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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, orUse. We have determined that itis 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

onthe supply, distribution, oruse of
energy. The Administrator ofthe Office ofInformation andRegulatory Affairs has not designated it as a significant
energy action. Therefore, itdoes not require aStatement ofEnergy Effects under Executive Order 13211.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies touse voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation ofwhy using these standards wouldbe inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications ofmaterials, performance, design, or operation; test methods; sampling procedures; and related management systempractices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use ofvoluntary consensus standards.

Environment

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying withthe 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 limitthe use of

a categorical exclusion under section 2.B.2 ofthe Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), ofthe Instruction, from further environmental documentation.

A final "Environmental Analysis Check List" and a final "Categorical Exclusion Determination" willbe available in the docket where indicated under ADDRESSES. List ofSubjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reporting andrecordkeeping 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 atLatitude 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 ofthe Port (COTP)Portland, Maine or his designated representative. (2) All persons and vessels shall comply with the instructions ofthe COTP, or the designated on-scene U.S. Coast Guard representative. Designated U.S. Coast Guard representatives include commissioned, warrant, and petty officers ofthe Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, State, andFederal law enforcement vessels. Emergency
response vessels are authorized to move within the zone, but must abide by restrictions imposed by the COTP orhis designated representative. Upon being hailed byU.S. Coast Guard personnel or

aU.S. Coast Guard Vessel, via siren, radio, flashing light, orother means, those hailed shall proceed as directed. (3) Entry or movement within this

zone is prohibited unless authorized by the Captain ofthe Port, Portland, Maine. Dated: September 2, 2004. Gregory D. Case,
LieutenantCommander, U.S. CoastGuard, Acting CaptainofthePort,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 Classificationsfor 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 ofClark County, Nevada that is designated nonattainment for the 8-hour ozone national ambient air quality standard and designates the remaining portions ofClark County, including portions of the Moapa River Indian Reservation and the Fort Mojave Indian Reservation, as attainment for the 8-hour ozone standard. In afinal rule published April 30, 2004, EPA had previously announced that all ofClark County wouldbe designated nonattainment for the standard. EPA subsequently deferred the effective date ofthat 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 ofthe 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 ofLas Vegas and designates the remainder ofClark County with the rest ofthe 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 athttp:// 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, EPAWest, 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 ofAir and Radiation Docket and Information Center is (202) 566-1742. In addition,

we have placed a copy ofthe rule and

avariety ofmaterials 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 andtechnical support at the following locations:

U.S. Environmental Protection Agency, Region IX, Air Division, Planning Office, 75 Hawthorne Street, SanFrancisco, 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 alsobe reachedvia 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 ofthe 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 ofClark County as nonattainment for the 8-hour ozone NAAQS andprovided 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 ofthe appropriate nonattainment boundary. 69 FR 34076 (June 18, 2004). With today's action, we are designating aportion of Clark County as nonattainment for the 8-hour ozone NAAQS and the remainder ofthe County with the rest of the State as "unclassifiable/attainment." The effective date ofthis designation is September 13, 2004.

II. What Is the Background for This Action?
OnApril 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 asnonattainment and provided that this designation would become effective on June 15, 2004.

Following thatnotice, the State submitted additional information explaining thatthe boundaries ofthe

area to be designated nonattainment shouldbe reconsidered because ofthe unique circumstances that prevented the State frombeing able to evaluate the appropriate boundaries and submit an informed recommendation to EPAprior
to the April 15, 2004 final 8-hour ozone designations. Letter from Allen Biaggi, Administrator, Nevada Division of Environmental Protection, toMichael 0. Leavitt, Administrator, U.S. Environmental Protection Agency (June 9, 2004). 1In the June 9, 2004 letter the State explained thatit did not have time
to make an appropriate recommendation regarding the boundaries ofthe nonattainment area in Clark County because itwas not discovered until late February 2004 that any portion of Nevada would be designated nonattainment.

Based onthe unusual history ofthe Clark County designation 2 andthe subsequent information provided bythe State, we concluded that the relevant factors for defining anonattainment area might support a different boundary recommendation than the one originally submittedby the State andthat a deferral ofthe effective date for the designation was reasonable to allow the State, Tribes, and EPAtime 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 andTribes 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 ofEnvironmental Protection (NDEP or State) andfrom the Moapa Band ofPaiutes (Moapa or

1This letter supplements anearlier letter dated May 21, 2004, from GovernorKenny C. Guinn to Administrator Leavitt.

