Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 5593

with §§ 1.25, 1.27, 1.31, and 1.36 and 

the applicable rules and regulations of 

the Securities and Exchange 

Commission. 

(8) An actual transfer of securities by 

book entry is made consistent with 

Federal or State commercial law, as 

applicable. At all times, securities 

transferred to the customer segregated 

account are reflected as ‘‘customer 

property.’’

(9) For purposes of §§ 1.25, 1.26, 1.27, 

1.28 and 1.29, securities transferred to 

the customer segregated account are 

considered to be customer funds until 

the customer money or securities for 

which they were exchanged are 

transferred back to the customer 

segregated account. In the event of the 

bankruptcy of the futures commission 

merchant, any securities exchanged for 

customer funds and held in the 

customer segregated account may be 

immediately transferred. 

(10) In the event the futures 

commission merchant is unable to 

return to the customer any customerdeposited securities exchanged 

pursuant to paragraphs (a)(3)(ii) or 

(a)(3)(iii) of this section, the futures 

commission merchant shall act 

promptly to ensure that such inability 

does not result in any direct or indirect 

cost or expense to the customer. 

(f) Deposit of firm-owned securities 

into segregation. A futures commission 

merchant shall not be prohibited from 

directly depositing unencumbered 

securities of the type specified in this 

section, which it owns for its own 

account, into a segregated safekeeping 

account or from transferring any such 

securities from a segregated account to 

its own account, up to the extent of its 

residual financial interest in customers’

segregated funds; provided, however, 

that such investments, transfers of 

securities, and disposition of proceeds 

from the sale or maturity of such 

securities are recorded in the record of 

investments required to be maintained 

by § 1.27. All such securities may be 

segregated in safekeeping only with a 

bank, trust company, derivatives 

clearing organization, or other registered 

futures commission merchant. 

Furthermore, for purposes of §§ 1.25, 

1.26, 1.27, 1.28 and 1.29, investments 

permitted by § 1.25 that are owned by 

the futures commission merchant and 

deposited into such a segregated 

account shall be considered customer 

funds until such investments are 

withdrawn from segregation. 

3. Section 1.27 is proposed to be 

amended as follows: 

A. By adding the word ‘‘derivatives’’

before the term ‘‘clearing organization’’

in paragraphs (a) and (b); 

B. By adding the phrase ‘‘or current 

market value of securities’’ after the 

phrase ‘‘The amount of money’’ in 

paragraph (a)(3); 

C. By removing the word ‘‘and’’ at the 

end of paragraph (a)(6); 

D. By removing the period at the end 

of paragraph (a)(7) and adding ‘‘; and’’

in its place; and 

E. By adding paragraph (a)(8) to read 

as follows:

§ 1.27 Record of investments. 

(a) * * * 

(8) Daily valuation for each 

instrument and documentation 

supporting the daily valuation for each 

instrument. Such supporting 

documentation must be sufficient to 

enable auditors to validate the valuation 

and verify the accuracy of input 

information used in the valuation to 

external sources for any instrument.

* * * * *

Issued in Washington, DC, on January 27, 

2005, by the Commission. 

Jean A. Webb, 

Secretary of the Commission.

[FR Doc. 05–2000 Filed 2–2–05; 8:45 am] 

BILLING CODE 6351–01–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[OAR 2003–0079, FRL–7867–1] 

RIN 2060–AJ99 

Implementation of the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 1: Reconsideration

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule; notice of public 

hearing. 

SUMMARY: The EPA is requesting 

comment on two issues raised in a 

petition for reconsideration action of 

EPA’s rule to implement the 8-hour 

ozone national ambient air quality 

standard (NAAQS or standard). In 

addition, EPA is proposing to clarify 

two aspects of the implementation rule. 

On April 30, 2004, EPA issued a final 

rule addressing key elements of the 

program to implement the 8-hour ozone 

NAAQS. Subsequently, on June 29, 

2004 and September 24, 2004, three 

different parties each filed a petition for 

reconsideration of certain specified 

aspects of the final rule. By letter dated 

September 23, 2004, EPA granted 

reconsideration of three issues raised in 

the petition for reconsideration filed by 

Earthjustice on behalf of several 

environmental organizations. Today, we 

are providing additional information 

and soliciting comment on two of the 

issues on which we granted 

reconsideration. The issues that we are 

addressing today are whether the 

section 185 fee provisions apply once 

the 1-hour NAAQS is revoked and the 

timing for determining what is an 

‘‘applicable requirement’’ for purposes 

of anti-backsliding once the 1-hour 

NAAQS is revoked. We will shortly 

address the issue of new source review 

(NSR) anti-backsliding in a separate 

action. We are requesting public 

comment on the issues discussed in this 

action, which are described in section 

III of the Supplementary Information 

section of this preamble. We plan to 

issue a final decision on these issues no 

later than May 20, 2005. 

We are also proposing to revise the 

implementation rule in two respects. 

