Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33605

to address the PM–10 planning

requirements for the Reservation portion

of the nonattainment area. EPA will

carefully consider any additional

comments or concerns raised by the

Tribes during the public comment

period on this action, including the

Tribes preference for the name of the

nonattainment area located within the

Fort Hall Indian Reservation.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735

(October 4, 1993)), EPA is required to

determine whether regulatory actions

are significant and therefore should be

subject to Office of Management and

Budget (OMB) review, economic

analysis, and the requirements of the

Executive Order. The Executive Order

defines a ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, under paragraph (1), that the

rule may ‘‘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.’’

The OMB has exempted this action

from review under E.O. 12866. In

addition, the Agency has determined

that EPA’s proposal to split the

nonattainment area into two

nonattainment areas would result in

none of the effects identified in section

3(f).

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 601 et seq, EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

A regulatory flexibility screening

analysis of this proposed action

revealed that it would not have a

significant adverse economic impact on

a substantial number of small entities. A

rule revising the designation of an area

by creating two separate nonattainment

areas under section 107(d)(3) of the

CAA does not impose any new

requirements on small entities. See MidTex Electric Cooperative, Inc. v. FERC,

773 F.2d 327 (D.C. Cir. 1985) (agency’s

certification need only consider rule’s

impact on entities subject to the

requirements of the rule). To the extent

that a State, Tribe or EPA must adopt

new regulations, based on an area’s

nonattainment status, EPA will review

the effect those actions have on small

entities at the time EPA takes action on

those regulations. Therefore, pursuant to

5 U.S.C. 605(b), I certify that the

approval of the revised designation

action proposed today does not have a

significant economic impact on a

substantial number of small entities

within the meaning of those terms for

RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act (UMRA), establishes

requirements for Federal agencies to

assess the effects of their regulatory

actions on State, local, and Tribal

governments and the private sector.

Under the UMRA, EPA must assess

whether various actions undertaken in

association with proposed or final

regulations include a Federal mandate

that may result in estimated costs of

$100 million or more to the private

sector, or to State, local or tribal

governments in the aggregate.

EPA has determined that this

proposed action, if promulgated, would

not include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. A rule revising the

designation of an area by creating two

separate nonattainment areas under

section 107(d)(3) of the CAA does not

impose any new requirements on the

State, Tribes or the private sector.

Redesignation is an action that affects

the air quality status of a geographic

area or the boundary of the geographic

area and does not impose any regulatory

requirements on the State, Tribes or

private sector. Accordingly, EPA has

determined that the proposed action

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

Tribal governments in the aggregate, or

to the private sector.

D. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Executive Order 13045 (62 FR 19885

(April 23, 1997)) applies to any rule that

EPA determines (1) ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, the Agency must evaluate

the environmental health or safety

effects of the planned rule on children;

and explain why the planned regulation

is preferable to other potentially

effective and reasonably feasible

alternatives considered by the Agency.

This proposed action is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866.

V. Request for Public Comments

EPA is, by this document, proposing

that the PM–10 designation for the

Power-Bannock Counties PM–10

nonattainment area be revised. The EPA

is requesting public comments on all

aspects of this proposal, including the

appropriateness of the proposed

designation and the scope of the

proposed boundary. Public comments

should be submitted to EPA at the

address identified above by July 20,

1998.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

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

Dated: June 10, 1998.

Chuck Findley,

Acting Regional Administrator, Region 10.

[FR Doc. 98–16403 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[ID 22–7002; FRL–6113–3]

Clean Air Act Reclassification; Fort

Hall Indian Reservation Particulate

Matter (PM–10) Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to determine

that a portion of the Fort Hall Indian

Reservation has not attained the

National Ambient Air Quality Standards

(NAAQS) for particulate matter with an

aerodynamic diameter of less than or

equal to 10 microns (PM–10) by the

applicable attainment date for moderate

PM–10 nonattainment areas under the

Clean Air Act (CAA). In a concurrent

notice of proposed rulemaking

published today, EPA has proposed that

the existing Power-Bannock Counties

PM–10 nonattainment area, which is

currently classified as moderate with an

attainment date of December 31, 1996,
33606 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

1There are two pre-existing PM–10 NAAQS, a 24-

hour standard and an annual standard. See 40 CFR

50.6. EPA promulgated these NAAQS on July 1,

1987 (52 FR 24672), replacing standards for total

suspended particulate with new standards applying

only to particulate matter up to ten microns in

diameter (PM–10). The annual PM–10 standard is

attained when the expected annual arithmetic

average of the 24-hour samples for a period of one

year does not exceed 50 micrograms per cubic

meter (μg/m3). Attainment of the 24-hour PM–10

standard is determined by calculating the expected

number of days in a year with PM–10

concentrations greater than 150 μg/m3. The 24-hour

PM–10 standard is attained when the expected

number of days with levels above the standard,

averaged over a three year period, is less than or

equal to one. See 40 CFR 50.6 and 40 CFR part 50,

appendix K.

