55956 Federal Register/Vol. 69, No. 180/Friday, September 17, 2004/Rules and Regulations

responsibilities between the Federal

Government and Indian tribes.

Energy Effects

We have analyzed this rule under

Executive Order 13211, Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use. We have

determined that it is not a "significant

energy action" under that order because

it is not a "significant regulatory action"

under Executive Order 12866 and is not

likely to have a significant adverse effect

on the supply, distribution, or use of

energy. The Administrator of the Office

of Information and Regulatory Affairs

has not designated it as a significant

energy action. Therefore, it does not

require a Statement of Energy Effects

under Executive Order 13211.

Technical Standards

The National Technology Transfer

and Advancement Act (NTTAA) (15

U.S.C. 272 note) directs agencies to use

voluntary consensus standards in their

regulatory activities unless the agency

provides Congress, through the Office of

Management and Budget, with an

explanation of why using these

standards would be inconsistent with

applicable law or otherwise impractical.

Voluntary consensus standards are

technical standards (e.g., specifications

of materials, performance, design, or

operation; test methods; sampling

procedures; and related management

system practices) that are developed or

adopted by voluntary consensus

standards bodies.

This rule does not use technical

standards. Therefore, we did not

consider the use of voluntary consensus

standards.

Environment

We have analyzed this rule under

Commandant Instruction M16475.1D,

which guides the Coast Guard in

complying with the National

Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321-4370f), and

have concluded that there are no factors

in this case that would limit the use of

a categorical exclusion under section

2.B.2 of the Instruction. Therefore, this

rule is categorically excluded, under

figure 2-1, paragraph (34)(g), of the

Instruction, from further environmental

documentation.

A final "Environmental Analysis

Check List" and a final "Categorical

Exclusion Determination" will be

available in the docket where indicated

under ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

* For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR part 165 as follows:

PART 165-REGULATED NAVIGATION

AREAS AND LIMITED ACCESS AREAS

m 1. The authority citation for part 165

continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.

Chapter 701; 50 U.S.C. 191, 195; 33 CFR

1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L.

107-295, 116 Stat. 2064; Department of

Homeland Security Delegation No. 0170.1.

* 2. Add temporary § 165.T01-099 to

read as follows:

§165.TO1-099 Safety Zone; Wiscasset,

Maine, Demolition of Maine Yankee former

containment building.

(a) Location. The following area is a

safety zone: All navigable waters within

1000-feet around the former Maine

Yankee containment building from a

point located at Latitude 43057'00" N,

Longitude 069o41'42" W (NAD 83).

(b) Effective date. This rule is effective

from 12:01 a.m. EDT on September 3,

2004 to 11:59 p.m. e.d.t. on September

30, 2004.

(c) Regulations. (1) In accordance with

the general regulations contained in

§ 165.23 of this part, entry into or

movement within this zone is

prohibited unless authorized by the

Captain of the Port (COTP) Portland,

Maine or his designated representative.

(2) All persons and vessels shall

comply with the instructions of the

COTP, or the designated on-scene U.S.

Coast Guard representative. Designated

U.S. Coast Guard representatives

include commissioned, warrant, and

petty officers of the Coast Guard on

board Coast Guard, Coast Guard

Auxiliary, and local, State, and Federal

law enforcement vessels. Emergency

response vessels are authorized to move

within the zone, but must abide by

restrictions imposed by the COTP or his

designated representative. Upon being

hailed by U.S. Coast Guard personnel or

a U.S. Coast Guard Vessel, via siren,

radio, flashing light, or other means,

those hailed shall proceed as directed.

(3) Entry or movement within this

zone is prohibited unless authorized by

the Captain of the Port, Portland, Maine.

Dated: September 2, 2004.

Gregory D. Case,

Lieutenant Commander, U.S. Coast Guard,

Acting Captain of the Port, Portland, Maine.

[FR Doc. 04-20927 Filed 9-16-04; 8:45 am]

BILLING CODE 4910-15-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[OAR-2003-0083; FRL-7815-3]

Air Quality Designations and

Classifications for the 8-Hour Ozone

National Ambient Air Quality

Standards; Las Vegas, NV

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This rule finalizes the

boundaries for the portion of Clark

County, Nevada that is designated

nonattainment for the 8-hour ozone

national ambient air quality standard

and designates the remaining portions

of Clark County, including portions of

the Moapa River Indian Reservation and

the Fort Mojave Indian Reservation, as

attainment for the 8-hour ozone

standard. In a final rule published April

30, 2004, EPA had previously

announced that all of Clark County

would be designated nonattainment for

the standard. EPA subsequently

deferred the effective date of that

designation to provide the State,

affected Tribes, and EPA time to

determine whether an adjustment to the

boundaries of the Las Vegas

nonattainment area was appropriate.

