[Federal Register: July 25, 2007 (Volume 72, Number 142)]
[Proposed Rules]
[Page 40776-40788]
[DOCID:fr25jy07-21]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2007-0476; FRL-8445-3]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation of the Erie 8-hour Ozone Nonattainment Area
to Attainment and Approval of the Associated Maintenance Plan and 2002
Base-Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania. The Pennsylvania Department of Environmental Protection
(PADEP) is requesting that the Erie ozone nonattainment area (``Erie
Area'' or ``Area'') be redesignated as attainment for the 8-hour ozone
national ambient air quality standard (NAAQS). The Erie Area is
comprised of Erie County, Pennsylvania. EPA is proposing

to approve the ozone redesignation request for the Erie Area. In
conjunction with its redesignation request, the Commonwealth submitted
a SIP revision consisting of a maintenance plan for the Erie Area that
provides for continued attainment of the 8-hour ozone NAAQS for at
least 10 years after redesignation. EPA is proposing to make a
determination that the Erie Area has attained the 8-hour ozone NAAQS,
based upon three years of complete, quality-assured ambient air quality
monitoring data for 2004-2006. EPA's proposed approval of the 8-hour
ozone redesignation request is based on its determination that the Erie
Area has met the criteria for redesignation to attainment specified in
the Clean Air Act (CAA). In addition, the Commonwealth of Pennsylvania
has also submitted a 2002 base-year inventory for the Erie Area, and
EPA is proposing to approve that inventory for the Erie Area as a SIP
revision. EPA is also providing information on the status of its
adequacy determination for the motor vehicle emission budgets (MVEBs)
that are identified in the maintenance plan for the Erie Area for
purposes of transportation conformity, and is also proposing to approve
those MVEBs. EPA is proposing approval of the redesignation request and
of the maintenance plan and 2002 base-year inventory SIP revisions in
accordance with the requirements of the CAA.

DATES: Written comments must be received on or before August 24, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0476 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for

submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2007-0476, Christopher Cripps, Acting Chief,
Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-0476. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or

in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Pennsylvania Department of Environmental
Protection Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Amy Caprio,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Are the Actions EPA Is Proposing To Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would Be the Effect of These Actions?
VI. What Is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Maintenance Plan for the Erie Area Adequate and
Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. What Are the Actions EPA Is Proposing To Take?

    On April 24, 2007, the PADEP formally submitted a request to
redesignate the Erie Area from nonattainment to attainment of the 8-
hour NAAQS for ozone. Concurrently, Pennsylvania submitted a
maintenance plan for the Erie Area as a SIP revision to ensure
continued attainment in the Area over the next 11 years. PADEP also
submitted a 2002 base-year inventory for the Erie Area as a SIP
revision. The Erie Area is comprised of Erie County. It is currently
designated a basic 8-hour ozone nonattainment area. EPA is proposing to
determine that the Erie Area has attained the 8-hour ozone NAAQS and
that it has met the requirements for redesignation pursuant to section
107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the
redesignation request to change the designation of the Erie Area from
nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also
proposing to approve the Erie maintenance plan as a SIP revision for
the Area (such approval being one of the CAA criteria for redesignation
to attainment status). The maintenance plan is designed to ensure
continued attainment in the Erie Area for the next 11 years. EPA is
also proposing to approve the 2002 base-year inventory for the Erie
Area as a SIP revision. Additionally, EPA is announcing its action on
the adequacy process for the MVEBs identified in the Erie maintenance
plan, and proposing to approve the MVEBs identified for volatile
organic compounds (VOCs) and nitrogen oxides (NOX) for the
Erie Area for transportation conformity purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality

management through the attainment and maintenance of the 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. EPA designated, as nonattainment,
any area violating the 8-hour ozone NAAQS based on the air quality data
for the three years of 2001-2003. These were the most recent three
years of data at the time EPA designated 8-hour areas. The Erie Area
was designated a basic 8-hour ozone nonattainment area in a Federal
Register notice signed on April 15, 2004 and published on April 30,
2004 (69 FR 23857), based on its exceedance of the 8-hour health-based
standard for ozone during the years 2001-2003.
    On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to
revoke the 1-hour ozone NAAQS in the Erie Area (as well as most other
areas of the country), effective June 15, 2005. See, 40 CFR 50.9(b); 69
FR at 23996 (April 30, 2004); 70 FR 44470 (August 3, 2005).
    However, on December 22, 2006, the U.S. Court of Appeals for the
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule
for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir.
2006) (hereafter ``South Coast''). On June 8, 2007, in South Coast Air
Quality Management Dist. v. EPA, Docket No. 04-1201, in response to
several petitions for rehearing, the DC Circuit clarified that the
Phase 1 Rule was vacated only with regard to those parts of the rule
that had been successfully challenged. Therefore, the Phase 1 Rule
provisions related to classifications for areas currently classified
under subpart 2 of Title I, part D of the Act as 8-hour nonattainment
areas, the 8-hour attainment dates and the timing for emissions
reductions needed for attainment of the 8-hour ozone NAAQS remain
effective. The June 8 decision left intact the Court's rejection of
EPA's reasons for implementing the 8-hour standard in certain
nonattainment areas under Subpart 1 in lieu of subpart 2. By limiting
the vacatur, the Court let stand EPA's revocation of the 1-hour
standard and those anti-backsliding provisions of the Phase 1 Rule that
had not been successfully challenged. The June 8 decision reaffirmed
the December 22, 2006 decision that EPA had improperly failed to retain
four measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New
Source Review (NSR) requirements based on an area's 1-hour
nonattainment classification; (2) Section 185 penalty fees for 1-hour
severe or extreme nonattainment areas; (3) measures to be implemented
pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the
contingency of an area not making reasonable further progress toward
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS;
and (4) certain transportation conformity requirements for certain
types of federal actions. The June 8 decision clarified that the
Court's reference to conformity requirements was limited to requiring
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
Elsewhere in this document, mainly in section VI.B. ``The Erie Area Has
Met All Applicable Requirements Under Section 110 and Part D of the CAA
and Has a Fully Approved SIP Under Section 110(k) of the CAA,'' EPA
discusses its rationale why the decision in South Coast is not an
impediment to redesignating the Erie Area to attainment of the 8-hour
ozone NAAQS.
    The CAA, title I, Part D, contains two sets of provisions--subpart
1 and subpart 2--that address planning and control requirements for
nonattainment areas. Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive 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. In
2004, the Erie Area was classified a basic 8-hour ozone nonattainment
area based on air quality monitoring data from 2001-2003. Therefore,
the Erie Area is subject to the requirements of subpart 1 of Part D.
    Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentrations is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857 (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data indicates that the Erie Area has a design value of
0.079 ppm for the 3-year period of 2004-2006, using complete, quality-
assured data. Therefore, the ambient ozone data for the Erie Area
indicates no violations of the 8-hour ozone standard.

B. The Erie Area

    The Erie Area consists of Erie County, Pennsylvania. Prior to its
designation as an 8-hour ozone nonattainment area, the Erie Area was a
marginal 1-hour ozone nonattainment Area, and therefore, was subject to
requirements for marginal nonattainment areas pursuant to section
182(a) of the CAA. See 56 FR 56694 (November 6, 1991). EPA determined
that the Erie Area has attained the 1-hour ozone NAAQS by the November
15, 1993 attainment date (60 FR 3349, January 17, 1995).
    On April 24, 2007, the PADEP requested that the Erie Area be
redesignated to attainment for the 8-hour ozone standard. The
redesignation request included three years of complete, quality-assured
data for the period of 2004-2006, indicating that the 8-hour NAAQS for
ozone had been achieved in the Erie Area. The data satisfies the CAA
requirements that the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration (commonly referred to as the
area's design value), must be less than or equal to 0.08 ppm (i.e.,
0.084 ppm when rounding is considered). Under the CAA, a nonattainment
area may be redesignated if sufficient complete, quality-assured data
is available to determine that the area attained the standard and the
area meets the other CAA redesignation requirements set forth in
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA,
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions;
    (4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and

    (5) The State containing such area has met all requirements
applicable to the area under section 110 and Part D.
    EPA provided guidance on redesignations in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations,''
Memorandum from Bill Laxton, June, 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSDs) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
     ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on
or after November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
     Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
     ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.