On July 18, 1997, EPA promulgated revisions to

both the annual and the 24-hour PM–10 standards

and also established two new standards for

particulate matter, both of which apply only to

particulate matter up to 2.5 microns in diameter

(PM–2.5). See 62 FR 38651 (July 18, 1997). The

revised standards became effective on September

16, 1997. Although the revised suite of particulate

matter standards reflects an overall strengthening of

the regulatory standards for particulate matter, the

revised 24-hour PM–10 standard, by itself, reflects

a relaxation of that standard.

2The 1990 Amendments to the CAA made

significant changes to the CAA. See Public Law No.

101–549, 104 Stat. 2399. References herein are to

the CAA as amended in 1990. The Clean Air Act

is codified, as amended, in the United States Code

at 42 U.S.C. 7401, et seq.

3The moderate area SIP requirements are set forth

in section 189(a) of the CAA.

4EPA has learned that a portion of the FMC

facility is located on State lands. As discussed in

the Federal Register document in which EPA is

proposing to split the nonattainment area at the

State-Reservation boundary, EPA is specifically

requesting comment on whether the proposed Fort

Hall PM–10 nonattainment area should include the

portion of the FMC facility that is located on State

lands.

be separated into two nonattainment

areas at the boundary between State

lands and the Fort Hall Indian

Reservation. If EPA takes final action to

revise the Power-Bannock Counties PM–

10 nonattainment area into two

nonattainment areas, EPA proposes in

this action to find that the PM–10

nonattainment area within the exterior

boundary of the Fort Hall Indian

Reservation (which EPA has proposed

be referred to as the ‘‘Fort Hall PM–10

nonattainment area’’) has not attained

the PM–10 NAAQS by December 31,

1996.

EPA’s proposed finding that the

proposed Fort Hall PM–10

nonattainment area has not attained the

PM–10 NAAQS by December 31, 1996,

is based on EPA’s review of monitored

air quality data from 1994 through 1996.

If EPA takes final action on this

proposal, the proposed Fort Hall PM–10

nonattainment area will be reclassified

by operation of law as a serious PM–10

nonattainment area.

EPA recently established a new

standard for particulate matter with a

diameter equal to or less than 2.5

microns and also revised the existing

PM–10 standards. Today’s proposal,

however, does not address these new

and revised standards.

COMMENTS: Comments on this proposal

must be received in writing by July 20,

1998.

ADDRESSES: Written comments should

be addressed to Ms. Montel Livingston,

Environmental Protection Agency,

Office of Air Quality (OAQ 107), Docket

ID 22–7002, 1200 6th Avenue, Seattle,

WA 98101. Information supporting this

action is available for inspection during

normal business hours at the following

locations: EPA, Office of Air Quality,

1200 Sixth Avenue, Seattle, Washington

98101, and the Shoshone-Bannock

Tribes, Land Use Commission, Office of

Air Quality, Fort Hall, Idaho.

FOR FURTHER INFORMATION CONTACT:

Steven K. Body, Office of Air Quality,

EPA Region 10, at the address above, or

telephone (206) 553–0782.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions

Concerning Designation and

Classification

A portion of Power and Bannock

Counties in Idaho was designated

nonattainment for PM–10 1 and

classified as moderate under sections

107(d)(4)(B) and 188(a) of the Clean Air

Act upon enactment of the Clean Air

Act Amendments of 1990 (Act or CAA).

See 40 CFR 81.313 (PM–10 Initial

Nonattainment Areas); see also 55 FR

45799 (October 31, 1990); 56 FR 11101

(March 15, 1991); 56 FR 37654 (August

8, 1991); 56 FR 56694 (November 6,

1991).2 For an extensive discussion of

the history of the designation of the

Power-Bannock Counties PM–10

nonattainment area, please refer to the

discussion at 61 FR 29667, 29668–29670

(June 12, 1996).

All initial moderate PM–10

nonattainment areas had the same

applicable attainment date of December

31, 1994. See section 188 (a) and (c)(1)

of the CAA. States containing initial

moderate PM–10 nonattainment areas

were required to develop and submit to

EPA by November 15, 1991, a state

implementation plan (SIP) revision

providing for, among other things,

implementation of reasonably available

control measures (RACM), including

reasonably available control technology

(RACT), and a demonstration of

attainment of the PM–10 NAAQS by

December 31, 1994. See section 189(a)

of the CAA.3

B. Power-Bannock Counties PM–10

Nonattainment Area

The Power-Bannock Counties PM–10

nonattainment area covers

approximately 266 square miles in

south central Idaho and comprises both

trust and fee lands within the exterior

boundary of the Fort Hall Indian

Reservation and State lands in portions

of Power and Bannock Counties.

Approximately 75,000 people live in the

nonattainment area, most of whom live

in the cities of Pocatello and Chubbuck,

which are located near the center of the

nonattainment area on State lands.

Approximately 15 miles northwest of

downtown Pocatello is an area known

as the ‘‘industrial complex,’’ which

includes the two major stationary

sources of PM–10 in the nonattainment

area. The boundary between the Fort

Hall Indian Reservation and State lands

runs through the industrial complex.

One of the major stationary sources of

PM–10, FMC Corporation (FMC), is

located primarily on fee lands within

the exterior boundary of the Fort Hall

Indian Reservation.4 The second major

stationary source of PM–10 in the

nonattainment area, J.R. Simplot

Corporation (Simplot), is located on

State lands immediately adjacent to the

Reservation.

