FR Doc E8-6287

[Federal Register: March 28, 2008 (Volume 73, Number 61)]
[Rules and Regulations]
[Page 16547-16553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr08-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2007-0959-200804; FRL-8547-8]

Determination of Nonattainment and Reclassification of the
Memphis, TN/Crittenden County, AR 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule finalizes EPA's finding of nonattainment and
reclassification of the Memphis, Tennessee and Crittenden County,
Arkansas 8-hour ozone nonattainment area (Memphis TN-AR Nonattainment
Area). EPA finds that the Memphis TN-AR Nonattainment Area has failed
to attain the 8-hour ozone national ambient air quality standard
(``NAAQS'' or ``standard'') by June 15, 2007, the attainment deadline
set forth in the Clean Air Act (CAA) and Code of Federal Regulations
(CFR) for marginal nonattainment areas. As a result, on the effective
date of this rule, the Memphis TN-AR Nonattainment Area will be
reclassified by operation of law as a moderate 8-hour ozone
nonattainment area. The moderate area attainment date for the
reclassified Memphis TN-AR Nonattainment Area would then be ``as
expeditiously as practicable,'' but no later than June 15, 2010. Once
reclassified, Tennessee and Arkansas must submit State Implementation
Plan (SIP) revisions that meet the 8-hour ozone nonattainment
requirements for moderate areas, as required by the CAA. In this
action, EPA is establishing the schedule for the States' submittal of
the SIP revisions required for the

[[Page 16548]]

nonattainment area once it is reclassified. EPA determines that the
States must submit these SIP revisions by March 1, 2009.

DATES: Effective Date: April 28, 2008.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2007-0959. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information 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 through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia
30303-8960 or Air Planning Section, U.S. Environmental Protection
Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. EPA
requests that if at all possible, you contact the person listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Jane Spann, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9029. Mrs. Spann can also be reached via electronic mail at
spann.jane@epa.gov.Or Jeffrey Riley, Air Planning Section, U.S.
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733. The telephone number is 214-665-8542. Mr. Riley can
also be reached via electronic mail at riley.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is the Background for This Action?
II. Response to Comments
III. What Is the Effect of This Action?
A. Determination of Nonattainment, Reclassification of Memphis
TN-AR Nonattainment Area and New Attainment Date
B. When Must Tennessee and Arkansas Submit SIP Revisions
Fulfilling the Requirements for Moderate Ozone Nonattainment Areas
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

On October 16, 2007, EPA proposed its finding that the Memphis TN-
AR Nonattainment Area did not attain the 8-hour ozone NAAQS by June 15,
2007, the applicable attainment date (72 FR 58577). The proposed
finding was based upon ambient air quality data from the years 2004,
2005, and 2006. In addition, as explained in the proposed rule, the
Area did not qualify for an attainment date extension under the
provisions of CAA section 181(a)(5) and 40 CFR 51.907, because the 4th
highest daily value in the attainment year of 2006 was greater than
0.084 parts per million (ppm). In the October 16, 2007, proposal, EPA
proposed that the appropriate reclassification of the area was to
``moderate'' nonattainment, in accordance with CAA Section 181(b)(2).