2Fora detailed discussion on this history, seeour June 18, 2004 deferral notice at69 FR 34076. Tribe).3 Our analysis ofthese submittals is described in the Technical Support Document (TSD) for today's action and is summarized below. All ofthese submittals along with our TSD are available in the docket.

III.WhatAre the Statutory Requirements forDesignating Areas andWhatIs EPA's Policy and Guidance forDetermining Nonattainment Boundaries forthe 8-Hour Ozone NAAQS?

This section describes the statutory definition ofnonattainment andEPA's guidance for determining air quality attainment and nonattainment areas for the 8-hour ozone NAAQS. In March 2000 4 andJuly 20005we issued guidance onhow to determine the boundaries for nonattainment areas. In that guidance, we rely onthe CAA definition ofa nonattainment area in section 107(d)(1)(A)(i) as an area that is violating an ambient standard oris contributing to anearby area thatis violating the standard. Ifan area meets this definition, EPA is obligated to designate the area as nonattainment.

In making designations and classifications, we use the mostrecent three years ofmonitoring data (i.e., 2001-2003), although other relevant
years ofdata may be used in certain circumstances. 6 Wetreat datarecorded by an ozone air quality monitor as representative ofthe air quality throughout the area in which the monitor is located and generally use the county as the basicjurisdictional unitin determining the extent ofthe area represented by the monitoring data. As

a result, we typically designate the entire county and any nearby contributing area as nonattainment ifan

ozone monitor was measuring a violation ofthe standard based onthe 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 orCMSA as nonattainment. Section 107(d)(4) ofthe Clean Air Act established the MSA or

3Although we didnotreceive submittals from the otherTribes in Clark County, we consulted with them byphone to determine the appropriate designation oftheir lands.

4Memorandum from John S. Seitz, "Boundary Guidance on Air QualityDesignations for the 8- Hour Ozone National Ambient Air Quality Standards" (March 28, 2002).

5Memorandum from John S. Seitz, "Guidance on 8-Hour Ozone Designations for Indian Tribes" (July 18, 2000).

6Todetermine whether an area is attaining the 8-
hour ozone NAAQS, EPA considers the most recent three consecutive years ofdata in accordance with 40 CFR part 50, appendix i. 

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CMSA as thepresumptive 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 ifa violating monitor is located in an MSA or CMSA (as defined by the Office ofManagement and Budget (OMB) in 1999), the larger ofthe 1-hour ozone nonattainment area or the MSA or CMSA should be considered in determining the boundary of a nonattainment area. 7The MSA or CMSA defined by OMB generally shares economic, transportation, population, and otherlinkages thatare similar to air quality related factors thatproduce

ozone pollution. EPA concluded that using the MSA or CMSA as the presumptive boundary "best ensure[s] public health protection from the adverse effects ofozone pollution causedby population density, traffic and commuting patterns, commercial development, and area growth." Memorandum from John S. Seitz, "Boundary Guidance onAir 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 EPAwill consider alternative boundary recommendations on a case-by-case basis to assesswhether the recommendation is consistent with section 107(d)(1) ofthe Act. 8

### Id.

Our guidance identifies the factors to be considered in making and assessing

arecommendation to designate an area otherthan the presumptive area. The factors canbe used to justify including additional counties, excluding counties within the presumptive area, or, as is the case for the Las Vegas area, defining

7These same presumptions generally apply to the designation of Indian country. Thus, ifthe Indian country has a violating monitoror even ifthere is

no air qualitymonitor butthe area is located within

an MSA or CMSA witha violating monitor, itwill be presumed to be nonattainment. See Memorandum from John S. Seitz, "Guidance on 8- Hour Ozone Designations for Indian Tribes" (July 18, 2000).

