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6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2010-0891, FRL- ]

RIN 2060-AQ65

Reasonable Further Progress Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

SUMMARY: The EPA is proposing to revise the Agency’s earlier

interpretation of its rule regarding requirements for Reasonable 

Further Progress (RFP) that allowed certain emissions reductions 

from outside the nonattainment area to be credited toward 

meeting the RFP requirements for the 1997 8-hour ozone national 

ambient air quality standards (NAAQS). Specifically, EPA is 

proposing that states may not take credit for emission 

reductions from outside the nonattainment area to meet the 

area’s RFP obligations. EPA is also taking comment on whether

it would be appropriate for states to rely on emission 

reductions credit from outside the nonattainment area for RFP 

obligations.

DATES: Comments. Comments must be received on or before 

[INSERT DATE 45 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. 
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Public Hearings. If anyone contacts us requesting a public 

hearing on or before [INSERT DATE 15 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER], we will hold a public 

hearing. Please refer to SUPPLEMENTARY INFORMATION for 

additional information on the comment period and the public 

hearing. 

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-HQ-OAR-2010-0891, by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for 

submitting comments. 

 E-mail: a-and-r-docket@epa.gov

 Mail: Air and Radiation Docket and Information Center, 

Attention Docket ID No. EPA-HQ-OAR-2010-0891, Environmental 

Protection Agency 1301 Constitution Ave., NW, Washington, DC 

20460. Mail Code: 2822T. Please include two copies if 

possible.

 Hand Delivery: Air and Radiation Docket and Information 

Center, Attention Docket ID No. EPA-HQ-OAR-2010-0891, 

Environmental Protection Agency in the EPA Headquarters 

Library, Room Number 3334 in the EPA West Building, located at 

1301 Constitution Ave., NW, Washington, DC. The EPA/DC Public 

Reading Room hours of operation will be 8:30 a.m. to 4:30 p.m. 

Eastern Standard Time (EST), Monday through Friday, Air and 

Radiation Docket and Information Center.
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Instructions: Direct your comments to Docket ID No. EPAHQ-OAR-2010-0891. The EPA's policy is that all comments 

received will be included in the public docket without change 

and may be made available on-line at www.regulations.gov, 

including any personal information provided, unless the comment 

includes information claimed to be confidential business 

information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you 

consider to be CBI or otherwise protected through 

www.regulations.gov or e-mail. The www.regulations.gov Web site 

is an “anonymous access” system, which means EPA will not know 

your identity or contact information unless you provide it in 

the body of your comment. If you send an e-mail comment 

directly to EPA without going through www.regulations.gov, your 

e-mail address will be automatically captured and included as 

part of the comment that is placed in the public docket and made 

available on the Internet. If you submit an electronic comment, 

EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CDROM you submit. 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. Electronic files 

should avoid the use of special characters, any form of 

encryption, and be free of any defects or viruses. For 
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additional information about EPA’s public docket, visit the EPA 

Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. For additional 

instructions on submitting comments, go to the SUPPLEMENTARY 

INFORMATION section of this document.

Docket: All documents in the docket are listed in 

www.regulations.gov. Although listed in the index, some 

information is not publicly available, i.e., CBI or other 

information whose disclosure is restricted by statute. Certain 

other material, such as copyrighted material, is not placed on 

the Internet and will be publicly available only in hard copy 

form. Publicly available docket materials are available either 

electronically in www.regulations.gov or in hard copy at the Air 

and Radiation Docket and Information Center is in the EPA 

Headquarters Library, Room Number 3334 in the EPA West Building, 

located at 1301 Constitution Ave., NW, Washington, DC. The 

Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal holidays. The telephone number 

for the Public Reading Room is (202) 566-1744. 

FOR FURTHER INFORMATION CONTACT: For further general information 

on this rulemaking, contact Mr. H. Lynn Dail, Office of Air 

Quality Planning and Standards, U.S. Environmental Protection 

Agency, (C539-01), Research Triangle Park, NC 27711, phone 
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number (919) 54l-2363, fax number (919) 54l-0824 or by e-mail at 

dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

Entities potentially affected directly by this action 

include state, local, and tribal governments. Entities 

potentially affected indirectly by this rule include owners and 

operators of sources of emissions [volatile organic compounds 

(VOCs) and nitrogen oxides (NOx)] that contribute to ground-level 

ozone concentrations. 