II. Response to Comments

EPA received comments from the Shelby County Government of
Tennessee (Shelby County), the Arkansas Department of Environmental
Quality (ADEQ), the Sierra Club Chickasaw Group-Tennessee Chapter and
two citizens in response to the proposed reclassification of the
Memphis TN-AR Nonattainment Area from marginal to moderate, published
on October 16, 2007 (72 FR 58577). Comments can be found on the
internet in the electronic docket for this action. To access the
comments, please go to http://www.regulations.gov and search for Docket
No. EPA-R04-OAR-2007-0959, or contact the person listed in the FOR
FURTHER INFORMATION CONTACT paragraph above. A summary of the adverse
comments received and EPA's response to the comments is presented
below.
Comment: All commenters discussed including DeSoto County,
Mississippi in the 8-hour ozone nonattainment area. Shelby County
commented that the area's failure to meet the attainment date is not
due to a lack of local control measures and regulation of ozone
precursors, but is due to errors made in the original designation and
that EPA's decision to exclude DeSoto County was an error that is
negatively affecting the Area's ability to achieve the standard. Shelby
County also commented that the DeSoto County monitor is exhibiting a
disturbing trend towards violation that should be reversed. Shelby
County and ADEQ suggested that the appropriate action would be to
expand the nonattainment area to include DeSoto County rather than to
reclassify the current area to moderate status.
Response: The validity of the 2004 designations for DeSoto County
or the Memphis ozone nonattaiment area are not the subject of this
rulemaking, nor is it relevant to EPA's determination of whether the
Memphis area attained the 8-hour ozone NAAQS by its attainment date.
The CAA establishes a process for air quality management for purposes
of attaining and maintaining the NAAQS. After promulgation of a new or
revised NAAQS, section 107(d)(1) of the CAA requires EPA to designate
areas as meeting or not meeting the standard. EPA published the
designations for the 8-hour ozone NAAQS on April 30, 2004. Prior to
April 30, 2004, each State Governor had an opportunity to recommend air
quality designations, including appropriate boundaries, to EPA. One
hundred and twenty days prior to promulgating designations, EPA was
required to notify the States, if EPA disagreed with a State's
recommended designation and intended to modify the recommended
designation. States then had an opportunity to provide a demonstration
as to why the proposed modification was inappropriate. Any issues
concerning the initial designations, including whether a county should
have been included as part of a specific nonattainment area, should
have been raised at that time and any challenges to EPA's final rule
designating areas were required to be filed within 60 days of April 30,
2004. Thus, any claims now that DeSoto County should have been included
as part of the Memphis ozone nonattainment area are not timely. The
time for addressing the validity of the designations is past, and the
appropriateness of the 2004 designations is not at issue in this
rulemaking. As a result, all comments concerning purported deficiencies
in the final designations for these areas are not relevant to this
rulemaking.
With respect to the commenters' contention that EPA should now
expand the nonattainment area to include DeSoto County, this rulemaking
action, which involves a determination of nonattainment for the Memphis
8-hour ozone nonattainment area pursuant to section 181(b)(2), is not
the appropriate time in which to address a reevaluation of the
designation for the area.
In its proposed rulemaking EPA noted that DeSoto County is not
included in the Memphis Area, but stated that ``its monitoring data is
regularly considered for potential contributions to the Memphis TN-AR
Nonattainment Area airshed.'' 72 FR 58579. EPA is clarifying

[[Page 16549]]