First we are proposing to find that 

contingency measures for failure to 

make reasonable further progress or 

attain by the applicable attainment date 

for the 1-hour ozone standard are no 

longer required of an area after 

revocation of that standard. Second, 

although § 51.905 of the rule provided 

that areas designated nonattainment for 

the 1-hour NAAQS at the time of 

designation as nonattainment for the 8-

hour NAAQS remain subject to any 

outstanding 1-hour attainment 

demonstration requirement, we failed to 

list the attainment demonstration as an 

‘‘applicable requirement.’’ We are 

proposing to revise the definition of 

‘‘applicable requirement’’ to include the 

1-hour attainment demonstration. 

We are seeking comment only on the 

issues specifically identified in this 

document. We do not intend to respond 

to comments addressing other issues.

DATES: Comments must be received on 

or before March 21, 2005. A public 

hearing will be held on February 18, 

2005 and will convene at 9 a.m. and end 

at 2 p.m. Because of the need to resolve 

the issues in this document in a timely 

manner, EPA will not grant requests for 

extensions of the public comment 

period. For additional information on 

the public hearing, see the 

SUPPLEMENTARY INFORMATION section of 

this preamble.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OAR–2003–

0079, by one of the following methods: 

• Federal Rulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

Attention E-Docket No. OAR–2003–

0079. 

• Agency Website: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

5594 Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

Attention E-Docket No. OAR–2003–

0079. 

• E-mail: A-and-R-Docket@epa.gov.

Attention E-Docket No. OAR–2003–

0079.

• Fax: The fax number of the Air 

Docket is (202) 566–1741. Attention EDocket No. OAR–2003–0079. 

• Mail: EPA Docket Center, EPA West 

(Air Docket), Attention E-Docket No. 

OAR–2003–0079, Environmental 

Protection Agency, Mail Code: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: EPA Docket Center 

(Air Docket), Attention E-Docket No. 

OAR–2003–0079, Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room B108; Mail Code 

6102T, Washington, DC 20460. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. OAR–2003–0079. The 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available on-line at http://

www.epa.gov/edocket, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, 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 

EDOCKET or regulations.gov, your email 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. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the EPA Docket Center (Air 

Docket), EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC 20460. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1742 and the fax number is 

(202) 566–1741. 

Public Hearing. A public hearing will 

be held on February 18, 2005 from 9 

a.m. to 2 p.m. at the Environmental 

Protection Agency, Building C, Room 

C114, 109 T.W. Alexander Drive, 

Research Triangle Park, North Carolina 

27709. Persons wishing to speak at the 

public hearing need to contact: Ms. Kara 

Syvertsen, E.H. Pechan, at telephone 

number (919) 493–3144, extension 120 

or by e-mail at 

kara.syvertsen@pechan.com. Oral 

testimony may be limited to 3 to 5 

minutes depending on the number of 

people who sign up to speak. 

Commenters may also supplement their 

oral testimony with written comments. 

The hearing will be limited to the 

subject matter of this document. The 

public hearing schedule, including the 

list of speakers, will be posted on EPA’s 

Web site at: http://www.epa.gov/ttn/

naaqs/ozone/o3imp8hr. A verbatim 

transcript of the hearing and written 

statements will be made available for 

copying during normal working hours at 

the EPA Docket Center (Air Docket) at 

the address listed above for inspection 

of documents.

FOR FURTHER INFORMATION CONTACT: Ms. 

Denise M. Gerth, Office of Air Quality 

Planning and Standards, Environmental 

Protection Agency, Mail Code C539–02, 

Research Triangle Park, NC 27711, 

phone number (919) 541–5550 or by email at gerth.denise@epa.gov or Mr. 

John Silvasi, Office of Air Quality 

Planning and Standards, Environmental 

Protection Agency, Mail Code C539–02, 

Research Triangle Park, NC 27711, 

phone number (919) 541–5666 or by email at silvasi.john@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information 

1. Tips for Preparing Your Comments.

When submitting comments, remember 

to: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number.

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified.

Outline 

Supplementary Information 

I. General Information 

II. Background 

III. Today’s Action 

A. Reconsideration of the Portion of the 

Phase 1 Rule Addressing the Continued 

Applicability of the Section 185 Fee 

Provision for Areas That Fail To Attain 

the 1-Hour NAAQS 

B. Reconsideration of the Portion of the 

Phase 1 Rule Establishing the Time for 

Determining Which 1-Hour Obligations 

Remain Applicable Requirements 

C. Contingency Measures in SIPs for the 1-

Hour Ozone Standard 

D. Adding Attainment Demonstration to 

the List of ‘‘Applicable Requirements’’ in 

§ 51.900(f) 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 5595

1On July 18, 1997, we also promulgated a revised 

particulate matter (PM) standard (62 FR 38652). 

Litigation on the PM standard paralleled the 

litigation on the ozone standard and the court 

issued one opinion addressing both challenges. 

Issues regarding implementation of the PM NAAQS 

were not raised. 2The Court addressed a number of other issues, 

which are not relevant here.

3The petitions for reconsideration of the Phase 1 

Rule were filed by: (1) Earthjustice on behalf of the 

American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy; (2) the National Petrochemical and Refiners 

Association and the National Association of 

Manufacturers; and (3) the American Petroleum 

Institute, American Chemistry Council, American 

Iron and Steel Institute, National Association of 

Manufacturers and the U.S. Chamber of Commerce.

