47542 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Rules and Regulations 

1On July 25, 2002, EPA approved multiple 

documents submitted to EPA by Arizona for the 

Maricopa County area as meeting the CAA 

requirements for serious PM–10 nonattainment 

areas for the 24-hour and annual PM–10 national 

ambient air quality standards (NAAQS). Among 

these documents is the ‘‘Revised MAG 1999 Serious 

Area Particulate Plan for PM–10 for the Maricopa 

County Nonattainment Area,’’ February 2000 (MAG 

plan) that includes the BACM demonstrations for 

all significant source categories (except agriculture) 

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

and the State’s request and supporting 

documentation, including the most stringent 

measure analysis (except for agriculture) for an 

attainment date extension for both standards. EPA’s 

July 25, 2002 final action included approval of 

these elements of the MAG plan. For a detailed 

discussion of the MAG plan and the serious area 

PM–10 requirements, please see EPA’s proposed 

and final approval actions at 65 FR 19964 (April 13, 

2000), 66 FR 50252 (October 2, 2001) and 67 FR 

48718 (July 25, 2002). 

Note that, effective December 18, 2006, EPA 

revoked the annual PM–10 standard. 71 FR 61144 

(October 17, 2006). References to the annual 

standard in this final rule are for historical purposes 

only. EPA is not taking any regulatory action with 

regard to this former standard. 

paper, for each additional 50 sheets or 

fraction thereof: 

By a small entity (§ 1.27(a)) ........ $135.00 

By other than a small entity ....... $270.00 

PART 41—PRACTICE BEFORE THE 

BOARD OF PATENT APPEALS AND 

INTERFERENCES 

■ 10. The authority citation for 37 CFR 

part 41 continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 

23, 32, 41, 134, 135. 

■ 11. Section 41.20 is amended by 

revising paragraph (b) to read as follows: 

§ 41.20 Fees. 

* * * * * 

(b) Appeal fees. (1) For filing a notice 

of appeal from the examiner to the 

Board: 

By a small entity (§ 1.27(a) of 

this title) ................................... $270.00 

By other than a small entity ....... $540.00 

(2) In addition to the fee for filing a 

notice of appeal, for filing a brief in 

support of an appeal: 

By a small entity (§ 1.27(a) of 

this title) ................................... $270.00 

By other than a small entity ....... $540.00 

(3) For filing a request for an oral 

hearing before the Board in an appeal 

under 35 U.S.C. 134: 

By a small entity (§ 1.27(a)) ........ $540.00 

By other than a small entity ....... $1,080.00 

Dated: August 8, 2008. 

Margaret J. A. Peterlin, 

Deputy Under Secretary of Commerce for 

Intellectual Property and Deputy Director of 

the United States Patent and Trademark 

Office. 

[FR Doc. E8–18822 Filed 8–13–08; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2006–0571; FRL–8703–3] 

Approval and Promulgation of 

Implementation Plans for Arizona; 

Maricopa County PM–10 

Nonattainment Area; Serious Area Plan 

for Attainment of the 24-Hour and 

Annual PM–10 Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action 

under the Clean Air Act (CAA) to 

approve the Best Available Control 

Measure (BACM) and the Most Stringent 

Measure (MSM) demonstrations in the 

serious area particulate matter (PM–10) 

plan for the Maricopa County portion of 

the metropolitan Phoenix (Arizona) 

nonattainment area (Maricopa County 

area). EPA is also confirming that it 

appropriately granted Arizona’s request 

to extend the attainment deadline from 

2001 to 2006. EPA originally approved 

these demonstrations and granted the 

extension request on July 25, 2002. 

Thereafter EPA’s action was challenged 

in the U.S. Court of Appeals for the 

Ninth Circuit. In response to the Court’s 

remand, EPA reassessed the BACM 

demonstration for the significant source 

categories of on-road motor vehicles and 

nonroad engines and equipment 

exhaust, specifically regarding whether 

or not California Air Resources Board 

(CARB) diesel is a BACM and/or MSM. 