The State of Idaho has established and

operates four PM–10 State and Local Air

Monitoring Stations (SLAMS) in the

current Power-Bannock Counties PM–10

nonattainment area, all of which are on

State lands (State monitors). All of the

State monitors meet EPA network

design and siting requirements, set forth

at 40 CFR part 58, appendices D and E.

There have been no violations of the

annual PM–10 standard at any of the

State monitors since 1990. There have

been no exceedences of the 24-hour

PM–10 standard recorded at any of the

State monitors since January of 1993.

The Shoshone-Bannock Tribes began

operating a PM–10 monitor in February

1995 on the portion of the

nonattainment area within the exterior

boundary of the Reservation in February

1995. Prior to this time, the Tribes relied

on data from the State operated

samplers for area designations and

classifications because of a lack of

resources to establish and operate their

own Tribal monitoring stations. In 1994

the Tribes requested and EPA granted

the Tribes additional program support

grant funds to enable the Tribes to

establish their own monitoring stations

in order to collect ambient air quality

data representative of conditions on the

Reservation and to generate data to

support Tribal air quality planning
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33607

5 In developing its PM–10 control strategy and

SIP, the State did not seek to impose controls on

any sources located on Reservation lands, including

fee lands within the exterior boundary of the

Reservation, or attempt to demonstrate to EPA that

it had authority to promulgate and enforce air

controls on Reservation lands.

efforts. This monitor, called the ‘‘ShoBan site,’’ is located approximately 100

feet north of the FMC facility across a

frontage road. Due to operational

problems with the sampler and quality

assurance problems, valid data was not

reported for this monitor until October

1, 1996. Also in October 1996, the

Tribes initiated monitoring at two new

sites. The ‘‘primary site’’ is located

approximately 100 feet north of the

FMC facility across the frontage road,

approximately 600 feet east of the ShoBan site and approximately 600 feet

from the boundary between the Fort

Hall Indian Reservation and State lands.

Both the Sho-Ban and primary sites are

located in the area of expected

maximum concentration of PM–10 in

the ambient air. The ‘‘Tribal background

site’’ is located approximately one and

one-half miles southwest of the FMC

facility upwind of the predominant

wind direction from the industrial

complex.

All three monitoring sites (Tribal

monitors) are owned by the Tribes and

operated by a contractor for the Tribes.

The Tribal monitors meet EPA SLAMS

network design and siting requirements,

set forth at 40 CFR part 58, appendices

D and E. Both the Sho-Ban and primary

sites on the Reservation portion of the

nonattainment area have recorded

numerous PM–10 concentrations above

the level of the 24-hour PM–10 NAAQS

since October 1996.

Private industry operated a seven

station air monitoring network, funded

by FMC and Simplot, on and near the

industrial complex from October 1,

1993, through September 30, 1994 (EMF

monitors). There were no measured

PM–10 concentrations above the level of

the 24-hour PM–10 NAAQS at any of

the EMF stations. EMF Site #2, however,

which was on the Fort Hall Indian

Reservation less than 300 yards east of

where the primary site is now located,

reported several 24-hour concentrations

of PM–10 at or near the level of the

NAAQS. EMF Site #2 also reported an

annual concentration of 55.1 μg/m3 for

the one year period the network was in

operation. This is 10% greater than the

50 μg/m3 level of the annual NAAQS.

Because the EMF network did not

collect a calendar year’s worth of data,

EPA has previously concluded that data

from EMF Site #2 did not document a

violation of the annual PM–10 NAAQS.

See 61 FR 66602, 66604 (December 18,

1996). EPA also stated, however, that

the number of the recorded 24-hour

concentrations at or near the level of the

standard and the high annual

concentration for the one-year period

EMF Site #2 was in operation indicated

that a serious air quality problem

continued in the Power-Bannock

Counties PM–10 nonattainment area. Id.

This conclusion is confirmed by the

more recent data from the Tribal

monitors.

The current Power-Bannock Counties

PM–10 nonattainment area encompasses

two different regulatory jurisdictions:

the State of Idaho for the State portion

of the nonattainment area and the

Shoshone-Bannock Tribes and EPA for

the Reservation portion of the

nonattainment area. Under the Clean

Air Act, the State has the primary PM–

10 planning responsibilities for the State

portion of the nonattainment area. See

CAA sections 110 and 189. In

furtherance of those planning

obligations, the State of Idaho, along

with several local agencies, developed

and implemented control measures on

PM–10 sources located on State lands

within the Power-Bannock Counties

PM–10 nonattainment area. The State

submitted these control measures in

1993 as part of its moderate PM–10

nonattainment State Implementation

Plan (SIP) under section 189(a) of the

Act. These control measures include a

comprehensive residential wood

combustion program, including a

mandatory woodstove curtailment

program; stringent controls on fugitive

road dust, including controls on winter

road sanding and a limited unpaved

road paving program; and a revised

operating permit that represents

reasonably available control technology

(RACT) for the J.R. Simplot facility, the

only major stationary source of PM–10

on the portion of the nonattainment area

on Sate lands. Although EPA has not yet

approved the State’s moderate PM–10

SIP for the area, EPA has previously

stated (in the context of approving the

State’s requests for extensions of the

attainment date) that these control

measures substantially meet EPA’s

guidance for reasonably available

control measures (RACM), including

RACT, for sources of primary particulate

on the State portion of the

nonattainment area. See 61 FR 66602,

66604–66605 (December 18, 1996).