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low Income 

Populations

II. Background 

On July 18, 1997, we promulgated a 

revised ozone NAAQS of 0.08 parts per 

million (ppm) as measured over an 8-

hour period (62 FR 38856). At the time, 

we believed that the 8-hour ozone 

NAAQS should be implemented under 

the less detailed requirements of subpart 

1 of part D of title I of the Clean Air Act 

(CAA) rather than the more detailed 

requirements of subpart 2. Various 

industry groups and States challenged 

EPA’s final rule promulgating the 8-

hour NAAQS in the U.S. Court of 

Appeals for the District of Columbia 

Circuit.1 In May 1999, the DC Circuit 

remanded the ozone standard to EPA on 

the basis that our interpretation of the 

standard-setting provisions of the CAA 

resulted in an unconstitutional 

delegation of authority. American 

Trucking Assns., Inc. v. EPA, 175 F.3d 

1027, 1034–1040 (ATA I) aff’d, 195 F.3d 

4 (D.C. Cir., 1999) (ATA II). In addition, 

the Court held that the CAA clearly 

provided for implementation of a 

revised ozone standard under subpart 2. 

Id. at 1048–1050.2 We sought review of 

these two issues in the U.S. Supreme 

Court. In February 2001, the Supreme 

Court held that EPA’s action in setting 

the NAAQS was not an unconstitutional 

delegation of authority. Whitman v. 

American Trucking Assoc., 121 S.Ct. 

903, 911–914 (2001) (Whitman). In 

addition, the Supreme Court held that 

the D.C. Circuit incorrectly determined 

that the CAA was clear in requiring 

implementation under subpart 2, but 

determined that EPA’s approach, which 

did not provide a role for subpart 2 in 

implementing the 8-hour NAAQS, was 

unreasonable. Id. at 916–919. 

Specifically, the Court noted that the 

CAA funneled areas with specific 

design values into subpart 2. The Court 

also stated that we could not ignore the 

provisions of subpart 2 that ‘‘eliminate[] 

regulatory discretion’’ allowed by 

subpart 1, id. at 918, but also identified 

several portions of the CAA’s 

classification scheme under subpart 2 

that are ‘‘ill-fitted’’ to the revised 

standard. The Court remanded the 

implementation strategy to EPA to 

develop a reasonable approach for 

implementation. Id.

Because the D.C. Circuit had not 

addressed all of the issues raised in the 

underlying case, the Supreme Court 

remanded the case to the D.C. Circuit for 

disposition of the remaining issues. Id. 

at 919. On March 26, 2002, the D.C. 

Circuit Court rejected all of the 

remaining challenges to the ozone and 

fine particle (PM2.5) standards. 

American Trucking Assoc. v. EPA, 283 

F.3d 355 (D.C. Cir., 2002) (ATA III). 

With that ruling, EPA began to move 

forward with programs to protect 

Americans from the wide variety of 

health problems, such as respiratory 

illnesses in elderly persons and 

premature death, with which these air 

pollutants have been associated. 

On June 2, 2003 (68 FR 32802), we 

proposed various options regarding the 

transition from the 1-hour to the 8-hour 

NAAQS and the provisions that would 

govern implementation of the 8-hour 

NAAQS. On August 6, 2003 (68 FR 

46536), EPA published a notice of 

availability of draft regulatory text to 

implement the 8-hour NAAQS. In the 

summer of 2003, we held three public 

hearings to solicit comment on the 

proposal. Because numerous 

commenters recommended alternatives 

to or modifications of the proposed 

classification schemes, we reopened the 

public comment period on October 21, 

2003 (68 FR 60054) to solicit comment 

on alternative classification approaches. 

On April 30, 2004 (69 FR 23951), we 

issued a final rule (Phase 1 Rule), which 

covered some, but not all, of the 

program elements in the proposed rule. 

The Phase 1 Rule covered the following 

key implementation issues: 

classifications for the 8-hour NAAQS; 

revocation of the 1-hour NAAQS (i.e., 

when the 1-hour NAAQS will no longer 

apply); how anti-backsliding principles 

will ensure continued progress in 

achieving ozone reductions as areas 

transition to implementation of the 8-

hour ozone NAAQS; attainment dates 

for the 8-hour ozone NAAQS; and the 

timing of emissions reductions needed 

for attainment of the 8-hour ozone 

NAAQS. The EPA plans to issue shortly 

a final rule addressing the remaining 

issues from the June 2003 proposal 

(Phase 2 Rule). This final rule will 

provide EPA’s interpretation of many of 

the planning and control obligations 

under sections 172 and 182 of the CAA 

that apply to nonattainment areas for 

purposes of attaining the 8-hour 

NAAQS. These include, among other 

things, reasonable further progress 

(RFP), reasonably available control 

technology, attainment demonstrations, 

maintenance plans and NSR. 

