[Federal Register: May 16, 2007 (Volume 72, Number 94)]
[Rules and Regulations]
[Page 27425-27437]
[DOCID:fr16my07-14]

=======================================================================
-----------------------------------------------------------------------

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 http://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 http://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<PHONE_NUMBER> 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,<PHONE_NUMBER><EMAIL_ADDRESS>
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 (NOX) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NOX 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                2004 4th high   2005 4th high   2006 4th high     2004-2006
                 Area                           County                   Monitor               (ppm)           (ppm)           (ppm)      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-          0.068           0.082           0.071           0.073
                                                                  0650012.
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[deg]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[deg]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
NOX 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 NOX SIP
call, stationary source NOX 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
NOX 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 NOX 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 NOX
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
NOX SIP call, Michigan developed rules to control
NOX 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
NOX emissions. Illinois and Indiana have also adopted
regulations to comply with the NOX SIP call which have
resulted in a 155,831 ton reduction in ozone season NOX
emissions between 2000 and 2004. While Wisconsin was not subject to the
NOX SIP call, the state has adopted NOX
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
NOX 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 NOX SIP call,
stationary source NOX 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 NOX
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
NOX 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 [deg]C to 30 [deg]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 [deg]
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 NOX SIP call required large
reductions in NOX, 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
NOX 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
NOX 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 NOX SIP call, which has significantly reduced
NOX emissions throughout the eastern half of the United
States. In Michigan, Illinois, and Indiana alone, the NOX
SIP call has been responsible for a reduction in ozone season
NOX 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 (SO2) and/or NOX 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.) SO2 and NOX contribute to the formation of
fine particles and NOX 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 NOX,
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 NOX, 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
NOX RACT regulation requirements when NOX 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
NOX waiver requests involving the areas until such time that
the associated NOX 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) NOX 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 NOX 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 NOX 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 NOX 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 NOX SIP call, Michigan
developed rules to control NOX 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 NOX SIP call which have
resulted in a reduction in NOX emissions. While Wisconsin
was not subject to the NOX SIP call, the state has adopted
NOX 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.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart X--Michigan

0
2. Section 52.1170(e) is amended by adding entries to the table to read
as follows:

Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
  Name of nonregulatory SIP    Applicable geographic                         EPA approval
          provision            or nonattainment area  State submittal date       date             Comments
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
8-hour ozone maintenance plan  Grand Rapids (Kent     5/9/06, 5/26/06, and       5/16/2007
                                and Ottawa             8/25/06
                                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.
8-hour ozone maintenance plan  Flint (Genesee and     6/13/06, 8/25/06,          5/16/2007  ....................
                                Lapeer Counties),      and 11/30/06
                                Muskegon (Muskegon
                                County), Benton
                                Harbor (Berrien
                                County), and Cass
                                County.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1174 is amended by adding paragraphs (x) and (y) to read
as follows:

Sec.  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 (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 Grand Rapids area, the 2018 MVEBs are
40.70 tpd for VOC and 97.87 tpd for oxides of nitrogen
(NOX). For the Kalamazoo-Battle Creek area, the 2018 MVEBs
are 29.67 tpd for VOC and 54.36 tpd for NOX. For the
Lansing-East Lansing area, the 2018 MVEBs are 28.32 tpd for VOC and
53.07 tpd for NOX. For the Benzie County area, the 2018
MVEBs are 2.24 tpd for VOC and 1.99 tpd for NOX. For the
Huron County area, the 2018 MVEBs are 2.34 tpd for VOC and 7.53 tpd for
NOX. For the Mason County area, the 2018 MVEBs are 1.81 tpd
for VOC and 2.99 tpd for NOX.
    (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 (NOX). For
the Muskegon area, the 2018 MVEBs are 6.67 tpd for VOC and 11.00 tpd
for NOX. For the Benton Harbor area, the 2018 MVEBs are 9.16
tpd for VOC and 15.19 tpd for NOX. For the Cass County area,
the 2018 MVEBs are 2.76 tpd for VOC and 3.40 tpd for NOX.

PART 81--[AMENDED]

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

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

0
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:

Sec.  81.323  Michigan.

* * * * *

                                        Michigan--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                             Designation a                           Classification
         Designated area         -------------------------------------------------------------------------------
                                     Date \1\             Type               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


[Federal Register: March 26, 2008 (Volume 73, Number 59)]
[Notices]
[Page 16009-16010]
[DOCID:fr26mr08-64]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2007-1021; FRL-8354-7]

Flutolanil and Its Metabolites; Withdrawal of Tolerance Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Agency is withdrawing pesticide petition (PP 6F7070) at
the request of the petitioner, Nichino America, Inc., because the data
submitted to the Agency do not support the proposed indirect or
inadvertent tolerances for flutolanil on corn and cotton.