Based on additional analyses submitted

by the State and the Moapa Band of

Paiutes, we conclude that the boundary

of the Las Vegas nonattainment area

should be adjusted. Through this notice

we are revising the designations for

Clark County to reflect these

adjustments. The revised designation

defines a smaller nonattainment area

around the City of Las Vegas and

designates the remainder of Clark

County with the rest of the State as "unclassifiable/attainment."

EFFECTIVE DATE: This final rule is

effective on September 13, 2004.

ADDRESSES: The EPA has established

dockets for this action under Docket ID

No. OAR-2003-0083 (Designations). All

documents in the docket are listed in

the EDOCKET index at http://

www.epa.gov/edocket. Although listed

in the index, some information is not

publicly available, i.e., Confidential

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Business Information (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 EDOCKET or in hard

copy at the Docket, EPA/DC, EPA West,

Room B102, 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, and the telephone

number for the Office of Air and

Radiation Docket and Information

Center is (202) 566-1742. In addition,

we have placed a copy of the rule and

a variety of materials regarding

designations on EPA's designation Web

site at: http://www.epa.gov/oar/oaqpsl

glo/designations and on the Tribal Web

site at: http://www.epa.gov/air/tribal. In

addition, the public may inspect the

rule and technical support at the

following locations:

U.S. Environmental Protection

Agency, Region IX, Air Division,

Planning Office, 75 Hawthorne Street,

San Francisco, California 94105.

FOR FURTHER INFORMATION CONTACT: John

J. Kelly, Planning Office, Air Division,

U.S. Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, California 94105. The

telephone number is (415) 947-4151.

Mr. Kelly can also be reached via

electronic mail at kelly.johnj@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA Taking Today?

EPA is announcing and promulgating

revised designations for areas within

Clark County, Nevada with respect to

attainment or nonattainment of the 8-

hour ozone National Ambient Air

Quality Standard (NAAQS). This action

modifies the designation for Clark

County announced in our final 8-hour

ozone designations rule published April

30, 2004. 69 FR 23858. In that final rule

we designated all of Clark County as

nonattainment for the 8-hour ozone

NAAQS and provided the designation

would be effective June 15, 2004. See 69

FR at 23919-20 (revising 40 CFR

81.329). We subsequently deferred the

effective date for the Clark County

designation until September 13, 2004 to

allow further consideration of the

appropriate nonattainment boundary. 69

FR 34076 (June 18, 2004). With today's

action, we are designating a portion of

Clark County as nonattainment for the

8-hour ozone NAAQS and the

remainder of the County with the rest of

the State as "unclassifiable/attainment."

The effective date of this designation is

September 13, 2004.

II. What Is the Background for This

Action?

On April 15, 2004, the EPA

Administrator signed a final rule

announcing designations under the 8-

hour ozone NAAQS. 69 FR 23875 (April

30, 2004). In that action we designated

Clark County as nonattainment and

provided that this designation would

become effective on June 15, 2004.

Following that notice, the State

submitted additional information

explaining that the boundaries of the

area to be designated nonattainment

should be reconsidered because of the

unique circumstances that prevented

the State from being able to evaluate the

appropriate boundaries and submit an

informed recommendation to EPA prior

to the April 15, 2004 final 8-hour ozone

designations. Letter from Allen Biaggi,

Administrator, Nevada Division of

Environmental Protection, to Michael 0.

Leavitt, Administrator, U.S.

Environmental Protection Agency (June

9, 2004). 1 In the June 9, 2004 letter the

State explained that it did not have time

to make an appropriate recommendation

regarding the boundaries of the

nonattainment area in Clark County

because it was not discovered until late

February 2004 that any portion of

Nevada would be designated

nonattainment.

Based on the unusual history of the

Clark County designation 2 and the

subsequent information provided by the

State, we concluded that the relevant

factors for defining a nonattainment area

might support a different boundary

recommendation than the one originally

submitted by the State and that a

deferral of the effective date for the

designation was reasonable to allow the

State, Tribes, and EPA time to

determine whether such an adjustment

was reasonable. 69 FR at 34076.

Following EPA's decision to defer the

effective date, EPA has worked closely

with the State, County and Tribes to

collect additional information and

analyze the appropriate boundaries for

the nonattainment area surrounding Las

Vegas. We have received boundary

recommendations with detailed

information and analysis from the

Nevada Division of Environmental

Protection (NDEP or State) and from the

Moapa Band of Paiutes (Moapa or

1 This letter supplements an earlier letter dated

May 21, 2004, from Governor Kenny C. Guinn to

Administrator Leavitt.

2 For a detailed discussion on this history, see our

June 18, 2004 deferral notice at 69 FR 34076.

Tribe).3 Our analysis of these submittals

is described in the Technical Support

Document (TSD) for today's action and

is summarized below. All of these

submittals along with our TSD are

available in the docket.