As a result of this reassessment, EPA in 

2006 again approved the BACM and 

MSM demonstrations in the plan and 

granted the request for an attainment 

date extension. In light of its 2007 

finding that the Maricopa County area 

failed to attain the 24-hour PM–10 

National Ambient Air Quality Standard 

(NAAQS) by December 31, 2006, EPA 

has again reassessed the BACM and 

MSM demonstrations and is again 

approving these demonstrations. 

DATES: Effective Date: This rule is 

effective on September 15, 2008. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–0091 for this 

action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region 9, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location, e.g., copyrighted material, and 

some may not be publicly available in 

either location, e.g., confidential 

business information. To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Carol Weisner, EPA Region IX, (415) 

947–4107, weisner.carol@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

I. Summary of Proposed Action 

On June 8, 2007, EPA proposed to reapprove the BACM and MSM 

demonstrations in Arizona’s serious 

area PM–10 plan for the Maricopa 

County area. EPA also proposed to 

confirm that it appropriately granted 

Arizona’s request for an extension of the 

area’s attainment deadline from 

December 31, 2001 to December 31, 

2006. 72 FR 31778. EPA originally 

approved the BACM and MSM 

demonstrations and granted the 

attainment date extension in 2002.1

EPA’s 2002 action was subsequently 

challenged in the U.S. Court of Appeals 

for the Ninth Circuit. On May 10, 2004, 

the Court issued its opinion which 

upheld EPA’s final approval in part but 

remanded to EPA the issue of whether 

CARB diesel must be included in the 

serious area plan as a BACM and a 

MSM. See Vigil v. Leavitt, 366 F.3d 

1025, amended at 381 F.3d 826 (9th Cir. 

2004). 

In response to the Ninth Circuit’s 

remand, EPA re-examined the feasibility 

of CARB diesel for both the on-road 

motor vehicle exhaust and nonroad 

engines and equipment exhaust 

significant source categories. On August 

3, 2006, EPA again approved the BACM 

and MSM demonstrations in the MAG 

plan for these significant source 

categories without CARB diesel and 

granted the State’s request to extend the 

attainment deadline from 2001 to 2006. 

71 FR 43979. In this final action, EPA 

concluded that implementation of 

CARB diesel was not feasible for (1) onroad motor vehicle exhaust because 

Arizona would not be able to make a 

‘‘necessity’’ showing for CARB diesel 

and thus, would not be able to obtain a 

waiver of federal preemption under 

CAA section 211(c)(4)(C)(i) in light of 

EPA’s prior approval of the PM–10 

attainment demonstration that did not 

rely on reductions associated with the 

use of CARB diesel, and (2) nonroad 

engines and equipment exhaust because 

of the uncertainties with fuel 

availability, storage and segregation and 


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Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Rules and Regulations 47543 

concerns about program effectiveness 

due to owners and operators fueling 

outside the Maricopa County area. 

On June 6, 2007, EPA issued a finding 

that the Maricopa area failed to attain 

the 24-hour PM–10 NAAQS by 

December 31, 2006. 72 FR 31183. As a 

result, EPA can no longer rely on its 

August 3, 2006 conclusion that CARB 

diesel is not necessary for the 

attainment of the PM–10 NAAQS. Thus, 

EPA reassessed the BACM 

demonstration for the on-road motor 

vehicle exhaust source category in light 

of the new provisions in the Energy 

Policy Act of 2005 (EPAct) which we 

had mentioned but not addressed in the 

August 3, 2006 approval because, as 

noted earlier, we had concluded that we 

could not approve CARB diesel into the 

Arizona State implementation plan (SIP) 

under CAA section 211(c)(4)(C)(i). EPA 

concluded that it could not approve a 

CAA section 211(c)(4)(C)(i) waiver for 

Arizona for CARB diesel because the 

effect of such an approval would 

unlawfully increase the total number of 

fuels approved under section 

211(c)(4)(C) as of September 1, 2004. 

Therefore, EPA again proposed to 

approve the BACM demonstration for 

the on-road motor vehicle exhaust 

source category in the MAG plan 

without CARB diesel. 