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA 

through www.regulations.gov or e-mail. Clearly mark the part or 

all of the information that you claim to be CBI. For CBI 

information in a disk or CD ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI and then identify 

electronically within the disk or CD ROM the specific 

information that is claimed as CBI. In addition to one complete 

version of the comment that includes information claimed as CBI, 

a copy of the comment that does not contain the information 

claimed to be CBI must be submitted for inclusion in the public 

docket. Information so marked will not be disclosed except in 

accordance with procedures set forth in 40 CFR part 2.
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2. Tips for Preparing Your Comments. When submitting 

comments, remember to:

 Identify the rulemaking by docket number and other identifying 

information (subject heading, Federal Register date and page 

number).

 Follow directions - The agency may ask you to respond to 

specific questions or organize comments by referencing a Code 

of Federal Regulations (CFR) part or section number.

 Explain why you agree or disagree; suggest alternatives and 

substitute language for your requested changes.

 Describe any assumptions and provide any technical information 

and/or data that you used.

 If you estimate potential costs or burdens, explain how you 

arrived at your estimate in sufficient detail to allow for it 

to be reproduced.

 Provide specific examples to illustrate your concerns, and 

suggest alternatives.

 Explain your views as clearly as possible, avoiding the use of 

profanity or personal threats.

 Make sure to submit your comments by the comment period 

deadline identified.

C. Where can I get a copy of this document and other related 

information?
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In addition to being available in the docket, an electronic 

copy of this notice will be posted at 

http://www.epa.gov/air/ozonepollution/actions.html#impl under 

“recent actions.”

D. What information should I know about possible public 

hearing? 

EPA will hold a public hearing only if a party notifies EPA 

by [INSERT DATE 10 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. Further details concerning a public hearing for this 

proposed rule will be published in a separate Federal Register

notice. For updates and additional information on a public 

hearing, please check EPA’s Web site for this rulemaking at 

http://www.epa.gov/ozonepollution/actions.html#impl. 

E. How is this notice organized? 

The information presented in this notice is organized as 

follows:

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my comments for EPA?

C. Where can I get a copy of this document and other related 

information?

D. What information should I know about possible public 

hearings?

E. How is this notice organized? 

II. Can emissions reductions from sources located outside the 

nonattainment area boundary be used to meet RFP

requirements?

A. Background

B. NRDC’s Petition for Reconsideration of the August 2009 

RFP Rule on Credits for Outside Reductions
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C. EPA’s Proposed Approach to Relying on Credits from 

Outside the Nonattainment Area to Meet the RFP 

Obligations and Response to the Request for 

Reconsideration

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 - Federalism

F. Executive Order 13175 - Consultation and Coordination 

with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations 

That Significantly Affect Energy Supply, Distribution, or 

Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

K. Determination Under Section 307(d)

IV. Statutory Authority

LIST OF SUBJECTS 

II. Can emissions reductions from sources located outside the 

nonattainment area boundary be used to meet RFP requirements?

A. Background

Under EPA’s Phase 21 Rule, certain emission reductions from

sources located outside a nonattainment area could be credited 

toward meeting the 1997 ozone NAAQS RFP requirement. In the 

preamble to that rule, EPA stated that credit could be taken for 

VOC and NOx emission reductions within 100 kilometers (km) and 

200 km, respectively, outside the nonattainment area under 

certain circumstances. In addition, if a regional NOx control 

 

1 See Final Rule to Implement the 8-Hour Ozone National Ambient 

Air Quality Standard – Phase 2 (70 FR 71612, November 29, 2005).
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strategy were in place in a state, NOx reductions within that 

state beyond 200 km could be credited toward meeting the RFP 

target. In all cases, areas had to include a demonstration that 

the emissions from outside the nonattainment area had an impact 

on ozone air quality levels within the nonattainment area. EPA 

explained that where data indicated that emissions reductions 

from sources outside a nonattainment area improved ozone air 

quality within the nonattainment area, it was appropriate to 

allow states to take RFP credit for such reductions from outside 

the nonattainment area. This interpretation was consistent with 

the policy EPA had established under the l-hour ozone standard 

"Guidance for Implementing the l-Hour Ozone and Pre-Existing PMlO

NAAQS," December 29, 1997.2 For a more complete discussion of

EPA’s rationale for applying this interpretation in the Phase 2 

Rule, see 70 FR at 71647-49.