in this final rulemaking that, while we reviewed the data from the
DeSoto monitor, we are not relying on data from that monitor in
reaching a final determination that the Memphis Area failed to attain
the 8-hour ozone standard by its June 15, 2007, attainment date.
Notably, for the years 2004-2006, the monitor in DeSoto County
demonstrated attainment. Because this final determination was based
upon the Marion, AR monitor which provided the Area its 2004-2006
design value of .087 ppm, the additional DeSoto County data would not
alter this determination. EPA also notes that preliminary data for 2007
for both the Marion and DeSoto monitors show that, if the data were
quality assured, both monitors would register as nonattainment for
2005-2007. Again, the additional DeSoto County data would not alter the
determination that the Area did not attain the standard.
Comment: Shelby County and ADEQ commented that EPA has invoked the
legal principle known as ``operation of law'' as justification for
reclassifying the Memphis, TN-AR Nonattainment Area from marginal to
moderate. The commenters believe that the invocation of ``operation of
law'' is, in this instance, a discretionary power. Shelby County
commented that reclassification is not needed and will not serve to
move the Area into attainment of the ozone standard any sooner than is
currently predicted by the extensive computer modeling, and that
reclassification will place an undue and completely unnecessary
administrative cost on the taxpayers of Tennessee and Arkansas without
improving air quality in the Area. ADEQ commented that reclassification
is unmerited at this time and that ``there would be no demonstrable
harm to the public if the EPA Administrator used discretionary
authority to waive the action otherwise the result of operation of
law.'' ADEQ also commented that delays in federal ozone programs were
responsible for higher regional design values, and that ``States and
localities should not be required to take on new regulatory burdens as
a result of programmatic delays over which they had no control. The EPA
has not taken this into account in its deliberations as to whether
redesignation [sic] is appropriate in this instance.''
Response: EPA disagrees with the assertion that reclassification
upon a determination of failure to attain is a discretionary power, and
that EPA can ``waive'' reclassification after it has determined that
the area has failed to attain by its attainment date. In the October
16, 2007, proposed rule (72 FR 58577), EPA cited section 181(b)(2)(A)
of the CAA, which provides that, for reclassification upon failure to
attain, ``within 6 months following the applicable attainment date
(including any extension thereof) for an ozone nonattainment area, the
Administrator shall determine, based on the area's design value (as of
the attainment date), whether the area attained the standard by that
date. Except for any Severe or Extreme area, any area that the
Administrator finds has not attained the standard by that date shall be
reclassified by operation of law in accordance with table 1 of
subsection (a) (of Section 181) to the higher of--(i) the next higher
classification for the area, or (ii) the classification applicable to
the area's design value as determined at the time of the notice
required under subparagraph (B).'' Pursuant to section 181(b)(2), EPA
has determined that the Memphis TN-AR Nonattainment Area failed to
attain the 8-hour ozone NAAQS by June 15, 2007, the attainment deadline
set forth in the CAA and CFR for marginal nonattainment areas. Because
the Area is not classified as severe or extreme, the area shall be
reclassified by operation of law to the next higher classification. The
next higher classification for the Area (moderate) is higher than the
classification applicable to the Area's design value (marginal).
Therefore, in accordance with the CAA, the Area must be reclassified by
operation of law to a moderate nonattainment area. 72 FR 58579.
As EPA noted above, under section 181(b)(2)(A), the attainment
determination is made solely on the basis of air quality, and any
reclassification is by operation of law. Thus, the resulting
requirements apply regardless of how the nonattainment came about, and
the CAA does not allow EPA to assess the need, or lack thereof, for
additional local measures. With respect to any perceived burden imposed
by the new planning requirements, EPA notes that the moderate area
requirements are imposed by section 182(b) of the CAA and the impact,
economic or otherwise, of a reclassification is not a consideration in
making the attainment determination under section 181(b)(2).
Comment: Shelby County and ADEQ commented that if EPA determines
that it has no discretion on reclassification, the public comment
process provides no opportunity for relevant comments on the proposed
action to be considered.
Response: EPA disagrees that the public comment process provides no
opportunity for relevant comments on the proposed action. The process
allows for an opportunity to ascertain whether EPA's analysis of the
relevant data and CAA requirements is correct. Under section
182(b)(2)(A), the attainment determination is made solely on the basis
of air quality data, and reclassification and the level to which an
area is reclassified is by operation of law. Section 181(b)(2)(B)
requires EPA to publish a notice in the Federal Register identifying
the reclassification status of an area that has failed to attain the
standard by its attainment date. Thus, in making the determinations
required by the CAA, EPA solicits and will consider comments addressing
EPA's determination with respect to whether air quality data show
attainment or nonattainment by the applicable attainment date, and
EPA's identification of any resulting reclassification that occurs by
operation of law. There is, therefore, a meaningful role for public
comments in determinations of attainment, specifically with regard to
the data and EPA's analysis of the data, but this is not inconsistent
with, and does not alter the statutory scheme that provides that
reclassification occurs as a matter of law, and is not within EPA's
discretion.
Comment: ADEQ commented that for the 2007 ozone season to date, the
fourth highest value in the nonattainment Area had not exceeded 0.084
ppm and that the Area's air quality appears to be improving. ADEQ
further requested that EPA consider calendar year 2007 as an
``extension year'' and grant a one-year extension of the attainment
date as a means of providing relief from the duplication of effort that
will be required in the event that the recently proposed revisions to
the ozone standard are promulgated in the near future.
Response: Sections 172(a)(2)(C) and 181(a)(5) of the CAA provide
states with an opportunity to apply to extend the attainment date by
one year. Section 181(a)(5) applies to areas classified under Subpart 2
of the CAA, and 40 CFR 51.907 provides EPA's interpretation of section
172(a)(2)(C) and 181(a)(5) for purposes of the 8-hour ozone standard.
For the 8-hour ozone standard, if an area's fourth highest daily
maximum 8-hour average value in the attainment year is 0.084 ppm or
less, the area is eligible for a 1-year extension of the attainment
date (40 CFR 51.907). The attainment year is the year in which the last
full ozone season relied on for purposes of demonstrating attainment
occurs. Because the attainment date for the Memphis Area was June 15,
2007, the last full ozone season preceding the Area's attainment date
was the 2006