III. What Are the Statutory

Requirements for Designating Areas

and What Is EPA's Policy and Guidance

for Determining Nonattainment

Boundaries for the 8-Hour Ozone

NAAQS?

This section describes the statutory

definition of nonattainment and EPA's

guidance for determining air quality

attainment and nonattainment areas for

the 8-hour ozone NAAQS. In March

2000 4 and July 2000 5 we issued

guidance on how to determine the

boundaries for nonattainment areas. In

that guidance, we rely on the CAA

definition of a nonattainment area in

section 107(d)(1)(A)(i) as an area that is

violating an ambient standard or is

contributing to a nearby area that is

violating the standard. If an area meets

this definition, EPA is obligated to

designate the area as nonattainment.

In making designations and

classifications, we use the most recent

three years of monitoring data (i.e.,

2001-2003), although other relevant

years of data may be used in certain

circumstances. 6 We treat data recorded

by an ozone air quality monitor as

representative of the air quality

throughout the area in which the

monitor is located and generally use the

county as the basic jurisdictional unit in

determining the extent of the area

represented by the monitoring data. As

a result, we typically designate the

entire county and any nearby

contributing area as nonattainment if an

ozone monitor was measuring a

violation of the standard based on the

2001-2003 data.

For violating monitors located in a

Metropolitan Statistical Area (MSA) or

Consolidated Metropolitan Statistical

Area (CMSA), however, we typically

designate the entire MSA or CMSA as

nonattainment. Section 107(d)(4) of the

Clean Air Act established the MSA or

3 Although we did not receive submittals from the

other Tribes in Clark County, we consulted with

them by phone to determine the appropriate

designation of their lands.

4 Memorandum from John S. Seitz, "Boundary

Guidance on Air Quality Designations for the 8-

Hour Ozone National Ambient Air Quality

Standards" (March 28, 2002).

5 Memorandum from John S. Seitz, "Guidance on

8-Hour Ozone Designations for Indian Tribes" (July

18, 2000).

6 To determine whether an area is attaining the 8-

hour ozone NAAQS, EPA considers the most recent

three consecutive years of data in accordance with

40 CFR part 50, appendix i.

55957

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CMSA as the presumptive boundary for

nonattainment areas when we

promulgated our designation actions in

1991 for the 1-hour ozone standard. In

our guidance on determining

nonattainment area boundaries for the

8-hour ozone standard, we advised

States that if a violating monitor is

located in an MSA or CMSA (as defined

by the Office of Management and

Budget (OMB) in 1999), the larger of the

1-hour ozone nonattainment area or the

MSA or CMSA should be considered in

determining the boundary of a

nonattainment area. 7 The MSA or

CMSA defined by OMB generally shares

economic, transportation, population,

and other linkages that are similar to air

quality related factors that produce

ozone pollution. EPA concluded that

using the MSA or CMSA as the

presumptive boundary "best ensure[s]

public health protection from the

adverse effects of ozone pollution

caused by population density, traffic

and commuting patterns, commercial

development, and area growth."

Memorandum from John S. Seitz,

"Boundary Guidance on Air Quality

Designations for the 8-Hour Ozone

National Ambient Air Quality

Standards" (March 28, 2002). This

boundary, however, is only

presumptive; a State may propose area

boundaries smaller or larger than the

presumptive area, and EPA will

consider alternative boundary

recommendations on a case-by-case

basis to assesswhether the

recommendation is consistent with

section 107(d)(1) of the Act. 8 Id.

Our guidance identifies the factors to

be considered in making and assessing

a recommendation to designate an area

other than the presumptive area. The

factors can be used to justify including

additional counties, excluding counties

within the presumptive area, or, as is

the case for the Las Vegas area, defining

7 These same presumptions generally apply to the

designation of Indian country. Thus, if the Indian

country has a violating monitor or even if there is

no air quality monitor but the area is located within

an MSA or CMSA with a violating monitor, it will

be presumed to be nonattainment. See

Memorandum from John S. Seitz, "Guidance on 8-

Hour Ozone Designations for Indian Tribes" (July

18, 2000). 8 For Indian country, a Tribe may, but is not

required to, submit a recommendation on the

designation boundaries. In cases where Tribes do

not make designation recommendations, EPA, in

consultation with the Tribes, will promulgate the

designation it determines is appropriate. "It is

Agency policy that EPA '* * * in keeping with the

Federal trust responsibility, will assure that tribal

concerns and interests are considered whenever

EPA's action and/or decisions may affect

reservation environments.' (EPA 1984 Indian

Policy)." Memorandum from John S. Seitz,

"Guidance on 8-Hour Ozone Designations for

Indian Tribes" (July 18, 2000).

an area that is less than the full county.