Because our August 3, 2006 approval 

of the BACM demonstration for nonroad 

engines and equipment exhaust relied to 

some extent on our conclusion with 

respect to on-road motor vehicle 

exhaust, we also proposed again to find 

that CARB diesel is not required as a 

BACM for the nonroad category because 

of the uncertainties with fuel 

availability, storage and segregation and 

concerns about program effectiveness 

due to owners and operators fueling 

outside the Maricopa County area. 

Finally, because the December 31, 

2006 attainment deadline has passed 

since EPA granted the State’s request for 

an attainment date extension in its 

August 3, 2006 action, the extension 

request is moot. However, if CARB 

diesel had been required as a MSM in 

order for EPA to grant the extension 

request, the State would now be 

required to implement it absent the 

requisite showing under CAA section 

110(l). Therefore EPA again proposed to 

approve the MSM demonstration in the 

MAG plan without CARB diesel. We 

also proposed to confirm that we had 

appropriately granted the State’s request 

for an attainment date extension in our 

2002 and 2006 actions. 

II. Public Comments and EPA 

Responses 

EPA received one comment letter, 

from Joy E. Herr-Cardillo, Senior Staff 

Attorney, Arizona Center for Law in the 

Public Interest (ACLPI), on behalf of 

Phoenix area residents Robin Silver, 

Sandra L. Bahr and David Matusow. 

EPA appreciates the time and effort 

expended by the commenter in 

reviewing the proposed rule and 

providing comments. We have 

summarized the comments and 

provided our responses below. 

A. On-Road Motor Vehicle Exhaust 

Comment 1: ACLPI asserts that EPA 

inappropriately relies upon an 

amendment to CAA section 211(c) by 

EPAct when re-evaluating a prior EPA 

approval on remand from the Court of 

Appeals. ACLPI notes that at the time 

Arizona submitted its BACM 

demonstration for approval, the section 

211(c) waiver restrictions now relied 

upon did not exist and could not have 

served as a ‘‘reasoned justification’’ for 

rejecting CARB diesel. 

Response: As authority for its 

conclusion that EPA’s reliance on an 

amendment to section 211(c) by EPAct 

is inappropriate, ACLPI cites without 

elaboration only Disimone v. EPA, 121 

F.3d 1262 (9th Cir. 1997). This case is 

inapt. The Disimone case involved a 

unique set of circumstances. Prior to 

Disimone, in 1990, the Ninth Circuit 

had ordered EPA to disapprove the 

Arizona SIP and to promulgate in its 

place a Federal implementation plan 

(FIP). Delaney v. EPA, 898 F.2d 687 (9th 

Cir. 1990), cert. denied 498 U.S. 998 

(1990). Later in 1990 Congress amended 

the CAA and EPA requested that the 

Ninth Circuit recall its mandate in 

Delaney so that the Agency could take 

into account the 1990 Amendments in 

its action on remand. The Ninth Circuit 

denied EPA’s request. EPA subsequently 

disapproved the Arizona SIP and 

promulgated a FIP as mandated by the 

Delaney court. EPA thereafter approved 

a SIP revision and rescinded its FIP. The 

Disimone court held that in so doing 

EPA acted contrary to a prior direct 

mandate of the Ninth Circuit and its 

action thus violated the law of the case. 

In addition the court held that EPA was 

collaterally estopped from claiming its 

action was required by the Act’s 

statutory scheme, as amended in 1990, 

because the Delaney court had denied 

its motion to amend the judgment to 

conform to those amendments. 

In contrast to Disimone, here there has 

been no prior judicial action with 

respect to the effect of the 2005 

amendment that would have precluded 

EPA from proceeding with this 

regulatory action. Therefore the 

doctrines on which that court relied do 

not apply. We must comply with EPAct, 

the applicable current law, even though 

it did not exist at the time of EPA’s 

original approval action. 

