable reductions; (4) the

Administrator has fully approved a

maintenance plan for the area as

meeting the requirements of section

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

such area has met all requirements

applicable to the area under section 110

and part D.

The EPA provided guidance on

redesignation in the State

Implementation Plans; General

Preamble for the Implementation of

Title I of the Clean Air Act Amendments

of 1990, on April 16, 1992 (57 FR 13498)

and supplemented the guidance on

April 28, 1992 (57 FR 18070). The EPA

has provided further guidance on

processing redesignation requests in the

following documents:

1. ‘‘Part D New Source Review (part D

NSR) Requirements for Areas Requesting

Redesignation to Attainment,’’ Mary D.

Nichols, Assistant Administrator for Air and

Radiation, October 14, 1994. (Nichols,

October 1994)

2. ‘‘Use of Actual Emissions in

Maintenance Demonstrations for Ozone and

Carbon Monoxide (CO) Nonattainment

Areas,’’ D. Kent Berry, Acting Director, Air

Quality Management Division, November 30,

1993.

3. ‘‘State Implementation Plan (SIP)

Requirements for Areas Submitting Requests

for Redesignation to Attainment of the Ozone

and Carbon Monoxide (CO) National

Ambient Air Quality Standards (NAAQS) on

or after November 15, 1992,’’ Michael H.

Shapiro, Acting Assistant Administrator for

Air and Radiation, September 17, 1993.

4. ‘‘State Implementation Plan (SIP)

Actions Submitted in Response to Clean Air

Act Deadlines,’’ John Calcagni, Director, Air

Quality Management Division, October 28,

1992. (Calcagni, October 1992)

5. ‘‘Procedures for Processing Requests to

Redesignate Areas to Attainment,’’ John

Calcagni, Director, Air Quality Management

Division, September 4, 1992.

6. ‘‘Contingency Measures for Ozone and

Carbon Monoxide (CO) Redesignations,’’ G.T.

Helms, Chief, Ozone/Carbon Monoxide

Programs Branch, June 1, 1992.

E. What Is EPA’s Analysis of the

Request?

1. The Area Must Be Attaining the 1-

Hour Ozone NAAQS

For ozone, an area may be considered

attaining the 1-hour ozone NAAQS if

there are no violations, as determined

according to 40 CFR 50.9 and appendix

H, based on three complete, consecutive

calendar years of quality assured

monitoring data. A violation of the 1-

hour ozone NAAQS occurs when the

annual average number of expected

daily exceedances is equal to or greater

than 1 per year at a monitoring site. A

daily exceedance occurs when the

maximum hourly ozone concentration

during a given day is 0.125 parts per

million (ppm) or higher. The data must

be collected and quality-assured in

accordance with 40 CFR part 58, and

recorded in AIRS. The monitors should

have remained at the same location for

the duration of the monitoring period

required for demonstrating attainment.

The MDEQ submitted ozone

monitoring data for the 1996–1998 and

the 1997–1999 ozone seasons. Table 1

below summarizes the air quality data.

TABLE 1.—1-HOUR OZONE EXCEEDANCES IN THE ALLEGAN AREA

Site Year Exceedances

measured

Expected

exceedances

Allegan Monitor: 26–005–0003 ........................................................................................................................ 1996 1 1

1997 0 0

1998 1 1

1999 1 1

This data has been quality assured

and is recorded in AIRS. During the

1997–1999 time period, the monitor

recorded two exceedances of the ozone

NAAQS, resulting in a three year

average of .67 exceedances per year.

Preliminary 2000 ambient air quality

monitoring data indicates that the area

continues to meet the ozone NAAQS,

although an exceedance may have

occurred on June 9, 2000. If this June 9,

2000 exceedance is confirmed, the

annual number of expected daily

exceedances would be 1 for Allegan

County and the area would still show

attainment of the 1-hour standard.

2. The Area Must Have a Fully

Approved SIP Under Section 110(k);

and the Area Must Have Met All

Applicable Requirements Under Section

110 and Part D

Before the Allegan area may be

redesignated to attainment for ozone, it

must have fulfilled the applicable

requirements of section 110 and part D.