The factors were compiled based on our

experience in designating areas for the

ozone standard in March 1978 and

November 1991 and by looking to the

CAA, section 107(d)(4), which states

that the Administrator and the Governor

shall consider factors such as

population density, traffic congestion,

commercial development, industrial

development, meteorological

conditions, and pollution transport.

State and local agencies also had

extensive input into compiling the

factors.

The factors are:

(1) Emissions and air quality in

adjacent areas (including adjacent MSAs

and CMSAs),

(2) Population density and degree of

urbanization including commercial

development (significant difference

from surrounding areas),

(3) Monitoring data representing

ozone concentrations in local areas and

larger areas (urban or regional scale),

(4) Location of emission sources

(emission sources and nearby receptors

should generally be included in the

same nonattainment area),

(5) Traffic and commuting patterns,

(6) Expected growth (including extent,

pattern, and rate of growth),

(7) Meteorology (weather/transport

patterns),

(8) Geography/topography (mountain

ranges or other air basin boundaries),

(9) Jurisdictional boundaries (e.g.,

counties, air districts, existing 1-hour

nonattainment areas, Reservations, etc.),

(10) Level of control of emission

sources, and

(11) Regional emissions reductions

(e.g., NON State Implementation Plan

(SIP) Call or other enforceable regional

strategies). 9

IV. What Are the Nonattainment

Boundaries Within Clark County and

How Do These Comport With EPA

Policy and Guidance?

A. Initial Designation of Clark County

In July 2003, the State submitted its

recommended designations for the 8-

hour ozone designations. See Letter

from Allen Biaggi, Administrator,

Nevada Division of Environmental

Protection to Wayne Nastri, Regional

Administrator, U.S. EPA, Region IX

(July 10, 2003). Based on the monitoring

data provided by the State for the period

of 2000 through 2002, the State

concluded that all monitors within the

State were showing compliance with the

9 See Memorandum from John S. Seitz,

"Boundary Guidance on Air Quality Designations

for the 8-Hour Ozone National Ambient Air Quality

Standards" (March 28, 2002).

8-hour ozone NAAQS. On December 3,

2003, EPA agreed with the State's

recommendation not to designate any

Nevada area as nonattainment for the 8-

hour ozone standard. See Letter from

Wayne Nastri, Regional Administrator,

U.S. EPA, Region IX, to Hon. Kenny C.

Guinn, Governor of Nevada (December

3, 2004). In that letter EPA noted that

the final designation determination

would be based on monitoring data and

design values for the period 2001

through 2003, but that based on our

preliminary review of the air quality

monitoring data for the 2003 ozone

season, there were no areas in Nevada

violating the 8-hour ozone standard. Id.

In mid-February 2004, EPA

discovered that the July 10, 2003

recommendation from the State had

failed to include complete monitoring

data for 2001. This overlooked data, in

combination with the new 2003 data,

resulted in a 2001-2003 design value

over the applicable standard at one of

the monitors (Joe Neal) in the Las Vegas

area of Clark County. EPA contacted the

State and described that, by default, the

MSA that included Clark and Nye

Counties in Nevada and Mohave County

in Arizona should be recommended for

designation as nonattainment.

Arizona and Nevada were able to

prepare an analysis that supported the

exclusion of Nye and Mohave Counties

from the nonattainment area. See Letter

from Allen Biaggi, Administrator,

Nevada Division of Environmental

Protection, to Wayne Nastri, Regional

Administrator, U.S. EPA, Region IX

(April 12, 2004) (transmitting NDEP's

report entitled "Nevada Air Quality

Designations and Boundary

Recommendations for the 8-Hour Ozone

National Ambient Air Quality

Standard" (March 26, 2004)); Letter

from Stephen A. Owens, Director,

Arizona Department of Environmental

Quality, to Wayne Nastri, Regional

Administrator, U.S. EPA, Region IX

(March 26, 2004) (transmitting report

entitled "Arizona Boundary

Recommendations for the 8-Hour Ozone

National Ambient Air Quality

Standard" (March 26, 2004)). As a

result, three days before the EPA

deadline for making designations, the

State recommended that Clark County

be designated nonattainment. 1° Id.

10 As the State subsequently claimed, had NDEP

and Clark County discovered earlier that the County

should be designated nonattainment, it would have

farther analyzed the appropriate boundaries for the

nonattainment are within the 8000-square mile

County. Given the late discovery, however, the

State and county could not provide the necessary

analysis and defaulted to the County boundaries.

See 69 FR 34076 (June 18, 2004) (Deferring effective

date to allow for additional anlaysis of appropriate

boundary).

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EPA's April 30, 2004 final rule

announcing the 8-hour ozone

designations for the country designated

all of Clark County as nonattainment

and the rest of State as "unclassifiable/

attainment." 69 FR 23858, 23919-20

(April 30, 2004).