Comment 2: ACLPI asserts that, 

regardless of the intervening EPAct 

restrictions, it does not agree that these 

restrictions prevent EPA from approving 

a waiver of preemption in order to allow 

CARB diesel fuel or other low emission 

diesel fuel as BACM. ACLPI argues that 

although CARB diesel fuel is not 

included on the Boutique Fuels List by 

virtue of its inclusion in the California 

SIP, the list does include ‘‘low emission 

diesel,’’ a fuel approved in the Texas 

SIP, and this fuel includes CARB diesel 

fuel as an approved low emission diesel 

fuel. ACLPI further states that because 

CARB diesel is already approved in 

California, it is also approved in the 

applicable Petroleum Administration for 

Defense District (PADD). 

Response: As noted in our June 8, 

2007 proposal, at 72 FR 31780, EPAct 

amended the CAA by requiring EPA, in 

consultation with the Department of 

Energy (DOE), to determine the total 

number of fuels approved into all SIPs 

under section 211(c)(4)(C), as of 

September 1, 2004, and to publish a list 

that identifies these fuels, the states and 

PADD in which they are used. CAA 

section 211(c)(4)(C)(v)(II). It also placed 

three additional restrictions on EPA’s 

authority to waive preemption by 

approving a State fuel program into the 

SIP. These restrictions are as follows: 

• First, EPA may not approve a state 

fuel program into the SIP if it would 

cause an increase in the total number of 

fuel types approved into SIPs as of 

September 1, 2004. 

• Second, in cases where EPA 

approval of a fuel would increase the 

total number of fuel types on the list but 

not above the number approved as of 

September 1, 2004, because the total 

number of fuel types in SIPs is below 

the number of fuel types as of 

September 1, 2004, we are required to 

make a finding after consultation with 

DOE, that the new fuel will not cause 

supply or distribution interruptions or 

have a significant adverse impact on 

fuel producibility in the affected or 

contiguous areas. 

• Third, with the exception of 7.0 psi 

RVP, EPA may not approve a state fuel 

into a SIP unless that fuel type is 

already approved in at least one SIP in 

the applicable PADD. CAA Section 

211(c)(4)(C)(v)(I), (IV) and (V). 

On December 28, 2006, EPA 

published a list of the total number of 

fuels approved into all SIPs, under 


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47544 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Rules and Regulations 

2Pursuant to section 211(c)(4)(B), California is 

not subject to the restriction in section 211(c)(4)(A) 

which triggers applicability of section 211(c)(4)(C). 

3See Summary Comparison of CA and TX Diesel 

Fuel Programs in the docket for this rulemaking for 

a table describing major features of both programs. 

See also description of the Texas LED fuel program 

in EPA rulemaking actions at 66 FR 57196 

(November 14, 2001), 70 FR 17321 (April 6, 2005), 

70 FR 58325 (October 6, 2005), and 73 FR 8026 

(February 12, 2008). 

4See July 29, 2008 Memorandum, ‘‘Summary of 

total TxLED production volumes reported for 2007’’

in the docket for this rulemaking. This summary 

indicates that 41% of TxLED fuel volume consists 

of fuel meeting the Alternative Emission Reduction 

Plan compliance option, and 11% of TxLED fuel 

volume consists of fuel meeting the TxLED 

requirements for alternative diesel fuel 

formulations. Forty-seven percent of TxLED fuel 

volume for 2007 consists of fuel meeting either the 

California diesel fuel standards (except those for 

small refiners) or the California certified alternative 

fuel formulations (except those for small refiners). 

5We described two significant differences 

between the two types of fuel: First, Texas LED 

rules allow the use of substitutes for LED fuel that 

achieve equivalent NOX reductions but not 

necessarily equivalent PM reductions, and second, 

Texas LED rules have been amended to remove the 

ultra low sulfur requirement, which directly affects 

PM emissions, from diesel fuel, while as of 

September 1, 2006, there is now a 15 ppm sulfur 

content requirement at the retail level for CARB 

diesel fuel. See 71 FR at 43981–82. Compliance 

option (4) mentioned above corresponds to the first 

difference noted here. 