The Calcagni memorandum dated

September 4, 1992, states that areas

requesting redesignation to attainment

must fully adopt rules and programs

that come due prior to the submittal of

a complete redesignation request.

Section 110 Requirements

General SIP elements are delineated

in section 110(a)(2) of the CAA. These

requirements include but are not limited

to the following: a SIP submittal

containing rules the state adopted after

reasonable notice and public hearing;

provisions to establish and operate

appropriate apparatus, methods,

systems and procedures necessary to

monitor ambient air quality; a permit

program to implement provisions of part

C, Prevention of Significant

Deterioration (PSD), and part D, New

Source Review (NSR) permit programs;

criteria for stationary source emission

control measures, monitoring and

70494 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

reporting; provisions for modeling; and

provisions for public and local agency

participation.

For purposes of redesignation, EPA

reviewed the Michigan SIP to ensure

that it satisfied all requirements under

the amended CAA through approved

SIP provisions. A number of the

requirements did not change in

substance and, therefore, EPA believes

that the pre-amendment SIP met these

requirements. The EPA has analyzed the

Michigan SIP and determined that it is

consistent with the requirements of

amended section 110(a)(2). (See also 61

FR 20458 and Southwestern Growth

Alliance v. Browner, 144 F.3d 984 (6th

Cir. 1998)).

Part D: General Provisions for

Nonattainment Areas

Before Allegan County may be

redesignated to attainment, the area

must fulfill the applicable requirements

of part D. Under part D, an area’s

classification indicates the requirements

to which it is subject. Subpart 1 of part

D sets forth the basic nonattainment

requirements applicable to all

nonclassifiable nonattainment areas.

Subpart 2 of part D establishes

additional requirements for ozone

nonattainment areas classified under

section 186 of the Act. As described in

the ‘‘General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990,’’ specific

requirements of subpart 2 may override

subpart 1’s general provisions (57 FR

13501 (April 16, 1992)). However, as

noted in the General Preamble, the

subpart 2 requirements do not apply to

‘‘not classified’’ ozone nonattainment

areas (57 FR 13525). EPA designated

Allegan County as a ‘‘not classified’’

ozone nonattainment areas (56 FR

56694, November 6, 1991), codified at

40 CFR 81.323. Therefore, to be

redesignated to attainment, the State

must meet the applicable requirements

of subpart 1 of part D—specifically

sections 172(c) and 176, but not the

requirements of subpart 2 of part D.

Subpart 1 of Part D—Section 172(c)

Provisions

Section 172(c) sets forth general

requirements applicable to all

nonattainment areas. Under 172(b), the

section 172(c) requirements are

applicable as determined by the

Administrator, but no later than 3 years

from the date of the nonattainment

designation.

EPA has determined that Michigan’s

redesignation request for Allegan

County has satisfied all of the

requirements under section 172(c)

necessary for the area’s redesignation to

attainment. Many of the general

requirements contained in section

172(c) are addressed by the State’s preamendment submittal which EPA

approved on May 6, 1980 (45 FR 29801).

In part 2 of this rulemaking, entitled

‘‘Determination of Attainment,’’ EPA is

determining that several of the section

172(c) requirements do not apply since

the area has attained the ozone NAAQS.

The requirements for emissions

inventories under section 172(c)(3) and

permits programs under section(c)(5)

still need to be addressed in order to

redesignate the areas. Section 172(c)(3)

requires submission and approval of a

comprehensive, accurate, and current

inventory of actual emissions. The base

year emissions inventory for Allegan

County is satisfied by the State’s

submittal of the 1991 inventory for this

county in the redesignation request.

Section 172(c)(5) requires permits to

construct and operate new and modified

major stationary sources anywhere in

the nonattainment area (a NSR

program). The EPA has determined that

areas being redesignated do not need an

approved NSR program prior to

redesignation provided that the area

demonstrates maintenance of the

standard without a NSR program in

effect. A memorandum from Mary

Nichols dated October 14, 1994

describes the rationale for this decision.