B. Revised Boundary Recommendation

for the Las Vegas Nonattainment Area

On August 2, 2004, the State

submitted a revised recommendation for

the boundary of the nonattainment area

surrounding Las Vegas. Letter from Leo

Drozdoff, Acting Administrator, NDEP,

to Wayne Nastri, Regional

Administrator. U.S. EPA, Region IX.

Based on an analysis of the 11 factors

outlined in EPA's guidance, the State

recommended that the following

hydrographic areas "1 within Clark

County be designated nonattainment:

Ivanpah Valley (hydrographic areas

164A, 164B, 165 and 166), Eldorado

Valley (hydrographic area 167), Las

Vegas Valley (hydrographic area 212),

Colorado River Valley (hydrographic

area 213), Paiute Valley (hydrographic

area 214), Apex Valley (hydrographic

areas 216 and 217), and a portion of

Moapa Valley (hydrographic area

218).12 The State recommended that the

remainder of the County be designated "unclassifiable/attainment" because

these areas:

* Are sparsely populated, containing

less than two percent of the County

population;

* Were not found to impact the

recommended nonattainment area;

* Contain insignificant point and

mobile sources of emissions;

* Are separated geographically and

topographically from the recommended

nonattainment area; and

* Are expected to have low regional

ozone levels based on monitoring data.

The areas recommended as part of the

nonattainment area contain all of the

monitors reading elevated ozone

concentrations, all of the major

transportation corridors, nearly all of

the major sources of ozone precursors in

the County, and the vast majority of the

County's population. The State

considered likely transport of emissions

in and out of the Las Vegas Valley and

11 A hydrographic area is a natural or manmade

stream drainage area or basin. These geographic

areas are delineated by the Nevada Division of

Water Resources and have long been used by the

State and EPA for defining and designating air

basins within the State. See 67 FR 12474 (March 19,

2002). A map of these areas is included in the

State's August 2, 2004 submittal, which can be

found in the docket.

12 The TSD contains a map showing these

hydrographic areas and the boundary of the

nonattainment area, as well as our review of the

State's analysis.

recommended including all areas with

sources that may contribute to

violations of the 8-hour standard in Las

Vegas as well as surrounding areas that

may be impacted by emissions from

sources in and around Las Vegas.

C. Designation Recommendation for the

Moapa River Reservation

We also received recommendations

from the Moapa Band of Paiutes

regarding designation of the Moapa

River Indian Reservation located within

Clark County, northeast of Las Vegas.

Letter from Philbert Swain, Chairman,

to John Kelly, U.S. EPA, Region IX (July

30, 2004); Letter from Thomas R. Wood,

Stoel Rives, to Paul Cort, U.S. EPA,

Region IX (Aug. 19, 2004) (transmitting

supplement to the July 30, 2004

analysis). The Reservation overlaps with

the hydrographic areas recommended as

nonattainment by the State (Apex and

Moapa Valleys), but the Tribe

recommended designating the

Reservation as attainment because:

* Emissions at the Reservation do not

significantly impact local air quality;

* Emissions do not contribute to

nonattainment in the Las Vegas Valley;

and

* The area lacks any economic

integration with Las Vegas.

D. Designation of Other Reservations

Within Clark County

Two other reservations are within the

area recommended by the State as the

nonattainment area. Specifically, in

addition to the Moapa River Indian

Reservation of the Moapa Band of

Paiutes described above, the area

includes the reservation lands of the Las

Vegas Paiute and a small portion of the

Fort Mojave Indian Reservation of the

Fort Mojave Indian Tribe. We did not

receive recommendations from the Las

Vegas Paiute or the Fort Mojave Tribes,

so we have prepared an independent

assessment in accordance with our

guidance and consulted with the Tribes

to promulgate designations for these

Reservations.

E. Summary of Final Designations

EPA agrees with the recommendation

of the State to narrow the nonattainment

designation for the Las Vegas area to the

portion of Clark County defined by

hydrographic areas 164A, 164B, 165,

166, 167, 212, 213, 214, 216, 217 and

218.13 We therefore will designate the

13 As described above, portions of the Moapa

River Indian Reservation and the Fort Mojave

Indian Reservation are located within the

hydrographic basins the State recommended EPA

use to define the nonattainment area. The State's

August 2, 2004 submittal, however, expressly

"excludes the Las Vegas Paiute Tribal Community,

remainder of the County, as we have

designated the rest of the State, as "unclassifiable/attainment" for the 8-

hour ozone NAAQS.

The State has taken a broad and

conservative approach in defining the

portions of the 8,000-square mile

County that cause of contribute to

violations of the standard in the Las

Vegas Valley. These areas include all

portions of the County having any

elevated concentrations of ozone and

nearly every major source in the County.