6As noted in footnote 7 of the August 3, 2006 

final rule, the Web site location is: http:// 

www.tceq.state.tx.us/implementation/air/sip/ 

cleandiesel.html. 

section 211(c)(4)(C), as of September 1, 

2004 , in the Federal Register. 71 FR 

78192. The final list (known as the 

Boutique Fuels List) includes eight 

types of fuels approved into SIPs under 

section 211(c)(4)(C) as of September 1, 

2004, but does not include CARB diesel 

fuel because it is not approved into 

California’s SIP under section 

211(c)(4)(C).2

ACLPI is correct that Texas Low 

Emission Diesel fuel (also known as 

Texas LED fuel) is one of the eight types 

of fuels on the Boutique Fuels List. 

ACLPI is not correct, however, in 

asserting that because CARB diesel fuel 

is included as an approved low 

emission diesel fuel under the Texas 

LED rules, CARB diesel fuel is therefore 

already included among the fuels on the 

Boutique Fuels List. Texas LED fuel 

requirements allow CARB diesel fuel as 

a compliance option in lieu of meeting 

the regulatory standard for aromatic 

hydrocarbons and cetane number, but 

they also allow other compliance 

options that would not meet CARB 

diesel fuel requirements.3

Specifically, Texas LED fuel 

requirements allow four compliance 

options in lieu of meeting the 10% 

(volume) maximum aromatic 

hydrocarbon limit and the minimum 

cetane number of 48: (1) Fuel meeting 

CARB diesel requirements (except those 

for small refiners) as of January 18, 

2005, including the designated 

equivalent limits; (2) fuel meeting the 

requirements of a CARB certified 

alternative diesel formulation (except 

those for small refiners) approved before 

January 18, 2005 to meet CARB diesel 

regulations in effect as of October 1, 

2003; (3) fuel meeting the Texas LED 

requirements for alternative diesel fuel 

formulations; and (4) fuel meeting the 

requirements of an alternative emission 

reduction plan approved as a substitute 

fuel strategy that will achieve equivalent 

oxides of nitrogen (NOX) emission 

reductions. Based on quarterly reports 

submitted to the Texas Commission on 

Environmental Quality for 2007, more 

than half the volume of Texas LED fuel 

in 2007 consists of fuel meeting 

compliance options (3) and (4) noted 

above.4 Compliance options (3) and (4) 

do not exist in CARB diesel fuel. 

The Texas LED fuel program was 

modeled on the CARB diesel fuel 

program, but Texas has adapted the 

program to meet needs specific to the 

Texas ozone nonattainment areas, 

especially the Houston-Galveston ozone 

nonattainment area, for which the Texas 

LED fuel program is approved into the 

SIP. As a result, the two diesel fuel 

programs are similar but not equivalent, 

as we noted in our August 3, 2006 final 

rule, in response to ACLPI’s comment 

that we had failed to account for 

availability of similar diesel fuel in 

Texas in assessing the feasibility of 

using CARB diesel for nonroad engines. 

See 71 FR at 43981–82.5

ACLPI also asserts that, because 

CARB diesel is already approved in 

California, it is also approved in the 

applicable PADD. This is a reference to 

the PADD restriction, which is 

mentioned above and can be found in 

section 211(c)(4)(C)(v)(V). Under the 

PADD restriction, we are allowed to 

approve a fuel if it is ‘‘approved in at 

least one [SIP] in the applicable 

[PADD].’’ Arizona is in PADD 5, the 

same PADD as California, and Texas is 

in PADD 3. Our approval would, 

however, be subject to the other 

restrictions listed and discussed above. 

Thus, our approval must not cause an 

increase in the number of fuel types 

above those approved as of September 1, 

2004, i.e., there must be ‘‘room’’ on the 

Boutique Fuels List, and we must 

consult with DOE on the effect of such 

a fuel on fuel supply and distribution in 

the affected or contiguous areas. As 

earlier mentioned, CARB diesel is 

approved into the California SIP. We 

would therefore, not be prohibited from 

approving CARB fuels for states within 

PADD 5, if there were room on the 

Boutique Fuels List. At this time, 

however, there is no room on the list, 

and therefore, we are prohibited from 

approving CARB diesel into Arizona’s 

SIP since it would be a different fuel 

type that is not already on the list. 