See discussion in the Grand Rapids,

Michigan document published on June

21, 1996 (61 FR 31831). EPA has also

applied this policy in redesignations of

Youngstown-Warren, Columbus,

Canton, Cleveland-Akron-Lorain,

Dayton-Springfield, Toledo, Preble

County, Columbiana County, Clinton

County, and Cincinnati Ohio, as well as

Detroit, Michigan. Additional

information on EPA’s rationale is in the

approval of the redesignation request for

the Cincinnati area (65 FR 37879).

The State has demonstrated that

Allegan County can maintain the

standard without a NSR program in

effect, and, therefore, the State need not

have a fully approved NSR program

prior to approval of the redesignation

request for the area. The MDEQ’s

federally delegated PSD program will

become effective in Allegan County

upon redesignation to attainment.

Section 176 Conformity Requirements

Section 176(c) of the CAA requires

that federally supported or funded

projects conform to the air quality

planning goals in the applicable SIP.

This requirement applies to

transportation plans, programs and

projects developed, funded or approved

under title 23 U.S.C. of the Federal

Transit Act (‘‘transportation

conformity’’), and to all other federally

supported or funded projects (‘‘general

conformity’’). Section 176(c) of the CAA

requires transportation conformity.

EPA’s transportation conformity rule

requires that transportation plans,

programs, and projects conform to state

air quality implementation plans (SIPs)

and establishes the criteria and

procedures for determining whether or

not they do. Conformity to a 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.

Section 176(c) provides that state

conformity revisions must be consistent

with Federal conformity regulations that

the CAA requires EPA to promulgate.

The Federal general conformity

regulations were finalized on November

30, 1993, and the Federal transportation

conformity regulations were finalized

on November 24, 1993. The Federal

general conformity regulations have

remained the same since that time, but

the Federal transportation conformity

regulations have been amended several

times since 1993. EPA approved

Michigan’s general and transportation

conformity SIPs on December 18, 1996

(61 FR 66607).

The Federal transportation conformity

regulations were amended on August

15, 1997 (40 CFR parts 51 and 93

Transportation Conformity Rule

Amendments: Flexibility and

Streamlining). Michigan submitted new

transportation conformity rules on

November 30, 1998, in response to the

1997 changes to the Federal

transportation conformity regulations.

However, the Michigan rules will need

to be revised again due to the March 2,

1999 court decision (Environmental

Defense Fund v. Environmental

Protection Agency, U.S. Court of

Appeals District of Columbia Circuit,

No. 97–1637) which rescinded several

sections of the Federal transportation

conformity rule and asked EPA to revise

several sections of the Federal rule.

EPA believes it is reasonable to

interpret the conformity requirements as

not applying for purposes of evaluating

the redesignation request under section

107(d). The rationale for this is based on

a combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Clean Air Act continues to apply

to areas after redesignation to

attainment, since such areas would be

subject to a section 175A maintenance

plan. Second, EPA’s Federal conformity

rules require the performance of

conformity analyses in the absence of

federally approved state rules.

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70495

Therefore, because areas are subject to

the conformity requirements regardless

of whether they are redesignated to

attainment and must implement

conformity under Federal rules if state

rules are not yet approved, EPA believes

it is reasonable to view these

requirements as not applying for

purposes of evaluating a redesignation

request. See, for example Grand Rapids

redesignation at 61 FR 31835–31836

(June 21, 1996).

EPA has explained its rationale and

applied this interpretation in numerous

redesignation actions. See, Tampa,

Florida and Cleveland-Akron-Lorain

redesignations 60 FR 52748 (December

7, 1995), and 61 FR 20458 (May 7,

1996), respectively. Consequently, EPA

may approve the ozone redesignation

request for Allegan County

notwithstanding the lack of a fully

approved conformity SIP.

The on-highway motor vehicle

budgets for Allegan are 9.8 tons of NOX/

day and 5.3 tons of VOC/day, based on

the area’s 2011 level of emissions.

Allegan, MI must use the motor vehicle

emissions budgets from the

maintenance plan in any conformity

determination made on or after the

effective date of the maintenance plan

approval.

The EPA believes the motor vehicle

emissions budgets for VOC and NOX are

adequate for conformity purposes and

approvable as part of the maintenance

plan. Interested parties may comment

on the adequacy and approval of the

budgets by submitting their comments

on this direct final rule.