Following publication of the April 30, 

2004 final rule, the Administrator 

received three petitions, pursuant to 

section 307(d)(7)(B) of the CAA 

requesting reconsideration of a number 

of aspects of the final rule.3 On 

September 23, 2004, we granted 

reconsideration of three issues raised in 

the Earthjustice Petition. The purpose of 

today’s action is to initiate the process 

to address two of these three issues: (1) 

The provision that section 185 fees 

would no longer apply for a failure to 

attain the 1-hour NAAQS once the 1-

hour NAAQS is revoked; and (2) the 

timing for determination of what is an 

‘‘applicable requirement.’’ The NSR 

anti-backsliding issues will be 

addressed in a separate action.

On January 10, 2005, we granted 

reconsideration of the overwhelming 

transport classification issue raised by 

Earthjustice in their Petition. At the 

same time, we denied reconsideration of 

the issues they raised in their Petition 

dealing with the applicability of 

reformulated gasoline when the 1-hour 

NAAQS is revoked and future 8-hour 

ozone redesignations to nonattainment. 

In the near future, we will take action 

on the overwhelming transport 

classification issue. 

We are continuing to review the 

issues raised in the National 

Petrochemical and Refiners Association 

and American Petroleum Institute 

Petitions. Copies of the Petitions for 

Reconsideration and actions EPA has 

taken regarding the Petitions may be 

found at: http://www.epa.gov/ttn/naaqs/

ozone/o3imp8hr.

We are proposing to find that 

contingency measures for failure to 

make RFP or attain by the applicable 

attainment date for the 1-hour ozone 

standard are no longer required of an 

area after revocation of that standard. 

We are also proposing to revise the 

definition of ‘‘applicable requirement’’

in § 51.900(f) to include the 1-hour 

attainment demonstration. For more 

detailed background information, the 

reader should refer to the Phase 1 Rule 

(April 30, 2004; 69 FR 23956). 

5596 Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 

4The Phase 1 Rule provides in § 51.900(f) that: 

‘‘Applicable requirements means for an area the 

following requirements to the extent such 

requirements apply or applied to the area for the 

areas’s classification under section 181(a)(1) of the 

CAA for the 1-hour NAAQS at the time the 

Administrator signs a final rule designating the area 

for the 8-hour standard as nonattainment, 

attainment or unclassifiable...’’ (69 FR 23997). 

Phase 1 of the final rule to implement the 8-hour 

ozone NAAQS was signed by the Administrator on 

April 15, 2004.

III. Today’s Action 

A. Reconsideration of the Portion of the 

Phase 1 Rule Addressing the Continued 

Applicability of the Section 185 Fee 

Provision for Areas That Fail To Attain 

the 1-Hour NAAQS

1. Background. The Phase 1 Rule 

provided that once the 1-hour standard 

is revoked for an area, certain 

requirements would no longer apply. 

For example, we stated that: (1) EPA 

will no longer make findings of failure 

to attain the 1-hour NAAQS; (2) EPA 

will no longer reclassify areas to a 

higher classification for the 1-hour 

NAAQS based on a finding of failure to 

attain; and (3) States are no longer 

obligated to impose fees under sections 

181(b)(4) and 185 of the CAA (‘‘Fee 

Provisions’’) in severe or extreme areas 

that fail to attain the 1-hour standard by 

the area’s 1-hour attainment date (69 FR 

23984). 

The petitioners claim that we did not 

include the issue of whether States 

would be required to impose fees under 

the Fee Provisions in the portion of the 

proposed rule discussing which 

obligations would no longer apply once 

the 1-hour standard is revoked. Thus, 

they claim they did not have an 

opportunity to comment on this portion 

of the final rule. 

We agree with the Petitions that we 

did not specifically state in our 

proposed rule that after the effective 

date of the revocation of the 1-hour 

NAAQS, States would no longer be 

obligated to impose fees under the Fee 

Provisions in severe and extreme areas 

that fail to attain the 1-hour NAAQS by 

their 1-hour attainment date. For this 

reason, we are today requesting 

comments on whether States must 

impose fees in severe and extreme areas 

if an area fails to attain the 1-hour 

NAAQS by its 1-hour attainment date. 

In the final rule, we explained that 

our interpretation was a logical 

extension of our proposal as the 

obligation to impose a fee is triggered by 

a finding of failure to attain. We also 

noted that our final rule regarding the 

Fee Provisions was consistent with 

appendix B of the June 2, 2003 proposal 

(68 FR 32866), which did not identify 

the section 185 fee provision as an 

applicable requirement. 

For severe and extreme areas, the Fee 

Provisions operate in lieu of 

reclassification. And, in our proposal, 

we proposed that we would no longer 

be obligated to reclassify areas for the 1-

hour NAAQS after that NAAQS was 

revoked. As with all of the requirements 

that we determined no longer apply, the 

Fee Provisions are linked to whether or 

not the area has met the 1-hour NAAQS, 

which the Agency determined in 1998 

was no longer necessary to protect 

public health. Thus, for the Fee 

Provisions and the other requirements 

that we determined would no longer 

apply, we concluded in the Phase 1 

Rule that areas should focus their 

resources on attainment of the 8-hour 

standard. We noted that it would be 

counterproductive to continue efforts 

linked to whether or not an area met the 

1-hour standard after areas were 

designated for the 8-hour standard and 

had begun planning for the 8-hour 

standard. 