[[Page 16550]]

ozone season and 2006 is considered the attainment year. In 2006, the
Area's fourth highest daily maximum 8-hour average was 0.089 ppm. Based
on this information, the Area does not qualify for a 1-year extension
of the attainment date. Under the applicable statutory and regulatory
provisions, EPA is unable to consider 2007 as an extension year. First,
as explained above, the Area did not qualify for an initial 1-year
extension based on its 2006 attainment year. Second, even if the Area
had qualified for a 1-year extension based on 2006 data (which it did
not), it would not qualify for a second 1-year extension based on
preliminary data for 2007. This is because the Area's 4th highest daily
8-hour value, averaged over both 2006 (the original attainment year)
and 2007 (the hypothetical ``first extension year'') is greater than
0.84 ppm. 40 CFR 51.907(b). Finally, preliminary data for 2005-2007
show that the Area is still not attaining the standard.
Comment: Shelby County commented that air quality in the Memphis
Area has in recent years demonstrated a trend of improvement; that
pollution measures in place are making a positive impact and will lead
to further improvement; and that modeling shows that the Area will soon
attain the standard. Shelby County also commented that reclassification
could ``result in an absurd conclusion since the possibility exists
that, by next year, the only controlling monitor in the area could be
located in a county that is attainment.'' ADEQ commented that for the
2007 ozone season to date, the fourth highest 8-hour ozone value for
any monitor in the Area did not exceed 0.084 ppm; that they are hopeful
ozone levels in 2008 and beyond will continue to show improvement; and
that it is unfortunate that EPA considers it necessary to increase the
severity of the ozone classification from marginal to moderate when it
appears that the Area's air quality is improving. ADEQ also commented
that ``the redesignation [sic] to moderate that is proposed would, in
this instance, result in an absurd conclusion.''
Response: EPA recognizes the efforts taken by Shelby County, ADEQ,
the Tennessee Department of Environment and Conservation, and the
Memphis Area in general to improve air quality. However, while it is
encouraging that the Area's air quality appears to be improving,
unfortunately, it did not improve enough to meet the June 15, 2007,
deadline for attainment.\1\ The statute requires an assessment of air
quality as of an area's attainment date, and that assessment is the
subject of today's rulemaking. (See also, our responses to previous
comments.) Reclassification of the Area, which occurs by operation of
law, as required by the CAA will lead to additional planning and
emission controls, which will help ensure that the Area attains and
maintains the 8-hour ozone standard.
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\1\ Moreover, as noted above, preliminary data for 2005-2007
shows that the Area remains in nonattainment.
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III. What Is the Effect of This Action?

A. Determination of Nonattainment, Reclassification of Memphis TN-AR
Nonattainment Area and New Attainment Date

Pursuant to section 181(b)(2), EPA finds that the Memphis TN-AR
Nonattainment Area failed to attain the 8-hour ozone NAAQS by the June
15, 2007, attainment deadline prescribed under the CAA and 69 FR 23858
(April 30, 2004) for marginal ozone nonattainment areas. When this
finding is effective, the Memphis TN-AR Nonattainment Area will be
reclassified by operation of law from marginal nonattainment to
moderate nonattainment. The reclassification to the next higher
classification is mandated by Section 181(b)(2)(A) of the CAA. Moderate
areas are required to attain the standard ``as expeditiously as
practicable'' but no later than 6 years after designation or June 15,
2010. The ``as expeditiously as practicable'' attainment date will be
determined as part of the action on the required SIP submittal
demonstrating attainment of the 8-hour ozone standard. Also in this
action, EPA is establishing a schedule by which Tennessee and Arkansas
will submit the SIP revisions necessary for the reclassification to
moderate nonattainment of the 8-hour ozone standard.