The areas recommended as part of the

nonattainment area include 98 percent

of the population and all of the

urbanized and projected growth areas

within the County. Finally, the area

recommended for nonattainment

includes the major traffic and

commuting corridors within the County.

We also agree that the remainder of

the County is reasonably excluded from

the nonattainment area. It is primarily

public land, with few sources, and no

urbanization or likelihood of growth.

Air quality in these surrounding areas is

not impaired with respect to the 8-hour

ozone NAAQS and there is no

likelihood of contribution to the ozone

problem in the Las Vegas area due to the

lack of emission sources, geographical

barriers and prevailing weather

patterns.14

The area recommended by the State

for nonattainment overlaps with the

reservation land of three Tribes: the

Moapa Band of Paiutes, located in

Moapa Valley northeast of Las Vegas;

the Las Vegas Band of Paiutes, located

within the Las Vegas Valley; and the

Fort Mojave Indian Tribe, located at the

southern tip of the County near the

Arizona and California state lines. As

noted above, we received a designation

recommendation from the Moapa Band

of Paiutes that argued for designating

the Reservation in Moapa Valley as

attainment. We consulted with the other

Tribes but did not receive formal

recommendations.

In accordance with our trust

responsibilities for these Tribes, we

independently evaluated whether these

areas should be included or excluded

and the Moapa Band of the Paiute Tribal Land"

from the recommended nonattainment area. The

State's recommendation is silent with respect to the

Fort Mojave Indian Reservation. EPA interprets the

State's submittal to leave the designation

recommendations and decisions for all Tribal lands

within the County to EPA and the respective Tribes.

As such, we have independently assessed the

proper designations for these areas and presume

that it is fair to say that we "agree" with the

recommendation of the State independent of the

designations for the Tribal areas.

14 For a more detailed discussion of the 11 factors

supporting exclusion of these areas, see the TSD for

today's action.

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from the nonattainment area within

Clark County. We concluded that the

Las Vegas Paiute land, given its location

within the Las Vegas Valley, its

meteorologic and economic integration

with Las Vegas, and the impact on air

quality within the Reservation due to

emissions from Las Vegas, should be

included in the Las Vegas 8-hour ozone

nonattainment area. The other Tribal

areas, however, are reasonably

excluded. 15

The Moapa Band of Paiutes provided

significant information demonstrating

that: (1) The Reservation is sufficiently

removed from the sources of emissions

in and around Las Vegas such that air

quality in the Reservation has not been

adversely impacted, (2) the area is not

economically integrated with the growth

of the Las Vegas area, and (3) emissions

from sources within the tribal area do

not contribute to air quality problems in

or around Las Vegas due to prevailing

wind patterns. For these reasons, we

agree the Moapa River Indian

Reservation should be excluded from

the Las Vegas 8-hour ozone

nonattainment area.

The Fort Mojave Reservation is also

reasonably excluded from the Las Vegas

8-hour ozone nonattainment area. The

Reservation is located approximately 80

miles from the Las Vegas area in an

upwind direction. Monitors located in

this portion of the State have not

measured elevated ozone

concentrations. There is no likelihood of

economic integration with Las Vegas

and the Reservation does not have

sources that contribute to nonattainment

in the Las Vegas area.

V. What Action Is EPA Taking To

Designate These Portions of Clark

County?

We are revising 40 CFR 81.329 to

specify the revised boundaries of the

nonattainment area within Clark

County, Nevada. As explained above,

the Las Vegas nonattainment area will

include hydrographic areas 164A, 164B,

165,166, 167, 212,213, 214, 216, 217,

and 218. From this area we are

excluding that portion within the

Moapa River Indian Reservation and the

Fort Mojave Indian Reservation. The

remainder of Clark County, along with

these reservations, will be included

with the rest of the State as "unclassifiable/attainment." EPA is

making this change without notice and

comment in accordance with section

107(d)(2) of the Clean Air Act, which

exempts the promulgation of these

designations from the notice and

15 A fuller analysis of the 11 factors for excluding

these areas is provided in the TSD for this action.

comment provisions of the

Administrative Procedure Act.

The effective date for these

designations codified in 40 CFR 81.329

will be September 13, 2004. Section

553(d) of the Administrative Procedure

Act generally provides that rulemakings

shall not be effective less than 30 days

after publication except where a

substantive rule relieves a restriction or

where the agency finds good cause for

an earlier date. 5 U.S.C. 553(d)(1) and

(3). Without expediting the effective

date for today's action, all of Clark

County would be designated

nonattainment effective September 13,

2004. This designation could create

significant confusion and potential

substantive obligations for portions of

Clark County that are being removed

from the nonattainment area in today's

action. Even in the areas of Clark

County that continue to be considered

nonattainment in today's action, having

two effective dates will create confusion

regarding deadlines for submittals and

may serve only to delay requirements

for planning. The effective date for

today's action is therefore justified

under the APA because: (1) It relieves a

restriction by narrowing the boundaries

of the Las Vegas nonattainment area that

would otherwise become effective on

September 13, 2004; and (2) it is in the

public interest to avoid confusion and

delay associated with overlapping

designations and effective dates.

