13166 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Proposed Rules 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

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

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 0023.1 

and Commandant Instruction 

M16475.lD which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this is one of a category of actions 

which, individually or cumulatively, is 

not likely to have a significant effect on 

the human environment because it 

simply promulgates the operating 

regulations or procedures for 

drawbridges. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

2. In § 117.493, paragraph (a) is 

revised to read as follows: 

§ 117.493 Sabine River. 

(a) The draw of the Union Pacific 

railroad bridge, mile 19.3 near Echo 

shall open on signal if at least 14 days 

notice is given. 

* * * * * 

Dated: March 9, 2009. 

J.R. Whitehead, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eighth Coast Guard District. 

[FR Doc. E9–6679 Filed 3–25–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2009–0014; FRL–8783–1] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Louisiana; Baton Rouge 1-Hour Ozone 

Nonattainment Area; Determination of 

Attainment of the 1-Hour Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

determine that the Baton Rouge (BR) 1- 

hour ozone nonattainment area is 

currently attaining the 1-hour ozone 

National Ambient Air Quality Standard 

(NAAQS). This determination is based 

upon certified ambient air monitoring 

data that show the area has monitored 

attainment of the 1-hour ozone NAAQS 

for the 2006–2008 monitoring period. If 

this proposed determination is made 

final, the requirements for this area to 

submit a severe attainment 

demonstration, a severe reasonable 

further progress plan, applicable 

contingency measures plans, and other 

planning State Implementation Plan 

(SIP) requirements related to attainment 

of the 1-hour ozone NAAQS, shall be 

suspended for so long as the area 

continues to attain the 1-hour ozone 

NAAQS. EPA is proposing this action in 

accordance with section 110 and part D 

of the Federal Clean Air Act (the Act or 

CAA) and EPA’s regulations and 

consistent with EPA’s guidance. 

DATES: Comments must be received on 

or before April 27, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2009–0014, by one of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by email to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8 a.m. and 4 p.m. weekdays 

except for legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2009– 

0014. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through http://www.regulations.gov or 

e-mail that you consider to be CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an anonymous access system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Proposed Rules 13167 

1Petitions for review of the October 2, 2002, 

rulemaking were filed in the U.S. Court of Appeals 

for the Fifth Circuit (Louisiana Environmental 

Action Network (LEAN) v. EPA, No. 02–60991). The 

issues raised concerned EPA’s decision to approve 

Louisiana’s substitute contingency measures plan, 

the revised attainment demonstration SIP with a 

later attainment deadline without reclassifying the 

area to severe, and the associated precursor trading 

provision of the NSR rules. On February 25, 2003, 

the court granted EPA’s partial voluntary remand to 

allow EPA the time to meet the December 2002 

court decision by withdrawing its approval of the 

revised attainment demonstration SIP that extended 

the attainment deadline without reclassifying the 

area and the associated NSR precursor trading 

provision. The court also addressed the substitute 

contingency measures claim, and vacated and 

Continued 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202– 

2733. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sandra Rennie, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7367, fax (214) 

665–7263, e-mail address 

rennie.Sandra@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. This 

supplementary information section is 

arranged as follows: 

I. What Is the Background for This Action? 

II. What Is the Impact of a United States 

Court of Appeals Decision in the South 

Coast Case Regarding EPA’s Phase 1 Ozone 

Implementation Rule on This Proposed 

Rule? 

III. Proposed Determination of Attainment 

IV. What Action Is EPA Taking? 

V. Statutory and Executive Order Reviews 

I. What Is the Background for This 

Action? 

The Act requires us to establish 

NAAQS for certain widespread 

pollutants that cause or contribute to air 

pollution that is reasonably anticipated 

to endanger public health or welfare 

(sections 108 and 109 of the Act). In 

1979, we promulgated the revised 1- 

hour ozone standard of 0.12 parts per 

million (ppm) (44 FR 8202, February 8, 

1979). For ease of communication, many 

reports of ozone concentrations are 

given in parts per billion (ppb); ppb = 

ppm × 1000. Thus, 0.12 ppm becomes 

120 ppb or 124 ppb when rounding is 

considered. 

