Rules and Regulations. Final rule

27,012 words·~123 min read·/register/2007/05/16/07-2404

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30549 Amdt. No. 3217] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements.

These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective May 16, 2007. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 16, 2007.

ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . *For Purchase* —Individual SIAP and Weather Takeoff Minimums copies may be obtained from: 1.

FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs and Weather Takeoff Minimums mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd.

Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone:

(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center

(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;

(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and

(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on May 4, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: Effective 7 JUN 2007 Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 25L; ILS RWY 25L (CAT II); ILS RWY 25L (CAT III), Amdt 10A Effective 5 JUL 2007 Buckland, AK, Buckland, RNAV

(GPS)RWY 11, Amdt 1 Buckland, AK, Buckland, RNAV

(GPS)RWY 29, Orig Buckland, AK, Buckland, NDB/DME RWY 11, Amdt 1 Buckland, AK, Buckland, NDB/DME RWY 29, Amdt 1 Buckland, AK, Buckland, Takeoff Minimums and Obstacle DP, Amdt 1 Emmonak, AK, Emmonak, RNAV

(GPS)RWY 16, Amdt 2 Emmonak, AK, Emmonak, RNAV

(GPS)RWY 34, Amdt 2 Homer, AK, Homer, RNAV

(GPS)Y RWY 3, Orig Homer, AK, Homer, RNAV

(GPS)Y RWY 21, Orig Homer, AK, Homer, RNAV

(GPS)Z RWY 3, Orig Homer, AK, Homer, RNAV

(GPS)Z RWY 21, Orig Homer, AK, Homer, GPS RWY 3, Orig-B, CANCELLED Homer, AK, Homer, GPS RWY 21, Orig-B, CANCELLED Noatak, AK, Noatak, NDB/DME RWY 1, Amdt 2 Noatak, AK, Noatak, Takeoff Minimums and Obstacle DP, Amdt 1 Pago Pago, AS, Pago Pago Intl, Takeoff Minimums and Textual DP, Amdt 4 Ash Flat, AR, Sharp County Regional, RNAV

(GPS)RWY 4, Orig Ash Flat, AR, Sharp County Regional, RNAV

(GPS)RWY 22, Orig Ash Flat, AR, Sharp County Regional, GPS RWY 4, Orig-B, CANCELLED Ash Flat, AR, Sharp County Regional, Takeoff Minimums and Obstacle DP, Orig Phoenix, AZ, Phoenix Sky Harbor Intl, RNAV

(GPS)RWY 25L, Orig-B Phoenix, AZ, Phoenix Sky Harbor Intl, RNAV

(GPS)RWY 25R, Amdt 1A Jacksonville, FL, Cecil Field, ILS OR LOC RWY 36R, Amdt 1 Jacksonville, FL, Cecil Field, Takeoff Minimums and Obstacle DP, Orig Cartersville, GA, Cartersville, RNAV

(GPS)RWY 1, Amdt 1 Lawrenceville, GA, Gwinnett County-Briscoe Field, RNAV (GPS)-A, Orig Lawrenceville, GA, Gwinnett County-Briscoe Field, GPS-A, Orig-A, CANCELLED Boise, ID, Boise Air Terminal/Gowen Fld, RNAV

(GPS)RWY 10L, Amdt 2 Boise, ID, Boise Air Terminal/Gowen Fld, RNAV

(GPS)RWY 10R, Amdt 1 Boise, ID, Boise Air Terminal/Gowen Fld, RNAV

(GPS)RWY 28L, Amdt 3 Boise, ID, Boise Air Terminal/Gowen Fld, RNAV

(GPS)RWY 28R, Amdt 2 Boise, ID, Boise Air Terminal/Gowen Fld, LOC BC RWY 28L, Amdt 1 Boise, ID, Boise Air Terminal/Gowen Fld, NDB RWY 10R, Amdt 28 Chicago, IL, Lansing Muni, RNAV

(GPS)RWY 9, Orig Chicago, IL, Lansing Muni, RNAV

(GPS)RWY 27, Orig Chicago, IL, Lansing Muni, GPS RWY 27, Orig-A, CANCELLED Chicago, IL, Lansing Muni, VOR-A, Amdt 6 Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 10, Amdt 15 Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 14R, ILS RWY 14R (CAT II); ILS RWY 14R (CAT III), Amdt 30 Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 28, ILS RWY 28 (CAT II); ILS RWY 28 (CAT III), Amdt 14 Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 32L, Amdt 2 Chicago, IL, Chicago-O'Hare Intl, RNAV

(GPS)RWY 10, Amdt 2 Chicago, IL, Chicago-O'Hare Intl, RNAV

(GPS)RWY 14R, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV

(GPS)RWY 28, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV

(GPS)Y RWY 27L, Orig, CANCELLED Hugoton, KS, Hugoton Muni, RNAV

(GPS)RWY 2, Orig Hugoton, KS, Hugoton Muni, RNAV

(GPS)RWY 20, Orig Hugoton, KS, Hugoton Muni, NDB RWY 2, Amdt 3 Hugoton, KS, Hugoton Muni, Takeoff Minimums and Obstacle DP, Amdt 1 Middlesboro, KY, Middlesboro-Bell County, RNAV (GPS)-A, Orig Waterville, ME, Waterville Robert LaFleur, RNAV

(GPS)RWY 23, Orig Plymouth, MA, Plymouth Muni, RNAV

(GPS)RWY 6, Orig Plymouth, MA, Plymouth Muni, GPS RWY 6, Amdt 2B, CANCELLED Brainerd, MN, Brainerd Lakes Rgnl, RNAV

(GPS)RWY 12, Orig Brainerd, MN, Brainerd Lakes Rgnl, RNAV

(GPS)RWY 23, Orig Brainerd, MN, Brainerd Lakes Rgnl, RNAV

(GPS)RWY 30, Orig Brainerd, MN, Brainerd Lakes Rgnl, ILS OR LOC RWY 23, Amdt 7 Brainerd, MN, Brainerd Lakes Rgnl, NDB RWY 23, Amdt 6 Canby, MN, Myers Field, RNAV

(GPS)RWY 12, Orig Canby, MN, Myers Field, RNAV

(GPS)RWY 30, Orig Canby, MN, Myers Field, Takeoff Minimums and Obstacle DP, Orig Kirksville, MO, Kirksville Rgnl, ILS OR LOC/DME RWY 36, Orig Kirksville, MO, Kirksville Rgnl, RNAV

(GPS)RWY 18, Amdt 1 Kirksville, MO, Kirksville Rgnl, RNAV

(GPS)RWY 36, Amdt 1 Kirksville, MO, Kirksville Rgnl, LOC/DME RWY 36, Amdt 6B, CANCELLED Kirksville, MO, Kirksville Rgnl, Takeoff Minimums and Textual DP, Orig Greenville, MS, Mid Delta Regional, VOR/DME RWY 18R, Orig Greenville, MS, Mid Delta Regional, VOR/DME RWY 18L, Amdt 13 Greenville, MS, Mid Delta Regional, VOR RWY 18R, Amdt 5A, CANCELLED Starkville, MS, George M. Bryan, NDB-C, Amdt 3 Starkville, MS, George M. Bryan, Takeoff Minimums and Obstacle DP, Orig Vicksburg, MS, Vicksburg Muni, RNAV

(GPS)RWY 1, Orig Vicksburg, MS, Vicksburg Muni, NDB RWY 1, Amdt 2 Vicksburg, MS, Vicksburg Muni, Takeoff Minimums and Obstacle DP, Amdt 2 West Point, MS, McCharen Field, Takeoff Minimums and Obstacle DP, Amdt 1 Millville, NJ, Millville Muni, VOR-A, Amdt 1 Wilmington, OH, Clinton Field, RNAV

(GPS)RWY 3, Orig Wilmington, OH, Clinton Field, RNAV

(GPS)RWY 21, Orig Wilmington, OH, Clinton Field, GPS RWY 21, Orig, CANCELLED Wilmington, OH, Clinton Field, VOR-A, Amdt 2 Wilmington, OH, Clinton Field, Takeoff Minimums and Obstacle DP, Amdt 2 Madras, OR, City-County, RNAV (GPS)-A, Orig Madras, OR, City-County, Takeoff Minimums and Textual DP, Orig St. Marys, PA, St. Marys Muni, LOC/DME RWY 28, Amdt 4 Jacksboro, TN, Campbell County, RNAV

(GPS)RWY 23, Orig Jacksboro, TN, Campbell County, GPS RWY 23, Orig-A, CANCELLED Beeville, TX, Beeville Muni, RNAV

(GPS)RWY 12, Orig Beeville, TX, Beeville Muni, RNAV

(GPS)RWY 30, Orig Beeville, TX, Beeville Muni, NDB OR GPS RWY 30, Amdt 2A, CANCELLED Beeville, TX, Beeville Muni, VOR/DME RWY 12, Amdt 6 Beeville, TX, Beeville Muni, Takeoff Minimums and Obstacle DP, Orig Bryan, TX, Coulter Field, RNAV

(GPS)RWY 15, Orig Bryan, TX, Coulter Field, RNAV

(GPS)RWY 33, Orig Bryan, TX, Coulter Field, VOR/DME-A, Amdt 3 Bryan, TX, Coulter Field, Takeoff Minimums and Obstacle DP, Orig Coleman, TX, Coleman Muni, NDB RWY 15, Amdt 2, CANCELLED Houston, TX, George Bush Intercontinental/Houston, ILS OR LOC RWY 33R, Amdt 12 Houston, TX, George Bush Intercontinental/Houston, RNAV

(GPS)RWY 33R, Amdt 1 Longview, TX, East Texas Regional, RNAV

(GPS)RWY 13, Orig Longview, TX, East Texas Regional, RNAV

(GPS)RWY 17, Orig Longview, TX, East Texas Regional, RNAV

(GPS)RWY 31, Orig Longview, TX, East Texas Regional, RNAV

(GPS)RWY 35, Orig Longview, TX, East Texas Regional, Takeoff Minimums and Obstacle DP, Orig Effective 2 AUG 2007 Marshfield, MA, Marshfield Muni-George Harlow Field, Takeoff Minimums and Obstacle DP, Orig Indian Head, MD, Maryland, Takeoff Minimums and Obstacle DP, Amdt 1 Manchester, NH, Manchester, Takeoff Minimums and Obstacle DP, Amdt 6 Effective 30 AUG 2007 Tok, AK, Tok Junction, RNAV

(GPS)RWY 7, Orig-A Tok, AK, Tok Junction, RNAV (GPS)-A, Orig-A Chicago, IL, Chicago-O'Hare Intl, VOR RWY 22R, Amdt 9, CANCELLED French Lick, IN, French Lick Muni, NDB RWY 8, Orig-A, CANCELLED [FR Doc. E7-9242 Filed 5-15-07; 8:45 am] BILLING CODE 4910-13-P SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404 and 416 [Docket No. SSA-2006-0090] Applicability of Amendments—Additional Instances Where Administrative Sanctions Can Be Imposed—Title II and Title XVI AGENCY: Social Security Administration (SSA). ACTION: Announcement of applicability date. SUMMARY: On October 18, 2006, we published final rules in the **Federal Register** at 71 FR 61403 that made some revisions to 20 CFR 404.459 and 416.1340 to reflect section 201(a) of the Social Security Protection Act of 2004

(SSPA)providing for the imposition of administrative sanctions based on the failure to disclose information to us. Consistent with the effective date provisions enacted by Congress for section 201 of the SSPA, we stated in the preamble to those final rules that those sections of the regulations reflecting section 201 of the SSPA would not be applicable until implementation of the centralized computer file described in section 202 of the SSPA. That centralized computer file has now been fully implemented. Therefore, we are publishing this notice to announce the applicability date of the revisions to 20 CFR 404.459 and 416.1340. DATES: The amendments to 20 CFR 404.459 and 416.1450 published October 16, 2006 (71 FR 61403) became applicable November 27, 2006. FOR FURTHER INFORMATION CONTACT: Margaret Smilow, Social Insurance Specialist, Office of Income Security Programs, 252 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD. 21235-6401,