If EPA receives adverse written

comments with respect to the adequacy

and approval of the Allegan emissions

budgets, or any other aspect of our

approval of this SIP, by the time the

comment period closes, we will publish

a timely withdrawal of the direct final

rule informing the public that the rule

will not take effect. In this case, we will

either respond to the comments on the

emissions budgets in our final action or

proceed with the adequacy process as a

separate action.

We will also announce our action on

the Allegan emissions budgets on EPA’s

conformity website: http://

www.epa.gov/oms/traq, (once there,

click on the ‘‘Conformity’’ button, then

look for ‘‘Adequacy Review of SIP

Submissions for Conformity’’).

3. The Improvement in Air Quality Must

Be Due to Permanent and Enforceable

Reductions in Emissions

Michigan maintains that the Allegan

area is the recipient of overwhelming

amounts of ozone transported from the

upwind Gary-Chicago-Milwaukee severe

ozone nonattainment areas as

demonstrated by its November 14, 1994

petition. The overwhelming transport

demonstration includes urban airshed

modeling (UAM) which shows that

there is minimal to no change in ozone

concentrations in Western Michigan

even when Western Michigan VOC and

NOX emissions are entirely eliminated.

The State, therefore, concludes that

emission reductions within Allegan

County would have little or no impact

on ozone concentrations within this

area. The State maintains that the

improvement in air quality in Allegan is

largely due to emission reductions

achieved throughout the Lake Michigan

region.

Nonetheless, the redesignation

request demonstrates that permanent

and enforceable emission reductions

have occurred in the Allegan area as a

result of the Federal Motor Vehicle

Emission Control Program (FMVCP) and

controls on industrial sources. The

submittal provides a general discussion

of development of the emission

inventories for ozone precursors from

1991–1996 which includes estimates

from EPA’s NET inventory, Michigan’s

1990 base year inventory, off-road

mobile estimates from the Lake

Michigan Air Directors Consortium

(LADCO) inventory developed for use in

the Lake Michigan Ozone Study

(LMOS), and mobile source data using

EPA’s MOBILE5a mobile source

emissions model. Although 1991 was

not one of the years used to designate

and classify the area, it was a

nonattainment year. The VOC and NOX

emission inventories for the years 1991

and 1996 submitted by the State show

a declining trend in emissions. The

1996 emission inventory is provided as

the attainment year emission inventory.

According to the State’s analysis,

Allegan County reduced VOC emissions

by 5.9 tons per day and NOX emissions

by 0.6 tons per day between 1991 and

1996. The emission reductions are due

to a combination of FMVCP and

industrial source controls.

4. The Area Must Have a Fully

Approved Maintenance Plan Meeting

the Requirements of Section 175A

Section 175A of the CAA sets forth

the elements of a maintenance plan for

areas seeking redesignation from

nonattainment to attainment. The plan

must demonstrate continued attainment

of the applicable NAAQS for at least 10

years after the EPA approves a

redesignation to attainment. Eight years

after the redesignation, the state must

submit a revised maintenance plan

which demonstrates attainment for the

10 years following the initial 10 year

period. To address potential future

NAAQS violations, the maintenance

plan must contain contingency

measures, with an implementation

schedule to promptly correct any future

air quality problems.

Section 175A(d) requires that the

contingency provisions include a

requirement that the State will

implement all control measures that

were in the SIP prior to redesignation as

an attainment area.

An ozone maintenance plan should

address the following five elements:

Attainment inventory, demonstration of

maintenance, monitoring network,

verification of continued attainment,

and a contingency plan.

Attainment Inventory

The State has adequately developed

an attainment emissions inventory for

1996 that identifies VOC and NOX

emissions for the Allegan nonattainment

area. EPA has determined that 1996 is

an appropriate year on which to base

attainment level emissions because

monitors in the area showed attainment

of the ozone NAAQS at the time. The

methodologies used in developing these

inventories are discussed in further

detail in the State’s redesignation

submittal.