An area exceeds the 1-hour ozone 

standard each time an ambient air 

quality monitor records a 1-hour average 

ozone concentration above 0.12 ppm in 

any given day. Only the highest 1-hour 

ozone concentration at the monitor 

during any 24-hour day is considered 

when determining the number of 

exceedance days at the monitor. An area 

violates the ozone standard if, over a 

consecutive 3-year period, more than 3 

days of exceedances occur at the same 

monitor. For more information please 

see ‘‘National 1-hour primary and 

secondary ambient air quality standards 

for ozone’’ (40 CFR 50.9) and 

‘‘Interpretation of the 1-Hour Primary 

and Secondary National Ambient Air 

Quality Standards for Ozone’’ (40 CFR 

part 50, Appendix H). 

The fourth-highest daily ozone 

concentration over the 3-year period is 

called the design value (DV). The DV 

indicates the severity of the ozone 

problem in an area; it is the ozone level 

around which a state designs its control 

strategy for attaining the ozone 

standard. A monitor’s DV is the fourth 

highest ambient concentration recorded 

at that monitor over the previous 3 

years. An area’s DV is the highest of the 

design values from the area’s monitors. 

The Act, as amended in 1990, 

required EPA to designate as 

nonattainment any area that was 

violating the 1-hour ozone standard, 

generally based on air quality 

monitoring data from the 1987 through 

1989 period (section 107(d)(4) of the 

Act; 56 FR 56694, November 6, 1991). 

The Act further classified these areas, 

based on their ozone DVs, as marginal, 

moderate, serious, severe, or extreme. 

The control requirements and date by 

which attainment is to be achieved vary 

with an area’s classification. Marginal 

areas are subject to the fewest mandated 

control requirements and had the 

earliest attainment date, November 15, 

1993, while severe and extreme areas 

are subject to more stringent planning 

requirements and are provided more 

time to attain the standard. 

Baton Rouge’s History 

EPA first designated the Baton Rouge 

area as an ozone nonattainment area in 

1978. 43 FR 8964, 8998 (March 3, 1978). 

The BR 1-hour ozone nonattainment 

area contains five parishes: East Baton 

Rouge; West Baton Rouge; Ascension; 

Iberville; and Livingston Parishes (40 

CFR 81.319). In 1991, the BR area was 

designated nonattainment by operation 

of law and EPA classified the BR area 

as a ‘‘serious’’ ozone nonattainment area 

with a statutory deadline of November 

15, 1999. 56 FR 56694 (November 6, 

1991). EPA approved the serious 

attainment demonstration SIP and its 

associated elements, e.g., attainment 

Motor Vehicle Emissions Budgets 

(MVEB), the Reasonably Available 

Control Measures (RACM) 

demonstration, on July 2, 1999. 64 FR 

35930. The BR area, however, did not 

attain by the serious area statutory 

deadline of November 15, 1999. Before 

this deadline however, EPA had issued 

a guidance memorandum that allowed 

an area to retain its existing 

classification and receive a later 

attainment deadline if the EPA found 

that area met all of its existing 

classification requirements, approved a 

demonstration that the area would 

attain but for the transport from another 

area, and approved the attainment 

demonstration SIP with its associated 

elements. See EPA’s ‘‘Guidance on 

Extension of Attainment Dates for 

Downwind Transport Areas’’ (the 

Extension Policy) (Richard D. Wilson, 

Acting Assistant Administrator for Air 

and Radiation) July 16, 1998. On 

October 2, 2002, EPA approved the 

revised attainment demonstration SIP 

and its associated elements, found the 

area met all of the serious area 

requirements, found there was transport 

from Texas affecting the BR area 

reaching attainment, and extended the 

attainment date for the BR area to 

November 15, 2005, without 

reclassifying the area from serious to 

severe, consistent with the policy. 67 FR 

61786 (October 2, 2002). 