(410)965-7976. SUPPLEMENTARY INFORMATION: Section 207 of the Foster Care Independence Act of 1999 amended title XI of the Social Security Act by adding section 1129A to provide for the imposition of administrative sanctions by SSA against persons who knowingly make a statement that is false or misleading or omits a material fact for use in determining any right to or amount of monthly benefits under titles II or XVI of the Social Security Act. Section 201 of the SSPA of 2004 amended section 1129A to also allow for the imposition of the administrative sanction against persons who fail to disclose information that is material to eligibility or benefit amount if the person knows or should know that the withholding of such information is misleading. These sanctions are in addition to any other penalties prescribed by law that may result from false/misleading statements or failure to report material facts. The SSPA provided that this change would only apply with respect to violations committed after the date on which there was a title II and title XVI computerized system in place which would document reporting of monthly wages. The title XVI system became functional on November 27, 2006. The title II system became operational in 2005. As a result of the implementation of this computerized system on November 27, 2006, the revisions to 20 CFR 404.459 and 419.1340 expanding the situations where administrative sanctions may be imposed became applicable. A person is subject to a sanction for failing to disclose information that is material to determining title II/title XVI benefit eligibility or amounts if: • The person knows or should know the information is material to benefit eligibility or amount; and • The person knows or should know the withholding of the information is misleading; and • The failure to disclose occurred after November 27, 2006. We have revised our instructional manuals and other documents to reflect this additional instance where administrative sanctions may be imposed. Dated: May 8, 2007. Michael J. Astrue, Commissioner of Social Security. [FR Doc. E7-9226 Filed 5-15-07; 8:45 am] BILLING CODE 4191-02-P SOCIAL SECURITY ADMINISTRATION 20 CFR Part 498 [Docket No. SSA-2006-0044] Applicability of Amendment—Additional Instances Where Civil Monetary Penalties and/or Assessments Can Be Imposed AGENCY: Office of the Inspector General (OIG), Social Security Administration (SSA). ACTION: Announcement of applicability date. SUMMARY: This document announces that on November 27, 2006, the Commissioner of Social Security (Commissioner) implemented the centralized computer file described in section 202 of the Social Security Protection Act of 2004 (SSPA). Until this centralized computer file was implemented, the portion of the final rules published on May 17, 2006, at 71 FR 28574, relating to the imposition of civil monetary penalties and/or assessments for withholding of information from, or failure to disclose information to, SSA, was not in effect. DATES: The amendment to 20 CFR 498.102(a)(3) published May 17, 2006 (71 FR 28574) became applicable November 27, 2006. FOR FURTHER INFORMATION CONTACT: Kathy A. Buller, Chief Counsel to the Inspector General, Social Security Administration, Office of the Inspector General, Room 3-ME-1, 6401 Security Boulevard, Baltimore, MD 21235-6401,

(410)965-2827. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, *Social Security Online* , at *http://www.socialsecurity.gov.* SUPPLEMENTARY INFORMATION: Section 201(a)(1) of the SSPA, Public Law 108-203, amended section 1129 of the Social Security Act

(Act)(42 U.S.C. 1320a-8), to allow for the imposition of civil monetary penalties and/or assessments for the withholding of information from, or failure to disclose information to, SSA. Pursuant to section 201(d) of the SSPA, this amendment to section 1129 of the Act “shall apply with respect to violations committed after the date on which the Commissioner of Social Security implements the centralized computer file described in section 202” of the SSPA. Section 202 of the SSPA provided for the implementation by the Commissioner of “a centralized computer file recording the date of the submission of information by a disabled beneficiary (or representative) regarding a change in the beneficiary's work or earnings status.” On May 17, 2006, at 71 FR 28574, the OIG published the final rules reflecting and implementing the amendments to sections 1129 and 1140 of the Social Security Act made by the SSPA and Public Law 106-169, the Foster Care Independence Act of 1999, including section 201(a)(1) of the SSPA. At that time we stated the following regarding the implementation of section 201(a) of the SSPA: *Applicability Date:* Section 498.102(a)(3), as it relates to the withholding of information from, or failure to disclose information to, SSA, will be applicable upon implementation of the centralized computer file described in section 202 of Public Law 108-203. If you want information regarding the applicability date of this provision, call or write the SSA contact person. SSA will publish a document announcing the applicability date in a subsequent **Federal Register** document. The remainder of § 498.102(a)(3), currently in effect, is unaffected by this delay. On November 27, 2006, SSA fully implemented the centralized computer file described in section 202 of the SSPA. Therefore, pursuant to the requirements of section 201 of the SSPA and the final rules published at 71 FR 28574, this notice announces that 20 CFR 498.102(a)(3), as it relates to the withholding of information from, or failure to disclose information to, SSA, is applicable to violations committed after November 27, 2006. Dated: April 23, 2007. Patrick P. O'Carroll, Jr., Inspector General, Social Security Administration. [FR Doc. E7-9228 Filed 5-15-07; 8:45 am] BILLING CODE 4191-02-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-0517, EPA-R05-OAR-2006-0563; FRL-8314-4] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Michigan; Redesignation of Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County 8-Hour Ozone Nonattainment Areas to Attainment for Ozone AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is making determinations under the Clean Air Act

(CAA)that the nonattainment areas of Flint (Genesee and Lapeer Counties), Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing (Clinton, Eaton, and Ingham Counties), Muskegon (Muskegon County), Benton Harbor (Berrien County), Benzie County, Cass County, Huron County, and Mason County have attained the 8-hour ozone National Ambient Air Quality Standard (NAAQS). For the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas, these determinations are based on two overlapping three-year periods of complete, quality-assured ambient air quality monitoring data for the 2002-2004 seasons and the 2003-2005 seasons that demonstrate that the 8-hour ozone NAAQS has been attained in the areas. Quality assured monitoring data for 2006 show that the areas continue to attain the standard. For the Flint, Muskegon, Benton Harbor, and Cass County areas, these determinations are based on three years of complete quality-assured ambient air quality monitoring data for the 2004-2006 seasons that demonstrate that the 8-hour ozone NAAQS has been attained in the areas. In addition, quality-assured data for 2003-2005 also demonstrate that the 8-hour NAAQS was attained during this period. EPA is approving requests from the State of Michigan to redesignate the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County areas to attainment of the 8-hour ozone NAAQS. The Michigan Department of Environmental Quality

(MDEQ)submitted these requests on May 9, 2006 and June 13, 2006, and supplemented them on May 26, 2006, August 25, 2006, and November 30, 2006. In approving these requests, EPA is also approving, as revisions to the Michigan State Implementation Plan (SIP), the State's plans for maintaining the 8-hour ozone NAAQS through 2018 in these areas. EPA is also finding adequate and approving, for purposes of transportation conformity, the State's 2018 Motor Vehicle Emission Budgets (MVEBs) for the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County areas. DATES: This final rule is effective on May 16, 2007. ADDRESSES: EPA has established a docket for this action as it relates to the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas under Docket ID No. EPA-R05-OAR-2006-0517 and a docket for this action as it relates to the Flint, Muskegon, Benton Harbor, and Cass County areas under Docket ID No. EPA-R05-OAR-2006-0563. 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

(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. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Kathleen D'Agostino, Environmental Engineer, at

(312)886-1767 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-1767, *dagostino.kathleen@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: Table of Contents I. What Is the Background for This Rule? II. What Comments Did We Receive on the Proposed Actions? III. What Are Our Final Actions? IV. Statutory and Executive Order Review I. What Is the Background for This Rule? Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides (NO X ) and volatile organic compounds

(VOCs)react in the presence of sunlight to form ground-level ozone. NO X and VOCs are referred to as precursors of ozone. The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the current 8-hour standard, the ozone NAAQS was based on a 1-hour standard. At the time EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County areas were all designated as attainment under the 1-hour ozone NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. These designations and classifications became effective June 15, 2004. The CAA required EPA to designate as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001-2003. The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-7511f, respectively.) Subpart 1 (which EPA refers to as “basic” nonattainment) contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. Under EPA's Phase 1 8-hour ozone implementation rule, (69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at the time of designation at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2) (69 FR 23954). All other areas were covered under subpart 1, based upon their 8-hour design values (69 FR 23958). The Muskegon and Cass County areas were designated as subpart 2, 1-hour ozone moderate 1 nonattainment areas by EPA on April 30, 2004, (69 FR 23857, 23911), based on air quality monitoring data from 2001-2003. The Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benton Harbor, Benzie County, Huron County, and Mason County areas were all designated as subpart 1, 8-hour ozone nonattainment areas by EPA on April 30, 2004, (69 FR 23857, 23910-23911) based on 2001-2003 air quality monitoring data. 1 Under subpart 2 of the CAA, areas are further classified as marginal, moderate, serious, severe or extreme based on the design value for the area. Under section 181(a)(4) of the CAA, EPA may adjust the classification of an ozone nonattainment area to the next higher or lower classification if the design value for the area is within five percent of the cut-off for that higher or lower classification. On September 22, 2004, EPA adjusted the classification of several nonattainment areas which had been designated and classified under subpart 2 on April 30, 2004. At that time, EPA adjusted the classifications of the Muskegon and Cass County nonattainment areas from moderate to marginal (69 FR 56697, 56708-56709). It should be noted that the United States Court of Appeals for the District of Columbia Circuit has recently vacated EPA's April 30, 2004 “Final Rule to Implement the 8-Hour Ozone National Ambient Standard” (the Phase 1 implementation rule). *South Coast Air Quality Management District* v. *EPA* , No. 04-1200., 472 F.3d 882 (DC Cir. 2007). EPA issued a supplemental proposed rulemaking that set forth its views on the potential effect of the Court's ruling on these and other proposed redesignation actions. 72 FR 13452 (March 22, 2007) See discussion below. 40 CFR Section 50.10 and 40 CFR Part 50, Appendix I provide that the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d). On May 9, 2006, Michigan requested that EPA redesignate the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas to attainment for the 8-hour ozone standard. The State supplemented its redesignation requests on May 26, 2006 and August 25, 2006. The redesignation requests included three years of complete, quality-assured data for the period of 2002 through 2004, as well as complete quality assured data for 2005, indicating the 8-hour NAAQS for ozone had been attained for all of the areas covered by the request. Subsequently EPA reviewed the quality assured monitoring data for 2004-2006. These data show that these areas continued to attain the standard for 2004-2006. See Table 1 below. Table 1.—Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations Area County Monitor 2004 4th high

(ppm)2005 4th high

(ppm)2006 4th high

(ppm)2004-2006 average

(ppm)Grand Rapids Kent Grand Rapids 26-0810020 0.068 0.083 0.082 0.077 Evans 26-0810022 0.072 0.083 0.081 0.078 Ottawa Jenison 26-1390005 0.069 0.086 0.083 0.079 Kalamazoo-Battle Creek Kalamazoo Kalamazoo 26-0770008 0.068 0.081 0.068 0.072 Lansing-East Lansing Clinton Rose Lake 26-0370001 0.070 0.078 0.071 0.073 Ingham Lansing-East Lansing 26-0650012 0.068 0.082 0.071 0.073 Benzie Benzie Frankfort 26-0190003 0.075 0.086 0.080 0.080 Huron Huron Harbor Beach 26-0633006 0.068 0.077 0.073 0.072 Mason Mason Scottville 26-1050007 0.071 0.085 0.076 0.077 On June 13, 2006, Michigan requested that EPA redesignate the Flint, Muskegon, Benton Harbor, and Cass County areas to attainment for the 8-hour ozone standard. The State supplemented its requests on August 25, 2006 and November 30, 2006. The redesignation requests included three years of complete, quality-assured data for 2004-2006, indicating the 8-hour NAAQS for ozone had been attained for all of the areas covered by the request. Data submitted by the State also showed attainment in 2003-2005. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E). On December 7, 2006 (71 FR 70915), EPA proposed to make determinations that the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas have attained the 8-hour ozone NAAQS, and to approve the redesignations of the areas from nonattainment to attainment for the 8-hour ozone NAAQS. EPA also proposed to approve maintenance plan SIP revisions for the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas. Additionally, EPA found adequate and proposed to approve the 2018 Motor Vehicle Emissions Budgets (MVEBs) submitted by Michigan for these areas in conjunction with the redesignation requests. On January 8, 2007 (72 FR 699), EPA proposed to make determinations that the Flint, Muskegon, Benton Harbor, and Cass County areas have attained the 8-hour ozone NAAQS, and to approve the redesignations of the areas from nonattainment to attainment for the 8-hour ozone NAAQS. EPA also proposed to approve the maintenance plan SIP revisions for the Flint, Muskegon, Benton Harbor, and Cass County areas. Additionally, EPA found adequate and proposed to approve the 2018 MVEBs submitted by Michigan for these areas in conjunction with the redesignation requests. The rationale for EPA's proposed actions is explained in the notices of proposed rulemaking and will not be restated here. In addition, as noted above, EPA issued a supplemental proposed rulemaking setting forth EPA's views on the potential impact of the Court's ruling in *South Coast Air Quality Management District* v *EPA* . EPA provided a 15-day review and comment period on this supplemental proposed rulemaking. The public comment period closed on April 6, 2007. EPA received six comments, all supporting EPA's supplemental proposed rulemaking, and supporting redesignation of the affected areas. EPA recognizes the support provided in these comments but does not believe any specific response to comments is necessary with respect to these comments. In addition, several of these comments included additional rationale for proceeding with these proposed designations. EPA had not requested comment on any additional rationale, does not believe any additional rationale is necessary, and similarly does not believe any specific response to these comments is necessary, and thus has not provided any. II. What Comments Did We Receive on the Proposed Actions? EPA provided a 30-day review and comment period on the proposed rules. The public comment periods closed on January 1, 2007 and February 7, 2007. EPA received a letter from the Crystal Lake Watershed Association in favor of the redesignation of Benzie County. EPA received adverse comments from the Little River Band of Ottawa Indians and from three citizens. Unless an area was specifically identified by the commentor, EPA assumed that the comment applied to all areas. A summary of the adverse comments received, and EPA's responses, follows.