As noted in our June 18, 2004 deferral

action (69 FR 34076), we do not intend

to extend the deadline for state

implementation plan submission for the

Las Vegas nonattainment area. EPA will

address this deadline in a subsequent

action but believes it is reasonable to

require submission according to the

same schedule to which the area would

be subject without the deferred effective

date. Likewise, the time by which

attainment occurs should not be affected

by the deferral.

VI. Final Action

The EPA is revising the 8-hour ozone

designations for Clark County, Nevada.

We are defining new boundaries for the

Las Vegas nonattainment area and

including the remaining portions of the

County with the rest of the State as "unclassifiable/attainment." We are

amending 40 CFR 81.329 to reflect these

revised designations.

VII. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is "significant" and, therefore,

subject to OMB review and the

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may: (1) Have an

annual effect on the economy of $100

million or more or adversely affect in a

material way the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or Tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President's priorities, or

the principles set forth in the Executive

Order. Pursuant to the terms of

Executive Order 12866, it has been

determined that this rule is not a "significant regulatory action" because

none of the above factors applies. As

such, this final rule was not formally

submitted to OMB for review.

B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. This rule

revises the nonattainment designations

for Clark County, Nevada that were

promulgated on April 15, 2004. The

present final rule does not establish any

new information collection burden apart

from that required by law. Burden

means the total time, effort, or financial

resources expended by persons to

generate, maintain, retain, or disclose or

provide information to or for a Federal

agency. This includes the time needed

to review instructions; develop, acquire,

install, and utilize technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information. An agency

may not conduct or sponsor, and a

person is not required to respond to a

collection of information unless it

displays a currently valid OMB control

number. The OMB control numbers for

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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

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure 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 today's final rule on

small entities, small entity is defined as:

(1) A small business that is a small

industrial entity as defined in the U.S.

Small Business Administration (SBA)

size standards (see 13 CFR part 121); (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-forprofit enterprise which is independently

owned and operated and is not

dominant in its field. This rule revises

the boundaries of the Las Vegas 8-hour

ozone nonattainment area in Clark

County, Nevada. The revision narrows

the boundaries of the nonattainment

area and will not impose any new

requirements on small entities. After

considering the economic impacts of

today's final rule on small entities, I

certify that this rule will not have a

significant economic impact on a

substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and Tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with "Federal mandates" that may

result in expenditures to State, local,

and Tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective, or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including Tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements. Today's

final action does not include a Federal

mandate within the meaning of UMRA

that may result in expenditures of $100

million or more in any one year by

either State, local, or Tribal

governments in the aggregate or to the

private sector, and therefore, is not

subject to the requirements of sections

202 and 205 of the UMRA. It does not

create any additional requirements

beyond those of the 8-hour NAAQS for

ozone (62 FR 38894; July 18, 1997),

therefore, no UMRA analysis is needed.

In this rule, EPA is narrowing the

definition of the Las Vegas

nonattainment area in Clark County,

Nevada. No new controls will be

imposed as a result of this action. Thus,

this Federal action will not impose

mandates that will require expenditures

of $100 million or more in the aggregate

in any one year.

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

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." This

final rule 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. The CAA

establishes the scheme whereby States

take the lead in developing plans to

meet the NAAQS. This rule will not

modify the relationship of the States

and EPA for purposes of developing

programs to implement the NAAQS.

Thus, Executive Order 13132 does not

apply to this rule.

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 final rule does not

have "Tribal implications" as specified

in Executive Order 13175. This rule

concerns the classification and

designation of areas as attainment or

nonattainment for the 8-hour ozone

standard. The CAA provides for States

to develop plans to regulate emissions

of air pollutants within their

jurisdictions. The TAR gives Tribes the

opportunity to develop and implement

CAA programs such as programs to

attain and maintain the 8-hour ozone

NAAQS, but it leaves to the discretion

of the Tribe whether to develop these

programs and which programs, or

appropriate elements of a program, they

will adopt.

This final rule does not have Tribal

implications as defined by Executive

Order 13175. It does not have a

substantial direct effect on one or more

Indian Tribes, since no Tribe has

implemented a CAA program to attain

the 8-hour ozone NAAQS at this time.

Furthermore, this rule does not affect

the relationship or distribution of power

and responsibilities between the Federal

government and Indian Tribes. The

CAA and the TAR establish the

relationship of the Federal government

and Tribes in developing plans to attain

the NAAQS, and this rule does nothing

to modify that relationship. Because this

rule does not have Tribal implications,

Executive Order 13175 does not apply.