The attainment level of emissions are

summarized below:

TABLE 2.—ALLEGAN 1996 ATTAINMENT

INVENTORY—VOC AND NOX (TONS

PER DAY)

Source type VOC NOX

Onroad mobile .. 6.5 9.8

Area .................. 9.2 2.7

Point .................. 4.5 8.4

Total .............. 20.2 20.9

Demonstration of Maintenance

The 1991 emission inventory

developed by MDEQ for the

redesignation request is partially based

on 1996 values using growth factors

specific to Allegan County and the

source classification code of each

emitting process. The growth factors

were made by the Economic Growth

Analysis (EGAS) model for stationary

sources (for point, stationary area, and

nonroad mobile source categories). The

State made onroad mobile estimates for

2011 using the MOBILE5a mobile

source emissions model and Federal

Highway Administration Performance

Monitoring System traffic count data.

Detailed information on the

assumptions made in the inventory

calculations are in EPA’s TSD and in the

State’s submittal.

70496 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

To demonstrate continued attainment,

the State projected anthropogenic 1996

emissions of VOC and NOX to 2011.

These emission estimates are in the

tables below and demonstrate that the

VOC and NOX emissions will decrease

in future years. The results of this

analysis show that the area is expected

to maintain the air quality standard for

at least ten years into the future. In fact,

the emissions projections show that

emissions will be reduced from 1996

levels by .6 tons of VOC and 3.3 tons of

NOX per day by 2011 in the Allegan

area. These emission reductions will

result from the implementation of

FMVCP, Federal on-board vapor

recovery rules, Federal National Low

Emission Vehicle and Tier 2

Regulations, Title IV NOX controls, and

other federal rules expected to be

promulgated for nonroad engines,

autobody refinishing, commercial/

consumer solvents, and architectural

and industrial maintenance coatings.

These estimates are conservative as they

do not reflect NOX reductions that will

result from EPA’s October 27, 1998 (63

FR 57356) rulemaking which requires

states to reduce statewide NOX

emissions to address the regional

transport of ground level ozone ( NOX

SIP call).

TABLE 3.—ALLEGAN: VOC MAINTENANCE EMISSION INVENTORY SUMMARY (TONS PER DAY)

Source type

Year

1991 1996 2011

Point .............................. 3.9 4.5 5.7

Area .............................. 14.9 9.2 9.2

Onroad moble ............... 7.3 6.5 4.7

Total .......................... 26.1 20.2 19.6

TABLE 4.—ALLEGAN: NOX MAINTENANCE EMISSION INVENTOR SUMMARY (TONS PER DAY)

Source type

Year

1991 1996 2010

Point .............................. 8.3 8.4 8.4

Area .............................. 3.3 2.7 2.5

Onroad mobile .............. 9.9 9.8 6.7

Total .......................... 21.5 20.9 17.6

The emission projections show that

the emissions are not expected to

exceed the level of the base year 1996

inventory during the 10-year

maintenance period.

Monitoring Network

The State has committed to operate

the ozone monitoring network in the

Allegan area in accordance with 40 CFR

part 58.

Verification of Continued Attainment

Tracking—Continued attainment of

the ozone NAAQS in the Allegan area

depends, in part, on the State’s efforts

to track continued attainment during the

maintenance period. The tracking plan

for the Allegan area consists of

continued ambient ozone monitoring in

accordance with the requirements of 40

CFR part 58.

Triggers—Michigan contends that the

high concentrations of ozone monitored

and modeled in the Allegan area are due

to transport from upwind areas such as

Chicago and Milwaukee. The State also

submits that modeling to date indicates

that total elimination of anthropogenic

VOC and NOX emission sources in

Allegan would not affect ozone

concentrations in the area. The State

concludes that continued maintenance

of the ozone NAAQS is dependent on

continued emission reductions from

upwind areas. Consequently, the State

identifies as the triggering event that

will cause implementation of a

contingency measure an actual

monitored ozone violation of the

NAAQS, as defined in 40 CFR 50.9,

which it determines not to be

attributable to transport from upwind

areas. The State’s redesignation request

establishes that if the State monitors a

violation, the State will inform EPA that

a violation has occurred, review data for

quality assurance, and conduct a

technical analysis including an analysis

of meteorological conditions leading up

to and during the exceedances

contributing to the violation to

determine local culpability. The State

will submit a preliminary analysis to the

EPA and afford the public the

opportunity for review and comment.