In contrast, the PM–10 requirements

for the Tribal portion of the

nonattainment area are still under

development.5 Because of long-standing

concerns about the air quality in the

Power-Bannock County PM–10

nonattainment area, EPA has been

developing a Federal Implementation

Plan (FIP) for the portion of the

nonattainment area within the exterior

boundary of the Fort Hall Indian

Reservation. The plan is being

developed in close consultation with

the Tribes and with extensive public

participation. EPA intends to propose

the FIP by the end of January 1999, and

to finalize the FIP in the year 2000.

The Clean Air Act Amendments of

1990 greatly expanded the role of Indian

Tribes in implementing the provisions

of the Clean Air Act in Indian country.

Section 301(d) of the Act authorizes

EPA to issue regulations specifying the

provisions of the Clean Air Act for

which Indian tribes may be treated in

the same manner as States. See CAA

sections 301(d) (1) and (2). EPA

promulgated the final rule under section

301(d) of the Act, entitled ‘‘Indian

Tribes: Air Quality Planning and

Management,’’ on February 12, 1998. 63

FR 7254. The rule is generally referred

to as the ‘‘Tribal Authority Rule’’ or

‘‘TAR’’. The TAR implements the

provisions of section 301(d) of the Act

to authorize eligible Tribes to

implement their own Tribal air

programs. This includes a delegation of

authority, to Tribes which meet certain

requirements and request delegation, to

develop, adopt and submit PM–10

nonattainment area Tribal

Implementation Plans for lands within

the exterior boundary of Indian

Reservations, including fee lands. Until

promulgation of the TAR in February

1998, however, the Shoshone-Bannock

Tribes did not have authority under the

Clean Air Act to carry out the PM–10

planning responsibilities for the Tribal

portion of the nonattainment area.

The Shoshone-Bannock Tribes have

expressed a strong interest in seeking

authority under the TAR to regulate

sources of air pollution on Tribal land

under the Clean Air Act. Based on

discussions with the Tribes, however,

EPA believes that it will be at least

several months before the Tribes will be

ready to seek authority under the TAR

to assume Clean Air Act planning

responsibilities and that, even should

they do so, the Tribes intend to build

their capacity and seek authority for the

various Clean Air Act programs over

time, rather than all at once. EPA’s

understanding is that the Tribes

continue to support EPA’s efforts to

promulgate a PM–10 nonattainment FIP

for the Tribal portion of the

nonattainment area notwithstanding the

recent promulgation of the TAR.

C. Attainment Date Extensions

Section 188(d) authorizes the EPA

Administrator to grant up to two oneyear extensions of the moderate area
33608 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

6 Data from 1997 is after the attainment date and

is included for informational purposes only.

attainment date, provided certain

requirements are met. The PowerBannock Counties PM–10

nonattainment area did not attain the

PM–10 NAAQS by December 31, 1994.

Two monitors on State lands recorded a

measured value above the level of the

24-hour PM–10 standard in January

1993, which resulted in six exceedences

for each monitor because of a sampling

frequency at those sites of once every

six days. This, in turn, represented a

violation of the NAAQS as of December

31, 1994. EPA granted the State’s

request for a one-year extension and

extended the attainment date to

December 31, 1995. See 60 FR 44452

(August 28, 1995) (proposed action); 61

FR 20730 (May 8, 1996) (final action).

The area continued to violate the 24-

hour PM–10 NAAQS through December

31, 1995 because of the exceedence

recorded on the State monitors in

January 1993. EPA granted a second

one-year extension of the attainment

date to December 31, 1996. See 61 FR

66602 (December 18, 1996).

D. Reclassification to Serious

1. Regulatory Requirements

EPA has the responsibility, pursuant

to sections 179(c)(1) and 188(b)(2) of the

CAA, to determine within six months of

the applicable attainment date, whether

PM–10 nonattainment areas attained the

PM–10 NAAQS by the attainment date.

Determinations under section 179(c)(1)

of the Act are to be based upon an area’s

‘‘air quality as of the attainment date.’’

Section 188(b)(2) is consistent with this

requirement. Generally, EPA will

determine whether an area’s air quality

is meeting the PM–10 NAAQS for

purposes of sections 179(c)(1) and

188(b)(2) based upon data gathered at

monitoring sites in the nonattainment

area and entered into the Aerometric

Information Retrieval System (AIRS).

Data entered into the AIRS has been

determined by EPA to meet federal

monitoring requirements (see 40 CFR

50.6 and appendix J, 40 CFR part 53, 40

CFR part 58, appendices A and B). The

data are reviewed in accordance with 40

CFR part 50, appendix K, to determine

the area’s air quality status.

Pursuant to appendix K, the annual

PM–10 standard is attained when the

expected annual arthimetic average of

the 24-hour samples for a period of one

year does not exceed 50 micrograms per

cubic meter (μg/m3). Attainment of the

24-hour PM–10 standard is determined

by calculating the expected number of

days in a year with PM–10

concentrations greater than 150 μg/m3.