(1)*Comment:* Redesignation of Mason, Benzie and Muskegon Counties at this time would be premature because the data are misleading. Although the three-year averages for both Mason and Benzie Counties during the period of 2002-2004, 2003-2005 and 2004-2006 were less than 0.085 parts per million (ppm), which puts both counties into attainment for the 8-hour ozone NAAQS, 2004 was a statistical outlier. This argument could be extended to other counties affected by EPA's proposals. *Response:* The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that, among other things, the Administrator determines that the area has attained the applicable NAAQS. A determination that an area has attained the standard is based on an objective review of air quality data. There are no provisions in the CAA or in EPA redesignation policy for using monitoring data trends or statistical analyses as criteria for determining attainment in evaluating a redesignation request. EPA promulgated the current 8-hour ozone standard on July 18, 1997 (62 FR 38856). As discussed in detail in the proposed rule, an area is considered to be in attainment of the 8-hour ozone standard if the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year does not exceed 0.084 ppm. Three years of air quality data are used to allow for year-to-year variations in meteorology. The three year averaging period provides a reasoned balance between evening out meteorological effects and properly addressing real changes in emission levels. See 66 FR 53094, 53100 (October 19, 2000) (redesignation of Pittsburgh) and 69 FR 21717, 21719-21720 (April 22, 2004) (determination of attainment for the Bay Area). In the case of Mason and Benzie Counties, both areas have attained the standard for three three-year periods, which is also the case for the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing and Huron County areas. The Muskegon area has attained the standard for two three-year periods, which is also the case for the Flint, Benton Harbor and Cass County areas. In all cases, these areas have demonstrated attainment for longer than is required. As the commentor acknowledges, the areas are monitoring attainment of the 8-hour standard. EPA has no basis for using other criteria to determine if an area is attaining the 8-hour ozone NAAQS. It should be noted that, to put recent western Michigan meteorological monitoring data into perspective, EPA obtained historical temperature data recorded at the Muskegon County Airport from the National Oceanic and Atmospheric Administration's

(NOAA)National Climate Data Center. Review of average high temperatures and number of days with temperatures greater than or equal to 90°F recorded over the ozone season for the past 50 years indicates that the year-to-year variations recorded from 2003-2006, are typical of historical values. Average high temperatures are above the 50 year average for 2003, 2005 and 2006 and slightly below the 50 year average for 2004. Taken together, average high temperatures for the 2003-2005 and 2004-2006 time periods are above the 50 year average. Considering the number of days with temperatures of 90°F or greater, values for the 2003-2005 and 2004-2006 time periods are above the 50 year average. This information does not support the commentor's contention that abnormal meteorology was responsible for improvements in air quality. In addition, as discussed at length in the proposals, the areas have met the separate redesignation requirement of demonstrating that the improvement in air quality is due to permanent and enforceable emissions reductions. This further refutes the contention that favorable meteorology accounts for attainment.

(2)*Comment:* EPA should look with more scrutiny at the 4th highest 8-hour averages for each year. Reviewing these values, it is difficult to predict whether Benzie, Mason, and Muskegon Counties will be able to maintain the ozone standard starting with the 2005-2007 data, since the failing values for next year are close to what the values have been for the past two years. Muskegon has a failing value lower than the 4th highest 8-hour average for every year except 2004. *Response:* As discussed above, neither the CAA nor EPA's interpretation of CAA requirements in policy memoranda provide for using monitoring data trends or statistical analyses as criteria for determining attainment for evaluating a redesignation request. Section 107(d)(3)(E) of the CAA allows for redesignation provided that, among other things, the Administrator determines that the area has attained the applicable NAAQS. As described in detail in the proposed rules, the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron County, and Mason County areas are all monitoring attainment of the 8-hour ozone NAAQS. In addition, consistent with the requirements of sections 175A and 107(d)(3)(E) of the CAA, Michigan has submitted maintenance plans for the areas which show continued maintenance and continuing reductions in NO X and VOC emissions through 2018, further decreasing peak ozone levels and maintaining ozone attainment. It should also be noted that reductions in emissions that have occurred and that will continue to occur in upwind areas will contribute to maintenance of the NAAQS in these areas. Some of these measures include the NO X SIP call, stationary source NO X regulations, the National Low Emission Vehicle

(NLEV)program, Tier 2 emission standards for vehicles (Tier 2), low sulfur diesel fuel standards and heavy-duty diesel engine standards. Additionally, Illinois, Indiana, Wisconsin, and Michigan, along with 25 other states and the District of Columbia, are subject to the Clean Air Interstate Rule, which should result in reduced NO X emissions and a reduction in transported ozone. Furthermore, as demonstrated by the contingency measure provisions required by section 175A(d), the CAA clearly anticipates and provides for situations where an area might monitor a violation of the NAAQs after having been redesignated to attainment. Michigan has included contingency measure provisions consistent with CAA requirements in their maintenance plans to address any possible future violation of the NAAQS.

(3)*Comment:* The results from 2004 are abnormally low due solely to the weather. While we agree that there is an overall downward trend, we insist that the unfavorable weather for ozone formation led to atypically low results in 2004. The results for that year are single handedly dragging down the three year average and artificially bringing the areas into attainment before they have reached a maintainable situation. The commentor is particulary concerned with the Benzie County, Mason County, and Muskegon areas. *Response:* It should be noted that as discussed above, the year to year temperature variations recorded from 2003-2006, are typical of historical values and EPA does not believe that the 2004 data were abnormally low. Moreover, as discussed in greater detail above, section 107(d)(3)(E)(i) of the CAA requires that the Administrator determine that the area has attained the applicable NAAQS. A determination that an area has attained the NAAQS is based on an objective review of air quality data. An area is considered to be in attainment of the 8-hour ozone standard if the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year does not exceed 0.084 ppm. Three years of air quality data are used to allow for year-to-year variations in meteorology. The adequacy of the ozone standard is not at issue in this rulemaking. Comments regarding the adequacy of the ozone standard would have more appropriately been submitted in response to the proposal of the 8-hour standard. In addition, as discussed above, Michigan has submitted maintenance plans which show continuing reductions in NO X and VOC emissions through 2018, and include contingency measure provisions to address any possible future violation of the NAAQS. Moreover, as discussed in the proposals, 71 FR 70921 (December 7, 2006) and 72 FR 704-705 (January 8, 2007), Michigan has shown that the improvement in air quality is due to permanent and enforceable emissions reductions, and not to favorable meteorology. Emission reductions from within the areas, as well as regional reductions from upwind areas, are responsible for attainment. Reductions in VOC and NO X emissions have occurred in Michigan, as well as in upwind areas, as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include: The NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In accordance with EPA's NO X SIP call, Michigan developed rules to control NO X emissions from electric generating units (EGUs), major non-EGU industrial boilers, and major cement kilns. Between 2000 and 2004, this resulted in a 40,577 ton reduction in ozone season NO X emissions. Illinois and Indiana have also adopted regulations to comply with the NO X SIP call which have resulted in a 155,831 ton reduction in ozone season NO X emissions between 2000 and 2004. While Wisconsin was not subject to the NO X SIP call, the state has adopted NO X regulations to meet rate of progress requirements. The emission reductions from all of these programs are permanent and enforceable.

(4)*Comment:* MDEQ's maintenance plans do not address the fact that the Lake Michigan shoreline counties are overwhelmingly impacted by ozone originating from sources across the lake in the Chicago-Gary-Milwaukee area. Instead, MDEQ insists on controlling local sources when the reason for the problem is solely rooted in pollution traveling on prevailing winds across the lake. It is disingenuous for MDEQ to submit a maintenance plan to EPA that does not address the need for controlling these distant sources as they are the root cause. Furthermore, it is equally as wrong for EPA to accept such a request without reassurances from MDEQ in writing to pursue its options in Section 126 of the CAA regardless of the consequences. EPA should deny MDEQ's request unless they include Section 126 provisions in the maintenance plan. If EPA chooses to accept this request without commitments in writing from MDEQ to pursue its options under Section 126, then the onus is on EPA to pursue those actions. The commentor is particularly concerned with the Benzie County, Mason County and Muskegon areas. *Response:* MDEQ has included in its maintenance plans, control measures which the State has the authority to adopt and enforce. MDEQ does not have the authority to adopt and enforce measures to control sources located in Illinois, Indiana, or Wisconsin. It would be inappropriate for the State to include in its maintenance plans contingency measures that it could neither adopt nor enforce. Section 110(a)(2)(D) of the CAA, which applies to all SIPs for each pollutant covered by a NAAQS, and for all areas regardless of their attainment designation, provides that a SIP must contain provisions preventing its sources from contributing significantly to nonattainment problems or interfering with maintenance in downwind States. Section 126 of the CAA authorizes a downwind state to petition EPA for a finding that any new or existing major stationary source or group of stationary sources upwind of the state emits or would emit in violation of the prohibition of section 110(a)(2)(D) because their emissions contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in the state. Michigan retains the authority, under section 126 of the CAA, to petition EPA should this become necessary in the future. It is unnecessary for Michigan to cite section 126 of the CAA in its maintenance plans to preserve this option. Upwind areas will remain subject to the provisions of section 110(a)(2)(D) and section 126 after the areas are redesignated to attainment, and redesignation will not remove the protections of these provisions for lakeshore counties. Furthermore, Section 110(k)(5) authorizes EPA to find that a SIP is substantially inadequate to meet any CAA requirement, as well as to mitigate interstate transport of the type described in section 184 (concerning ozone transport in the northeast) or section 176A (concerning interstate transport in general), and thereby require the State to submit, within a specified period, a SIP revision to correct the inadequacy. EPA exercised this authority in issuing the NO X SIP call, and would do so again, as necessary, if it finds that SIPs do not adequately address transport. In fact, upwind areas, including Chicago-Gary-Lake County, IL-IN and Milwaukee-Racine, WI, are continuing to implement measures to reduce ozone precursors; including the NO X SIP call, stationary source NO X regulations, NLEV, Tier 2, low sulfur diesel fuel standards and heavy-duty diesel engine standards. Additionally, Illinois, Indiana, Wisconsin, and Michigan, along with 25 other states and the District of Columbia, are subject to the Clean Air Interstate Rule, which should result in reduced NO X emissions and a reduction in transported ozone.

(5)*Comment:* One commenter disagreed with the assertion that Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated Nov. 6, 2000, (E.O. 13175) does not apply to the Region's proposed approval of MDEQ's requests to redesignate certain counties from “non-attainment” to “attainment” for ozone pursuant to Section 107(d) of the Clean Air Act. The commenter states that EPA's action has tribal implications under E.O. 13175. *Response:* E.O. 13175 was signed on November 6, 2000, and sets forth various provisions regarding consultation and coordination between Federal agencies undertaking “policies that have tribal implications” and Indian tribal governments. Under E.O, 13175, the term “policies that have tribal implications” refers to “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.” It is not necessary to address the scope of E.O. 13175 at this time. Federal policy and EPA's 1984 Indian Policy encourage the Agency to consult with Tribes prior to taking actions that affect Tribal governments. Recognizing tribal interest in this matter, the Region offered to consult with all Michigan Tribes with respect to the redesignation requests. Five Tribes accepted this offer, and consultation occurred by means of a conference call on August 30, 2006 and a face-to-face meeting held at the Nottawaseppi Huron Band of Potawatomi Indians tribal center on September 26, 2006. Consequently, the purposes of the executive order were satisfied in this case.