On January 27, 2006, the Natural Resources Defense Council 

(NRDC) filed a petition for review of EPA's Phase 2 Ozone 

Implementation Rule in the U.S. Court of Appeals for the 

District of Columbia Circuit (the Court). NRDC challenged 

several aspects of the Phase 2 Rule including EPA's 

interpretation that formed the basis of its policy for allowing 

credit for reductions outside the nonattainment area, namely 

 

2 The memorandum is available on the EPA Technology and Transfer 

Network (TTN) Policy and Guidance page for Title I at this Web

site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
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EPA’s interpretation that the intent of section 182(c)(2)(C) is 

to reduce ambient ozone concentrations within an area rather 

than to reduce emissions within the nonattainment area. NRDC 

claimed that EPA’s interpretation and implementation of these 

provisions were both unlawful and arbitrary. NRDC also argued 

that the rule was arbitrary because it allowed the state to 

claim credit for emission reductions from selected outside-thenonattainment-area sources without also adding emissions from 

other outside sources to the RFP baseline, even where those 

other sources impact air quality in the nonattainment area. 

Following the conclusion of briefing in this case, EPA 

published a final rule implementing the NAAQS for fine 

particulate matter (the PM2.5 Implementation Rule) where we

adopted a different approach for crediting reductions from 

outside nonattainment areas ("outside" reductions). See 72 FR 

20586 (April 25, 2007). The PM2.5 Rule allows states to take 

credit for "outside" reductions of NOx and sulfur dioxide (SO2) 

emissions up to 200 km from the nonattainment area (and 

potentially VOC or ammonia as well) provided certain conditions 

are met, including that when taking RFP credit for emissions 

reductions achieved in "outside" areas, the baseline emissions 

inventory for the nonattainment area contain all, rather than a 
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select few, sources in the outside area.3 The primary objective 

of this policy was to reflect the net emission reductions in the 

"outside" area that could affect the nonattainment area rather 

than crediting only reductions from selected sources. 

Following publication of the PM2.5 Implementation Rule, EPA 

requested from the Court on July 17, 2007, a partial voluntary 

remand of the Phase 2 Rule to reevaluate and consider whether to 

revise the RFP interpretation for ozone to assure consistency 

with the provisions in the PM2.5 Implementation Rule. In 

response to EPA's motion for a partial voluntary remand of the 

ozone RFP policy, NRDC asked the Court to also vacate this 

provision. On November 2, 2007, the Court issued an order that 

vacated and remanded the portion of the Phase 2 Rule that 

permitted credit for reductions of VOC and NOx from outside 

nonattainment areas. On August 11, 2009 (74 FR 40074), EPA 

issued a final rule to revise the RFP policy in the Phase 2 Rule

to be consistent with the interpretation in the PM2.5

Implementation rule. 

 

3 In addition, where state RFP plans rely on “outside” reductions 

to meet the RFP obligations, such plans must include a technical 

demonstration showing that such outside emissions significantly 

affected the PM2.5 concentrations within the nonattainment area. 

And, the area outside the nonattainment area from which 

creditable reductions are taken must be within the state; areas 

outside the state but within 200 km would not be eligible for 

credit for RFP purposes. 
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Meanwhile on July 10, 2009, the Court issued its decision 

on the other issues in the Phase 2 Ozone Implementation Rule 

case. NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). The Court 

examined the phrase “in the area” included in separate 

provisions relating to reductions from the application of 

Reasonably Available Control Technology (RACT) (CAA sections 172 

(1) and 182(b)(2)). In the Phase 2 Rule, EPA had explained that 

because an interstate emissions trading program [the NOx state 

implementation plan (SIP) call’s NOx budget program] would 

achieve beyond RACT-level NOx reductions regionally, areas did 

not have to meet the RACT-level reductions required under CAA

section 172 (c)(1) solely from within the nonattainment area. 