On December 11, 2002, the U.S. Court 

of Appeals for the Fifth Circuit vacated 

EPA’s Extension Policy used to extend 

the 1-hour ozone attainment deadline 

for the Beaumont-Port Arthur, Texas, 

area without reclassifying the area. 

Sierra Club v. EPA, 314 F.3d 735 (5th 

Cir. 2002). Thereupon, EPA on April 24, 

2003, withdrew its approval of the BR 

area’s revised attainment demonstration 

and the granting of an extended 

attainment deadline, finalized its 

finding of the area failing to attain the 

standard by the serious area deadline 

and reclassified the BR area by 

operation of law, to severe 

nonattainment. See 68 FR 20077 (April 

24, 2003).1 Once reclassified to severe, 

13168 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Proposed Rules 

remanded EPA’s approval of the contingency 

measures. 2As detailed in Section II below, various parties 

challenged the Phase 1 rule. In particular, the 

Chamber of Baton Rouge challenged EPA’s 

authority to continue to enforce the 1-hour area 

requirements. 

the statutory attainment date for BR was 

November 15, 2005. As a result of the 

reclassification to severe, the State was 

required to submit an attainment 

demonstration SIP with an attainment 

date of November 15, 2005. The April 

24, 2003, action also set the dates by 

which Louisiana was to submit SIP 

revisions addressing the CAA’s 

pollution control requirements for 

severe ozone nonattainment areas and to 

attain the 1-hour NAAQS for ozone. 

Under section 182(d) and section (i) of 

the Act, serious ozone nonattainment 

areas reclassified to severe are required 

to submit SIP revisions addressing the 

severe area requirements for the 1-hour 

ozone NAAQS. Under section 182(d), 

severe area plans are required to meet 

all the requirements for serious area 

plans and all the requirements for 

severe area plans. 

In 1997, EPA promulgated a new, 

more protective standard for ozone 

based on an 8-hour average 

concentration (the 1997 8-hour ozone 

standard). In 2004, EPA published the 

1997 8-hour ozone designations and 

classifications and a rule governing 

certain facets of implementation of the 

8-hour ozone standard (Phase 1 Rule) 

(69 FR 23858 and 69 FR 23951, 

respectively, April 30, 2004). The BR 

area was designated as nonattainment 

for the 1997 8-hour ozone standard. The 

8-hour nonattainment area is composed 

of the same five parishes as the 1-hour 

ozone nonattainment area. The area was 

classified as marginal under the 1997 8- 

hour ozone standard. At the time of 

designation, the five parishes remained 

in nonattainment for the 1-hour 

standard. 

The Phase 1 Rule revoked the 1-hour 

ozone standard. See 69 FR 23951. The 

Phase 1 Rule also provided that 1-hour 

ozone nonattainment areas are required 

to adopt and implement ‘‘applicable 

requirements’’ according to the area’s 

classification under the 1-hour ozone 

standard for anti-backsliding purposes. 

See 40 CFR 51.905(a)(i). On May 26, 

2005, we determined that an area’s 1- 

hour designation and classification as of 

June 15, 2004 would dictate what 1- 

hour obligations remain as ‘‘applicable 

requirements’’ under the Phase 1 Rule. 

40 CFR 51.900(f). (70 FR 30592).2

On December 22, 2006, the U.S. Court 

of Appeals for the District of Columbia 

Circuit vacated the Phase 1 Rule. South 

Coast Air Quality Management Dist. v. 

EPA, 472 F.3d 882 (DC Cir. 2006). On 

June 8, 2007, in South Coast Air Quality 

Management Dist. v. EPA, Docket No. 