(6)*Comment:* Even though EPA was only required to consult with tribes once, it is by no means prohibited from talking to them again. At the very least there are two requests submitted by MDEQ (May 9, 2006 and June 13, 2006) which should translate to two consultation processes. Furthermore, the effectiveness of the consultation process has been significantly diminished since the current Regional Administrator and Air Division Director were not in their current positions or on leave when the meeting took place. *Response:* We believe that the consultation process was constructive and appreciate the considered comments provided by the Little River Band of Ottawa Indians. However, at this time we believe that the conference call and meeting constitute adequate consultation and do not believe that value would be added through additional consultation on this issue. Both the May 9, 2006, and June 13, 2006, redesignation submittals were discussed in the conference call and at the meeting. Furthermore, the comments do not raise any issues that were not discussed during the consultation. With respect to EPA management changes, we believe that this has no bearing on the effectiveness or adequacy of the consultation process. Appropriate EPA representatives participated in the consultation process and current management has been comprehensively briefed.

(7)*Comment:* The CAA requires EPA to act within 18 months of the submission of a redesignation request. Michigan submitted the requests on May 9, 2006 and June 13, 2006. This means EPA does not have to approve or deny the requests until November 9, 2007 and December 13, 2007, respectively. Thus, EPA could choose to wait and see what will happen with these counties after the end of next ozone season. More importantly though, EPA could see what the three-year average is without the abnormally low 2004 data skewing the results. EPA should hold off on redesignating these counties until after 2007's ozone season is complete. *Response:* As noted above in responses to comments, the year to year temperature variations recorded from 2003-2006, are typical of historical values and EPA does not believe that the 2004 data were abnormally low. Moreover, as set forth above in response to comments, three years of air quality data are used in determining attainment with the standard to allow for year-to-year variations in meteorology. In any event, delay of the redesignation is not necessary because the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron County, and Mason County areas are all in attainment of the 8-hour ozone standard and have otherwise met all applicable requirements for redesignation. For the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas, attainment was achieved at the end of the 2004 ozone monitoring season, when each of the areas attained the ozone standard with quality assured 2002-2004 monitoring data. Since that time, MDEQ has collected and reported quality assured monitoring data for 2005 and 2006, resulting in three 3-year periods of monitored attainment. For the Flint, Muskegon, Benton Harbor, and Cass County areas, attainment was achieved at the end of the 2005 ozone monitoring season, when each of the areas attained the ozone standard with quality assured 2003-2005 monitoring data. Since that time, MDEQ has collected and reported quality assured monitoring data for 2006, resulting in two 3-year periods of monitored attainment. Furthermore, as demonstrated in Michigan's maintenance plans, VOC and NO X emissions will continue to decline through 2018, further decreasing peak ozone levels and maintaining attainment of the ozone standard. MDEQ has met all of the criteria for redesignation contained in the CAA; therefore EPA has no basis for delaying approval of the State's request.

(8)*Comment:* For the Mason County ozone monitor, MDEQ discounted the 8-hour average value of 0.089 ppm, recorded on June 17, which was the 3rd highest 8-hour average for 2006. This change caused the 4th highest value to drop from 0.083 ppm to 0.076 ppm. The reason given for discounting monitoring data recorded on June 17 at the Mason County ozone monitor was that the shelter temperature exceeded acceptable limits due to a faulty air conditioner. Obviously, such failures skew samples results since the ozone is no doubt highest when high temperatures also prevail. Certainly, days discounted that are among the four highest are much more significant than those below it. Thus, it seems there should be a mechanism for documenting discounted days amongst the four highest for any monitor and the reason for discounting the data. *Response:* EPA has established specific quality assurance criteria for the collection of ambient data. One of these criteria, stated in Part 1, Section 7.1.2 of the EPA's “Quality Assurance Handbook for Air Pollution Measurement Systems,” is that ozone analyzers must be operated within a specific temperature range (20 °C to 30 °C). This temperature range is set because the instruments have been tested and qualified in this range of temperatures. Establishing a range of operating temperature ensures that the instrument's reported concentrations do not drift from actual concentration; therefore, when the temperature exceeds this range, data are no longer considered to have met the quality objectives and are considered missing for regulatory data calculations. In the EPA Air Quality Database (AQS), each hour has an ozone value and can be flagged for a variety of quality assurance reasons, including the shelter temperature being out of acceptable range. If the hourly value is flagged, then that hour is not used in the computation of the maximum 8-hour average. Every eight-hour average must have at least 6 hours of valid hourly values, otherwise it is assigned the value of missing. An ozone monitoring day is counted as a valid ozone monitoring day if at least 18 of the 24 possible 8-hour average periods are available, or the daily maximum 8-hour average concentration is greater than 0.08 ppm. Invalid days count against the design value completeness criteria; *i.e.* , 75% per year and 90% over three years. MDEQ appropriately flagged its hourly ozone concentrations in the AQS database when the monitoring shelter temperature exceeded 30 ° C and they correctly calculated the daily and annual statistics according to the EPA's “Guideline on Data Handling Conventions for the 8-hour Ozone NAAQS.” Furthermore, regardless of whether 0.083 ppm or 0.076 ppm is used as the 4th highest 8-hour average for 2006, the area is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006 period.

(9)*Comment:* June 17 was in the top four highest days at 20 out of 28 other Michigan sites for 2006. The Little River Band of Ottawa Indians operates an ozone monitor in Manistee County, which is the closest one to Mason County's monitor. The tribal monitor has a 4th highest 8-hour average of 0.083 ppm for 2006 as did Mason's before the removal of the June 17 reading. Could data from the tribal monitor be used to supplement missing data at the Mason County monitor? *Response:* As explained in EPA's “Guideline on Data Handling Conventions for the 8-hour Ozone NAAQS,” in certain situations, credit can be given toward meeting the 75% minimum data completeness requirement for days with monitoring data that would have had low ozone concentrations. However, as long as a site meets the 75% minimum data completeness requirement in a given year, EPA does not require that data substitution from nearby monitors occur for days that are missing data. The Mason County monitoring site meets the 75% requirement in 2006, so there is no requirement to assess nearby monitors on days with missing data. Also, as noted above, regardless of whether 0.083 ppm or 0.076 ppm is used as the 4th highest 8-hour average for 2006, the area is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006 period.

(10)*Comment:* For the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas, Michigan used emissions data from 1999 and 2002 to show that the improvement in air quality was due to permanent and enforceable reductions in emissions. Why would the state choose a time period the EPA used to designate the area nonattainment? *Response:* In developing an attainment inventory, Michigan could have chosen any of the years that the areas were monitoring attainment of the standard. Michigan developed the redesignation request based on ambient monitoring for the 2002-2004 time period showing that the areas had attained the NAAQS. (The areas have continued to monitor attainment for the 2003-2005 and 2004-2006 time periods.) It would have been acceptable for MDEQ to choose any of the three years, 2002, 2003, or 2004, as the year for the attainment inventory. (Because the areas continue to attain the NAAQS, 2005 or 2006 would also have been acceptable attainment years.) Michigan had developed a detailed emissions inventory for 2002 in support of regional modeling efforts, and chose this year for its attainment inventory. As discussed in more detail in the proposed rule (71 FR 70921), MDEQ demonstrated emissions reductions from 1999 to 2002 and detailed permanent and enforceable control measures over this time period that were responsible for the reduction in emissions. If Michigan had chosen a later year for its attainment inventory, it could have documented an even greater reduction in emissions, as the state has documented increasing emissions reductions from 2002 through 2018. Between 2002 and 2006, these areas, as well as areas upwind, have experienced further reductions in motor vehicle emissions due to the implementation of the NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In addition, the NO X SIP call required large reductions in NO X , beginning in 2004, for both Michigan and upwind areas. The emission reductions from all of these programs are permanent and enforceable.

(11)*Comment:* Air quality monitoring data for the Grand Rapids area shows an upward trend from 1997 through 2003. Why did EPA analyze 2002 emissions data to show the area has put on controls, when monitoring data indicates air quality problems? *Response:* Considering monitoring data from 1999 through 2006, which covers the time period that the Grand Rapids area is using to demonstrate monitored attainment with the standard, there are year to year variations, but overall ozone levels appear to be declining. The fact that the area has continued to monitor attainment of the standard for the three most recent three-year periods supports this view. As noted above, in response to Comment 10, Michigan could have chosen for its attainment inventory any of the years that the area was monitoring attainment of the standard. The state chose 2002 as the attainment year and documented permanent and enforceable control measures which were responsible for the reduction in emissions over the 1999-2002 time period. Table 5 set forth in the proposal (17 FR 70922, 70924) shows that the Grand Rapids area reduced VOC emissions by 9,949 tpy (18%) and NO X emissions by 20,276 tpy (28%). Had the state chosen a later attainment year, an even greater reduction in emissions could have been shown, as the state has documented increasing emissions reductions from 2002 through 2018. In addition to the emissions reductions documented in Table 5 of the proposal, subsequent emissions reductions in later years were obtained from the NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, heavy-duty diesel engine standards, and the NO X SIP call. Upwind areas have also experienced emissions reductions from these programs. See Response to Comment 10, above.

(12)*Comment:* Levels of ozone, particulate matter and other pollutants remain unacceptably high. EPA should require Michigan to move toward policies which improve air quality and pressure the Chicago, Illinois and Gary, Indiana areas to reduce pollution, which is transported to Michigan. *Response:* Under section 109 of the CAA, EPA is charged with promulgating NAAQS for criteria pollutants (including ozone and particulate matter) at levels protective of public health and welfare. EPA promulgated NAAQS for 8-hour ozone on July 18, 1997 (62 FR 38856). The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron County, and Mason County areas have demonstrated attainment of the 8-hour ozone standard. It should be noted that while this action does not relate to particulate matter, all of these areas are designated as attainment for particulate matter as well. This rule is a redesignation action that is designed to determine whether an area has met the requirements for redesignation to attainment for 8-hour ozone. Considerations of how to address issues of transport from upwind areas not related to the current redesignation action are not relevant for purposes of this action. As discussed elsewhere in responses to comments, Sections 126 and 110(a)(2)(D) remain available as mechanisms to address transport problems regardless of whether an area has been redesignated to attainment. It should be noted, however, that considerable progress has been made in reducing transported pollution. EPA has adopted and implemented the NO X SIP call, which has significantly reduced NO X emissions throughout the eastern half of the United States. In Michigan, Illinois, and Indiana alone, the NO X SIP call has been responsible for a reduction in ozone season NO X emissions in excess of 196,400 tons between 2000 and 2004. Other Federal measures including the NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards continue to be implemented and should result in reductions in upwind emissions. In addition, EPA finalized the Clean Air Interstate Rule

(CAIR)on May 12, 2005. CAIR is designed to achieve large reductions of sulfur dioxide (SO 2 ) and/or NO X emissions across 28 eastern states and the District of Columbia and specifically addresses the transported pollution from upwind states that affects downwind air quality problems. (Illinois, Indiana, Wisconsin and Michigan are all subject to CAIR.) SO 2 and NO X contribute to the formation of fine particles and NO X contributes to the formation of ground-level ozone.

(13)*Comment:* A commentor notes that EPA's 8-hour ozone designation Web site lists the 2001-2003 design value for the Grand Rapids area as 0.089 ppm. The commentor states that the design value for the area should be 0.090 ppm, based on the Jennison monitor. *Response:* Yearly 4th high 8-hour ozone averages at the Jennison monitor for the years 2001-2003 are 0.086, 0.093, and 0.090 ppm, respectively. Using the calculation procedures described in 40 CFR Part 50, Appendix I, which call for truncating after the third decimal place, rather than rounding, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations, *i.e.* , the design value, is 0.089 ppm.

(14)*Comment:* Considering the 4th highest 8-hour average for each year for each monitor in the Grand Rapids-Muskegon-Holland Consolidated Statistical Area, rather than the design value, long term trends show a regional air quality pattern of elevated and violating ozone concentrations. *Response:* It should be noted that the commentor is citing three separate nonattainment areas as if they were one entity. The Grand Rapids and Muskegon areas are monitoring attainment of the 8-hour ozone NAAQS and EPA has proposed to approve Michigan's requests to redesignate these areas to attainment. The Allegan County area (Holland) continues to monitor violations of the 8-hour ozone standard. Michigan has not requested that the Allegan County area be redesignated and this area is not addressed in this rulemaking. That being said, as discussed above, neither the CAA nor EPA's interpretation of CAA requirements in policy memoranda provide for using monitoring data trends or statistical analyses as criteria for ascertaining attainment for purposes of redesignation. Section 107(d)(3)(E) of the CAA allows for redesignation provided that, among other things, the Administrator determines that the area has attained the applicable NAAQS. As described in detail in the proposed rules, the Grand Rapids and Muskegon areas are monitoring attainment of the 8-hour ozone NAAQS. Furthermore, maintenance plans for Grand Rapids and Muskegon project maintenance of the standard through 2018. For Grand Rapids, the maintenance plan shows that the area will maintain the standard with emissions reductions of 27% and 63% for VOC and NO X , respectively, between 2002 and 2018. For Muskegon, the maintenance plan shows that the area will maintain the standard with emissions reductions of 19% and 31% for VOC and NO X , respectively, between 2005 and 2018. See 71 FR 70925 and 72 FR 707. Moreover, as described above in responses to comments, continuing reductions in emissions from upwind areas will further contribute to maintenance of the standard.