The State will also solicit and consider

EPA’s technical advice and analysis

before making a final determination on

the cause of the violation. The trigger

date will be the date that the State

certifies to the EPA that the State air

quality data are quality assured, and

that the State has determined the

exceedances contributing to the

violation are not attributable to

transport from upwind areas. The trigger

date will be within 120 days after the

violation is monitored.

If the EPA disagrees with the State’s

final determination and believes that the

violation was not attributable to

transport, but to the area’s own

emissions, authority exists under

section 179(a) and 110(k), to require the

area to implement contingency

measures, and section 107, to

redesignate the area to nonattainment.

Contingency Plan

Despite the best efforts to demonstrate

continued compliance with the NAAQS,

the ambient air pollutant concentrations

may exceed or violate the NAAQS.

Therefore, as required by section 175A

of the CAA, Michigan has provided

contingency measures with a schedule

for implementation if a future ozone air

quality problem occurs. Once the

triggering event is confirmed, the State

will implement one or more appropriate

contingency measures. The Governor or

the Governor’s designee will select the

contingency measure within 6 months

of the triggering event. Contingency

measures contained in the plan include

a plastic parts coating rule, a wood

furniture coating rule, and gasoline

loading (Stage I vapor recovery) rules.

The State will develop rules for the

three measures should they be necessary

to address a violation of the ozone

NAAQS. The State will implement one

or more of these rules within 24 months

of the Governor’s decision to implement

a contingency measure.

Commitment To Submit Subsequent

Maintenance Plan Revisions

In accordance with section 175A(b) of

the Act, the State has committed to

submit a revised maintenance SIP 8

years after the area is redesignated to

attainment. Such revised SIP will

provide for maintenance for an

additional 10 years.

F. Where Is the Public Record and

Where Do I Send Comments?

The official record for this direct final

rule is located at the addresses in the

ADDRESSES section at the beginning of

this document. The addresses for

sending comments are also provided in

the ADDRESSES section at the beginning

of this document. If EPA receives

adverse written comments on this

action, we will withdraw this final rule

and address the comments received in

response to this action in a final rule on

the related proposed rule. We will not

open a second public comment period.

Parties interested in commenting on this

action should do so at this time.

If we receive adverse written

comments with respect to the adequacy

and approval of the Allegan emissions

budgets, or any other aspect of our

approval of this SIP, by the time the

comment period closes, we will publish

a timely withdrawal of the direct final

rule informing the public that the rule

will not take effect. In this case, we will

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70497

either respond to the comments on the

emissions budgets in our final action or

proceed with the adequacy process as a

separate action.

IV. Disclaimer Language Approving SIP

Revisions

Ozone SIPs are designed to satisfy the

requirements of part D of the CAA and

to provide for attainment and

maintenance of the ozone NAAQS. This

redesignation should not be interpreted

as authorizing the State to delete, alter,

or rescind any of the ozone emission

limitations and restrictions in the

approved ozone SIP. The State cannot

make changes to ozone SIP regulations

which will render them less stringent

than those in the EPA approved plan

unless it submits to EPA a revised plan

for attainment and maintenance and

EPA approves the revision.

Unauthorized relaxations, deletions,

and changes could result in both a

finding of nonimplementation (section

173(b) of the CAA) and in a SIP

deficiency call made pursuant to section

110(a)(2)(H) of the CAA.

V. What Administrative Requirements

Did EPA Consider?

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

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

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects the

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that 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.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with state

and local officials early in the process

of developing the proposed regulation.

EPA also may not issue a regulation that

has federalism implications and that

preempts State law unless the Agency

consults with state and local officials

early in the process of developing the

proposed regulation.

This rule will 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, because it

merely approves a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the CAA.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the CAA do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Moreover, due

to the nature of the Federal-State

relationship under the CAA, preparation

of flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of state action. The CAA

forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. EPA, 427 U.S.