Because CARB diesel fuel and Texas 

LED fuel are not equivalent, as noted 

above, the two are not interchangeable 

on the Boutique Fuels List, and thus the 

only type of low emission diesel fuel on 

the Boutique Fuels List is the Texas LED 

fuel program. This program is approved 

into a SIP in PADD 3, but is not 

approved into a SIP in the applicable 

PADD, which is PADD 5. Thus, EPA is 

further prohibited from approving a low 

emission diesel fuel program into the 

Arizona SIP because of the PADD 

restriction. 

B. Nonroad Engines and Equipment 

Exhaust 

Comment 3: Since EPA relies upon its 

previous assessment in the August 3, 

2006 final rule, ACLPI reasserts the 

objections raised in its comments 

submitted in response to that 

rulemaking in its letter dated August 1, 

2005. 

Response: As noted in the June 8, 

2007 proposed rule, EPA is not 

changing its assessment in the August 3, 

2006 final rule that requiring CARB 

diesel fuel for the control of nonroad 

engines and equipment exhaust is not 

currently feasible and is therefore not 

required as a BACM in the Maricopa 

County area. Except as specifically 

modified below, EPA is relying for this 

final rule on its discussion of Nonroad 

Engines and Equipment Exhaust in 

Section II.B(2) of the Agency’s July 1, 

2005 proposed rule, 70 FR at 38066–

38067. We are also relying on our 

responses to public comments on this 

issue in Section II.B of our August 3, 

2006 final rule, 71 FR at 43981–43983. 

We note one further update to the 

information in footnote 7 of the August 

3, 2006 final rule. There are currently 

thirteen, rather than six, approval letters 

on the Texas LED fuel program Web 

site 6 providing for the use of alternative 

diesel fuel formulations. The second 

sentence in footnote 7 should now read 

as follows: ‘‘Although Section 114.312(f) 

provides that alternative diesel fuel 

formulations must provide comparable 

or better reductions of NOX and PM, 

four of the thirteen alternative diesel 

fuel formulation approval letters to date 

have cited NOX reductions alone, or (in 

one case) reductions of NOX and 


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7See July 30, 2008 Memorandum, ‘‘Statistical 

Data for Arizona and Texas Based on 2000 Census’’

in docket for this rulemaking. 

8EPA notes that the discussion of MSM begins on 

p. 24 of ACLPI’s Opening Brief. 

hydrocarbons, but not PM, as the basis 

of approval.’’

Comment 4: ACLPI further asserts 

that, with respect to EPA’s concerns that 

nonroad diesel fuel users will refuel 

outside the nonattainment area to avoid 

paying the higher cost of CARB diesel, 

the Texas LED rule provides guidance 

for Arizona since it applies to 102 

counties even though only 8 of those 

counties are in the Houston 

nonattainment area. Citing EPA’s 

November 14, 2001 final rule approving 

the Texas LED rule into the SIP, ACLPI 

asserts that the principal reason for 

extending the scope of the rule to so 

many counties was to prevent refueling 

outside the nonattainment area. 66 FR 

57196, 57216. ACLPI states there is no 

reason that a similar approach could not 

be adopted in Arizona. 

Response: In addition to the Texas 

LED fuel program, EPA has approved 

two other state fuel programs under 

CAA Section 211(c)(4)(C) in which the 

covered area included attainment areas 

outside the nonattainment area for 

which SIP approval was sought. See 66 

FR 20927 (April 26, 2001) for the 

Gasoline Volatility Program in Eastern 

and Central Texas, and 67 FR 8200 

(February 22, 2002) for the Gasoline 

Sulfur and Volatility Program in 

Atlanta, Georgia. In each of these three 

cases, EPA’s approval of the state fuel 

program in attainment areas was based 

on the State’s demonstration that 

emission reductions attributable to the 

state fuel program in the attainment 

areas was necessary to help achieve 

attainment in the nonattainment area for 

which SIP approval was sought. 

Specifically, in the case of the Texas 

LED fuel program, EPA noted three 

reasons for Texas’ conclusion that 

requiring LED fuel in the 110-county 

covered area benefits the 8-county 

Houston ozone nonattainment area. 