2. Request for Public Comments.

Today, we are soliciting comment on 

whether, once the 1-hour standard is 

revoked, the Fee Provisions should 

continue to apply if an area fails to 

attain the 1-hour standard by its 1-hour 

attainment date. We continue to believe, 

as stated in our final rule, that there is 

no basis for determining whether an 

area has met the 1-hour NAAQS once 

the 1-hour NAAQS has been revoked. 

Once the 1-hour NAAQS is revoked, 

there will not be an applicable 1-hour 

classification or an applicable 1-hour 

attainment date. Since there is no longer 

an applicable 1-hour attainment date, 

there cannot be a failure to meet such 

a date. Thus, the consequences that 

would apply based on such a failure 

would not be triggered. 

B. Reconsideration of the Portion of the 

Phase 1 Rule Establishing the Time for 

Determining Which 1-Hour Obligations 

Remain Applicable Requirements 

1. Background. Under the Phase 1 

Rule, the 1-hour control measures that 

would continue to apply under the antibacksliding portion of the rule are called 

‘‘applicable requirements.’’ The Phase 1 

Rule provided that the ‘‘applicable 

requirements’’ would be those 1-hour 

control measures that applied in an area 

as of the date of signature of the Phase 

1 Rule (i.e., April 15, 2004).4 In the June 

2003 proposal, EPA had proposed that 

the applicable requirements would be 

those that applied as of the effective 

date of the 8-hour designations (i.e., for 

most areas June 15, 2004). (June 2, 2003, 

68 FR 32821). The draft regulatory text 

released for public comment in August 

2003 defined the applicable 

requirements as those 1-hour 

requirements that applied as of the date 

of revocation of the 1-hour NAAQS (i.e., 

for most areas, June 15, 2005). (See e.g., 

51.905(a) of Draft Regulatory Text.) The 

petitioners claim that since EPA did not 

propose the date of signature of the 

designation rule (i.e., April 15, 2004) as 

the date for determining which 1-hour 

control measures would continue to 

apply, they did not have an opportunity 

to comment on this portion of the final 

rule.

We agree with the Earthjustice 

Petition that we did not propose that the 

applicable requirements be based on the 

time at which the Phase 1 Rule was 

signed, but rather proposed two options 

that were later in time—publication of 

the designation rule or revocation of the 

1-hour NAAQS. Thus, we are reopening 

for comment the issue of what should be 

the date for determining the applicable 

requirements. 

We believe it is important for areas to 

understand early in the process which 

requirements will remain in place. This 

is particularly true for areas with an 

outstanding attainment demonstration 

obligation. Our Phase 1 Rule provides 

that such areas can elect to submit a 5 

percent plan or an early 8-hour 

attainment demonstration in lieu of the 

outstanding 1-hour State 

implementation plan (SIP) and that 

those alternative plans are due no later 

than 1 year after the effective date of 8-

hour designations. Thus, States need to 

know early whether a 1-hour attainment 

SIP obligation remains in place so that 

they may develop and submit that SIP 

or one of the two alternatives. For that 

reason, we do not believe the date in the 

draft regulatory text—the date on which 

the 1-hour standard is revoked—is 

appropriate, as it would be the same 

date such SIPs are due. 

2. Request for Public Comments.

Today, we are soliciting public 

comment on what date should be used 

for the purpose of defining the 

applicable requirements. We are 

proposing to adopt, consistent with our 

June 2003 proposal, the effective date of 

the 8-hour designation (i.e., for most 

areas June 15, 2004) as the date for 

determining which 1-hour control 

measures continue to apply in an area 

once the 1-hour standard is revoked. 

Under this approach, the 1-hour 

obligations that are applicable 

requirements in an area as of June 15, 

2004 would continue to apply under the 

anti-backsliding provisions of the Phase 

1 Rule. We believe that June 15, 2004 is 

more consistent with the other aspects 

of our implementation rule that are 

keyed to the effective date of the 

designations rather than the signature 

Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 5597

date. In other words, we are proposing 

to define the ‘‘applicable requirements’’

as those that applied to an area for the 

area’s 1-hour ozone classification under 

section 181(a)(1) of the CAA at the time 

of the effective date of the 8-hour 

designation for the area. 

If we take final action to change the 

date for defining ‘‘applicable 

requirements’’ for purposes of antibacksliding from April 15, 2004 to June 

15, 2004, two areas will be affected by 

the change. Both of these areas were 

reclassified (bumped up) to a higher 

classification for the 1-hour NAAQS 

with an effective date after April 15, 

2004, but before June 15, 2004. The first 

area, Beaumont/Port Arthur, Texas, was 

reclassified to serious with an 

attainment date as expeditiously as 

practicable but no later than November 

15, 2005. The reclassification was 

effective on April 29, 2004 (69 FR 

16483; March 30, 2004). The other area, 

San Joaquin Valley, California, 

requested a voluntary bump to extreme 

with an attainment date as 

expeditiously as practicable but no later 

than November 15, 2010. The bump up 

was effective on May 17, 2004 (69 FR 

20550; April 16, 2004). These areas will 

have to implement the serious and 

extreme CAA requirements, 

respectively, for purposes of antibacksliding if we change the date for 

determining which ‘‘applicable 

requirements’’ apply from April 15, 

2004 to June 15, 2004. 