8For Indian country, a Tribe may, butis not required to, submit a recommendation on the designationboundaries. In cases where Tribes do
not make designation recommendations, EPA, in consultation with the Tribes, will promulgate the designationit 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 bylooking tothe CAA, section 107(d)(4), which states that the Administrator andthe Governor shall consider factors such as population density, traffic congestion, commercial development, industrial development, meteorological conditions, andpollution transport. State andlocal agencies alsohad 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 orregional scale), (4) Location ofemission sources (emission sources andnearby receptors shouldgenerally be included in the

same nonattainment area),

(5)Traffic and commuting patterns, (6) Expected growth (including extent, pattern, and rate ofgrowth), (7)Meteorology (weather/transport patterns), (8) Geography/topography (mountain
ranges or other air basinboundaries), (9) Jurisdictional boundaries (e.g., counties, air districts, existing 1-hour nonattainment areas, Reservations, etc.), (10) Level ofcontrol ofemission
sources, and

(11) Regional emissions reductions (e.g., NON State Implementation Plan (SIP) Call or other enforceable regional strategies). 9

IV. WhatAre the Nonattainment Boundaries WithinClarkCounty and How Do These ComportWithEPA Policy and Guidance?

A. InitialDesignationofClarkCounty

In July 2003, the State submitted its recommended designations for the 8- hour ozone designations. SeeLetter from Allen Biaggi, Administrator, Nevada Division ofEnvironmental Protection to Wayne Nastri, Regional Administrator, U.S. EPA, Region IX (July 10, 2003). Based onthe monitoring dataprovided by the State for the period of2000 through 2002, the State concluded that all monitors within the State were showing compliance with the

9See Memorandum from John S. Seitz, "Boundary Guidance on Air Quality Designations for the 8-Hour Ozone National Ambient AirQuality 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 forthe 8- hour ozone standard. SeeLetter from Wayne Nastri, Regional Administrator, U.S. EPA, Region IX, to Hon. Kenny C. Guinn, Governor ofNevada (December 3, 2004). In that letter EPA noted that the final designation determination wouldbe based on monitoring data and design values for the period 2001 through 2003, but that based on our preliminary review ofthe air quality monitoring data for the 2003 ozone season, there were no areas inNevada violating the 8-hour ozone standard. Id.

In mid-February 2004, EPA discovered that the July 10, 2003 recommendation from the State had failed toinclude 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 ofClark County. EPA contacted the State and described that,by default, the MSA that included Clark andNye 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 ofNye andMohave Counties fromthe nonattainment area. See Letter fromAllen Biaggi, Administrator, Nevada Division ofEnvironmental Protection, to Wayne Nastri, Regional Administrator, U.S. EPA, Region IX (April 12, 2004) (transmittingNDEP's report entitled "Nevada Air Quality Designations and Boundary Recommendations forthe 8-Hour Ozone National Ambient Air Quality Standard" (March 26, 2004)); Letter from Stephen A. Owens, Director, Arizona Department ofEnvironmental Quality, to Wayne Nastri, Regional Administrator, U.S. EPA, Region IX (March 26, 2004) (transmittingreport entitled "Arizona Boundary Recommendations forthe 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.

10As the State subsequently claimed, had NDEP and Clark County discovered earlier that the County shouldbe designated nonattainment, itwould have farther analyzed the appropriate boundaries for the nonattainment arewithin the 8000-squaremile County. Given the late discovery,however, the State and county could notprovide the necessary analysis and defaulted to the County boundaries. See 69FR 34076 (June 18, 2004) (Deferring effective date to allow for additional anlaysis ofappropriate boundary).

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EPA's April 30, 2004 final rule announcing the 8-hour ozone designations for the country designated all ofClark County as nonattainment andthe rest of State as "unclassifiable/ attainment." 69 FR 23858, 23919-20 (April 30, 2004). B. RevisedBoundaryRecommendation fortheLas VegasNonattainment Area
On August 2, 2004, the State submitted arevised recommendation for the boundary ofthe 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 ofthe 11 factors outlined in EPA's guidance, the State recommended thatthe following hydrographic areas "1within 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 ofthe County be designated "unclassifiable/attainment" because these areas:

* Are sparsely populated, containing less than two percent ofthe County population;

* Were not found to impact the recommended nonattainment area;

* Contain insignificant point and mobile sources ofemissions;

* 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 ofthe nonattainment area contain all ofthe monitors reading elevated ozone concentrations, all ofthe major transportation corridors, nearly all of the major sources ofozone precursors in the County, and the vast majority ofthe County's population. The State considered likely transport ofemissions in and out ofthe Las Vegas Valley and

11Ahydrographic area is a natural ormanmade
stream drainage area or basin. These geographic

areas aredelineated by the Nevada Division of Water Resources andhave longbeen usedby the State and EPA for defining and designating air basins within the State. See 67 FR 12474 (March 19, 2002). Amap of these areas is included inthe State's August 2, 2004 submittal, which can be found in the docket.