IV. Why Is EPA Taking These Actions?

    On April 24, 2007, the PADEP requested redesignation of the Erie
Area to attainment for the 8-hour ozone standard. On April 24, 2007,
PADEP submitted a maintenance plan for the Erie Area as a SIP revision,
to ensure continued attainment of the 8-hour ozone NAAQS over the next
11 years, until 2018. PADEP also submitted a 2002 base-year inventory
concurrently with its maintenance plan as a SIP revision. EPA has
determined that the Erie Area has attained the 8-hour ozone standard
and has met the requirements for redesignation set forth in section
107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the official
designation of the Erie Area from nonattainment to attainment for the
8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate
into the Pennsylvania SIP a 2002 base-year inventory and a maintenance
plan ensuring continued attainment of the 8-hour ozone NAAQS in the
Erie Area for the next 11 years, until 2018. The maintenance plan
includes contingency measures to remedy any future violations of the 8-
hour NAAQS (should they occur), and identifies the NOX and
VOC MVEBs for transportation conformity purposes for the years 2009 and
2018. These MVEBs are displayed in the following table:

Table 1.--Erie County Motor Vehicle Emissions Budgets in Tons per Summer
                               Day (tpsd)
------------------------------------------------------------------------
                     Year                           VOC          NOX
------------------------------------------------------------------------
2009..........................................          6.5         15.6
2018..........................................          4.0          6.7
------------------------------------------------------------------------

VI. What Is EPA's Analysis of the Commonwealth's Request?

    EPA is proposing to determine that the Erie Area has attained the
8-hour ozone standard, and that all other redesignation criteria have
been met. The following is a description of how the PADEP's April 24,
2007 submittal satisfies the requirements of section 107(d)(3)(E) of
the CAA.

A. The Erie Area Has Attained the 8-Hour NAAQS

    EPA is proposing to determine that the Erie Area has attained the
8-hour ozone NAAQS. For ozone, an area may be considered to be
attaining the 8-hour ozone NAAQS if there are no violations, as
determined in accordance with 40 CFR 50.10 and Appendix I of Part 50,
based on three complete, consecutive calendar years of quality-assured
air quality monitoring data. To attain this standard, the design value,
which is the 3-year average of the fourth-highest daily maximum 8-hour
average ozone concentrations measured at each monitor, within the area,
over each year must not exceed the ozone standard of 0.08 ppm. Based on
the rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Air Quality System (AQS). The monitors
generally should have remained at the same location for the duration of
the monitoring period required for demonstrating attainment.
    In the Erie Area, there is one ozone monitor, located in Erie
County that measures air quality with respect to ozone. As part of its
redesignation request, Pennsylvania referenced ozone monitoring data
for the years 2004-2006 for the Erie Area. This data has been quality
assured and is recorded in the AQS. The PADEP uses the AQS as the
permanent database to maintain its data and quality assures the data
transfers and content for accuracy. The fourth-high 8-hour daily
maximum concentrations, along with the three-year average are
summarized in Table 2.

  Table 2.--Erie Area Fourth Highest 8-Hour Average Values Erie County
                       Monitor/AIRS ID 42-049-0003
------------------------------------------------------------------------
                                                            Annual 4th
                          Year                                highest
                                                           reading (ppm)
------------------------------------------------------------------------
2004....................................................           0.074
2005....................................................           0.086
2006....................................................          0.077
------------------------------------------------------------------------
The average for the 3-year period 2004-2006 is 0.079 ppm.

    The air quality data for 2004-2006 show that the Erie Area has
attained the standard with a design value of 0.079 ppm. The data
collected at the Erie Area monitor satisfies the CAA requirement that
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. The
PADEP's request for redesignation for the Erie Area indicates that the
data is complete and was quality assured in accordance with 40 CFR part
58. In addition, as discussed below with respect to the maintenance
plan, PADEP has committed to continue monitoring in accordance with 40
CFR part 58. In summary, EPA has determined that the data submitted by
Pennsylvania and data taken from AQS indicate that the Area has
attained the 8-hour ozone NAAQS.