04–1201, in response to several 

petitions for rehearing, the DC Circuit 

clarified that the Phase 1 Rule was 

vacated only with regard to those parts 

of the rule that had been successfully 

challenged. With respect to the 

challenges to the anti-backsliding 

provisions of the rule, the court vacated 

three provisions that would have 

allowed States to remove from the SIP 

or not to adopt three 1-hour obligations 

once the 1-hour standard was revoked to 

transition to the implementation of the 

8-hour ozone standard: (1) 

Nonattainment area new source review 

(NSR) requirements based on an area’s 

1-hour nonattainment classification; (2) 

section 185 penalty fees for 1-hour 

severe or extreme nonattainment areas 

that fail to attain the 1-hour standard by 

the 1-hour attainment date; and (3) 

measures to be implemented pursuant 

to section 172(c)(9) or 182(c)(9) of the 

Act, on the contingency of an area not 

making reasonable further progress 

toward attainment of the 1-hour NAAQS 

or for failure to attain that NAAQS. The 

court clarified that 1-hour conformity 

determinations are not required for antibacksliding purposes. 

The provisions in 40 CFR 51.905(a)– 

(c) concerning anti-backsliding remain 

in effect and areas must continue to 

meet those requirements. However, the 

court decision vacated the portions of 

§ 51.905(e) that removed the obligations 

to meet the three provisions noted 

above. As a result, states must continue 

to meet the obligations for 1-hour NSR; 

1-hour contingency measures; and, for 

severe and extreme areas, the 

obligations related to a section 185 fee 

program. Currently, EPA has proposed 

one rule and is developing other actions 

to address the court’s vacatur and 

remand with respect to these three 

requirements. We address below how 

the 1-hour obligations that currently 

continue to apply under EPA’s antibacksliding rule (as interpreted and 

directed by the court) apply where EPA 

has made a determination that the area 

is currently attaining the 1-hour 

NAAQS. 

The Baton Rouge 1-hour 

nonattainment area was still classified 

as severe on June 15, 2004, so the 1-hour 

ozone standard requirements applicable 

to the five-parish area are those that 

apply to nonattainment areas classified 

as severe. This includes meeting the 

serious area requirements. Louisiana 

submitted and EPA approved all the 

requirements for a 1-hour ozone area 

classified as serious. EPA’s approval of 

the serious area Contingency Measures 

was challenged in the U.S. Court of 

Appeals for the Fifth Circuit (See 

footnote 1). The Court vacated the 

serious area contingency measure and 

remanded it to EPA. 

The severe area requirements include 

Reasonably Available Control 

Technology (RACT) for both VOC and 

NOX, NSR Emissions Offset 

Requirement, Vehicle Miles Traveled 

(VMT) Analysis, Post-1999 Rate of 

Progress Plan, Contingency Measures, 

and an Attainment Demonstration. The 

State has submitted many required 

severe area plan requirements, 

including the severe area ROP Plan, but 

has not submitted others, including the 

attainment demonstration and the 

contingency measures. The VMT 

Analysis was approved November 21, 

2006 (71 FR 67308). 

Under the Phase 1 rule and as a result 

of the South Coast decision, the 

requirement to provide a severe 

attainment demonstration SIP and the 

serious and severe RFP/failure-to-attain 

contingency measures remain in place. 

However, as discussed below, these 

requirements would be suspended 

based on a finding of attainment of the 

1-hour ozone standard, and for so long 

as the area remains in attainment of the 

standard in the future. 

II. Proposed Determination of 

Attainment 

EPA is proposing to determine that 

the Baton Rouge 1-hour ozone 

nonattainment area is currently in 

attainment of the 1-hour standard based 

on the most recent 3 years of qualityassured air quality data. Certified 

ambient air monitoring data show that 

the area has monitored attainment of the 

1-hour ozone NAAQS for the 2006–2008 

monitoring period. Consistent with 40 

CFR part 50, Appendix H, Table 1 

contains the 1-hour ozone data for the 

BR 1-hour ozone nonattainment area 

monitors that show that the area is 

currently attaining the 1-hour ozone 

NAAQS. 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Proposed Rules 13169 

3The Clean Data Policy, as it is embodied in 40 

CFR 51.918, is being challenged in the context of 

the 8-hour ozone standard in the Phase 2 Rule 

ozone litigation pending in the DC Circuit, NRDC 

v. EPA, No. 06–1045 (DC Cir.). 