The Court, however, concluded that the phrase “in the area” 

means that reductions must occur within the area and “reductions 

from outside the nonattainment area do not satisfy the 

requirement.” 571 F.3d at 1256. Although such region-wide 

reductions could potentially satisfy the statutory requirement 

that the reductions must be from sources within the 

nonattainment area, the Court found that EPA had not made a 

demonstration for all nonattainment areas within the SIP Call 

area showing that the regional emissions trading program did in 

fact produce sufficient reductions from inside each 

nonattainment area to represent RACT-level reductions. Id.
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B. NRDC’s Petition for Reconsideration of the August 2009 RFP 

Rule on Credits for Outside Reductions 

Following the Court’s decision, on October 9, 2009, NRDC 

filed a petition with EPA for administrative reconsideration of 

the August 2009 final rule revising EPA’s interpretation in the 

Phase 2 Ozone Implementation Rule on allowing credit toward 

meeting the RFP requirements using emissions reductions from 

outside of ozone nonattainment areas. In its petition, NRDC 

based its objections to the rule on the following grounds: 1) 

the Court’s decision on the RACT provisions in the Phase 2 Rule 

and its interpretation of the phrase “sources in the area” 

requires that RFP emission reductions also be achieved only from 

sources within the nonattainment area; 2) EPA presented a new 

rationale, i.e., there is some ambiguity in the statutory 

provisions because they do not prohibit credits for reductions 

from outside the nonattainment area, for which it did not 

provide an opportunity for comment; 3) EPA offered a new and 

arbitrary rationale for its choice of the 100 and 200 km 

distances for “outside” reductions; 4) EPA stated a new and 

arbitrary rationale, i.e., creditable “outside” reductions must 

be reasonably expected to provide ozone air quality benefits 

comparable to those from reductions in the area, for evaluating 

“outside” reductions; and 5) EPA relied on a new rationale when 

it explained that sources that are outside the nonattainment 
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area are not necessarily “nearby” for designations purposes and 

certain factors would need to be considered for judging whether 

an area is “nearby.”

On May 13, 2010, EPA granted reconsideration of the rule 

based on NRDC’s petition and stated it would initiate rulemaking 

to address the reconsideration. EPA is addressing the 

reconsideration through this proposed rulemaking. NRDC’s first 

objection is addressed in the following section and EPA believes 

that the proposed action makes NRDC’s other objections moot. 

Therefore, EPA is not addressing any of those subsequent points 

here.

C. EPA’s Proposed Approach to Relying on Credits from Outside 

the Nonattainment Area to Meet the RFP Obligations and Response 

to the Request for Reconsideration

EPA is proposing to set aside its earlier interpretation of 

the RFP provisions in the August 2009 final rule and no longer 

permit states to rely on credit for emission reductions from 

outside the ozone nonattainment area to meet such an area’s RFP 

obligations. In light of the Court’s decision in NRDC discussed 

previously, and upon consideration of NRDC’s petition for 

reconsideration, EPA believes that the language in the baseline 

emissions provision for determining the emissions reductions 

required for RFP purposes (CAA sections 182(b)(1)(B) and 

182(c)(2)(B)) is almost identical to the language in the RACT 
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provision (section 172(c)(1)) addressed by the Court, and thus 

compels a similar interpretation. All three sections contain 

the phrase “in the area” and in examining the RACT provision the 

Court found that language compelled that the reductions must 

come from within the nonattainment area, and that reductions 

from outside the nonattainment area would not satisfy the 

statutory requirement for reductions “in the area.” We see no 

basis for interpreting that same clause in the RFP provisions in 

a different manner in light of the Court’s decision. 

EPA is therefore proposing that for the 1997 ozone NAAQS 

states may not take credit for VOC or NOx reductions occurring 

outside the nonattainment area for purposes of meeting the 

section 182(b) and (c) RFP requirements. This includes the 15 

percent VOC plan requirement for Moderate and above ozone 

nonattainment areas in section 182(b)(1) and the additional 3 

percent per year requirement for Serious and above ozone 

nonattainment areas in section 182(c)(2)(B). 