12The TSD contains a map showing these hydrographic areas and theboundary ofthe nonattainment area, as well as our review ofthe State's analysis. recommended including all areas with

sources thatmay contribute to violations ofthe 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.DesignationRecommendation forthe MoapaRiverReservation

We alsoreceived recommendations from the Moapa Band ofPaiutes regarding designation ofthe Moapa River Indian Reservation located within Clark County, northeast ofLas Vegas. Letter from Philbert Swain, Chairman,
to JohnKelly, 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 tothe 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 donot 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.DesignationofOtherReservations Within ClarkCounty

Two otherreservations are within the

area recommended by the State as the nonattainment area. Specifically, in addition to the Moapa River Indian Reservation ofthe Moapa Band of Paiutes described above, the area includes the reservation lands ofthe Las Vegas Paiute and a smallportion ofthe Fort Mojave Indian Reservation ofthe Fort Mojave Indian Tribe. We did not receive recommendations from the Las Vegas Paiute orthe FortMojave 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 ofFinal Designations
EPA agrees with the recommendation ofthe State to narrow the nonattainment designation for the Las Vegas area to the portion ofClark 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 Staterecommended EPA

use to definethe nonattainment area. The State's August 2, 2004 submittal, however, expressly "excludes the Las Vegas Paiute Tribal Community, remainder ofthe County, aswe have designated the rest ofthe State, as "unclassifiable/attainment" for the 8- hour ozone NAAQS.

The State has taken abroad and conservative approach in defining the portions ofthe 8,000-square mile County that cause ofcontribute to violations ofthe standard in the Las Vegas Valley. These areas include all portions ofthe County having any elevated concentrations of ozone and nearly every major source inthe County. The areas recommended as part ofthe nonattainment area include 98 percent ofthe population and all ofthe urbanized and projected growth areas within the County. Finally, the area recommendedfor nonattainment includes the major traffic and commuting corridors within the County.

We also agree thatthe remainder of the County isreasonably excluded from the nonattainment area. It isprimarily public land, with few sources, and no urbanization or likelihood ofgrowth. Air quality in these surrounding areas is
notimpaired with respect to the 8-hour

ozone NAAQS andthere is no likelihood ofcontribution to the ozone problem in the Las Vegas area dueto the lack ofemission sources, geographical barriers andprevailing weather patterns.14

The area recommended by the State for nonattainment overlaps with the reservation land ofthree Tribes: the Moapa Band ofPaiutes, located in Moapa Valley northeast ofLas Vegas; the Las Vegas Band ofPaiutes, located within the Las Vegas Valley; andthe FortMojave Indian Tribe, located atthe southern tip ofthe County near the Arizona and California state lines. As noted above, we received a designation recommendation from the Moapa Band ofPaiutes that argued for designating the Reservation in Moapa Valley as attainment. We consulted with the other Tribes but did notreceive 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 ofthe Paiute Tribal Land" from therecommended nonattainment area. The State's recommendation is silent withrespect 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 itis fair to saythat we "agree" with the recommendation ofthe State independent ofthe designations for the Tribal areas.

14Fora more detailed discussion ofthe 11 factors supporting exclusionof theseareas, see the TSD for today's action. 

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from the nonattainment area within Clark County. We concluded thatthe 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 ofPaiutes provided significant information demonstrating that: (1)The Reservation is sufficiently removed from the sources ofemissions in and around Las Vegas such that air quality in the Reservation has notbeen adversely impacted, (2)the area is not economically integrated with the growth ofthe Las Vegas area, and (3)emissions from sources within the tribal area do
not contribute to air quality problems in

oraround Las Vegas due to prevailing wind patterns. Forthese reasons, we agree the Moapa River Indian Reservation should be excluded from the Las Vegas 8-hour ozone nonattainment area.

The FortMojave 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 ofthe State have not measured elevated ozone concentrations. There is no likelihood of economic integration with Las Vegas andthe Reservation does not have

sources that contribute to nonattainment in the Las Vegas area.
V. What Action Is EPA Taking To Designate These Portions ofClark County?