The 24-hour PM–10 standard is attained

when the expected number of days with

levels above the standard, averaged over

a three year period, is less than or equal

to one. A total of three consecutive years

of non-violating air quality data is

generally necessary to show attainment

of the 24-hour and annual standards for

PM–10. See 40 CFR 50.6 and 40 CFR

part 50, appendix K.

EPA is publishing this proposal

pursuant to section 188(b)(2) of the Act.

Under subpart (A) of that section, a

moderate PM–10 nonattainment area is

reclassified as serious by operation of

law if EPA finds that the area is not in

attainment by the applicable attainment

date. Pursuant to section 188(b)(2)(B) of

the Act, EPA must publish a Federal

Register document within six months

after the applicable attainment date

identifying those areas that have failed

to attain the standard and that have

been reclassified to serious by operation

of law. See section 188(b)(2); see also

section 179(c)(1).

2. Ambient Air Monitoring Data

Attainment determinations are based

upon an area’s ‘‘air quality as of the

attainment date.’’ See section 179(c) of

the CAA. Therefore, EPA determines

whether an area’s air quality has met the

24-hour PM–10 NAAQS by December

31, 1996, based upon calendar year data

from 1994, 1995, and 1996.

As stated above, there are three Tribal

PM–10 monitors within the Fort Hall

PM–10 nonattainment area which were

installed during 1995 and 1996. All

three monitors meet EPA’s SLAMS

network design and siting requirements,

which are set forth in 40 CFR Part 58,

appendices D and E. A description of

the monitoring network and instrument

siting relative to the EPA SLAMS siting

criteria as specified in 40 CFR Part 58,

appendices D and E, can be found in the

air quality data report in the Docket for

this proposal.

The air quality data for the period

from October 8, 1996, to December 31,

1996, was validated by the ShoshoneBannock Tribes. EPA has reviewed the

air quality data collected and reported

by the Tribes during this period and

quality assured the data for precision

and accuracy prior to entering the data

into the AIRS data base. In addition, a

contractor with extensive experience in

operating large state monitoring

networks, conducted an independent

audit of the Tribal monitoring data. The

audit included a review of both the

sampling effort and filter analysis, and

concluded that the data reported by the

Tribes during 1996 and 1997 was valid

and reliable data.

Table 1 lists each of the monitoring

sites within the proposed Fort Hall PM–

10 nonattainment area where the 24-

hour PM–10 NAAQS was exceeded

during 1994–1997.6 Table 2 lists the

concentration, in micrograms per cubic

meter, of each exceedence.

TABLE 1.—FORT HALL PM–10 MONITORING DATA—1994, 1995, 1996

Site Year Number of

exceedences

Expected

exceedences

3 year average of

exceedences

Primary ............................................................................................ 1994 No data ...................... Assume 0 .................. Assume 0.

1995 No data ...................... Assume 0 .................. Assume 0.

1996 18 .............................. 20.96 ......................... 7.0.

1997 19 .............................. 20.1 ........................... 13.69.

Sho-Ban ........................................................................................... 1994 No data ...................... Assume 0 .................. Assume 0.

1995 No data ...................... Assume 0 .................. Assume 0.

1996 9 ................................ 11.34 ......................... 3.78.

1997 13 .............................. 14.20 ......................... 8.5.

Upwind Site ..................................................................................... 1994 No data ...................... Assume 0 .................. Assume 0.

1995 No data ...................... Assume 0 .................. Assume 0.

1996 0 ................................ 0.00 ........................... 0.00.

1997 1 ................................ 1.05 ........................... .35.
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33609

TABLE 2.—PM–10 EXCEEDENCES AT TRIBAL MONITORS

Date Primary site

(ug/m3)

Sho-ban

site (ug/m3)

Background

site (ug/m3)

Oct. 10, 1996 ............................................................................................................................................ 165.2 .................... ....................

Oct. 16, 1996 ............................................................................................................................................ 198.6 .................... ....................

Oct. 18, 1996 ............................................................................................................................................ 184.2 193.3 ....................

Oct. 22, 1996 ............................................................................................................................................ 200.4 .................... ....................

Oct. 24, 1996 ............................................................................................................................................ 228.5 .................... ....................

Nov. 17, 1996 ........................................................................................................................................... .................... 245.3 ....................

Nov. 18, 1996 ........................................................................................................................................... .................... 276.8 ....................

Nov. 19, 1996 ........................................................................................................................................... .................... 419.7 ....................

Nov. 28, 1996 ........................................................................................................................................... .................... 163.2 ....................

Dec. 3, 1996 ............................................................................................................................................. 168.4 .................... ....................

Dec. 4, 1996 ............................................................................................................................................. .................... 199.1 ....................

Dec. 9, 1996 ............................................................................................................................................. 184.3 198.8 ....................

Dec. 10, 1996 ........................................................................................................................................... .................... 208.1 ....................

Dec. 15, 1996 ........................................................................................................................................... 218.8 .................... ....................

Dec. 20, 1996 ........................................................................................................................................... 155.9 156.3 ....................

Dec. 24, 1996 ........................................................................................................................................... 173.6 .................... ....................

Dec. 25, 1996 ........................................................................................................................................... 174.3 .................... ....................