In addition to being consistent with 

the trigger date for other obligations 

under the Phase 1 Rule, changing the 

date for determining ‘‘applicable 

requirements’’ to June 15, 2004 would 

ensure that these two areas meet 

obligations that were recently triggered. 

Beaumont was recently reclassified to 

serious based on its failure to attain the 

1-hour NAAQS by its 1999 attainment 

date. Since 1999, Beaumont has 

continued to experience violations of 

the 1-hour NAAQS and is currently 

violating the 8-hour NAAQS with a 

2001–2003 8-hour ozone design value of 

0.091 ppm. The State of California 

requested that San Joaquin Valley be 

reclassified to extreme because the State 

and the San Joaquin Valley Unified Air 

Pollution Control District were unable 

to develop a SIP that demonstrated 

attainment by 2005 based on its severe15 classification. California submitted a 

new 1-hour plan including a 

demonstration that the San Joaquin 

Valley area will meet rate of progress 

requirements for 2008 and attain the 1-

hour NAAQS by no later than 2010, the 

extreme area deadline. The San Joaquin 

Valley area is classified as serious with 

respect to the 8-hour ozone NAAQS and 

has an 8-hour ozone design value of 

0.115 ppm. 

Based on this information, we believe 

these areas should implement the 

additional 1-hour requirements of the 

higher classifications to ensure 

continued progress toward reducing 

ambient ozone levels and meeting the 8-

hour ozone standard. 

C. Contingency Measures in SIPs for the 

1-Hour Ozone Standard 

1. Background. Section 172(c)(9) of 

the CAA requires that nonattainment 

area SIPs contain contingency measures 

that would be implemented if an area 

fails to attain the NAAQS or fails to 

make RFP toward attainment. The issue 

of what would happen to contingency 

measures that have been approved into 

an area’s 1-hour ozone attainment SIP 

once the 1-hour NAAQS is revoked and 

whether areas that had not submitted 

contingency measures would still be 

required to do so was not expressly 

addressed in the proposed (68 FR 

32802) or final Phase 1 Rule (69 FR 

23951). Today, EPA is addressing the 

issue and requesting comments on our 

proposed approach. 

Regarding contingency measures 

within maintenance plans under section 

175A of the CAA, the Phase 1 Rule 

provided that areas with approved 1-

hour maintenance plans could modify 

their maintenance plans to remove the 

obligation to implement contingency 

measures upon violation of the 1-hour 

NAAQS. The Phase 1 Rule also 

provided that such requirements would 

remain enforceable as part of the 

approved SIP until such time as we 

approved a SIP revision removing such 

obligations. 

2. Summary of Today’s Proposal.

Today, we are proposing that sections 

172(c)(9) and 182(c)(9) contingency 

measures, which are triggered upon a 

failure to attain the 1-hour standard or 

to meet reasonable progress milestones 

for the 1-hour standard, will no longer 

be required once the 1-hour NAAQS is 

revoked. This means that after 

revocation of the 1-hour standard, an 

area that has not submitted a 1-hour 

attainment demonstration or a specific 

1-hour RFP SIP would no longer need 

to submit contingency measures in 

conjunction with those SIPs. 

Additionally, an area with approved 172 

and 182 contingency measures could 

remove them from the SIP.

We believe that the contingency 

measures are linked to the other 

requirements that EPA determined 

would no longer apply once the 1-hour 

standard is revoked. After revocation of 

the 1-hour standard, we will no longer 

make findings that areas failed to attain 

or make progress towards the 1-hour 

NAAQS. We have previously concluded 

that these findings are no longer 

necessary since they are for a NAAQS 

that is no longer applicable. Similarly, 

since these contingency measures are 

only triggered by a finding that an area 

has failed to attain or make progress 

toward a NAAQS that no longer applies, 

findings that we will no longer be 

making, they will not be triggered. 

Therefore, we believe States should not 

be required to submit contingency 

measures with their 1-hour attainment 

demonstrations or 1-hour RFP SIPs. The 

basis for concluding that 1-hour 

contingency measures should no longer 

apply once the 1-hour standard is 

revoked is the same as the basis for 

concluding that the Fee Provisions 

should no longer apply once the 1-hour 

NAAQS is revoked. 

D. Adding Attainment Demonstration to 

the List of ‘‘Applicable Requirements’’

in § 51.900(f) 

1. Background. Most 1-hour ozone 

nonattainment areas have fully 

approved attainment demonstrations for 

the 1-hour NAAQS. Therefore, our rule 

focused on the few areas without 

approved attainment demonstrations 

either because the areas did not meet 

the CAA deadlines or because they were 

reclassified (bumped up) to a higher 

classification for failure to attain by 

their attainment date. In our final rule, 

we allowed States to choose among 

three options for meeting their unmet 

attainment demonstration obligations 

(69 FR 23975). 

a. Submit a 1-hour attainment 

demonstration; 

b. Submit, no later than 1 year after 

the effective date of the 8-hour 

designations, an early increment of 

progress plan toward the 8-hour 

NAAQS, which provides a 5 percent 

increment of reductions from the 2002 

emissions baseline (NOX and/or VOC); 

or 

c. Submit an early 8-hour ozone 

attainment demonstration SIP 1 year 

after the effective date of 8-hour 

designations. 