(15)*Comment:* EPA granted Michigan's requests to be exempt from NO X RACT regulation requirements when NO X has been pointedly and repeatedly implicated in the ozone formation process around Lake Michigan. Based on regional modeling performed by the Lake Michigan Air Directors Consortium, EPA should retract all NO X waiver requests involving the areas until such time that the associated NO X control measures are shown to be completely ineffective at addressing ozone air quality improvement in all areas impacted by those emissions. *Response:* EPA approved section 182(f) NO X waivers for the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and Mason County areas on June 6, 2006 (71 FR 32448). The issuance of NO X waivers for these areas is not at issue in this rulemaking. This comment would have more appropriately been submitted in response to the proposal to grant these waivers. The comment is not relevant to this redesignation action.

(16)*Comment:* There is not now any guarantee that a regional program will be adopted and implemented because areas in Region 5 are being allowed to be redesignated without viable maintenance plans that acknowledge the need for a comprehensive regional plan. *Response:* The role of a redesignation action is to address air quality and regulatory requirements in an individual nonattainment area, and not to serve as a mechanism to address regional air quality issues. As noted above, MDEQ has included in its maintenance plans, control measures which the state has the authority to adopt and enforce. EPA has reviewed these maintenance plans and found that they provide for maintenance of the ozone standard in accordance with sections 175A and 107(d)(3)(E). MDEQ does not have the authority to adopt and enforce measures to control sources located in other states. Neither does it have the authority to unilaterally compel other states to participate in the adoption and implementation of a regional control program. It would be inappropriate for the State to include in its maintenance plans contingency measures that it could neither adopt nor enforce. That being said, the redesignation of areas does not prohibit states from working together to ensure regional attainment and maintenance of the NAAQS. Indeed, it is in the states' best interest to do so. Section 110(a)(2)(D)(i) of the CAA requires states to include in their SIPs adequate provisions to prohibit any source or emissions activity within the state from emitting any air pollutant in amounts which will “contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard.* * *” The participation by states in multi-state regional planning facilitates the evaluation of states' responsibilities regarding this section of the CAA and promotes a cohesive plan for regional attainment and maintenance of the NAAQS. In fact, Michigan continues to participate in regional planning efforts through the Lake Michigan Air Director's Consortium. Redesignation of an area does not insulate it from the requirements or protection of section 110(a)(2)(D). Section 126 is also available to states to petition for redress if sources in an upwind state contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in the state. See prior responses to comments. In addition, as noted in prior responses to comments, regional emissions reductions due to the NO X SIP call, CAIR, and other regulations including the NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards will result in continued improvement in air quality throughout the region.

(17)*Comment:* There are not new controls on the books that will provide for demonstrated permanent air quality improvement by the expected attainment dates of 2007, 2009 and 2010. *Response:* The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron County, and Mason County areas are all monitoring attainment of the 8-hour ozone NAAQS. Therefore, future attainment dates are irrelevant to the redesignation. Moreover, as discussed in the proposals, 71 FR 70921 (December 7, 2006) and 72 FR 704-705 (January 8, 2007), Michigan has shown that the improvement in air quality is due to permanent and enforceable emissions reductions. Emission reductions from within the areas as well as regional reductions from upwind areas are responsible for attainment. Reductions in VOC and NO X emissions have occurred in Michigan, as well as in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include: The NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In compliance with EPA's NO X SIP call, Michigan developed rules to control NO X emissions from Electric Generating Units (EGUs), major non-EGU industrial boilers, and major cement kilns. Illinois and Indiana have also adopted and implemented regulations to comply with the NO X SIP call which have resulted in a reduction in NO X emissions. While Wisconsin was not subject to the NO X SIP call, the state has adopted NO X regulations to meet rate of progress requirements. The emission reductions from all of these programs are permanent and enforceable. Furthermore, MDEQ's maintenance plans show continued reductions in ozone precursor emissions through 2018. EPA believes that the maintenance plans meet the requirements of sections 175A and 107(d)(3)(E). Future emissions reductions can be expected both in Michigan and in upwind areas from programs including the NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, heavy-duty diesel engine standards, clean air non-road diesel rule and CAIR.

(18)*Comment:* The string of 4 monitors going into and downwind of the heart of the Grand Rapids metro area depends on the Holland (Allegan County) site being the lakeshore site. There is no lakeshore monitor in Ottawa County. If there were, it would clearly indicate ozone values closer to the levels monitored in the adjacent county north (Muskegon) or the adjacent county south (Allegan). *Response:* It should be noted that the ozone monitor in Muskegon County (the Muskegon area) is monitoring attainment of the ozone NAAQS; the monitor located in Allegan County is not. Michigan has not requested that the Allegan County area be redesignated and this area is not addressed in this rulemaking. EPA believes that the monitoring network for the Grand Rapids area satisfies the requirements of 40 CFR part 58, appendix D. The EPA has approved the Grand Rapids monitoring network as adequate and has not required a lakeshore monitor in Ottawa County. There is no basis on which to speculate what such a monitor would record if it were in place, and it would be inappropriate for EPA to use such speculation as a criterion for redesignation. As discussed above, section 107(d)(3)(E) of the CAA allows for redesignation provided that, among other things, the Administrator determines that the area has attained the applicable NAAQS. An area is considered to be in attainment of the 8-hour ozone standard if the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year does not exceed 0.084 ppm. The Grand Rapids area is monitoring attainment of the 8-hour ozone NAAQS, based on that criterion.

(19)*Comment:* EPA had previously approved Michigan's ozone monitoring plans with the understanding that the Grand Rapids metro area would be designated as a single area including all 4 counties (Allegan, Kent, Ottawa and Muskegon counties). All the counties contain urbanized areas and their metropolitan connections are clear in the driving/commuting and emissions statistics. EPA understood this when proposing the 8-hour designations based on the full metropolitan area. EPA utilized technical justifications for splitting the area into separate pieces that do not fit the criteria required in EPA's standing guidance. However, if the EPA feels the need to split the areas, then it should require a more protective monitor location for a monitor in Ottawa County. If classification is based on either the Holland or Muskegon site, then that test is met. *Response:* There is nothing in the record that supports the commentor's allegation. Michigan has been operating an approved monitoring network over the entire time period in question. EPA believes that the monitoring network for the Grand Rapids area satisfies the requirements of 40 CFR part 58, appendix D. EPA designated and classified the four counties as three separate areas (Grand Rapids, Muskegon, and Allegan County) under both the 1-hour ozone standard (56 FR 56778, November 6, 1991) and the 8-hour ozone standard (69 FR 23910-23911, April 30, 2004), based on the ozone monitoring data for each respective area. The 8-hour ozone designations, including area boundaries and the underlying monitoring data used for such designations, are not at issue in this rulemaking. Comments regarding the appropriateness of the 8-hour ozone designations would have more appropriately been submitted during the designation process. They are not relevant to a rulemaking on the redesignation of the area. Grand Rapids has an approved adequate monitoring network, and the monitors in Muskegon and Allegan are not relevant to making an attainment determination for Grand Rapids.

(20)*Comment:* The two-year average of fourth high 8-hour averages for Muskegon exceeds 0.085 ppm. According to the maintenance plan for Muskegon, MDEQ has six months from the close of the ozone season to review the circumstances leading to the high monitored values. This review should be completed by April 1, 2007. Will the review be completed by this date? What has MDEQ concluded? *Response:* Neither the CAA nor EPA policy memoranda contain the requirement that a state begin to implement a maintenance plan that has not yet been approved into the SIP, much less establish its implementation as a criterion for redesignation. The State will be required to implement its maintenance plans when they are approved as revisions to the SIP. III. What Are Our Final Actions? EPA is taking several related actions. EPA is making determinations that the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County areas have attained the 8-hour ozone NAAQS. EPA is also approving the State's requests to change the legal designations of the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron County, and Mason County areas from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also approving as SIP revisions Michigan's maintenance plans for the areas (such approval being one of the CAA criteria for redesignation to attainment status). Additionally, EPA is finding adequate and approving for transportation conformity purposes the 2018 MVEBs for the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron County, and Mason County areas. With respect to EPA's approval of the redesignation of each area and approval of its associated maintenance plan and MVEB's, EPA construes such actions as separate and independent from EPA's actions concerning the other areas subject to this rulemaking. Thus any challenge to EPA's action with respect to an individual area shall not affect EPA's actions with respect to the other areas named in this notice. EPA finds that there is good cause for these actions to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 553(d)(3) which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of planning requirements for these 8-hour ozone nonattainment areas. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions. IV. Statutory and Executive Order Review Executive Order 12866: Regulatory Planning and Review 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. Executive Order 12898: Environmental Justice Executive Order 12898 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 actions do not result in the relaxation of control measures on existing sources and therefore will not cause emissions increases from those sources. Overall, emissions in the areas are projected to decline following redesignation. Thus, today's actions will not have disproportionately high or adverse effects on any communities in the area, including minority and low-income communities Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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). Regulatory Flexibility Act This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. 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.* ). Unfunded Mandates Reform Act 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 (2 U.S.C. 1505). Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (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.” EPA has consulted with interested tribes in Michigan to discuss the redesignation process and the impact of a change in designation status of these areas on the tribes. Accordingly, EPA has complied with Executive Order 13175 to the extent that it applies to the action. Executive Order 13132: Federalism 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). Redesignation is an action that merely affects the status of a geographical area, does not impose any new requirements on sources, or allows a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 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 approves a state rule implementing a Federal Standard. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a program submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Act. Redesignation is an action that affects the status of a geographical area but does not impose any new requirements on sources. Thus, 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. Paperwork Reduction Act 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.* ). 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** . 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 July 16, 2007. 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 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: May 8, 2007. Bharat Mathur, Acting Regional Administrator, Region 5. Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart X—Michigan 2. Section 52.1170(e) is amended by adding entries to the table to read as follows: § 52.1170 Identification of plan.

(e)* * * EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date EPA approval date Comments * * * * * * * 8-hour ozone maintenance plan Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing (Clinton, Eaton, and Ingham Counties), Benzie County, Huron County, and Mason County 5/9/06, 5/26/06, and 8/25/06 5/16/2007 8-hour ozone maintenance plan Flint (Genesee and Lapeer Counties), Muskegon (Muskegon County), Benton Harbor (Berrien County), and Cass County 6/13/06, 8/25/06, and 11/30/06 5/16/2007 3. Section 52.1174 is amended by adding paragraphs

(x)and

(y)to read as follows: § 52.1174 Control strategy: Ozone.