Although Executive Order 13175 does

not apply to this rule, EPA did conduct

outreach with Tribal representatives

regarding the designations. These

discussions informed EPA about key

Tribal concerns regarding designations

as the rule was under development.

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G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

Executive Order 13045: "Protection of

Children From Environmental Health

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. The final

rule is not subject to Executive Order

13045 because it is not economically

significant as defined in Executive

Order 12866, and because the Agency

does not have reason to believe the

environmental health risks or safety

risks addressed by this rule present a

disproportionate risk to children.

Nonetheless, we have evaluated the

environmental health or safety effects of

the 8-hour ozone NAAQS on children.

The results of this risk assessment are

contained in the National Ambient Air

Quality Standards for Ozone, Final Rule

(62 FR 38855-38896, July 18, 1997;

specifically, 62 FR 38854, 62 FR 38860

and 62 FR 38865).

H. Executive Order 13211:Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This rule is not subject to Executive

Order 13211, "Actions That

Significantly Affect Energy Supply,

Distribution, or Use," (66 FR 28355,

May 22, 2001) because it is not a

significant regulatory action under

Executive Order 12866. Information on

the methodology and data regarding the

assessment of potential energy impacts

is found in Chapter 6 of U.S. EPA 2002,

Cost, Emission Reduction, Energy, and

Economic Impact Assessment of the

Proposed Rule Establishing the

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National

Ambient Air Quality Standard, prepared

by the Innovative Strategies and

Economics Group, Office of Air Quality

Planning and Standards, Research

Triangle Park, NC, April 24, 2003.

L National Technology Transfer

Advancement Act

Section 12(d) of the National

Technology Transfer Advancement Act

of 1995 (NTTAA), Pub. L. 104-113,

section 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards (VCS) in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by VCS bodies. The NTTAA

directs EPA to provide Congress,

through OMB, explanations when the

Agency decides not to use available and

applicable VCS. This action does not

involve technical standards. Therefore,

EPA did not consider the use of any

VCS.

J. Congressional Review Act

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. The 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 on or before

the effective date of this rule. 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 September 13,

2004.

K. Judicial Review

Section 307(b)(1) of the CAA indicates

which Federal Courts of Appeal have

venue for petitions of review of final

actions by EPA. This section provides,

in part, that petitions for review must be

filed in the Court of Appeals for the

District of Columbia Circuit (i) When

the agency action consists of "nationally

applicable regulations promulgated, or

final actions taken, by the

Administrator," or (ii) when such action

is locally or regionally applicable, if

"such action is based on a

determination of nationwide scope or

effect and if in taking such action the

Administrator finds and publishes that

such action is based on such a

determination." The rule designating

areas for the 8-hour ozone standard was "nationally applicable" within the

meaning of section 307(b)(1) since it

established designations for all areas of

the United States for the 8-hour ozone

NAAQS. Since today's final action

revises one of the designations made in

that nationwide rulemaking, any

petitions for review must be filed in the

Court of Appeals for the District of

Columbia Circuit. At the core of the

designations rulemaking is EPA's

interpretation of the definition of

nonattainment under section 107(d)(1)

of the CAA. In determining which areas

should be designated nonattainment (or

conversely, should be designated "unclassifiable/attainment"), EPA used

a set of 11 factors that it applied

consistently across the United States.

For the same reasons, the Administrator

also determined that the final

designations are of nationwide scope

and effect for purposes of section

307(b)(1). This is particularly

appropriate because in the report on the

1977 Amendments that revised section

307(b)(1) of the CAA, Congress noted

that the Administrator's determination

that an action is of "nationwide scope

or effect" would be appropriate for any

action that has "scope or effect beyond

a single judicial circuit." H.R. Rep. No.

95-294 at 323, 324, reprinted in 1977

U.S.C.C.A.N. 1402-03. Here, the scope

and effect of the designations

rulemaking extend to numerous judicial

circuits since the designations apply to

all areas of the country. In these

circumstances, section 307(b)(1) and its

legislative history calls for the

Administrator to find the rule to be of

"nationwide scope or effect" and for

venue to be in the D.C. Circuit. Thus,

any petitions for review of this final

action must be filed in the Court of

Appeals for the District of Columbia

Circuit within 60 days from the date

final action is published in the Federal

Register.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: September 10, 2004.

Michael 0. Leavitt,

Administrator.

* For the reasons set forth in the

preamble, 40 CFR part 81 is amended as

follows:

PART 81-[AMENDED]

m 1. The authority citation for part 81

continues to read as follows:

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

Subpart C-[AMENDED]

* 2. In § 81.329, the table entitled

"Nevada-Ozone (8-Hour Standard)" is

revised to read as follows:

§ 81.329 Nevada.

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