EPA recognizes that not allowing credit for emissions 

reductions outside the nonattainment area will make it more 

challenging for some areas, such as nonattainment areas adjacent 

to the South Coast Air Quality Management District, namely, 

Coachella Valley, West Mojave Desert and Ventura County in 

California, to meet the RFP requirements, and may limit the 

extent to which regional programs can be creditable toward RFP. 
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For ozone nonattainment areas that are not able to meet the 

182(b)(1) and 182(c)(2)(B)(i) RFP requirements, the CAA allows 

for a lesser amount of RFP if certain conditions are met. For 

an area to qualify for a less than the required 15 percent 

emissions reduction, that state must demonstrate that, in the 

area, New Source Review (NSR) provisions are applicable in the 

same manner and to the same extent as in an Extreme area, RACT 

is required for all existing major sources, and the RFP plan 

includes all feasible measures that can be implemented in light 

of technological achievability. For purposes of applying this 

provision, a major source is defined as a source that emits or 

has the potential to emit at least 5 tons per year of VOC. 

Similarly, for Serious and above areas to qualify for less than 

the required 3 percent each year of reductions in emissions to

meet their RFP obligations, a state must show that the SIP 

includes all feasible measures that can be implemented in the 

area in light of technological achievability. In both 

instances, the state must also demonstrate that the SIP for the 

area includes measures that are achieved in practice by sources 

in the same source category in nonattainment areas of the next 

higher classification. See 182(b)(1)(A)(ii) and 

182(c)(2)(B)(ii). 

Despite the Court’s opinion in NRDC, there may remain valid 

policy reasons for giving states incentive to focus on obtaining 
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emission reductions that are the most beneficial and cost 

effective for attaining the ozone standards. Also, there may be 

cases where the most beneficial and cost-effective reductions 

are from sources located outside the nonattainment area 

boundaries. In these cases, there maybe good reason to credit 

the emission reductions toward meeting RFP requirements. To 

this end, EPA is also taking comment on allowing credit for 

reductions outside the nonattainment area to satisfy the RFP 

requirements for the 1997 and 2010 ozone NAAQS. If EPA 

finalizes this proposal to provide that credit cannot be taken 

for emission reductions from outside the nonattainment area, 

states that previously submitted plans that relied on such 

credit will need to submit new RFP demonstrations for those 

areas.

EPA requests comments on the proposal and the implications 

for the 1997 ozone NAAQS.

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review.

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 

1993), this action is a “non-significant regulatory action”

because it does not raise novel legal or policy issues arising 

out of legal mandates.

B. Paperwork Reduction Act.
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This action does not impose any new information collection 

burden. The CAA imposes the obligation for states to submit 

SIPs, including RFP, to implement the ozone NAAQS. In this 

proposal, EPA is merely providing an interpretation of those 

requirements; thus there is no information collection burden. 

However, the Office of Management and Budget (OMB) has 

previously approved the information collection requirements 

contained in the existing regulations 40 CFR parts 50 and 51 

under the provisions of the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB control number 2060-0594. The 

OMB control numbers for EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9.

C. Regulatory Flexibility Act.

The Regulatory Flexibility Act (RFA) generally requires an 

Agency to prepare a regulatory flexibility analysis of any 

regulation subject to notice and comment rulemaking requirements 

under the Administrative Procedures Act or any other statute 

unless the Agency certifies the rule will not have a significant 

economic impact on a substantial number of small entities. 

Small entities include small businesses, small organizations, 

and small governmental jurisdictions.

For purposes of assessing the impacts of these proposed 

regulations on small entities, small entity is defined as: (1) 

a small business as defined in the Small Business 
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Administration’s (SBA) regulations at 13 CFR 121.201;); (2) a

small governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 

population of less than 50,000; and (3) a small organization 

that is any not-for-profit enterprise which is independently 

owned and operated and is not dominant in its field.

After considering the economic impact of these proposed 

revisions to the regulations on small entities, I certify that 

this action will not have a significant economic impact on a 

substantial number of small entities. This proposal will not 

impose any requirements on small entities. 

We continue to be interested in the potential impacts of 

the proposed rule on small entities and welcome comments on 

issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (URMA), 2 U.S.C. 1531-1538 for state, local, and tribal 

governments, in the aggregate, or the private sector. This 

action imposes no enforceable duty on any state, local or tribal 

governments or the private sector. Therefore, this action is

not subject to the requirements of section 202 and 205 of the 

UMRA.
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This action is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism.