Dec. 26, 1996 ........................................................................................................................................... 316.8 .................... ....................

Dec. 27, 1996 ........................................................................................................................................... 236.1 .................... ....................

Dec. 29, 1996 ........................................................................................................................................... 290.4 282.1 ....................

Dec. 30, 1996 ........................................................................................................................................... 187.1 292.6 ....................

Dec. 31, 1996 ........................................................................................................................................... 186.0 441.8 ....................

Jan. 1, 1997 ............................................................................................................................................. 267.7 408.5 ....................

Jan. 2, 1997 ............................................................................................................................................. 160.8 .................... ....................

Jan. 22, 1997 ........................................................................................................................................... 164.8 .................... ....................

Jan. 25, 1997 ........................................................................................................................................... .................... .................... 245.5

Feb. 14, 1997 ........................................................................................................................................... 221.7 .................... ....................

Feb. 17, 1997 ........................................................................................................................................... 198.0 .................... ....................

Feb. 19, 1997 ........................................................................................................................................... 215.0 259.3 ....................

Mar. 1, 1997 ............................................................................................................................................. 222.7 220.6 ....................

Mar. 2, 1997 ............................................................................................................................................. 195.8 .................... ....................

Mar. 9, 1997 ............................................................................................................................................. 239.4 .................... ....................

Mar. 10, 1997 ........................................................................................................................................... 336.8 .................... ....................

Mar. 11, 1997 ........................................................................................................................................... 205.6 .................... ....................

Mar. 18, 1997 ........................................................................................................................................... .................... 173.1 ....................

Mar. 26, 1997 ........................................................................................................................................... 165.9 .................... ....................

Mar. 30, 1997 ........................................................................................................................................... .................... 234.3 ....................

Jun. 3, 1997 ............................................................................................................................................. .................... 167.3 ....................

Aug. 26, 1997 ........................................................................................................................................... .................... 183.6 ....................

Sept. 13, 1997 .......................................................................................................................................... .................... 229.6 ....................

Sept. 14, 1997 .......................................................................................................................................... .................... 345.8 ....................

Sept. 15, 1997 .......................................................................................................................................... 166.5 .................... ....................

Sept. 26, 1997 .......................................................................................................................................... 222.3 .................... ....................

Oct. 3, 1997 .............................................................................................................................................. 186.3 156.4 ....................

Oct. 4, 1997 .............................................................................................................................................. 253.7 .................... ....................

Oct. 5, 1997 .............................................................................................................................................. 273.1 .................... ....................

Oct. 8, 1997 .............................................................................................................................................. .................... 200.0 ....................

Oct. 9, 1997 .............................................................................................................................................. .................... 271.4 ....................

Dec. 17, 1997 ........................................................................................................................................... 158.1 .................... ....................

Dec. 27, 1997 ........................................................................................................................................... 169.2 .................... ....................

Dec. 29, 1997 ........................................................................................................................................... 245.3 .................... ....................

According to 40 CFR part 50, the 24-

hour PM–10 NAAQS is attained when

the expected number of days per

calendar year with a 24-hour average

concentration above 150 ug/m3,

averaged over three years, is equal to or

less than one. Because the Tribal

monitoring sites did not begin full

operation until October 1996, the data

base is less than the three years of data

generally needed for determination of

compliance with the PM–10 NAAQS

under 60 CFR 50.6. Nevertheless, the

number of PM–10 concentrations above

the level of the 24-hour PM–10 NAAQS

between October 8, 1996, and December

31, 1996 results in the Tribal monitors

showing a violation of the 24-hour PM–

10 NAAQS as of the December 31, 1996,

attainment date for the area. Appendix

K of 40 CFR part 50 contains

‘‘gapfilling’’ techniques for situations

where less than three complete years of

data are available. In brief, that

procedure allows a determination of

non-compliance with a standard if it can

be unambiguously demonstrated that a

violation occurred. With respect to the

Sho-Ban and primary sites, the expected

exceedence rate of the 24-hour standard,

averaged over the years 1994, 1995, and

1996, for each site is substantially

greater than the 1.1 allowed for the PM–

10 NAAQS, even if the days during

which the monitors did not operate or

collect valid data would have reported

zero PM–10 levels. For example, the

expected exceedence rate for 1996 was

20.96 at the primary site and 11.34 at

the Sho-Ban site. When this rate is

averaged with an assumed zero for 1994

and 1995, the three year average

expected exceedence rate of 7.0 for the

primary site and 3.78 for the Sho-Ban

site are above the 1.1 required to show
33610 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules

attainment of the 24-hour PM–10

NAAQS. In other words, even if there

were zero exceedences from January 1,

1994, to October 8, 1996, a violation of

the standard would occur because of the

number of exceedences that occurred

from October 8, 1996, to December 31,

1996. EPA therefore believes that there

is a violation of the 24-hour NAAQS for

PM–10 under 40 CFR 50.6 in the

proposed Fort Hall PM–10

nonattainment area using calendar year

data from 1994, 1995, and 1996. Based

on this data, EPA proposes to find that

the proposed Fort Hall PM–10

nonattainment area failed to attain the

PM–10 NAAQS by the attainment date

of December, 31, 1996.