TABLE 1—1-HOUR OZONE DATA FOR THE BATON ROUGE 1-HOUR OZONE NONATTAINMENT AREA

Site 

Design 

value 

(ppb) 

Actual and expected number of 

exceedances a

3-year 

exceedance 

average 

2006–2008 2006 2007 2008 2006–2008 

Plaquemine (22–047–0009) .................................................................... 114 0 0 0 0

Carville (22–047–0012) ............................................................................ 113 0 0 0 0

Dutchtown (22–005–0004) ....................................................................... 112 0 1 0 0.33 

Baker (22–033–1001) .............................................................................. 111 1 0 0 0.33 

LSU (22–033–0003) ................................................................................ 110 0 2 0 0.67 

Grosse Tete (22–047–0007) .................................................................... 110 1 1 0 0.67 

Port Allen (22–121–0001) ........................................................................ 106 1 0 0 0.33 

Pride (22–033–0013) ............................................................................... 101 0 0 0 0

French Settlement (22–063–0002) .......................................................... 100 1 0 0 0.33 

Capitol (22–033–0009) ............................................................................ 97 0 0 0 0

aThe actual and expected number of exceedances were equal in all cases. 

Pursuant to the interpretation set forth 

in the May 10, 1995 memorandum from 

John S. Seitz, Director, Office of Air 

Quality Planning and Standards, 

entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone Ambient Air 

Quality Standard’’ (Clean Data Policy), 

EPA is proposing to make a finding of 

attainment based on current air quality. 

Under this policy, if EPA determines 

through rulemaking that the Baton 

Rouge 1-hour ozone nonattainment area 

is meeting the 1-hour ozone standard, 

the requirements for the State to submit 

and have an approved attainment 

demonstration, and related components 

such as reasonably available control 

measures (RACM), a reasonable further 

progress (RFP) demonstration, 

contingency measures for failure to 

attain or make reasonable further 

progress are suspended as long as the 

area continues to attain the 1-hour 

ozone NAAQS. EPA intends to address 

the impact of a Clean Data 

determination on a CAA section 185 

fees program separately based on the 

outcome of a rulemaking to address the 

South Coast decision with respect to 

this issue, discussed above. See 74 FR 

2936, 2941 (January 16, 2009). 

As stated above, the suspension of 

requirements continues for so long as 

the area remains in attainment. If the 

area subsequently violates the ozone 

NAAQS, EPA would initiate notice-andcomment rulemaking to withdraw the 

determination of attainment, which 

would result in reinstatement of the 

requirements for the State to submit 

such suspended plans. 

The Tenth, Seventh and Ninth 

Circuits have upheld EPA rulemakings 

applying the Clean Data Policy. See 

Sierra Club v. EPA, 99 F. 3d 1551 (10th 

Cir. 1996); Sierra Club v. EPA, 375 F.3d 

537 (7th Cir. 2004) and Our Children’s 

Earth Foundation v. EPA, No. 04–73032 

(9th Cir. June 28, 2005) memorandum 

opinion.3 See also the discussion and 

rulemakings cited in the Phase 2 Rule, 

70 FR 71644–71646 (November 29, 

2005). 

IV. What Action Is EPA Taking? 

EPA proposes to find that the BR 1- 

hour ozone nonattainment area has 

attained the 1-hour ozone standard; thus 

the requirements for submitting the 

severe attainment demonstration SIP 

with its RACM demonstration and other 

associated elements, the severe RFP 

requirements, and section 172(c)(9) and 

section 182(c)(9) serious and severe 

contingency measures are suspended for 

so long as the area is attaining the 1- 

hour ozone standard. 

Thus, pursuant to our proposed 

determination of attainment and in 

accordance with our Clean Data Policy, 

the effect of the finding is that the 

following requirements to submit SIP 

measures under the 1-hour antibacksliding provisions (40 CFR 51.905) 

are suspended for so long as the area 

continues to attain the 1-hour standard: 

RFP reductions under sections 182(d) 

and 182(c)(2)(B) (for severe areas). 