246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costVerDate 11<MAY>2000 15:53 Nov 22, 2000 Jkt 194001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\24NOR1.SGM pfrm08 PsN: 24NOR1
70498 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

effective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

G. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective January 16, 2001 unless

EPA receives adverse written comments

by December 26, 2000.

H. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today’s

action does not require the public to

perform activities conducive to the use

of VCS.

I. Petitions for Judicial Review

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

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by January 23, 2001. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects

40 CFR Part 52

Air pollution control, Environmental

protection, Hydrocarbons,

Intergovernmental relations, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 81

Air pollution control, Environmental

protection, National parks, Wilderness

area.

Authority: 42 U.S.C. 7401–7671 et seq.

Dated: November 15, 2000.

Gary Gulezian,

Acting Regional Administrator, Region 5.

Chapter I, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

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

Subpart X—Michigan

2. Section 52.1174 is amended by

adding paragraph (t) to read as follows:

§ 52.1174 Control strategy: Ozone.

* * * * *

(t) Approval—On March 9, 1995, the

Michigan Department of Environmental

Quality submitted a request to

redesignate the Allegan County ozone

nonattainment area to attainment. As

part of the redesignation request, the

State submitted a maintenance plan as

required by 175A of the Clean Air Act,

as amended in 1990. Elements of the

section 175A maintenance plan include

a contingency plan, and an obligation to

submit a subsequent maintenance plan

revision in 8 years as required by the

Clean Air Act. If the area records a

violation of the 1-hour ozone NAAQS,

determined not to be attributable to

transport from upwind areas, Michigan

will implement one or more appropriate

contingency measure(s) which are in the

contingency plan. The menu of

contingency measures includes rules for

plastic parts coating, wood furniture

coating, and gasoline loading (Stage I

vapor recovery).

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. In § 81.323 the table entitled

‘‘Michigan—Ozone (1-hour standard)’’

is amended by revising the entry for

‘‘Allegan County Area: Allegan County’’

and footnote to read as follows:

§ 81.323 Michigan.

* * * * *

MICHIGAN—OZONE (1-HOUR STANDARD)

Designated area

Designation Classification

Date1 Type Date1 Type

Allegan County Area:

Allegan County ............................................................ January 16, 2001 ................. Attainment.

*******

1This date is October 18, 2000, unless otherwise noted.

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70499

* * * * *

[FR Doc. 00–30004 Filed 11–22–00; 8:45 am]

BILLING CODE 6560–50–P

CHEMICAL SAFETY AND HAZARD

INVESTIGATION BOARD

40 CFR Part 1601

Freedom of Information Act Program

AGENCY: Chemical Safety and Hazard

Investigation Board

ACTION: Final rule.

SUMMARY: The Chemical Safety and

Hazard Investigation Board adopts

regulations establishing policies and

procedures for requesting and disclosing

records under the Freedom of

Information Act (FOIA). The FOIA

requires Federal agencies to create

regulations establishing procedures for

its implementation. These regulations

will ensure the proper handling of

agency records and requests for those

records under the FOIA.

DATES: This rule is effective December

26, 2000.

FOR FURTHER INFORMATION CONTACT: Ray

Porfiri, 202–261–7629.

SUPPLEMENTARY INFORMATION: In the

Federal Register of October 4, 2000 (65

FR 59155), the Chemical Safety and

Hazard Investigation Board published a

proposed rule setting forth its proposed

procedures for disclosure of records

under the Freedom of Information Act

(FOIA). The proposed rule provided for

a 30-day comment period. No comments

were received in response to the

proposed rule and invitation for

comments. This final rule is unchanged

from the proposed rule.

These regulations implement the

FOIA, 5 U.S.C. 552, as amended by the

Electronic Freedom of Information Act

Amendments of 1996, Public Law 104–

231, 110 Stat. 3048. The Board adopts

the following set of regulations to

discharge its responsibilities under the

FOIA. The FOIA establishes: basic

procedures for public access to agency

records and guidelines for waiver or

reduction of fees the agency would

otherwise assess for the response to the

records request; categories of records

that are exempt for various reasons from

public disclosure; and basic

requirements for Federal agencies

regarding their processing of and

response to requests for agency records.