None of the Tribal monitors collected

sufficient data during 1994, 1995 and

1996 to make an attainment

determination with respect to the

annual PM–10 standard. Generally,

three years worth of data must be

collected in order to calculate the three

year average of each year’s annual

average, and the gap filling approach

does not show a violation in this

instance.

EPA notes that it is evident from a

review of the data recorded at the Tribal

monitors since December 31, 1996, that

the values recorded on the Tribal

monitors from October through

December 1996 are not an aberration.

Numerous levels above the 24-hour PM–

10 standard have been recorded since

December 31, 1996, and these values

have been fairly consistent with the

values recorded during 1996. Please

refer to the air quality data report in the

Docket for further analysis of the data

from the Tribal monitors and appendix

K ‘‘gapfilling’’ techniques.

E. Portneuf Environmental Council

Lawsuit

On November 20, 1997, the Portneuf

Environmental Council (PEC) filed suit

against EPA alleging that EPA had failed

to make a finding that the PowerBannock Counties PM–10

nonattainment area had not attained the

PM–10 NAAQS by the December 31,

1996, attainment date, as provided for in

CAA section 188(b)(2)(A). EPA is

making this proposal in response to that

lawsuit.

F. Revision to the Area Designation

In a concurrent notice of proposed

rulemaking published in the Federal

Register today, EPA is proposing to

revise the designation of the PowerBannock Counties PM–10

nonattainment area by creating two

distinct nonattainment areas along the

State-Reservation boundary that

together cover the identical geographic

area of the existing nonattainment area.

EPA has proposed that one revised area

be comprised of State lands (to be

referred to as the ‘‘Portneuf Valley PM–

10 nonattainment area’’) and that the

other revised area be comprised of lands

within the exterior boundary of the Fort

Hall Indian Reservation (to be referred

to as the ‘‘Fort Hall PM–10

nonattainment area’’). If EPA finalizes

its proposal to split the Power-Bannock

Counties PM–10 nonattainment area,

the areas will thereafter be considered

separately for PM–10 planning purposes

and on the basis of the air quality data

within each separate nonattainment

area.

II. Implications of This Action

A. Reclassification to Serious

By today’s action, EPA is proposing to

find that the proposed Fort Hall PM–10

nonattainment area did not attain the

PM–10 NAAQS by the applicable

attainment date of December 31, 1996.

As discussed above, this finding is

based on air quality data showing

exceedences and violations of the PM–

10 NAAQS during calendar years 1994,

1995 and 1996. If EPA takes final action

on this proposed finding, the Fort Hall

PM–10 nonattainment area will be

reclassified by operation of law as a

serious PM–10 nonattainment area

under section 188(b)(2)(A) of the Act.

B. Serious Area Planning Requirements

PM–10 nonattainment areas

reclassified as serious under section

188(b)(2) of the Act are required to

submit, within 18 months of the area’s

reclassification, SIP provisions

providing for, among other things, the

adoption and implementation of best

available control measures (BACM),

including best available control

technology (BACT), for PM–10 no later

than four years from the date of

reclassification. The SIP must also

contain a demonstration that its

implementation will provide for

attainment of the PM–10 NAAQS. These

requirements are in addition to the

moderate PM–10 nonattainment

requirements of RACT/RACM.

As discussed above, EPA, in

consultation with and with the support

of the Tribes, has been developing a FIP

that will address the PM–10 planning

requirements for the proposed Fort Hall

PM–10 nonattainment area. EPA intends

to propose the FIP for the Fort Hall PM–

10 nonattainment area no later than

January 31, 1999, and to finalize the FIP

no later than July 31, 2001. As also

discussed above, the Shoshone-Bannock

Tribes have expressed interest in

applying for authority within the next

few years under EPA’s newly

promulgated Tribal Authority Rule

(TAR) to assume the PM–10 planning

requirements for the Fort Hall Indian

Reservation, including the Fort Hall

PM–10 nonattainment area. Until the

Tribes apply for and receive EPA

approval under the TAR for the PM–10

planning requirements for the Fort Hall

Indian Reservation, however, EPA will

carry out, in consultation with the

Tribes, the PM–10 planning

responsibilities for the Fort Hall Indian

Reservation.

Based on discussions with the Tribes,

EPA is aware that the Tribes are

concerned that the reclassification of the

Tribal portion of the nonattainment area

to serious will imply that the Tribes

have not been diligent in addressing the

PM–10 planning requirements for the

Tribal portion of the nonattainment

area. In this respect, EPA would like to

emphasize that until EPA promulgated

the TAR in February of 1998, the Tribes

did not have authority under the Clean

Air Act to address the PM–10 planning

requirements for the Reservation portion

of the nonattainment area. EPA will

carefully consider any additional

comments or concerns raised by the

Tribes during the public comment

period.

C. New Particulate Matter NAAQS

On July 18, 1997, EPA promulgated

revisions to both the annual and the 24-

hour PM–10 standards and also

established two new standards for

particulate matter, both of which apply

only to particulate matter equal to or

less than 2.5 microns in diameter (PM–

2.5). See 62 FR 38651. The revised

standards became effective on

September 16, 1997. Although the

revised suite of particulate matter

standards reflects an overall

strengthening of the regulatory

standards for particulate matter, the

revised 24-hour standard, by itself,

reflects a relaxation of that standard.