Attainment demonstration under 

sections 182(d) and 182(c)(2) (for 

severe areas) and associated RACM 

demonstration. 

Contingency measures for failure to 

meet RFP under section 172(c)(9) and 

section 182(c)(9) (for serious and 

severe areas) and contingency 

measures for failure to attain under 

sections 172(c)(9) and 182(c)(9) (for 

severe areas). 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action proposes to make 

a determination based on air quality 

data, and would, if finalized, result in 

the suspension of certain Federal 

requirements. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601, et seq.). Because this 

rule proposes to make a determination 

based on air quality data, and would, if 

finalized, result in the suspension of 

certain Federal requirements, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). This proposed rule also 

does not have tribal implications 

because it will not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

proposed action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

13170 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Proposed Rules 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it merely 

proposes to make a determination based 

on air quality data and would, if 

finalized, result in the suspension of 

certain Federal requirements, and does 

not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it proposes to determine that air 

quality in the affected area is meeting 

Federal standards. The requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply because it would be inconsistent 

with applicable law for EPA, when 

determining the attainment status of an 

area, to use voluntary consensus 

standards in place of promulgated air 

quality standards and monitoring 

procedures that otherwise satisfy the 

provisions of the Clean Air Act. This 

proposed rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

Under Executive Order 12898, EPA 

finds that this rule involves a proposed 

determination of attainment based on 

air quality data and will not have 

disproportionately high and adverse 

human health or environmental effects 

on any communities in the area, 

including minority and low-income 

communities. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

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

Dated: March 5, 2009. 

Lawrence Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. E9–6598 Filed 3–25–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2007–0359–200823(b); 

FRL–8781–6] 

Approval and Promulgation of 

Implementation Plans; Revisions to the 

Alabama State Implementation Plan; 

Birmingham and Jackson Counties 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the Alabama State 

Implementation Plan (SIP) for two 

separate areas: Birmingham 

nonattainment area and Jackson County 

nonattainment area for both the 8-hour 

ozone and the PM2.5 National Ambient 

Air Quality Standard. On March 7, 

2007, and on January 8, 2009, revisions 

of the transportation conformity criteria 

and procedures related to interagency 

consultation and enforceability of 

certain transportation-related control 

measures and mitigation measures were 

submitted to EPA for approval by the 

State of Alabama. The intended effect is 

to update the transportation conformity 

criteria and procedures in the Alabama 

SIP. 

In the Final Rules Section of this 

Federal Register, EPA is approving the 

State’s SIP revision as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this rule, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period 

on this document. Any parties 

interested in commenting on this 

document should do so at this time. 

DATES: Written comments must be 

received on or before April 27, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2007–0359, by one of the 

following methods: 

(a) http://www.regulations.gov: 

Follow the on-line instructions for 

submitting comments. 

(b) E-mail: wood.amanetta@epa.gov. 

(c) Fax: (404) 562–9019. 

(d) Mail: ‘‘EPA–R04–OAR–2007– 

0359,’’ Air Quality Modeling and 

Transportation Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

(e) Hand Delivery or Courier: 

Amanetta Wood, Air Quality Modeling 

and Transportation Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding Federal 

holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Amanetta Wood of the Air Quality 

Modeling and Transportation Section at 

the Air Planning Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Wood’s telephone number is 404–562– 

9025. She can also be reached via 

electronic mail at 

wood.amanetta@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

additional information see the direct 

final rule which is published in the 

Rules Section of this Federal Register. 

Dated: February 25, 2009. 

Beverly H. Banister, 

Acting Regional Administrator, Region 4. 

[FR Doc. E9–6644 Filed 3–25–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R09–OAR–2008–0942; FRL–8781–1] 

Approval and Promulgation of State 

Air Quality Plans for Designated 

Facilities and Pollutants; Control of 

Emissions From Existing Other Solid 

Waste Incinerator Units; Arizona; Pima 

County Department of Environmental 

Quality 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a negative declaration submitted by the