We are revising 40 CFR 81.329 to specifythe revised boundaries ofthe 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 thatportion within the Moapa River Indian Reservation and the Fort Mojave Indian Reservation. The remainder ofClark County, along with these reservations, will be included with therest ofthe State as "unclassifiable/attainment." EPA is making this change without notice and
comment in accordance with section 107(d)(2) ofthe Clean Air Act, which exempts the promulgation ofthese designations from the notice and

15Afulleranalysis ofthe 11factors forexcluding these areasisprovided intheTSD forthis action. comment provisions ofthe Administrative Procedure Act.

The effective date for these designations codified in 40 CFR 81.329 will be September 13, 2004. Section 553(d) ofthe Administrative Procedure Act generally provides that rulemakings shall not be effective less than 30 days afterpublication except where a substantive rule relieves arestriction or where the agency finds good cause for

an earlier date. 5U.S.C. 553(d)(1) and (3). Without expediting the effective date for today's action, all ofClark 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 ofClark 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 onlyto delay requirements for planning. The effective date for today's action is thereforejustified under the APA because: (1)Itrelieves a restriction by narrowing the boundaries ofthe Las Vegas nonattainment area that would otherwise become effective on September 13, 2004; and (2)it isin 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 donot intend
to extend the deadline for state implementation plan submission for the Las Vegas nonattainment area. EPA will address this deadline in a subsequent actionbut believes it isreasonable to require submission according tothe

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 EPAis 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 ofthe County with the rest ofthe State as "unclassifiable/attainment." We are amending 40 CFR 81.329 to reflect these revised designations.

VII. Statutory and Executive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview

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 ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in a rule thatmay: (1)Have an annual effect onthe 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 orthe rights and obligations of recipients thereof; or (4) raise novel legal orpolicy issues arising out oflegal 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 thatthis rule is not a "significant regulatory action" because

none ofthe above factors applies. As such, this final rule was not formally submitted to OMB for review.

B.Paperwork ReductionAct

This action does not impose an information collection burden underthe provisions ofthe PaperworkReduction Act,44 U.S.C. 3501 etseq.This rule revises the nonattainment designations for Clark County, Nevada that were promulgated on April 15, 2004. The presentfinal rule does not establish any

new information collection burden apart fromthat required by law. Burden

means the total time, effort, orfinancial

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 ofcollecting, 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 ofinformation 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.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare

aregulatory flexibility analysis ofany 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 ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes ofassessing the impacts oftoday'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 thatis

agovernment ofa city, county, town, school district, or special district with a population ofless 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 ofthe Las Vegas 8-hour

ozone nonattainment area in Clark County, Nevada. The revision narrows the boundaries ofthe 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. UnfundedMandatesReformAct

Title II ofthe 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 ofthe 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, orto theprivate sector, of $100 million or more in any one year. Before promulgating an EPArule for which a written statement is needed, section 205 ofthe UMRA generally requires EPA to identify and consider a reasonable number ofregulatory alternatives and adopt the least costly,
most cost-effective, or leastburdensome alternative thatachieves the objectives oftherule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPAto adopt an alternative otherthan the least costly, most cost-effective orleast burdensome alternative ifthe Administrator publishes with the final rule an explanation why that alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including Tribal governments, it must have developed under section 203 ofthe UMRA a small government agency plan.The plan must provide for notifying potentially affected smallgovernments, enabling officials of affected small governments to have meaningful andtimely input in the development ofEPAregulatory 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 ofUMRA that may result in expenditures of $100 million ormore in any one yearby either State, local, orTribal governments in the aggregate or to the private sector, andtherefore, is not subject to the requirements of sections 202 and 205 ofthe UMRA. Itdoes not create any additional requirements beyond those ofthe 8-hour NAAQS for

ozone (62 FR 38894; July 18, 1997), therefore, no UMRA analysis is needed. In this rule, EPAis narrowing the definition ofthe Las Vegas nonattainment area in Clark County, Nevada. No new controls will be imposed as aresult ofthis 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 Order13132:Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby State and local officials in the development of regulatory policies thathave federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations thathave "substantial direct effects onthe States, onthe relationship between the national government and the States, or onthe distribution of power and responsibilities among the various levels ofgovernment." 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 ofpower and responsibilities among the various levels ofgovernment, 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 therelationship ofthe States and EPAfor purposes ofdeveloping
programs to implement the NAAQS. Thus, Executive Order 13132 does not apply tothis rule.