When we defined ‘‘applicable 

requirements’’ in § 51.900(f), we 

neglected to include the term attainment 

demonstrations. 

2. Summary of Proposed Rule. Today, 

we are proposing that the term 

‘‘attainment demonstration’’ be added to 

§ 51.900(f) which states that:

Applicable requirements means for an 

area the following requirements to the 

extent such requirements apply or 

applied to the area for the area’s 

classification under section 181(a)(1) of 

the CAA for the 1-hour NAAQS at the 

5598 Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 

time the Administrator signs a final rule 

designating the area for the 8-hour 

standard as nonattainment, attainment 

or unclassifiable * * *

The term ‘‘attainment demonstration’’

will be included in § 51.900(f) as ‘‘(13) 

Attainment demonstration or an 

alternative as provided under 

§ 51.905(a)(ii).’’ In the final rule, we 

stated that an attainment demonstration 

was an applicable requirement for 

purposes of § 51.905 but did not include 

it under the definitions of § 51.900(f). 

Our intent in this proposal is to clarify 

that an attainment demonstration is an 

‘‘applicable requirement.’’

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this proposed rule is not a 

‘‘significant regulatory action.’’ The 

reconsideration put forth today does not 

propose to substantially change the final 

Phase 1 Rule. With respect to one issue, 

we propose to retain the position we 

adopted in the final rule. As to the 

second issue, we propose to modify a 

date in the rule so that it is consistent 

with our original proposal. Finally, we 

are promulgating regulatory text to make 

two clarifications to the final rule. We 

believe that these do not substantially 

modify the intent of the final rule but 

rather clarify two issues. 

B. Paperwork Reduction Act

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the Agency certifies 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business that is a small industrial 

entity as defined in the U.S. Small 

Business Administration (SBA) size 

standards. (See 13 CFR part 121); (2) a 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities. The Phase 1 Rule interpreted 

the obligations required of 1-hour ozone 

nonattainment areas for purposes of 

anti-backsliding once the 1-hour 

NAAQS is revoked. This proposed 

reconsideration addresses two aspects of 

that final rule that the Agency was 

requested to reconsider and clarifies two 

other aspects of the rule. Since the 

Phase 1 Rule does not impose 

requirements on small entities our 

further action on aspects of that rule 

also does not impose requirements on 

small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any 1 year. In promulgating the Phase 1 

Rule, we concluded that it was not 

subject to the requirements of sections 

202 and 205 of the UMRA. For those 

same reasons, our reconsideration and 

clarification of several aspects of that 

rule is not subject to the UMRA. 

The EPA has determined that this 

proposed rule contains no regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including Tribal governments. 

Nonetheless, EPA carried out 

consultations with governmental 

entities affected by this rule. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 5599

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

reconsideration addresses two aspects of 

the Phase 1 Rule that the Agency was 

requested to reconsider and clarifies two 

other aspects of the rule. For the same 

reasons stated in the Phase 1 Rule, 

Executive Order 13132 does not apply 

to this proposed rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ This proposed rule does 

not have ‘‘Tribal implications’’ as 

specified in Executive Order 13175.

The purpose of this proposed rule is 

taking comment on two issues from the 

Phase 1 Rule that EPA has agreed to 

grant for reconsideration, in addition to 

two other issues from the Phase 1 Rule. 

These issues concern the 

implementation of the 8-hour ozone 

standard in areas designated 

nonattainment for that standard. The 

CAA provides for States and Tribes to 

develop plans to regulate emissions of 

air pollutants within their jurisdictions. 

The Tribal Authority Rule (TAR) gives 

Tribes the opportunity to develop and 

implement CAA programs such as the 8-

hour ozone NAAQS, but it leaves to the 

discretion of the Tribes whether to 

develop these programs and which 

programs, or appropriate elements of a 

program, they will adopt. 

For the same reasons stated in the 

Phase 1 Rule, this proposed rule does 

not have Tribal implications as defined 

by Executive Order 13175. It does not 

have a substantial direct effect on one or 

more Indian Tribes, since no Tribe has 

implemented a CAA program to attain 

the 8-hour ozone NAAQS at this time. 

Furthermore, this proposed rule does 

not affect the relationship or 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the TAR establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this proposed rule 

does nothing to modify that 

relationship. Because this proposed rule 

does not have Tribal implications, 

Executive Order 13175 does not apply. 

While the proposed rule would have 

Tribal implications upon a Tribe that is 

implementing such a plan, it would not 

impose substantial direct costs upon it 

nor would it preempt Tribal law. 

Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

consulted with Tribal officials in 

developing this proposed rule. The EPA 

has supported a national ‘‘Tribal 

Designations and Implementation Work 

Group’’ which provides an open forum 

for all Tribes to voice concerns to EPA 

about the designation and 

implementation process for the 8-hour 

ozone standard. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have 

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 rule addresses two 

aspects of the Phase 1 Rule that the 

Agency was requested to reconsider and 

clarifies two other aspects of the rule. 