B. The Erie Area Has Met All Applicable Requirements Under Section 110
and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k)
of the CAA

    EPA has determined that the Erie Area has met all SIP requirements
applicable for purposes of this redesignation under section 110 of the
CAA (General SIP Requirements) and that it meets all applicable SIP
requirements under Part D of Title I of the CAA, in accordance with
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP
is fully approved with respect to all requirements applicable for
purposes of redesignation in accordance with section 107(d)(3)(E)(ii).
In making these proposed determinations, EPA ascertained which
requirements are applicable to the Erie Area and determined that the
applicable portions of the SIP meeting these requirements are fully
approved under section 110(k) of the CAA. We note that SIPs must be
fully approved only with respect to applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant CAA
requirements that came due prior to the submittal of a complete
redesignation request. See also, Michael Shapiro memorandum, September
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (redesignation
of Detroit-Ann Arbor). Applicable requirements of the CAA that come due
subsequent to the area's submittal of a complete redesignation request
remain applicable until a redesignation is approved, but are not
required as a prerequisite to redesignation. Section 175A(c) of the
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR
at 25424, 25427 (May 12, 2003) (redesignation of St. Louis).
    This section sets forth EPA's views on the potential effect of the
Court's rulings on this proposed redesignation action. For the reasons
set forth below, EPA does not believe that the Court's rulings alter
any requirements relevant to this redesignation action so as to
preclude redesignation, and do not prevent EPA from proposing or
ultimately finalizing this redesignation. EPA believes that the Court's
December 22, 2006 and June 8, 2007 decisions impose no impediment to
moving forward with redesignation of this area to attainment, because
even in light of the Court's decisions, redesignation is appropriate
under the relevant redesignation provisions of the Act and longstanding
policies regarding redesignation requests.
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which includes enforceable emissions
limitations and other control measures, means, or techniques,
provisions for the establishment and operation of appropriate devices
necessary to collect data on ambient air quality, and programs to
enforce the limitations. The general SIP elements and requirements set
forth in section 110(a)(2) include, but are not limited to the
following:
     Submittal of a SIP that has been adopted by the State
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for
the implementation of part C requirements (Prevention of Significant
Deterioration (PSD));
     Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the NOX SIP Call, October
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the
section 110(a)(2)(D) requirements for a State are not linked with a
particular nonattainment area's designation and classification in that
State. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the State. Thus, we do not believe that these requirements are
applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The Erie Area will still be subject to these
requirements after it is redesignated. The section 110 and Part D
requirements which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This policy is consistent with EPA's existing
policy on applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and
final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May
7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December
7, 1995). See also, the discussion on this issue in the Cincinnati
redesignation (65 FR at 37890, June 19, 2000), and in the

Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly,
with respect to the NOX SIP Call rules, EPA noted in its
Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the
NOX SIP Call rules are not ``an'' `applicable requirement'
for purposes of section 110(1) because the NOX rules apply
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
As we explain later in this notice, no Part D requirements applicable
for purposes of redesignation under the 8-hour standard became due for
the Erie Area prior to submission of the redesignation request
 2. Part D Nonattainment Requirements Under the 8-Hour Standard
    Pursuant to an April 30, 2004, final rule (69 FR 23951), the Erie
Area was designated a basic nonattainment area under subpart 1 for the
8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1
of Part D, set forth the basic nonattainment requirements applicable to
all nonattainment areas. Section 182 of the CAA, found in subpart 2 of
Part D, establishes additional specific requirements depending on the
area's nonattainment classification.
    With respect to the 8-hour standard, the court's ruling rejected
EPA's reasons for classifying areas under subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under subpart 2. Although any future decision by EPA to classify this
area under subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation of
the area cannot now go forward. This belief is based upon (1) EPA's
longstanding policy of evaluating redesignation requests in accordance
with the requirements due at the time the request is submitted; and,
(2) consideration of the inequity of applying retroactively any
requirements that might in the future be applied.
    First, at the time the redesignation request was submitted, the
Erie Area was classified under subpart 1 and was obligated to meet only
subpart 1 requirements. Under EPA's longstanding interpretation of
section 107(d)(3)(E) of the Clean Air Act, to qualify for
redesignation, states requesting redesignation to attainment must meet
only the relevant SIP requirements that came due prior to the submittal
of a complete redesignation request. See September 4, 1992 Calcagni
memorandum (``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division). See also, Michael Shapiro Memorandum, September
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation
of Detroit-Ann Arbor); Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004), which upheld this interpretation. See 68 FR 25418, 25424, 25427
(May 12, 2003) (Redesignation of St. Louis).
    Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit has recognized the inequity in such
retroactive rulemaking, See, Sierra Club v. Whitman, 285 F. 3d 63 (D.C.
Cir. 2002), in which the DC Circuit upheld a District Court's ruling
refusing to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. The
Court stated: ``Although EPA failed to make the nonattainment
determination within the statutory time frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the States, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. at 68. Similarly here
it would be unfair to penalize the area by applying to it for purposes
of redesignation additional SIP requirements under subpart 2 that were
not in effect at the time it submitted its redesignation request.
    With respect to 8-hour subpart 2 requirements, if the Erie Area
initially had been classified under subpart 2, the first two Part D
subpart 2 requirements applicable to the Erie Area under section 182(a)
of the CAA would be: a base-year inventory requirement pursuant to
section 182(a)(1) of the CAA, and, the emissions statement requirement
pursuant to section 182(a)(3)(B).
    As stated previously, these requirements are not yet due for
purposes of redesignation of the Erie Area, but nevertheless,
Pennsylvania already has in its approved SIP, an emissions statement
rule for the 1-hour standard that covers all portions of the designated
8-hour nonattainment area and, that satisfies the emissions statement
requirement for the 8-hour standard. See, 25 Pa. Code 135.21(a)(1),
codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect
to the base-year inventory requirement, in this notice of proposed
rulemaking, EPA is proposing to approve the 2002 base-year inventory
for the Erie Area, which was submitted on April 24, 2007, concurrently
with its maintenance plan, into the Pennsylvania SIP. EPA is proposing
to approve the 2002 base-year inventory as fulfilling the requirements,
if necessary, of both section 182(a)(1) and section 172(c)(3) of the
CAA. A detailed evaluation of Pennsylvania's 2002 base-year inventory
for the Erie Area can be found in a Technical Support Document (TSD)
prepared by EPA for this rulemaking. EPA has determined that the
emission inventory and emissions statement requirements for the Erie
Area have been satisfied.
    In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior to submission of the
redesignation request, EPA believes that the general conformity and NSR
requirements do not require approval prior to redesignation.
    With respect to section 176, Conformity Requirements, section
176(c) of the CAA requires states to establish criteria and procedures
to ensure that Federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other Federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate. EPA believes it is
reasonable to interpret the conformity SIP requirements as not applying
for purposes of evaluating the redesignation request under section
107(d) since State conformity rules are still required after
redesignation and Federal conformity rules apply where State rules have
not been approved. See, Wall v. EPA, 265 F. 3d 426, 438-440 (6th Cir.
2001), upholding this interpretation. See also, 60 FR 62748 (December
7, 1995).
    In the case of the Erie Area, EPA has also determined that before
being redesignated, the Erie Area need not comply with the requirement
that a NSR program be approved prior to redesignation. EPA has
determined that areas being redesignated need not comply with the
requirement that a NSR