F. Executive Order13175:Consultation andCoordinationWith IndianTribal Governments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65FR 67249, November 9, 2000), requires EPA
to develop an accountable process to

ensure "meaningful and timely input by tribal officials inthe development of regulatory policies that havetribal 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 CAAprovides for States
to develop plans to regulate emissions ofair pollutants within their jurisdictions. The TAR gives Tribes the opportunity to develop and implement CAAprograms such as programs to attain and maintain the 8-hour ozone NAAQS, but itleaves to the discretion ofthe Tribe whether to develop these programs and which programs, or appropriate elements ofa program, they will adopt.

This final rule does nothave Tribal implications as defined byExecutive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAAprogram to attain the 8-hour ozone NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution ofpower and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship ofthe Federal government and Tribes in developing plans to attain the NAAQS, and thisrule 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 Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

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 hasreason tobelieve 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 andreasonably feasible alternatives considered by the Agency. The final rule is not subject to Executive Order 13045 because itis not economically significant as defined in Executive Order 12866, and because the Agency does not have reason tobelieve 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 ofthis 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 Order13211:ActionsThat Significantly Affect EnergySupply, Distribution,or Use

This rule is not subject to Executive Order 13211, "Actions That Significantly Affect Energy Supply, Distribution, orUse," (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 ofpotential energy impacts is found in Chapter 6 ofU.S. EPA 2002, Cost, Emission Reduction, Energy, and Economic Impact Assessment ofthe Proposed Rule Establishing the Implementation Framework for the 8- Hour, 0.08ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office ofAir Quality Planning and Standards, Research Triangle Park, NC, April 24, 2003.

L NationalTechnologyTransfer AdvancementAct

Section 12(d) ofthe National Technology Transfer Advancement Act of1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPAto 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 EPAto provide Congress, through OMB, explanations when the Agency decides not touse available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use ofany VCS.

J.Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. The EPA will submit areport containing this rule and otherrequired information to the U.S. Senate, the U.S. House of Representatives, andthe Comptroller General ofthe United States on or before the effective date ofthis rule. A major rule cannot take effect until 60 days after it ispublished in the Federal Register. This action is not a "major rule" as definedby 5U.S.C. 804(2). This rule will be effective September 13, 2004.

K.JudicialReview
Section 307(b)(1) ofthe CAA indicates which Federal Courts ofAppeal have

venue for petitions ofreview offinal actions by EPA. This section provides, in part, thatpetitions for review mustbe filed in the Court ofAppeals for the District ofColumbia 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 orregionally applicable, if "such actionis based on a determination ofnationwide scope or effect and ifin taking such action the Administrator finds and publishes that such actionis based on such a determination." The rule designating

areas for the 8-hour ozone standard was "nationally applicable" within the meaning ofsection 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 ofthe designations made in that nationwide rulemaking, any petitions for review must be filed in the Court ofAppeals for the District of Columbia Circuit. At the core ofthe designations rulemaking isEPA's interpretation ofthe definition of nonattainment under section 107(d)(1) ofthe CAA.In determining which areas shouldbe designated nonattainment (or conversely, should be designated "unclassifiable/attainment"), EPA used

a set of 11 factors that it applied consistently across the United States. Forthe same reasons, the Administrator also determined that the final designations are ofnationwide scope and effect forpurposes ofsection 307(b)(1). Thisis particularly appropriate because in the report on the 1977 Amendments thatrevised section 307(b)(1) ofthe CAA, Congress noted thatthe 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 singlejudicial 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 ofthe designations rulemaking extend tonumerous judicial circuits since the designations apply to all areas ofthe country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule tobe of "nationwide scope or effect" and for

venue tobe in the D.C. Circuit. Thus, any petitions for review ofthis final action must be filed in the Court of Appeals for the District ofColumbia Circuit within 60 days from the date final action ispublished inthe Federal Register.

List ofSubjects in 40 CFR Part81

Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: September 10, 2004. Michael 0. Leavitt, Administrator. * For the reasons setforth inthe preamble, 40 CFRpart 81 is amended as follows:

PART 81-[AMENDED]

m1. The authoritycitation forpart 81 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. 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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