Executive Order 13132, entitled “Federalism” (64 FR 43255, 

August 10, 1999), requires EPA to develop an accountable process 

to ensure “meaningful and timely input by state and local 

officials in the development of regulator policies that have 

Federalism implications.” Policies that have “Federalism 

implications” are 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.” This action does not 

have Federalism implications. It 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. This 

proposed rule, if made final, would modify the rules for 

implementing the 1997 8-hour ozone NAAQS. Thus, Executive Order 

13132 does not apply to these proposed regulation revisions.
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In the spirit of Executive Order 13121 and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA is soliciting comments on this proposal 

from state and local officials.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments.

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by Tribal 

officials in the development of regulatory policies that have 

Tribal implications.”

This action does not have tribal implications, as specified 

in Executive Order 13175 (65 FR 67249, November 9, 2000). They 

do not have a substantial direct effect on one or more Indian 

tribes, since no tribe has to develop a SIP under these proposed 

regulatory revisions. Furthermore, these proposed regulation 

revisions do not affect the relationship or distribution of 

power and responsibilities between the federal government and 

Indian tribes. The CAA and the Tribal Air Rule establish the 

relationship of the federal government and tribes in developing 

plans to attain the NAAQS, and these revisions to the 

regulations do nothing to modify that relationship. This
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proposed regulation revision does not have Tribal implications. 

Thus, Executive Order 13175 does not apply to this action. 

G. Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks.

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) 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 action is not subject to EO 13045 because this proposed 

revision addresses whether allowing outside the nonattainment 

area emission reduction credits for purposes of RFP obligations 

will adequately ensure attainment and maintenance of the 1997 

ozone NAAQS and meet the obligations of the CAA. The NAAQS are 

promulgated to protect the health and welfare of sensitive 

population, including children. 

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use.

This action is not subject to Executive Order 13211 (66 FR 

28355 (May 22, 2001)), because it is not a significant 

regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act.

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 

12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
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consensus standards in its regulatory activities unless to do so 

would be inconsistent with applicable law or otherwise 

impractical. The voluntary consensus standards are technical 

standards (e.g., materials specifications, test methods, 

sampling procedures, and business practices) that are developed 

or adopted by voluntary consensus standards bodies. NTTAA 

directs EPA to provide Congress, through OMB, explanations when 

the Agency decides not to use available and applicable voluntary 

consensus standards.

This proposed revision to the regulations does not involve 

technical standards. Therefore, EPA is not considering the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States. 
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EPA has determined that this proposed rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not affect the level of protection provided to 

human health or the environment. The CAA imposes the obligation 

for states to submit SIPs, including RFP, to implement the ozone 

NAAQS. In this proposal, EPA is merely providing an 

interpretation of those requirements. The proposed 

interpretation, if promulgated, would no longer permit states to 

rely on credit for emission reductions from outside a 

nonattainment area to meet such an area’s RFP obligations, which 

are designed to protect all segments of the general population. 

As such, they do not adversely affect the health or safety of 

minority or low-income populations and are designed to protect 

and enhance the health and safety of these and other 

populations. 

K. Determination Under Section 307(d)

Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the 

CAA, the Administrator determines that this action is subject to 

the provisions of section 307(d). Section 307(d)(1)(V) provides 

that the provisions of section 307(d) apply to “such other 

actions as the Administrator may determine.”

VII. Statutory Authority
Page 25 of 25

Page 25 of 25 - Reasonable Further Progress Requirements for the 

1997 8-Hour Ozone National Ambient Air Quality Standard

The statutory authority for this action is provided by 

sections 109; 110; 172; 181 through 185B; and 301(a)(1) of the 

CAA, as amended (42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 

42 U.S.C. 7511-7511f; 42 U.S.C. 7601(a)(1)). This notice is 

also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)). 

LIST OF SUBJECTS 

40 CFR Part 50

Environmental protection, Air pollution control, Ozone, 

Particulate.

40 CFR Part 51

Air pollution control, Intergovernmental relations, Ozone, 

Nitrogen oxides, Volatile organic compounds.

________________________________

Dated:

________________________________

Lisa P. Jackson,

Administrator.