FOR FURTHER INFORMATION CONTACT: Lisa Jones, Registration Division
(7505P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    Although this action only applies to the registrant in question, it
is directed to the public in general. Since various individuals or
entities may be interested, the Agency has not attempted to describe
all the specific

entities that may be interested in this action. If you have any
questions regarding this action, please consult the person listed under
FOR FURTHER INFORMATION CONTACT.

 B. How Can I Get Copies of this Document and Other Related
Information?

    1. Docket. EPA has established a docket for this action under
docket identification (ID) number EPA-HQ-OPP-2007-1021. Publicly
available docket materials are available either in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the Office of Pesticide Programs (OPP) Regulatory Public
Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal
Dr., Arlington, VA. The hours of operation of this Docket Facility are
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal
holidays. The Docket Facility telephone number is<PHONE_NUMBER>.
    2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr.

III. What Action is the Agency Taking?

    EPA is announcing that Nichino America, Inc., 4550 New Linden Hill
Road, Suite 501, Wilmington, DE 19808, has withdrawn its application to
establish inadvertent or indirect tolerances for the fungicide
flutolanil and its metabolites in or on the food commodities corn and
cotton, as provided for in section 3(c)(7)(C) of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended by the
Food Quality Protection Act of 1996 (FQPA).
    EPA issued a notice in the Federal Register of January 23, 2008 (73
FR 3967) (FRL-8345-7), which announced Nichino America, Inc.'s
submission of pesticide petition (PP 6F7070). This petition requested
that EPA amend 40 CFR 180.484 by establishing increased tolerances for
residues of the fungicide flutolanil [N-(3-(1-methylethoxy)phenyl)-2-
(trifluoromethyl) benzamide] and its metabolite, M-4,
desisopropylflutolanil [N-3(3-hydroxyphenyl)2-(trifluromethyl)
benzamide] for inadvertent or indirect tolerances in or on the food
commodities corn, field, forage at 0.30 parts per million (ppm); corn,
field, grain at 0.20 ppm; corn field, stover at 0.30 ppm; and cotton,
undelinted seed at 0.20 ppm.

List of Subjects

    Environmental protection, Pesticides and pests.

    Dated: March 13, 2008.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.
[FR Doc. E8-6203 Filed 3-25-08; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register Volume 76, Number 47 (Thursday, March 10, 2011)]
[Notices]
[Pages 13254-13255]
[FR Doc No: 2011-5443]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64037; File No. SR-EDGA-2011-06]

Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Amendments to the EDGA Exchange, Inc. Fee Schedule

March 4, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on March 1, 2011, the EDGA Exchange, Inc. (the ``Exchange'' or the
``EDGA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its fees and rebates applicable to
Members \3\ of the Exchange pursuant to EDGA Rule 15.1(a) and (c). All
of the changes described herein are applicable to EDGA Members. The
text of the proposed rule change is available on the Exchange's
Internet Web site at http://www.directedge.com.
---------------------------------------------------------------------------

    \3\ A Member is any registered broker or dealer, or any person
associated with a registered broker or dealer, that has been
admitted to membership in the Exchange.
---------------------------------------------------------------------------

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in sections A, B and C below, of the
most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
New Tier Rate for Adding Liquidity
    The fee for adding liquidity on EDGA is currently $0.00025 per
share for securities at or above $1.00. The Exchange proposes to create
a tier (indicated in footnote 11) to state that if members, on a daily
basis, measured monthly, post 0.9% of the Total Consolidated Volume
(``TCV'') in average daily volume to EDGA, they will be charged
$0.00005 per share. TCV is defined (in proposed footnote 11) as volume
reported by all exchanges and trade reporting facilities to the
consolidated transaction reporting plans for Tapes A, B, and C
securities for the month prior to the month in which the fees are
calculated. So, when the calculation of TCV is done for March 2011
billing for February 2011 trading activity, the appropriate TCV is
based on February 2011 figures.\4\
---------------------------------------------------------------------------

    \4\ The Commission notes that the Exchange's proposed tier
became effective with respect to trading activity taking place on or
after the filing of the proposed rule change.
---------------------------------------------------------------------------