(x)Approval—On May 9, 2006, Michigan submitted requests to redesignate the Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing (Clinton, Eaton, and Ingham Counties), Benzie County, Huron County, and Mason County areas to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The State supplemented its redesignation requests on May 26, 2006, and August 25, 2006. As part of its redesignation requests, the State submitted maintenance plans as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit subsequent maintenance plan revisions in 8 years as required by the Clean Air Act. If monitors in any of these areas record a violation of the 8-hour ozone NAAQS, Michigan will adopt and implement one or more contingency measures. The list of possible contingency measures includes: Lower Reid vapor pressure gasoline requirements; reduced volatile organic compound

(y)Approval—On June 13, 2006, Michigan submitted requests to redesignate the Flint (Genesee and Lapeer Counties), Muskegon (Muskegon County), Benton Harbor (Berrien County), and Cass County areas to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The State supplemented its redesignation requests on August 25, 2006, and November 30, 2006. As part of its redesignation requests, the State submitted maintenance plans as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit subsequent maintenance plan revisions in 8 years as required by the Clean Air Act. If monitors in any of these areas record a violation of the 8-hour ozone NAAQS, Michigan will adopt and implement one or more contingency measures. The list of possible contingency measures includes: Lower Reid vapor pressure gasoline requirements; reduced volatile organic compound

(VOC)content in architectural, industrial, and maintenance coatings rule; auto body refinisher self-certification audit program; reduced VOC degreasing rule; transit improvements; diesel retrofit program; reduced VOC content in commercial and consumer products rule; and a program to reduce idling. Also included in the Michigan's submittal were motor vehicle emission budgets (MVEBs) for use to determine transportation conformity in the areas. For the Flint area, the 2018 MVEBs are 25.68 tpd for VOC and 37.99 tpd for oxides of nitrogen (NO X ). For the Muskegon area, the 2018 MVEBs are 6.67 tpd for VOC and 11.00 tpd for NO X . For the Benton Harbor area, the 2018 MVEBs are 9.16 tpd for VOC and 15.19 tpd for NO X . For the Cass County area, the 2018 MVEBs are 2.76 tpd for VOC and 3.40 tpd for NO X . PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Section 81.323 is amended by revising the entries for Benton Harbor, MI: Berrien County; Benzie Co., MI: Benzie County; Cass County, MI:, Cass County; Flint, MI: Genesee and Lapeer Counties; Grand Rapids, MI: Kent and Ottawa Counties; Huron Co., MI: Huron County; Kalamazoo-Battle Creek, MI: Calhoun, Kalamazoo, and Van Buren Counties; Lansing-East Lansing, MI: Clinton Eaton, and Ingham Counties; Mason Co., MI, Mason County; Muskegon, MI: Muskegon County in the table entitled “Michigan—Ozone (8-Hour Standard)” to read as follows: § 81.323 Michigan. Michigan—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Classification Date 1 Type * * * * * * * Benton Harbor, MI: Berrien County 5/16/2007 Attainment Benzie County, MI: Benzie County 5/16/2007 Attainment * * * * * * * Cass County, MI: Cass County 5/16/2007 Attainment * * * * * * * Flint, MI: Genesee County 5/16/2007 Attainment Lapeer County Grand Rapids, MI: Kent County 5/16/2007 Attainment Ottawa County * * * * * * * Huron County, MI: Huron County 5/16/2007 Attainment * * * * * * * Kalamazoo-Battle Creek, MI: Calhoun County 5/16/2007 Attainment Kalamazoo County Van Buren County Lansing-East Lansing, MI: Clinton County 5/16/2007 Attainment Eaton County Ingham County Mason County, MI: Mason County 5/16/2007 Attainment * * * * * * * Muskegon, MI: Muskegon County 5/16/2007 Attainment * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-9289 Filed 5-15-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [EPA-HQ-OAR-2006-0085; FRL-8315-2] RIN 2060-AN84 Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action promulgates revisions to the General Provisions for Standards of Performance for New Stationary Sources, for National Emission Standards for Hazardous Air Pollutants, and for National Emission Standards for Hazardous Air Pollutants for Source Categories to allow for extensions to the deadline imposed for source owners and operators to conduct an initial or subsequent performance test required by applicable regulations. The General Provisions do not currently provide for extensions of the deadlines for conducting performance tests. DATES: This final rule is effective on May 16, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0085. 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, e.g., 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 through *www.regulations.gov* or in hard copy at the Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 202-566-1742. 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)566-1744. FOR FURTHER INFORMATION CONTACT: Ms. Lula Melton, Air Quality Assessment Division, Office of Air Quality Planning and Standards, (C304-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:

(919)541-2910; fax number:

(919)541-4511; e-mail address: *melton.lula@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? This action applies to any source whose owner or operator is required to conduct performance testing to demonstrate compliance with applicable standards under the General Provisions for Standards of Performance for New Stationary Sources, for National Emission Standards for Hazardous Air Pollutants, and for National Emission Standards for Hazardous Air Pollutants for Source Categories. B. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web

(WWW)through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the final amendments will be placed on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. C. Public Comments on Proposed Rule The EPA received 15 sets of public comments on the proposed amendments to the General Provisions for Standards of Performance for New Stationary Sources, for National Emission Standards for Hazardous Air Pollutants, and for National Emission Standards for Hazardous Air Pollutants for Source Categories during the 90-day comment period. These comments were submitted to the rulemaking docket. The EPA has carefully considered these comments in developing the final amendments. Summaries of the comments and EPA's responses are contained in this preamble. D. Judicial Review Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by July 16, 2007. Only those objections to this final rule that were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. E. How is this document organized? The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. Public Comments on Proposed Rule D. Judicial Review E. How is this document organized? II. Summary of Final Action and Rationale A. What are the requirements? B. Why did we amend the requirements for performance tests in the General Provisions? III. Responses to Comments A. Clarification of Approving Authority B. Force Majeure Concept C. Notifications D. Approvals E. Title V Deviations F. Other Comments 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 Risks and Safety Risks H. Executive Order 13211: Action That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act II. Summary of Final Action and Rationale A. What are the requirements? The final rule allows source owners or operators, in the event of a force majeure, to petition the Administrator for an extension of the deadline(s) by which they are required to conduct an initial or subsequent performance test required by applicable regulations. Performance tests required as a result of enforcement orders or enforcement actions are not covered by this rule because enforcement agreements contain their own force majeure provisions. A “force majeure” is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. If an affected owner or operator intends to assert a claim that a force majeure is about to occur, occurs, or has occurred, the owner or operator must notify the Administrator, in writing, as soon as practicable following the date the owner or operator first knew, or through due diligence should have known, that the event may cause or caused a delay in testing beyond the regulatory deadline. The owner or operator must provide a written description of the event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The test must be conducted as soon as practicable after the force majeure occurs. The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the Administrator. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable. If an owner or operator misses its performance test deadline due to a force majeure event, and the request for an extension is subsequently approved, the owner or operator will not be held in violation for failure to conduct the performance test within the prescribed regulatory timeframe. B. Why did we amend the requirements for performance tests in the General Provisions? We recognize that there may be circumstances beyond a source owner's or operator's control constituting a force majeure event that could cause an owner or operator to be unable to conduct performance tests before the regulatory deadline. We developed this rule to provide a mechanism for consideration of these force majeure events and granting of extensions where warranted. Under current rules, a source owner or operator who is unable to comply with performance testing requirements within the allotted timeframe due to a force majeure is regarded as being in violation and subject to enforcement action. As a matter of policy, EPA often exercises enforcement discretion regarding such violations. However, where circumstances beyond the control of the source owner or operator constituting a force majeure prevent the performance of timely performance tests, we believe that it is appropriate to provide an opportunity to such owners and operators to make good faith demonstrations and obtain extensions of the performance testing deadline where approved by the Administrator in appropriate circumstances. III. Responses to Comments A. Clarification of Approving Authority *Comment:* Five commenters requested that we clarify or define the approving authority. *Response:* We inadvertently used two terms (Administrator and delegated agency) in the proposed rule. In 40 CFR Part 60 of the proposed rule, we stated that the owner or operator shall notify the Administrator of force majeure events, and in 40 CFR Parts 61 and 63 of the proposed rule, we stated that the owner or operator shall notify the delegated agency. We have replaced the term delegated agency with the term Administrator in 40 CFR Parts 61 and 63 of the final rule to be consistent with

(1)the term (Administrator) used in 40 CFR Part 60 and

(2)the term (Administrator) used in Parts 61 and 63 of the General Provisions that this final rule amends. Nonetheless, we believe that it may be appropriate for the Administrator to assign the responsibility of evaluating and approving or denying requests for extensions to performance test deadlines due to force majeure events to a duly delegated agency according to applicable procedures. B. Force Majeure Concept *Comment:* Six commenters stated that they thought the scope of the rule was too narrow and that circumstances beyond what they believed were covered by the definition of “force majeure” warranted similar extensions (e.g., pandemics, facility shutdowns, and process constraints that result in non-representative testing conditions). *Response:* The proposed rule is not as narrow as indicated by commenters. Force majeure is defined as “an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation.” Although we provide examples of events that could meet this definition (i.e., acts of nature, acts of war or terrorism, and equipment failure or safety hazards beyond the control of the affected facility), this list is not exhaustive. The focus of the rule and this definition is an event beyond the control of the affected facility. Similarly, two definitions of “force majeure” in dictionaries are “an unexpected or uncontrollable event” (The American Heritage Dictionary) and “an event or effect that cannot be reasonably anticipated or controlled” (Merriam-Webster's Online Dictionary). Thus, any event beyond the control of the affected facility may qualify for the extension. We can neither provide an exhaustive list of all of the possible events that may qualify as “force majeure” under this rule, nor determine whether the generic additional examples provided in the public comments would or would not qualify under all circumstances. The Administrator will exercise his or her discretion when considering requests for extensions to performance test deadlines due to “force majeure” events. *Comment:* Six commenters requested that we expand the scope of the rule to allow the force majeure concept to justify extensions for additional regulatory requirements, such as monitoring, recordkeeping, reporting, maintenance, and inspections. *Response:* The purpose of this rulemaking is to address requests for extensions to performance test deadlines. Expanding the force majeure concept to include additional regulatory requirements is beyond the scope of the proposed rule. Therefore, the final rule covers petitions for extensions to performance test deadlines only. C. Notifications *Comment:* Four commenters requested that we allow simplified notifications. One of these commenters requested that we allow a simplified notification initially followed by the timeline for completing the performance test later. In addition, one of these commenters requested that we allow initial notification to the Administrator in non-written formats followed by written communication later since during force majeure events means of communication may be disrupted. Two of these commenters stated that the Administrator should not require listing of every applicable test and rule for an entire facility. *Response:* We agree that phased notification may be appropriate in certain circumstances. For example, if a source owner or operator is unable to determine a date by which the performance test will be conducted at the time of the force majeure event, verbal notification to the Administrator that the original performance test deadline will be missed followed by written communication describing the details required by the rule may be appropriate. Also, if a force majeure event results in widespread power outages and no U.S. Postal mail service, an initial oral notification followed by written notification may be necessary. The written notification required by this rule does not include a listing of every applicable test and rule for an entire facility. The rule requires the source owner or operator to provide to the permitting authority a written description of the force majeure event, a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure event, a written description of the measures taken or to be taken to minimize the delay, and a date (as soon as practicable following the force majeure event) by which the owner or operator proposes to conduct the performance test. *Comment:* Two commenters requested that we clarify that written notification includes letters, faxes, e-mails, web-based submittals, etc. *Response:* We agree that written notification regarding force majeure events can be provided to the Administrator in such written formats as those listed above. *Comment:* Three commenters expressed the concern that a legitimate request for an extension may be denied based on the timing of the request. For example, source owners and operators may not be aware of an anticipated hurricane until one day prior to the event. Another commenter suggested that we require source owners and operators to notify the Administrator verbally within five days of the force majeure event and in writing within twenty-one days of the event. *Response:* We proposed that the owner or operator would notify the Administrator, in writing, as soon as practicable following the date the owner or operator first knew, or should have known that the event may cause or caused a delay in testing beyond the regulatory deadline. We do not believe that it is appropriate to establish specific timelines in the rule. The existence of a force majeure event typically necessitates flexibility. Thus, the final rule states that the owner or operator shall notify the Administrator, in writing as soon as practicable following the date the owner or operator first knew, or through due diligence should have known that the event may cause or caused a delay in testing beyond the regulatory deadline, but the notification must occur before the performance test deadline unless the initial force majeure or a subsequent force majeure event delays the notice, and in such cases, the notification shall occur as soon as practicable. D. Approvals *Comment:* Four commenters suggested that we add a provision that allows requests for extensions to be automatically granted if the Administrator does not respond within a specific timeframe. Three of the four commenters suggested that the Administrator be given thirty days to respond. Two commenters are concerned that owners and operators will be subject to enforcement actions until their requests for extensions are approved. *Response:* We disagree with allowing automatic approvals and with requiring the Administrator to respond within 30 days. We do not believe that it is appropriate to place this burden on the Administrator since the Administrator may also have been affected by the force majeure event. We believe that it is appropriate to require the Administrator to notify the owner or operator of approval or disapproval of the request for an extension as soon as practicable. Furthermore, if an owner or operator misses its performance test deadline due to a force majeure event, and the request for an extension is subsequently approved, the owner or operator will not be held in violation for failure to conduct the performance test within the prescribed regulatory timeframe. *Comment:* Two commenters stated that circumstances, such as during acts of war, mandatory evacuations, or energy and supply restrictions, applying for an extension to a performance test deadline should be self-implementing. *Response:* We believe that the Administrator should have the discretion to determine if a request for an extension warrants approval and that self-implementation is not appropriate. During any situation that a source owner or operator believes qualifies as a force majeure event, the owner or operator must submit a request to the Administrator that includes the required information, such as a written description of the force majeure event, a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure event, a description of the measures taken to minimize the delay, and a date (as soon as practicable) by which the performance test is expected to occur. The Administrator will notify the owner or operator of approval or disapproval of the request for an extension as soon as practicable. Furthermore, if an owner or operator misses its performance test deadline due to a force majeure event, and the request for an extension is subsequently approved, the owner or operator will not be held in violation for failure to conduct the performance test within the prescribed regulatory timeframe. *Comment:* One commenter requested that we add the following statement to the rule (i.e., “the Administrator shall approve a reasonable request for extension of the performance test deadline.”) *Response:* We do not believe that it is necessary to add this statement to the rule. The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the Administrator. The Administrator will notify the owner or operator in writing of approval or disapproval of the request as soon as practicable. *Comment:* Two commenters requested that EPA affirm that we already have the authority to approve requests for extensions to performance tests. *Response:* We do not have this authority except through enforcement discretion. Therefore, we developed this rule to grant this authority. *Comment:* Three commenters believe that the Administrator should have the authority to issue blanket approvals for a designated area in advance of a force majeuere event. *Response:* We do not believe that blanket approvals are necessary since approvals for requests to extend performance test deadlines can be granted after the force majeure event occurs. Furthermore, we believe that requests to extend performance test deadlines should be reviewed and considered on a case-by-case basis because situations and circumstances may vary among facilities affected by the same force majeure event. E. Title V Deviations *Comment:* Four commenters requested that we specify that extensions granted under this rule are not Title V deviations. *Response:* We agree that extensions granted under this rule are not Title V deviations since the original performance test deadline will not be applicable once a request for an extension has been approved. However, where the Administrator has not yet issued a decision on a request for an extension under today's rule, the failure to conduct the performance test within the originally prescribed timeframe is a deviation and should be reported as such. F. Other Comments *Comment:* One commenter requested that we expand the concept of force majeure to cover regulations for other environmental media, such as water regulations. *Response:* We proposed that this rule address air regulations only and are maintaining that approach in the final rule. *Comment:* One commenter requested that denials for extensions be administratively appealable. *Response:* The commenter did not explain why this recommendation is appropriate or how it could be implemented. Therefore, we are not adopting this recommendation. *Comment:* One commenter requested that we delete the word “strictly” from the statement “Until an extension of the performance test deadline has been approved under * * *, the owner or operator of the affected facility remains strictly subject to the requirements of this part.” *Response:* We disagree with the request to remove the word “strictly” because it is intended to emphasize that this rule is one of strict liability. IV. 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 EO. B. Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget

(OMB)under the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* The information collection requirements are not enforceable until OMB approves them. The final rule requires a written notification only if a plant owner or operator needs an extension of a performance test deadline due to certain rare events, such as acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. Since EPA believes such events will be rare, the projected cost and hour burden will be minimal. The increased annual average reporting burden for this collection (averaged over the first 3 years of the ICR) is estimated to total 6 labor hours per year at a cost of $377.52. This includes one response per year from six respondents for an average of 1 hour per response. No capital/startup costs or operation and maintenance costs are associated with the final reporting requirements. 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 OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the **Federal Register** to display the OMB control number for the approved information collection requirements contained in this final rule. 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 Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(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-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Extensions to deadlines for conducting performance tests will provide flexibility to small entities and reduce the burden on them by providing them an opportunity for additional time to comply with performance test deadlines during force majeure events. We expect force majeure events to be rare since these events include circumstances such as, acts of nature, acts of war or terrorism, and equipment failure or safety hazard beyond the control of the affected facility. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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 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. EPA has determined that the final 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 one year. The maximum total annual cost of this final rule for any year has been estimated to be less than $435.00. Thus, today's final rule is not subject to the requirements of Sections 202 and 205 of the UMRA. EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments. The final rule requires source owners and operators to provide a written notification to the Agency only if an extension to a performance test deadline is necessary due to rare force majeure events. Therefore, the final rule is not subject to the requirements of section 203 of the UMRA. 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. The final rule requirements will not supercede State regulations that are more stringent. In addition, the final rule requires a written notification only if a plant owner or operator needs an extension of a performance test deadline due to certain rare events, such as acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. Since EPA believes such events will be rare, the projected cost and hour burden will be minimal. Thus, Executive Order 13132 does not apply to this rule. 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 final rule does not have tribal implications as specified in Executive Order 13175. This final rule will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. 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 “Protection of Children from Environmental Health Risks 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 a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order 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 or safety risks addressed by this action present a disproportionate risk to children. This rule does not affect the underlying control requirements established by the applicable standards but only the timeframe associated with performance testing in limited circumstances. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations 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 and Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer and 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 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 voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. New test methods are not being proposed in this rulemaking, but EPA is allowing for extensions of the regulatory deadlines by which owners or operators are required to conduct performance tests when a force majeure is about to occur, occurs, or has occurred which prevents owners or operators from testing within the regulatory deadline. Therefore, NTTAA does not apply. J. 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** . 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). This rule will be effective May 16, 2007. List of Subjects in 40 CFR Parts 60, 61, and 63 Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: May 10, 2007. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, parts 60, 61, and 63 of the Code of Federal Regulations are amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 2. Section 60.2 is amended by adding, in alphabetical order, a definition for “Force majeure” to read as follows: § 60.2 Definitions. *Force majeure* means, for purposes of § 60.8, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 3. Section 60.8 is amended by revising paragraph

(a)to read as follows: § 60.8 Performance tests.

(a)Except as specified in paragraphs (a)(1),(a)(2), (a)(3), and (a)(4) of this section, within 60 days after achieving the maximum production rate at which the affected facility will be operated, but not later than 180 days after initial startup of such facility, or at such other times specified by this part, and at such other times as may be required by the Administrator under section 114 of the Act, the owner or operator of such facility shall conduct performance test(s) and furnish the Administrator a written report of the results of such performance test(s).

(1)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure, the owner or operator shall notify the Administrator, in writing as soon as practicable following the date the owner or operator first knew, or through due diligence should have known that the event may cause or caused a delay in testing beyond the regulatory deadline, but the notification must occur before the performance test deadline unless the initial force majeure or a subsequent force majeure event delays the notice, and in such cases, the notification shall occur as soon as practicable.

(2)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.

(3)The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the Administrator. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.

(4)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(1), (2), and

(3)of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. PART 61—[AMENDED] 4. The authority citation for part 61 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 5. Section 61.02 is amended by adding, in alphabetical order, a definition for “Force majeure” to read as follows: § 61.02 Definitions. *Force majeure* means, for purposes of § 61.13, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 6. Section 61.13 is amended as follows: a. By removing “; or” at the end of paragraph (a)(1) and adding in its place a period. b. By revising paragraph

(a)introductory text. c. By adding paragraphs (a)(3) through (a)(6). § 61.13 Emission tests and waiver of emission tests.

(a)Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) of this section, if required to do emission testing by an applicable subpart and unless a waiver of emission testing is obtained under this section, the owner or operator shall test emissions from the source:

(3)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure, the owner or operator shall notify the Administrator, in writing as soon as practicable following the date the owner or operator first knew, or through due diligence should have known that the event may cause or caused a delay in testing beyond the regulatory deadline specified in paragraphs (a)(1) or (a)(2) of this section or beyond a deadline established pursuant to the requirements under paragraph

(b)of this section, but the notification must occur before the performance test deadline unless the initial force majeure or a subsequent force majeure event delays the notice, and in such cases, the notification shall occur as soon as practicable.

(4)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.

(5)The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the Administrator. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.

(6)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(3), (a)(4), and (a)(5) of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. PART 63—[AMENDED] 7. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 8. Section 63.2 is amended by adding, in alphabetical order, a definition for “Force majeure” to read as follows: § 63.2 Definitions. *Force majeure* means, for purposes of § 63.7, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 9. Section 63.7 is amended by revising paragraphs (a)(2) introductory text and (a)(2)(ix) and by adding paragraph (a)(4) to read as follows: § 63.7 Performance testing requirements.

(a)* * *

(2)Except as provided in paragraph (a)(4) of this section, if required to do performance testing by a relevant standard, and unless a waiver of performance testing is obtained under this section or the conditions of paragraph (c)(3)(ii)(B) of this section apply, the owner or operator of the affected source must perform such tests within 180 days of the compliance date for such source.

(ix)Except as provided in paragraph (a)(4) of this section, when an emission standard promulgated under this part is more stringent than the standard proposed (see § 63.6(b)(3)), the owner or operator of a new or reconstructed source subject to that standard for which construction or reconstruction is commenced between the proposal and promulgation dates of the standard shall comply with performance testing requirements within 180 days after the standard's effective date, or within 180 days after startup of the source, whichever is later. If the promulgated standard is more stringent than the proposed standard, the owner or operator may choose to demonstrate compliance with either the proposed or the promulgated standard. If the owner or operator chooses to comply with the proposed standard initially, the owner or operator shall conduct a second performance test within 3 years and 180 days after the effective date of the standard, or after startup of the source, whichever is later, to demonstrate compliance with the promulgated standard.

(4)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure:

(i)The owner or operator shall notify the Administrator, in writing as soon as practicable following the date the owner or operator first knew, or through due diligence should have known that the event may cause or caused a delay in testing beyond the regulatory deadline specified in paragraph (a)(2) or (a)(3) of this section, or elsewhere in this part, but the notification must occur before the performance test deadline unless the initial force majeure or a subsequent force majeure event delays the notice, and in such cases, the notification shall occur as soon as practicable.

(ii)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.

(iii)The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the Administrator. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.

(iv)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(4)(i), (a)(4)(ii), and (a)(4)(iii) of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. 10. Section 63.91 is amended by adding paragraph (g)(1)(i)(O) to read as follows: § 63.91 Criteria for straight delegation and criteria common to all approval options.

(g)* * *

(1)* * *

(i)* * *

(O)Section 63.7(a)(4), Extension of Performance Test Deadline [FR Doc. E7-9407 Filed 5-15-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 112 [EPA-HQ-OPA-2006-00949; [FRL-8315-1] RIN 2050-AG36 Oil Pollution Prevention; Non-Transportation Related Onshore and Offshore Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency is today extending the dates by which facilities must prepare or amend Spill Prevention, Control, and Countermeasure

(SPCC)Plans, and implement those Plans. This action allows the Agency time to promulgate further revisions to the SPCC rule before owners and operators are required to prepare or amend, and implement their SPCC Plans. EPA expects to propose further revisions to the SPCC rule later this year. EFFECTIVE DATE: This final rule is effective May 16, 2007. ADDRESSES: The public docket for this final rule, Docket ID No. EPA-HQ-OPA-2006-0949, contains the information related to this rulemaking, including the response to comment document. All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information may not be publicly available, e.g., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the EPA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 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 of the Public Reading Room is 202-566-1744, and the telephone number to make an appointment to view the docket is 202-566-0276. FOR FURTHER INFORMATION CONTACT: For general information, contact the Superfund, TRI, EPCRA, RMP and Oil Information Center at

(800)424-9346 or TDD

(800)553-7672 (hearing impaired). In the Washington, DC metropolitan area, call

(703)412-9810 or TDD

(703)412-3323. For more detailed information on specific aspects of this rule, contact either Vanessa Rodriguez at

(202)564-7913 ( *rodriguez.vannessa@epa.gov* ) or Mark W. Howard at

(202)564-1964 ( *howard.markw@epa.gov* ), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A. SUPPLEMENTARY INFORMATION: I. Authority 33 U.S.C. 1251 *et seq.;* 33 U.S.C. 2720; E.O. 12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351. II. Background On July 17, 2002, the Agency published a final rule that amended the SPCC regulations ( *see* 67 FR 47042). The rule became effective on August 16, 2002. The final rule included compliance dates in § 112.3 for preparing amending, and implementing SPCC Plans. The original compliance dates were extended on January 9, 2003 ( *see* 68 FR 1348), again on April 17, 2003 ( *see* 68 FR 18890), a third time on August 11, 2004 ( *see* 69 FR 48794), and a fourth time on February 17, 2006 ( *see* 71 FR 77266). 1 1 The compliance date for farms is the date that establishes SPCC requirements specifically for farms or otherwise establishes dates by which farms must comply with the provisions of the rule. Under the current provisions in § 112.3(a)(1), the owner or operator of a facility (other than a farm) that was in operation on or before August 16, 2002 must make any necessary amendments to its SPCC Plan and fully implement it by October 31, 2007, while the owner or operator of a facility (other than a farm) that came into operation after August 16, 2002, but before October 31, 2007, must prepare and fully implement an SPCC Plan on or before October 31, 2007. Under the current provision in § 112.3(b)(1), the owner or operator of a facility (other than a farm) that becomes operational after October 31, 2007 must prepare and implement an SPCC Plan before beginning operations. In addition, § 112.3(c) requires onshore and offshore mobile facilities to prepare or amend and implement their SPCC Plans on or before October 31, 2007. On December 26, 2006, EPA finalized a set of SPCC rule amendments that address certain targeted areas of the SPCC requirements based on issues and concerns raised by the regulated community (71 FR 77266). As highlighted in the EPA Regulatory Agenda and the 2005 OMB report on “Regulatory Reform of the U.S. Manufacturing Sector,” EPA is considering further amendments to address other areas where regulatory reform may be appropriate. For these additional areas, the Agency expects to issue a proposed rule later this year. Areas where regulatory reform may be appropriate include, but are not limited to, oil and natural gas exploration and production facilities, farms, and qualified facilities. Because the Agency was concerned that it would not be able to propose and promulgate such regulatory amendments before the current October 31, 2007 compliance date, EPA believed it appropriate to provide a further extension of the compliance date, and thus, proposed an extension to the compliance dates on December 26, 2006 (71 FR 77357). This notice finalizes that proposal. III. Extension of Compliance Dates This rule extends the dates in § 112.3(a), (b), and