First, it will help ensure that LED fuel 

is used by intrastate and long-haul 

trucks that travel through the 

nonattainment area but purchase fuel in 

Texas outside the nonattainment area 

and within the covered area. Second, it 

will help reduce possible transport of 

ozone from the surrounding covered 

areas to the nonattainment area. Third, 

it will reduce the transport of NOX from 

the surrounding covered areas to the 

nonattainment area. See 66 FR at 57214 

and 66 FR 36542, 36545. 

ACLPI’s reference to EPA’s statement 

at 66 FR 57216 is misquoted; in this part 

of the November 14, 2001 final rule 

approving the Texas LED rule into the 

SIP, EPA stated that ‘‘a principal 

purpose of extending the coverage of the 

LED rule to the 102 counties outside the 

8-county Houston nonattainment area is 

to ensure that intrastate and long-haul 

trucks traveling through the Houston 

area but re-fueling outside the Houston 

area are re-fueling with LED fuel.’’

(Emphasis added.) Thus preventing refueling with non-LED fuel outside the 

Houston area was one of three reasons 

for the expanded scope of the covered 

area, as described above, but it was not 

‘‘the’’ principal reason, as ACLPI 

mistakenly asserts. 

With respect to the potential use of 

CARB diesel fuel for nonroad engines 

and equipment, the preemption of state 

fuel controls in CAA section 

211(c)(4)(A) does not extend to fuels 

used solely in nonroad engines and 

equipment and not for use in motor 

vehicles. See 70 FR 38064, 38066 (July 

1, 2005), 69 FR 38958, 39072–73 (June 

29, 2004). The choice of covered areas 

for a state diesel fuel program for 

nonroad engines and equipment might 

very well be affected, however, by the 

same kinds of reasons that would 

influence the design of the program if it 

were to include diesel fuel for on-road 

motor vehicles. We agree that the 

possible enlargement of the covered area 

beyond the nonattainment area is a 

factor Arizona could consider in 

evaluating the feasibility of a diesel fuel 

program for nonroad engines and 

equipment, but it is not the only factor 

Arizona would need to consider. 

Such an enlarged program might help 

avoid the problem of re-fueling outside 

the Maricopa County area, but it would 

still face the same obstacles we have 

evaluated in our prior notices, i.e., the 

uncertainty of fuel availability and the 

problem of fuel segregation and storage. 

Additionally, we note that the 

geographic considerations in assessing 

potential re-fueling avoidance are 

different in Arizona and Texas. 

Population in the Houston-Galveston 

ozone nonattainment area is about 22% 

of the statewide population but 

represents only 3% of the State’s land 

area. By expanding the covered area to 

include the Dallas-Fort Worth and 

Beaumont-Port Arthur ozone 

nonattainment areas as well as 95 

nearby counties, the Texas LED fuel 

program covers about 79% of statewide 

population and 35% of the State’s land 

area. By contrast, population in the 

Phoenix nonattainment area is about 

60% of statewide population but only 

8% of the State’s land area. If a fuel 

program were expanded to include Pima 

County, which includes the next largest 

metropolitan area in Arizona, the 

population in the covered area would be 

about 76% of statewide population but 

only 16% of the State’s land area. 

(Statistics are based on 2000 Census 

Bureau data).7

C. MSM Demonstration and Extension 

of Attainment Date 

Comment 5: ACLPI states that, 

because EPA did not undertake a new 

analysis of CARB diesel as a MSM for 

purposes of the attainment date 

extension, ACLPI incorporates by 

reference comments it submitted ‘‘in 

response to previous rulemakings, as 

well as the arguments and analysis set 

forth in the Opening and Reply briefs 

filed in Vigil * * * (specifically 

Opening Brief, pp. 21–27; 8 Reply Brief, 

pp. 9–18.)’’

Response: The Vigil Court’s remand of 

EPA’s approval of the attainment date 

extension is limited. The Court 

concluded that ‘‘[w]e also remand the 

question of Arizona’s eligibility for the 

extension, insofar as that question 

depends on EPA’s determination 

regarding MSM.’’ (Emphasis added.) 381 

F.3d at 487. Therefore to the extent that 

ACLPI intends to incorporate by 

reference its comments and arguments 

on aspects of the extension other than 

MSM, it is precluded from raising them 

in this rulemaking. 