Proposed Changes Associated With Routing to BATS BYX Exchange
    Currently, the BY flag is yielded when an order is routed to BATS
BYX Exchange and removes liquidity using order types ROUC and ROBY, as
defined in Exchange Rules 11.9(b)(3)(a) and (g). The Exchange proposes
to add footnote 12 to the fee schedule to describe that stocks priced
below $1.00 will be charged $0.0010 per share. In addition, the
Exchange proposes to increase the rebate from $0.0003 to $0.0004 when
an order is routed to BATS BYX Exchange and removes liquidity.
    EDGA Exchange proposes to implement these amendments to the
Exchange fee schedule on March 1, 2011.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act,\5\ in general, and
furthers the objectives of Section 6(b)(4),\6\ in particular, as it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its members and other persons using its
facilities.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange believes that the fee associated with the BY flag
($0.0010 per share) for stocks priced below $1 represents an equitable
allocation of reasonable dues, fees, and other charges since it
reflects a pass through of the BATS fee for removing liquidity. EDGA
believes that it is reasonable and equitable to pass on these fees to
its members.
    The proposed increased rebate when an order is routed to BATS BYX
Exchange and removes liquidity (from $0.0003 to $0.0004 per share) is
designed to incentivize Members to use this routing strategy to
increase volume on EDGA. Such increased volume increases potential
revenue to the Exchange, and would allow the Exchange to spread its
administrative and infrastructure costs over a greater number of
shares, leading to lower per share costs. These lower per share costs
would allow the Exchange to pass on the savings to Members in the form
an increased rebate. The increased liquidity also benefits all
investors by deepening EDGA's liquidity pool, supporting the quality of
price discovery, promoting market transparency and improving investor
protection.
    This proposed rate represents a discount over the pass through rate
of $0.0003 per share currently provided. The Exchange also believes
that this fee structure is an equitable allocation of reasonable dues,
fees, and other charges in that it applies uniformly to all Members and
the increased rebate for removing liquidity from BATS is consistent
with the processing of similar routing strategies by EDGA's
competitors.\7\
---------------------------------------------------------------------------

    \7\ See BATS fee schedule: Discounted Destination Specific
Routing (``One Under'') to NYSE, NYSE ARCA and NASDAQ. See
Securities Exchange Act Release No. 62858, 75 FR 55838 (September
14, 2010) (SR-BATS-2010-023) (modifying the BATS fee schedule in
order to amend the fees for its BATS + NYSE Arca destination
specific routing option to continue to offer a ``one under'' pricing
model).
---------------------------------------------------------------------------

    The Exchange believes that the new tier rate of $0.00005 per share
for Members who on a daily basis, measured monthly, post 0.9% of the
Total Consolidated Volume (``TCV'') in average daily volume to EDGA
represents a fair and equitable allocation of reasonable dues, fees,
and other charges as it is aimed at incentivizing liquidity for high
volume providers, which results in increased volume on EDGA. Such
increased volume increases potential revenue to the Exchange, and would
allow the Exchange to spread its administrative and infrastructure
costs over a greater number of shares, leading to lower per share
costs. The decreased per share costs allows the Exchange to share its
savings with its Members in

the form of such lower tier rate. The increased liquidity also benefits
all investors by deepening EDGA's liquidity pool, supporting the
quality of price discovery, promoting market transparency and improving
investor protection. Volume-based discounts such as the reduced
execution fee proposed here have been widely adopted in the cash
equities markets, and are equitable because they are open to all
members on an equal basis and provide discounts that are reasonably
related to the value to an exchange's market quality associated with
higher levels of market activity, such as higher levels of liquidity
provision and introduction of higher volumes of orders into the price
and volume discovery processes.
    In addition, the new tier rate is equitable in that higher fees on
the Exchange are directly correlated with less stringent criteria. For
example, the INET tiered fee, as indicated in footnote 7/flag 2, of
$0.0030 per share has less stringent criteria, and is a higher fee than
the new proposed fee. For example, based on average TCV for January
2011 (8.0 billion), in order for a Member to qualify for the INET fee
of $0.0030, the Member would have to route to Nasdaq less than
5,000,000 shares of average daily volume. In order to qualify for the
proposed lower fee of $0.00005 per share, which has more stringent
criteria than the INET fee, the Member would have to post 72 million
shares on EDGA (0.9% of TCV in average daily volume).
    The Exchange notes that it operates in a highly competitive market
in which market participants can readily direct order flow to competing
venues if they deem fee levels at a particular venue to be excessive.
The proposed rule change reflects a competitive pricing structure
designed to incent market participants to direct their order flow to
the Exchange. The Exchange believes that the proposed rates are
equitable in that they apply uniformly to all Members. The Exchange
believes the fees and credits remain competitive with those charged by
other venues and therefore continue to be reasonable and equitably
allocated to Members.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3) of the Act \8\ and Rule 19b-4(f)(2) \9\ thereunder. At any
time within 60 days of the filing of such proposed rule change, the
Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-EDGA-2011-06 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-EDGA-2011-06. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission,\10\ all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of the filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
EDGA-2011-06 and should be submitted on or before March 31, 2011.
---------------------------------------------------------------------------

    \10\ The text of the proposed rule change is available on
Exchange's Web site at http://www.directedge.com, on the
Commission's Web site at http://www.sec.gov, at EDGA, and at the
Commission's Public Reference Room.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-5443 Filed 3-9-11; 8:45 am]
BILLING CODE 8011-01-P