program be approved prior to redesignation, provided that the area
demonstrates maintenance of the standard without Part D NSR in effect.
The rationale for this position is described in a memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation, dated October
14, 1994, entitled, ``Part D NSR Requirements or Areas Requesting
Redesignation to Attainment.'' Normally, State's Prevention of
Significant Deterioration (PSD) program will become effective in the
area immediately upon redesignation to attainment. See the more
detailed explanations in the following redesignation rulemakings:
Detroit, MI (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-
Lorrain, OH (61 FR 20458, 20469-20470, May 7, 1996); Louisville, KY (66
FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831,
31836-31837, June 21, 1996). In the case of the Erie Area the Chapter
127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR
52.2020(c)(1)) explicitly apply the requirements for NSR in section 184
of the CAA to ozone attainment areas within the OTR. The OTR NSR
requirements are more stringent than that required for a marginal or
basic ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA
fully approved Pennsylvania's NSR SIP revision consisting of
Pennsylvania's Chapter 127 Part D NSR regulations that cover the Erie
Area.
    EPA has also interpreted the section 184 OTR requirements,
including the NSR program, as not being applicable for purposes of
redesignation. The rationale for this is based on two considerations.
First, the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the State remains obligated to have NSR, as
well as RACT, and Vehicle Inspection and Maintenance programs even
after redesignation. Second, the section 184 control measures are
region-wide requirements and do not apply to the Erie Area by virtue of
the Area's designation and classification. See 61 FR 53174, 53175-53176
(October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997).
3. Part D Nonattainment Area Requirements Under the 1-Hour Standard
    In its June 8, 2007 decision the Court limited its vacatur so as to
uphold those provisions of the anti-backsliding requirements that were
not successfully challenged. Therefore the Area must meet the federal
anti-backsliding requirements, see 40 CFR 51.900, et seq.; 70 FR 30592,
30604 (May 26, 2005) which apply by virtue of the area's classification
for the 1-hour ozone NAAQS. As set forth in more detail below, the area
must also address four additional anti-backsliding provisions
identified by the Court in its decisions.
    The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone NAAQS requirements that continue to apply after revocation
of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas.
Section 51.905(a)(1)(i) provides that:
    The area remains subject to the obligation to adopt and implement
the applicable requirements as defined in Sec.  51.900(f), except as
provided in paragraph (a)(1)(iii) of paragraph (b) of this section. * *
*
    Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005),
states that: Applicable requirements means for an area the following
requirements to the extent such requirements applied to the area for
the area's classification under section 181(a)(1) of the CAA for the 1-
hour NAAQS at the time of designation for the 8-hour NAAQS.
    (1) Reasonably available control technology (RACT).
    (2) Inspection and maintenance programs (I/M).
    (3) Major source applicability cut-offs for purposes of RACT.
    (4) Rate of Progress (ROP) reductions.
    (5) Stage II vapor recovery.
    (6) Clean fuels fleet program under section 183(c)(4) of the CAA.
    (7) Clean fuels for boilers under section 182(e)(3) of the CAA.
    (8) Transportation Control Measures (TCMs) during heavy traffic
hours as provided section 182(e)(4) of the CAA.
    (9) Enhanced (ambient) monitoring under section 182(c)(1) of the
CAA.
    (10) Transportation control measures (TCMs) under section 182(c)(5)
of the CAA.
    (11) Vehicle miles traveled (VMT) provisions of section 182(d)(1)
of the CAA.
    (12) NOX requirements under section 182(f) of the CAA.
    (13) Attainment demonstration or alternative as provided under
section 51.905(a)(1)(ii).
    Pursuant to 40 CFR 51.905(c), the Area is subject to the
obligations set forth in 51.905(a) and 51.900(f).
    Prior to its designation as an 8-hour ozone nonattainment area, the
Erie Area was designated a marginal nonattainment area for the 1-hour
standard. With respect to the 1-hour standard, the applicable
requirements under the anti-backsliding provisions at 40 CFR
51.905(a)(1) for the Erie Area are limited to RACT and I/M programs
specified in section 182(a) of the CAA and are discussed in the
following paragraphs:
    Section 182(a)(2)(A) required SIP revisions to correct or amend
RACT for sources in marginal areas, such as the Erie Area, that were
subject to control technique guidelines (CTGs) issued before November
15, 1990 pursuant to CAA section 108. On December 22, 1994, EPA fully
approved into the Pennsylvania SIP all corrections required under
section 182(a)(2)(A) of the CAA (59 FR 65971, December 22, 1994). EPA
believes that this requirement applies only to marginal and higher
classified areas under the 1-hour NAAQS pursuant to the 1990 amendments
to the CAA; therefore, this is a one-time requirement. After an area
has fulfilled the section 182(a)(2)(A) requirement for the 1-hour
NAAQS, there is no requirement under the 8-hour NAAQS.
    Section 182(a)(2)(B) relates to the savings clause for vehicle
inspection and maintenance (I/M). It requires marginal areas to adopt
vehicle I/M programs. This provision was not applicable to the Erie
Area because this area did not have and was not required to have an I/M
program before November 15, 1990.
    In addition the Court held that EPA should have retained four
additional measures in its anti-backsliding provisions: (1)
Nonattainment area NSR; (2) Section 185 penalty fees; (3) contingency
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour motor vehicle emission budgets that were yet not replaced by 8-
hour emissions budgets. These requirements are addressed below:
    With respect to NSR, EPA has determined that areas being
redesignated need not have an approved nonattainment New Source Review
program, for the same reasons discussed previously with respect to the
applicable Part D requirement for the 8-hour standard.
    The section 185 penalty fee requirement applies only to severe and
extreme nonattainment areas, and was never applicable in the Erie 1-
hour marginal nonattainment area.
    With respect to the requirement for submission of contingency
measures for the 1-hour standard, section 182(a) does not require
contingency measures for marginal areas.
    The conformity portion of the Court's ruling does not impact the
redesignation request for the Erie Area except to the extent that the
Court in its June 8 decision clarified that for those areas with 1-hour
MVEBs, anti-backsliding