(c)by which a facility must prepare or amend and implement its SPCC Plan. As a result of the revisions in § 112.3(a)(1), an owner or operator of a facility (other than a farm) that was in operation on or before August 16, 2002 must make any necessary amendments to his SPCC Plan, and implement that Plan, on or before July 1, 2009. This will allow the owner or operator time to prepare or amend and implement the SPCC Plan in accordance with the July 2002 (67 FR 47042, July 17, 2002) and December 2006 (71 FR 77266, December 26, 2006) amendments, and any subsequent modifications to the SPCC requirements that are promulgated based on amendments that the EPA intends to propose later this year. EPA expects to promulgate such a final rule by the summer of 2008. The facility owner/operator must continue to maintain his existing SPCC Plan until he amends and fully implements the Plan to comply with the revised requirements. Similarly, an owner or operator of a facility (other than a farm) that came into operation after August 16, 2002 through July 1, 2009 must prepare and implement an SPCC Plan on or before July 1, 2009. Under the revised § 112.3(b)(1), the owner or operator of a facility regulated under the SPCC rule that becomes operational after July 1, 2009 must prepare and implement an SPCC Plan before beginning operations. This rule similarly extends the compliance dates in § 112.3(c) for mobile facilities. Under this rule, an owner or operator of a mobile facility must prepare or amend and implement an SPCC Plan on or before July 1, 2009, or before beginning operations if operations begin after July 1, 2009. The Agency believes that such an extension of the compliance dates is appropriate for several reasons. First, this extension will allow those potentially affected in the regulated community an opportunity to make changes to their facilities and to their SPCC Plans necessary to comply with any revised requirements promulgated based on the amendments expected to be proposed later this year, and finalized thereafter, rather than with the existing requirements. Further, the Agency believes that this extension of the compliance dates will also provide the owner or operator of a facility the time to fully understand the regulatory amendments offered by revisions to the 2002 SPCC rule promulgated on December 26, 2006 (71 FR 77266) and amendments expected to be promulgated by the summer of 2008. 2 2 As stated in the rule, a facility owner or operator must maintain its existing Plans. A facility owner or operator who wants to take advantage of the 2002 and 2006 regulatory changes may do so, but he will need to modify his existing Plan accordingly. In addition, the Agency intends to issue revisions to the *SPCC Guidance for Regional Inspectors* , to address both the December 2006 revisions and the revisions expected to be proposed later this year. The guidance document is designed to facilitate an understanding of the rule's applicability, to help clarify the role of the inspector in the review and evaluation of the performance-based SPCC requirements, and to provide a consistent national policy on SPCC-related issues. The guidance is available to both the owners and operators of facilities that may be subject to the requirements of the SPCC rule and to the general public on the Agency's Web site at *http://www.epa.gov/oilspill* . The Agency believes that this extension will provide the regulated community the opportunity to take advantage of the material presented in the revised guidance before preparing or amending their SPCC Plans. IV. Response to Comments The Agency received 28 submissions on the proposed rule (71 FR 77357, December 26, 2006). The discussion below summarizes and responds to the major comments received. A more complete response to comments document can be found in the docket for this rulemaking, EPA-HQ-OPA-2006-0949. The majority of commenters (nineteen) supported the proposed extension of the compliance date and generally agreed that the extension would allow the Agency time to promulgate further regulatory revisions. Many commenters also noted that the proposed extension would allow the industries potentially affected by those revisions an opportunity to make the necessary changes to their facilities and to their SPCC Plans to comply with the revised requirements expected to be proposed in 2007 and later finalized. A second group of commenters

(nine)supported the proposed extension, but suggested alternate schedules, arguing that EPA's proposed compliance date was premature given the Agency's intent to propose further changes to the SPCC rule in 2007. Several schedules were suggested: • Tie the compliance dates to promulgation of the rule finalizing the amendments to be proposed in 2007 or, in the event that EPA decides not to go forward with further modifications to the rule, 12 months after publication of a notice in the **Federal Register** terminating that rulemaking. • Provide an extension of 18 months from the promulgation of the final amendments to the SPCC rule, thereby providing adequate time for a regulated facility to implement the amendments (i.e., review amendments, develop and/or modify existing Plans, and comply with any final changes to the rule or guidance). • Set the date for preparing and amending the SPCC Plans to one year following publication of the final amendments, maintaining the six-month separation between the dates for amending and implementing Plans. • Set a Plan preparation compliance date of July 1, 2009, and an implementation compliance date of January 1, 2010, thereby allowing a facility owner or operator adequate time after Plan amendment to make changes at his facility, properly train employees on the amended Plan requirements, and allow for full implementation of the amended Plan requirements. The Agency disagrees with those commenters who suggested an alternate schedule to either set uncertain compliance dates in § 112.3 or to further extend the time period for the compliance dates. While the Agency recognizes that a regulated facility owner or operator needs adequate time after EPA takes final action on the proposed amendments to the SPCC Plan requirements to amend or prepare an SPCC Plan and to implement it, we also believe that one year is a reasonable period of time to allow for preparing, amending, and implementing an SPCC Plan following final Agency action on the proposed amendments to the SPCC rule. The Agency intends to develop and publish **Federal Register** notices proposing and then taking final action on further amendments to the SPCC regulatory requirements as soon as possible. At this time, based on the information at hand, the Agency believes that extending the compliance dates in § 112.3 until July 1, 2009 will allow owners and operators an adequate interval to comply with the SPCC rule. The Agency also disagrees with commenters who requested a revised date for implementing amended SPCC Plans to include a six-month period after the July 1, 2009 date for Plan amendment. For the reasons discussed above, the Agency believes that the July 1, 2009 date for both Plan amendment and implementation is more than adequate. The effect of the Agency's decision to eliminate the gap between Plan preparation or amendment and implementation was to provide additional time for the owner or operator to prepare or amend the SPCC Plan. The Agency believes that this approach, which allows an owner or operator flexibility in scheduling Plan development or amendment, makes sense given that an owner or operator is not required to submit his SPCC Plans to the Agency. It also simplifies the burden for an owner or operator of an SPCC facility by establishing a single compliance date, while providing additional time for Plan development. One commenter opposed a compliance date extension for this regulation, arguing that it was not effectively addressing the problems with the regulation, and that the best way to do this would be by completing a complete re-write of the rule. First, the Agency disagrees with the commenter that the SPCC regulation needs to be re-written. Rather, the Agency believes that it is in the best interest of the regulated community to address areas of confusion that arose after promulgation of the 2002 amendments, and that promulgating a proposal intended to clarify and tailor requirements, particularly for small businesses, and making revisions to the SPCC *Guidance for Regional Inspectors* available to the regulated community will ultimately result in a more effective and complete implementation of the SPCC regulation and in enhanced environmental protection. The Agency also believes that the regulated community needs the additional time allowed by the extension in order to better take advantage of the guidance and any further amendments that are promulgated and that the benefits of this extension outweigh the concerns raised by the opposing commenter. Furthermore, a facility owner or operator subject to the SPCC rule continues to be required to ensure that operations are conducted in a manner that safeguards human health and the environment by preventing oil discharges to navigable waters and adjoining shorelines and by effectively responding in the event of an accidental discharge. V. Applicability to Farms In the December 2006 final rule amendments, EPA finalized an extension of the compliance dates for the owner or operator of a farm (71 FR 77266), as defined in § 112.2, to prepare or amend and implement the farm's SPCC Plan until the effective date of a rule that establishes SPCC requirements specifically for farms or otherwise establishes dates by which farms must comply with the provisions of the SPCC rule. The Agency has been conducting additional information collection and analyses to determine if differentiated SPCC requirements may be appropriate for farms. Specifically, the Agency has been working with the U.S. Department of Agriculture, as well as the farming community, to collect data that would more accurately characterize oil storage and handling at these facilities. These efforts will allow the Agency to better focus on priorities where substantial environmental improvements can be obtained. The Agency will propose the new compliance dates for farms in a separate **Federal Register** notice. Today's rule does not affect this extended compliance date for farms. VI. Statutory and Executive Order Reviews A. Executive Order 12866—Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action has been determined to be a “significant regulatory action.” This final rule would extend the compliance dates in § 112.3, but would have no other substantive effect. However, because of its interconnection with the related SPCC rule amendments finalized on December 26, 2006 (71 FR 77266) which was a significant action under the terms of Executive Order 12866, and because of the upcoming proposal to further amend the SPCC requirements, this action was submitted to OMB for review. B. Paperwork Reduction Act 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* ). 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 Procedure Act or any other statute unless the agency certifies that 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. Small entity is defined as:

(1)A small business as defined in the Small Business Administration's

(SBA)regulations at 13 CFR 121.201—the SBA defines small businesses by category of business using North American Industry Classification System (NAICS) codes, and in the case of farms and oil exploration and production facilities, which constitute a large percentage of the facilities affected by this rule, generally defines small businesses as having less than $500,000 in revenues or 500 employees, respectively;

(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 that is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, the Agency concludes that this action would not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on the small entities subject to the rule. This rule would defer the regulatory burden for small entities by extending the compliance dates in § 112.3. After considering the economic impacts of today's rule on small entities, I certify that this action 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 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 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-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 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 a significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this 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 one year. EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. As was explained above, the effect of this action would be to reduce burden and costs for owners and operators of all facilities, including small governments that are subject to the 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 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 rule does not have federalism implications. It would 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. Under CWA section 311(o), States may impose additional requirements, including more stringent requirements, relating to the prevention of oil discharges to navigable waters. EPA recognizes that some States have more stringent requirements (56 FR 54612, (October 22, 1991). This rule would not preempt State law or regulations. Thus, Executive Order 13132 does not apply to this rule. 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 final rule does not have tribal implications, as specified in Executive Order 13175. Today's rule would not significantly or uniquely affect communities of Indian Tribal governments. Thus Executive Order 13175 does not apply to this rule. G. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks 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 my have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order 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 or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211—Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations 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. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and 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 in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards, such as materials specifications, test methods, sampling procedures, and business practices that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standards. Therefore, NTTAA does not apply. J. The 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** . A major rule cannot take effect until 60 days after it is published 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). This rule will be effective May 16, 2007. List of Subjects in 40 CFR Part 112 Environmental protection, Oil pollution, Penalties, Reporting and recordkeeping requirements. Dated: May 10, 2007 Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, title 40, chapter I, part 112 of the Code of Federal Regulations is amended as follows: PART 112—OIL POLLUTION PREVENTION 1. The authority citation for part 112 continues to read as follows: Authority: 33 U.S.C. 1251 *et seq.;* 33 U.S.C. 2720; E.O. 12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351 2. Section 112.3 is amended by revising paragraphs (a)(1), (b)(2), and

(c)to read as follows: Subpart A—Applicability, Definitions, and General Requirements for All Facilities and All Types of Oils § 112.3 Requirement to prepare and implement a Spill Prevention, Control, and Countermeasure Plan. (a)(1) If your onshore or offshore facility was in operation on or before August 16, 2002, you must maintain your Plan, but most amend it, if necessary to ensure compliance with this part, and implement the Plan no later than July 1, 2009. If your onshore or offshore facility becomes operational after August 16, 2002, through July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan on or before July 1, 2009. (b)(1) If you are the owner or operator of an onshore or offshore facility that becomes operational after July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan before you begin operations.

(c)If you are the owner or operator of an onshore or offshore mobile facility, such as an onshore drilling or workover rig, barge mounted offshore drilling or workover rig, or portable fueling facility, you must prepare, implement, and maintain a facility Plan as required by this section. You must maintain your Plan, but must amend and implement it, if necessary to ensure compliance with this part, on or before July 1, 2009. If your onshore or offshore mobile facility becomes operational after July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan before you begin operations. This provision does not require that you prepare a new Plan each time you move the facility to a new site. The Plan may be a general Plan. When you move the mobile or portable facility, you must locate and install it using the discharge prevention practices outlined in the Plan for the facility. The Plan is applicable only while the facility is in a fixed (non-transportation) operating mode. [FR Doc. 07-2404 Filed 5-15-07; 8:45 am]

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