Regulatory Flexibility Act

The Board, in accordance with the

Regulatory Flexibility Act, 5 U.S.C.

605(b), has reviewed this regulation and

by adopting it certifies that this

regulation will not have a significant

economic impact on a substantial

number of small entities. Under the

FOIA, agencies may recover only the

direct costs of searching for, reviewing,

and duplicating the records processed

for requesters. Thus, fees assessed by

the Board will be nominal. Further, the

‘‘small entities’’ that make FOIA

requests, as compared with individual

requesters and other requesters, are

relatively few in number.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by state, local, and tribal

governments, in the aggregate, or by the

private sector, of $100,000,000 or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, we did not

deem any action necessary under the

provisions of the Unfunded Mandates

Reform Act of 1995, Public Law 104–4,

109 Stat. 48.

List of Subjects in 40 CFR Part 1601

Administrative practice and

procedure, Archives and records,

Freedom of information.

Chapter VI—Chemical Safety and Hazard

Investigation Board

For the reasons set forth in the

preamble, the Chemical Safety and

Hazard Investigation Board establishes

40 CFR Chapter VI—Chemical Safety

and Hazard Investigation Board,

consisting of parts 1600 through 1699,

reserves parts 1600 and 1602 through

1699, and adds part 1601 to read as

follows:

PART 1600 [RESERVED]

PART 1601—PROCEDURES FOR

DISCLOSURE OF RECORDS UNDER

THE FREEDOM OF INFORMATION ACT

PART 1602–1699 [RESERVED]

Subpart A—Purpose, Scope, and

Applicability

Sec.

1601.1 Purpose and scope.

1601.2 Applicability.

1601.3 Definitions.

Subpart B—Administration

1601.10 Protection of records.

1601.11 Preservation of records pertaining

to requests under this part.

1601.12 Public reading room.

Subpart C—Procedures for Requesting and

Disclosing Records

1601.20 Requests for records.

1601.21 Response to requests.

1601.22 Form and content of responses.

1601.23 Appeals of denials.

1601.24 Timing of responses to requests.

1601.25 Disclosure of requested records.

1601.26 Special procedures for confidential

business information.

Subpart D—Fees

1601.30 Fees to be charged—general.

1601.31 Fees to be charged—categories of

requesters.

1601.32 Limitations on charging fees.

1601.33 Miscellaneous fee provisions.

Authority: 5 U.S.C. 552, 553; 42 U.S.C.

7412 et seq.

PART 1600 [RESERVED]

PART 1601—PROCEDURES FOR

DISCLOSURE OF RECORDS UNDER

THE FREEDOM OF INFORMATION ACT

PART 1602–1699 [RESERVED]

Subpart A—Purpose, Scope, and

Applicability

§ 1601.1 Purpose and scope.

This part contains the regulations of

the United States Chemical Safety and

Hazard Investigation Board (‘‘CSB’’ or

‘‘Board’’ or ‘‘agency’’) implementing the

Freedom of Information Act (‘‘FOIA’’).

These regulations provide procedures

by which members of the public may

obtain access to records compiled,

created, and maintained by the CSB,

along with procedures it must follow in

response to such requests for records.

§ 1601.2 Applicability.

(a) General. The FOIA and the

regulations in this part apply to all CSB

documents and information. However, if

another law sets specific procedures for

disclosure, the CSB will process a

request in accordance with the

procedures that apply to those specific

documents. If a request is received for

disclosure of a document to the public

which is not required to be released

under those provisions, the CSB will

consider the request under the FOIA

and the regulations in this part.

(b) Records available through routine

distribution procedures. When the

record requested includes material

published and offered for sale, e.g., by

the Superintendent of Documents of the

Government Printing Office, or by an

authorized private distributor, the CSB

will first refer the requester to those

sources. Nevertheless, if the requester is

not satisfied with the alternative

sources, the CSB will process the

request under the FOIA.

§ 1601.3 Definitions.

Appeals Officer means the person

designated by the Chairperson to

process appeals of denials of requests

for CSB records under the FOIA.