While ACLPI does not specify, we 

assume that by ‘‘previous rulemakings’’

it is referring to EPA’s proposed 

approvals of the serious area PM–10 

plan for the Maricopa County area at 65 

FR 19964 (April 13, 2000) and 66 FR 

50252 (October 2, 2001). ACLPI 

commented on these proposed actions 

in letters from Joy Herr-Cardillo to 

Frances Wicher, EPA Region 9, dated 

July 20, 2000 and November 1, 2001. 

EPA has previously addressed the 

arguments relating to MSM and the 

attainment date extension as it relates to 

MSM raised by ACLPI in its briefs and 

these letters. See 67 FR at 48722–48725 

and EPA’s Response Brief in Vigil at 10–

12 and 30–34. Discussions also relevant 

to these issues can be found in EPA’s 

proposed approvals of the serious area 

PM–10 plan for the Maricopa County 

area at 65 FR 19964 and 66 FR 50252. 

III. Final Action 

EPA is again approving the BACM 

demonstration in the MAG plan for the 

source categories of on-road and 

nonroad vehicle exhaust without CARB 

diesel. EPA has concluded that it cannot 

approve a CAA section 211(c)(4)(C)(i) 

waiver for Arizona for CARB diesel 

because the effect of such an approval 

would unlawfully increase the total 


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47546 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Rules and Regulations 

number of fuels approved into SIPs 

under section 211(c)(4)(C) as of 

September 1, 2004. Therefore, EPA is 

again approving the BACM 

demonstration in the MAG plan for the 

on-road source category without CARB 

diesel. Because EPA has found that 

CARB diesel is not feasible for nonroad 

engines and equipment because of the 

uncertainties with fuel availability, 

storage and segregation and concerns 

about program effectiveness due to 

owners and operators fueling outside 

the Maricopa County area, we are again 

approving BACM demonstration in the 

MAG plan for the nonroad source 

category without CARB diesel. For the 

reasons discussed above, EPA is also 

again approving the MSM 

demonstration in the MAG plan and is 

confirming that we appropriately 

granted in 2002 and 2006 the State’s 

request for an extension of the 

attainment deadline for the area from 

December 31, 2001 to December 31, 

2006. These actions are codified at 40 

CFR 52.123(j)(2), (4) and (7) and remain 

in effect. See 67 FR at 48739. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this 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 merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. 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 approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, 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 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 

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 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. Executive Order 12898 

(59 FR 7629, February 16, 1994) 

establishes a Federal policy for 

incorporating environmental justice into 

Federal agency actions by directing 

agencies to identify and address, as 

appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority and 

low-income populations. Today’s action 

will not have disproportionately high 

and adverse effects on any communities 

in the area, including minority and lowincome communities. 

This 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 is not 

economically significant. 

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. This 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.). 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 14, 2008. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

Dated: August 4, 2008. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. E8–18626 Filed 8–13–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–R09–OAR–2008–0555; FRL–8701–7] 

Delegation of National Emission 

Standards for Hazardous Air Pollutants 

for Source Categories; State of 

Arizona, Arizona Department of 

Environmental Quality, Pima County 

Department of Environmental Quality 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is amending certain 

regulations to reflect the current 

delegation status of national emission 

standards for hazardous air pollutants 

(NESHAP) in Arizona. Several NESHAP 

were delegated to the Arizona 

Department of Environmental Quality 

on June 4, 2008, and to the Pima County 

Department of Environmental Quality 

on June 16, 2008. The purpose of this 

action is to update the listing in the 

Code of Federal Regulations. 

DATES: This rule is effective on October 

14, 2008, without further notice, unless 

EPA receives adverse comments by 

September 15, 2008. If we receive such 

comments, we will publish a timely 

withdrawal in the Federal Register to 

notify the public that this direct final 

rule will not take effect. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09–

OAR–2008–0555, by one of the 

following methods: 


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