B. When Must Tennessee and Arkansas Submit SIP Revisions Fulfilling the
Requirements for Moderate Ozone Nonattainment Areas

EPA must address the schedule by which Tennessee and Arkansas are
required to submit revised SIPs addressing the requirements for the
Memphis TN-AR moderate Nonattainment Area. When an area is
reclassified, EPA has the authority under section 182(i) of the CAA to
adjust the CAA's submittal deadlines for any new SIP revisions that are
required as a result of the reclassification. Pursuant to 40 CFR
51.908(d), for each nonattainment area, a state must provide for
implementation of all control measures needed for attainment no later
than the beginning of the attainment year ozone season. The attainment
year ozone season is the ozone season immediately preceding a
nonattainment area's attainment date, in this case 2009 (40 CFR
51.900(g)). The ozone season is the ozone monitoring season as defined
in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (October 17,
2006, 71 FR 61236). For the purposes of this reclassification of the
Memphis TN-AR Nonattainment Area, March 1, 2009, is the beginning of
the ozone monitoring season. As a result, EPA is requiring that the
necessary SIP revisions be submitted by both Tennessee and Arkansas as
expeditiously as practicable, but no later than March 1, 2009.
A revised SIP must include all the moderate area requirements in
section 182(b) of the CAA including: (1) An attainment demonstration
(40 CFR 51.908); (2) provisions for reasonably available control
technology and reasonably available control measures (40 CFR 51.912);
(3) reasonable further progress reductions in volatile organic compound
(VOC) emissions (40 CFR 51.910); (4) contingency measures to be
implemented in the event of failure to meet a milestone or attain the
standard (CAA 172(c)(9)); (5) a vehicle inspection and maintenance
program (40 CFR 51.350); and (6) nitrogen oxide and VOC emission
offsets of 1.15 to 1 for major source permits (40 CFR 51.165(a)).

IV. Final Action

Pursuant to CAA section 181(b)(2), EPA is making a final
determination that the Memphis TN-AR marginal 8-hour Ozone
Nonattainment Area failed to attain the 8-hour ozone NAAQS by June 15,
2007. Upon the effective date of this rule, the Memphis TN-AR marginal
8-hour Ozone Nonattainment Area will be reclassified by operation of
law as a moderate 8-hour ozone nonattainment area. Pursuant to section
182(i) of the CAA, EPA is establishing the schedule for submittal of
the SIP revisions required for moderate areas once the area is
reclassified. The required SIP revisions for Tennessee and Arkansas
shall be submitted as expeditiously as practicable, but no later than
March 1, 2009.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive

[[Page 16551]]

Order. The Agency has determined that the finding of nonattainment
would result in none of the effects identified in the Executive Order.
Under section 181(b)(2) of the CAA, determinations of nonattainment are
based upon air quality considerations and the resulting
reclassifications must occur by operation of law.