Neither the Phase 1 Rule nor this 

proposal imposes requirements on small 

entities. The proposed rule is not 

subject to Executive Order 13045 

because the Agency does not have 

reason to believe the environmental 

health risks or safety risks addressed by 

this action present a disproportionate 

risk to children. Nonetheless, we have 

evaluated the environmental health or 

safety effects of the 8-hour ozone 

NAAQS on children. The results of this 

evaluation are contained in 40 CFR part 

50, National Ambient Air Quality 

Standards for Ozone, Final Rule (62 FR 

38855–38896; specifically, 62 FR 38854, 

62 FR 38860 and 62 FR 38865). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions That 

Significantly Affect Energy Supply, 

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

May 22, 2001) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Information on the methodology and 

data regarding the assessment of 

potential energy impacts is found in 

Chapter 6 of U.S. EPA 2002, Cost, 

Emission Reduction, Energy, and 

Economic Impact Assessment of the 

Proposed Rule Establishing the 

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National 

Ambient Air Quality Standard, prepared 

by the Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, N.C., April 24, 2003. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law No. 104–

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

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS.

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

VCS. 

The EPA will encourage the States 

and Tribes to consider the use of such 

standards, where appropriate, in the 

development of the implementation 

plans. 

5600 Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Proposed Rules 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 requires that 

each Federal agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionate high and 

adverse human health or environmental 

effects of its programs, policies, and 

activities on minorities and low-income 

populations. 

The EPA concluded that the Phase 1 

Rule should not raise any 

environmental justice issues; for the 

same reasons, this proposal should not 

raise any environmental justice issues. 

The health and environmental risks 

associated with ozone were considered 

in the establishment of the 8-hour, 0.08 

ppm ozone NAAQS. The level is 

designed to be protective with an 

adequate margin of safety. The proposed 

rule provides a framework for 

improving environmental quality and 

reducing health risks for areas that may 

be designated nonattainment.

List of Subjects in 40 CFR Part 51 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides.

Dated: January 27, 2005. 

Jeffrey R. Holmstead, 

Assistant Administrator for Air and 

Radiation.

For the reasons stated in the 

preamble, Title 40, Chapter I of the Code 

of Federal Regulations, is proposed to be 

amended as follows:

PART 51—[AMENDED] 

1. The authority citation for part 51 

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401–

7671q.

Subpart X—Provisions for 

Implementation of 8-Hour Ozone 

National Ambient Air Quality Standard

2. Section 51.900 is amended by 

revising paragraph (f) introductory text 

and adding paragraph (f)(13) to read as 

follows:

§ 51.900 Definitions.

* * * * *

(f) Applicable requirements means for 

an area the following requirements to 

the extent such requirements apply or 

applied to the area for the area’s 

classification under section 181(a)(1) of 

the CAA for the 1-hour NAAQS at the 

time of the effective date of the final 

rule designating the area for the 8-hour 

standard as nonattainment, attainment, 

or unclassifiable:

* * * * *

(13) Attainment demonstration or an 

alternative as provided under 

§ 51.905(a)(1)(ii).

* * * * *

3. Section 51.905 is amended by 

revising paragraph (e)(2)(ii) and by 

adding paragraph (e)(2)(iii) as follows:

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions?

* * * * *

(e) * * * 

(2) * * * 

(ii) The State is no longer required to 

impose under CAA sections 181(b)(4) 

and 185 fees on emissions sources in 

areas classified as severe or extreme 

based on a failure to meet the 1-hour 

attainment date. 

(iii) The State is no longer required to 

implement contingency measures under 

CAA section 172(c)(9) based on a failure 

to attain the 1-hour NAAQS or to make 

reasonable further progress toward 

attainment of the 1-hour NAAQS.

* * * * *

[FR Doc. 05–1997 Filed 2–2–05; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration 

49 CFR Part 605

[Docket No. FTA–99–5082] 

RIN 2132–AA67

School Bus Operations; Amendment of 

Tripper Service Definition; Correction

AGENCY: Federal Transit Administration 

(FTA), DOT.

ACTION: Withdrawal of rulemaking; 

correction. 

SUMMARY: The Federal Transit 

Administration (FTA) published a 

document in the Federal Register of 

January 28, 2005, withdrawing a notice 

of proposed rulemaking relating to its 

School Bus Operations regulation. This 

document misidentified the Regulation 

Identifier Number (RIN).

FOR FURTHER INFORMATION CONTACT:

Elizabeth Martineau, 202–366–1936. 

Correction 

In the Federal Register of January 28, 

2005, in FR Doc. 05–1644 on page 4081, 

in the heading section, correct the 

Regulation Identifier Number (RIN) to 

read: 

RIN 2132–AA67

Dated: January 28, 2005. 

Scott A. Biehl, 

Assistant Chief Counsel for Legislation and 

Rulemaking.

[FR Doc. 05–2022 Filed 2–2–05; 8:45 am] 

BILLING CODE 4910–57–M