EPA notes that, after converting the

1996 and 1997 PM–10 data as reported

by the Tribes to local temperature and

pressure and calculating the 99th

percentile as is done under the revised

24-hour PM–10 NAAQS, there is a

strong likelihood that the proposed Fort

Hall PM–10 nonattainment area will

violate the revised PM–10 NAAQS if the

number and extent of exceedences

remain constant.

In the preamble to the final rule

setting the new and revised particulate

matter standards, EPA stated that the

pre-existing PM–10 standards would

remain in effect for a period of time after

the effective date of the new standards

to ensure a smooth transition to the new
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Proposed Rules 33611

standards. 62 FR 38701. Given that the

revision of the PM–10 NAAQS, by itself,

constitutes a relaxation, the proposed

Fort Hall PM–10 nonattainment area

will be subject to the provisions of

section 172(e) of the Act. Section 172(e)

applies to prevent backsliding in those

areas that have not attained the preexisting PM–10 standard as of the date

the PM–10 NAAQS revision became

effective. As a result, the pre-existing

PM–10 standards will continue to apply

in the proposed Fort Hall PM–10

nonattainment area until EPA has

completed the rulemaking required

under section 172(e). See 62 FR 38701.

The rule promulgated under section

172(e) must require controls in the

proposed Fort Hall PM–10

nonattainment area that are ‘‘not less

stringent than the controls applicable to

areas designated nonattainment before

the relaxation of the 24-hour PM–10

standard.’’

III. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735

(October 4, 1993)), EPA is required to

determine whether regulatory actions

are significant and therefore should be

subject to Office of Management and

Budget (OMB) review, economic

analysis, and the requirements of the

Executive Order. The Executive Order

defines a ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, under paragraph (1), that the

rule may ‘‘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.’’ The Agency has

determined that the finding of failure to

attain proposed today would result in

none of the effects identified in section

3(f). Under section 188(b)(2) of the CAA,

findings of failure to attain are based

upon air quality considerations and the

resulting reclassifications must occur by

operation of law in light of certain air

quality conditions. They do not, in and

of themselves, impose any new

requirements on any sectors of the

economy. In addition, because the

statutory requirements are clearly

defined with respect to the differently

classified areas, and because those

requirements are automatically triggered

by classifications that, in turn, are

triggered by air quality values, findings

of failure to attain and reclassification

cannot be said to impose a materially

adverse impact on State, local or tribal

governments or communities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 601 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

Findings of failure to attain and

reclassification of nonattainment areas

under section 188(b)(2) of the CAA do

not in and of themselves create any new

requirements. See Mid-Tex Electric

Cooperative, Inc. v. FERC, 773 F.2d 327

(D.C. Cir. 1985) (agency’s certification

need only consider rule’s impact on

entities subject to the requirements of

the rule). Instead, this rulemaking only

proposes to make a factual

determination, and does not propose to

directly regulate any entities. Therefore,

pursuant to 5 U.S.C. 605(b), I certify that

today’s proposed action does not have a

significant impact on a substantial

number of small entities within the

meaning of those terms for RFA

purposes.

C. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act (UMRA), establishes

requirements for Federal agencies to

assess the effects of their regulatory

actions on State, local, and Tribal

governments and the private sector.

Under the UMRA, EPA must assess

whether various actions undertaken in

association with proposed or final

regulations include a Federal mandate

that may result in estimated costs of

$100 million or more to the private

sector, or to State, local or tribal

governments in the aggregate. EPA

believes, as discussed above, that the

proposed finding of failure to attain and

reclassification of the proposed Fort

Hall PM–10 nonattainment area are

factual determinations based upon air

quality considerations and must occur

by operation of law. Thus, the finding

does not constitute a Federal mandate,

as defined in section 101 of the UMRA,

because it does not impose an

enforceable duty on any entity.

D. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Executive Order 13045 (62 FR 19885

(April 23, 1997)) applies to any rule that

EPA determines (1) ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, the Agency must evaluate

the environmental health or safety

effects of the planned rule on children;

and explain why the planned regulation

is preferable to other potentially

effective and reasonably feasible

alternatives considered by the Agency.

This proposed action is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866.

IV. Request for Public Comments

EPA is, by this document, proposing

a finding that the proposed Fort Hall

PM–10 nonattainment area failed to

attain the PM–10 standard by December

31, 1996, the applicable attainment date.

EPA solicits public comments on all

aspects of this proposal. Public

comments should be submitted to EPA

at the address identified above by July

20, 1998.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Particulate matter.

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

Dated: June 10, 1998.

Chuck Findley,

Acting Regional Administrator, Region 10.

[FR Doc. 98–16404 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 393

[FHWA Docket No. MC–94–1; FHWA–1997–

2222]

RIN 2125–AD27

Parts and Accessories Necessary for

Safe Operation; Lighting Devices,

Reflectors, and Electrical Equipment

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FHWA is proposing to

amend the Federal Motor Carrier Safety

Regulations (FMCSRs) to require that

motor carriers engaged in interstate

commerce install retroreflective tape or

reflex reflectors on the sides and rear of

trailers that were manufactured prior to