B. Paperwork Reduction Act

This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This action to reclassify the Memphis TN-AR Nonattainment Area as a
moderate ozone nonattainment area and to adjust applicable deadlines
does not establish any new information collection burden. Burden means
the total time, effort, or financial resources expended by persons to
generate, maintain, retain, or disclose or provide information to or
for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information. An agency may not conduct or
sponsor, and a person is not required to respond to a collection of
information unless it displays a currently valid Office of Management
and Budget (OMB) control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies the rule
will not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see, 13 CFR part 121); (2) a small
governmental jurisdiction 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-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. Determinations of nonattainment and the
resulting reclassification of nonattainment areas by operation of law
under section 181(b)(2) of the CAA do not in and of themselves create
any new requirements. Instead, this rulemaking only makes a factual
determination, and does not directly regulate any entities. After
considering the economic impacts of today's action on small entities, I
certify that this rule will not have a significant economic impact on a
substantial number of 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
one 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 to 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.
This action does not include a Federal mandate within the meaning
of UMRA that may result in expenditures of $100 million or more in any
one year by either State, local, or Tribal governments in the aggregate
or to the private sector, and therefore, is not subject to the
requirements of sections 202 and 205 of the UMRA. Also, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and therefore,
is not subject to the requirements of sections 203. EPA believes, as
discussed previously in this document, that the finding of
nonattainment is a factual determination based upon air quality
considerations and that the resulting reclassification of the area must
occur by operation of law. Thus, EPA believes that the finding does not
constitute a Federal mandate, as defined in section 101 of the UMRA,
because it does not impose an enforceable duty on any entity.

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 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 final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This action merely determines
that the Memphis TN-AR Nonattainment Area had not attained by its
applicable attainment date, reclassifies the Memphis TN-AR
Nonattainment Area as a moderate ozone nonattainment area and adjusts
applicable deadlines. Thus, Executive Order 13132 does not apply to
this rule.

[[Page 16552]]

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 action does not have
``Tribal implications'' as specified in Executive Order 13175. This
action merely determines that the Memphis TN-AR Nonattainment Area has
not attained by its applicable attainment date, reclassifies the
Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area
and adjusts applicable deadlines. The CAA and the Tribal Authority Rule
establish the relationship of the Federal government and Tribes in
developing plans to attain the NAAQS, and this rule does nothing to
modify that relationship. Thus, Executive Order 13175 does not apply to
this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

Executive Order 13045, entitled ``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 action
is not subject to Executive Order 13045 because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health risks or
safety risks addressed by this rule present a disproportionate risk to
children. This action merely determines that the Memphis TN-AR
Nonattainment Area has not attained by its applicable attainment date,
reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone
nonattainment area and adjusts applicable deadlines.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

This action is not subject to Executive Order 13211, entitled
``Actions That Significantly Affect Energy Supply, Distribution, or
Use,'' (66 FR 28355, May 22, 2001) because it is not a significant
regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

As noted in the proposed rule, Section 12(d) of the National
Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 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 action
merely determines that the Memphis TN-AR Nonattainment Area has not
attained by its applicable attainment date, reclassifies the Memphis
TN-AR ``marginal'' Nonattainment Area as a ``moderate'' ozone
nonattainment area and adjusts applicable deadlines. Therefore, EPA did
not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not affect the level of
protection provided to human health or the environment. This action
merely determines that the Memphis TN-AR Nonattainment Area has not
attained by its applicable attainment date, and reclassifies the
Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area
and adjusts applicable deadlines.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

L. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 27, 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 to reclassify the Memphis TN-AR area as a moderate ozone
nonattainment area and to adjust applicable deadlines may not be
challenged later in proceedings to enforce its requirements. (See,
section 307(b)(2).)

List of Subjects in 40 CFR Part 81

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

Dated: March 14, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
Dated: March 19, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

[[Page 16553]]

Subpart C--Section 107 Attainment Status Designations

0
2. In Sec. 81.304 the table for Arkansas--Ozone (8-hour Standard) is
amended by revising the entry for Memphis, TN-AR and footnote 2 to read
as follows:

Sec. 81.304 Arkansas.

* * * * *

Arkansas--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Memphis, TN-AR: (AQCR 018 Metropolitan ........... Nonattainment............................ (\2\) Subpart 2/Moderate.
Memphis Interstate) Crittenden County.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ April 28, 2008.

* * * * *
0
3. In Sec. 81.343 the table for Tennessee--Ozone (8-hour Standard) is
amended by removing footnote 3 and revising the entry for ``Memphis,
TN-AR'' to read as follows:

Sec. 81.343 Tennessee.

* * * * *

Tennessee--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Memphis, TN-AR: Shelby County........ ............... Nonattainment.......................... March 28, 2008 Subpart 2/Moderate.

* * * * *
[FR Doc. E8-6287 Filed 3-27-08; 8:45 am]

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