requires that those 1-hour budgets must be used for 8-hour conformity
determinations until replaced by 8-hour budgets. There are no
applicable 1-hour MVEBs for the Erie Area. (As discussed elsewhere in
this document, EPA is proposing to approve 8-hour MVEBs for the Erie
Area.) To meet this requirement, conformity determinations in such
areas must comply with the applicable requirements of EPA's conformity
regulations at 40 CFR part 93. The court clarified that 1-hour
conformity determinations are not required for anti-backsliding
purposes.
    Thus EPA has concluded that the Erie Area has met all requirements
applicable for redesignation under the 1-hour standard.
4. Transport Region Requirements
    All areas in the Ozone Transport Region (OTR), both attainment and
nonattainment, are subject to additional control requirements under
section 184 for the purpose of reducing interstate transport of
emissions that may contribute to downwind ozone nonattainment. The
section 184 requirements include reasonably available control
technology (RACT), NSR, enhanced vehicle inspection and maintenance,
and Stage II vapor recovery or a comparable measure.
    In the case of the Erie Area, which is located in the OTR,
nonattainment NSR will continue to be applicable after redesignation.
On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the
area. See 66 FR 53094 (October 19, 2001).
    EPA has also interpreted the section 184 OTR requirements,
including NSR, as not being applicable for purposes of redesignation.
Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826
(May 7, 1997). The rationale for this is based on two considerations.
First, the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the State remains obligated to have NSR, as
well as RACT, and I/M even after redesignation. Second, the section 184
control measures are region-wide requirements and do not apply to the
area by virtue of the area's nonattainment designation and
classification, and thus are properly considered not relevant to an
action changing an area's designation. See 61 FR 53174, 53175-53176
(October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997).
5. Erie Has a Fully Approved SIP for Purposes of Redesignation
    EPA has fully approved the Pennsylvania SIP for the purposes of
this redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p.3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See, 68 FR at
25425 (May 12, 2003) and citations therein.

C. The Air Quality Improvement in the Erie Area Is Due to Permanent and
Enforceable Reductions in Emissions Resulting From Implementation of
the SIP and Applicable Federal Air Pollution Control Regulations and
Other Permanent and Enforceable Reductions

    EPA believes that the Commonwealth has demonstrated that the
observed air quality improvement in the Erie Area is due to permanent
and enforceable reductions in emissions resulting from implementation
of the SIP, Federal measures, and other State-adopted measures.
Emissions reductions attributable to these rules are shown in Table 3.

             Table 3.--Total VOC and NOX Emissions for 2002 and 2004 in Tons per Summer Dday (tpsd)
----------------------------------------------------------------------------------------------------------------
                      Year                         Point *        Area       Nonroad       Mobile       Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
2002...........................................          1.4         25.1          8.7         11.1         46.3
2004...........................................          1.6         25.2          8.5          9.4         44.7
Diff. (02-04)..................................         +0.2         +0.1         -0.2         -1.7         -1.6
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
2002...........................................          4.0          2.1         10.9         25.3         42.3
2004...........................................          3.1          2.1         10.5         22.4         38.1
Diff (02-04)...................................         -0.9          0.0         -0.4         -2.9        -4.2
----------------------------------------------------------------------------------------------------------------
* The stationary point source emissions shown here do not include banked emission credits of 4.1 tpd of VOC and
  361.8 tpd of NOX as indicated in Technical Appendix A-4 to Pennsylvania's SIP submission.

    Between 2002 and 2004, VOC emissions decreased by 1.6 tpsd from
46.3 tpsd to 44.7 tpsd; NOX emissions decreased by 4.2 tpsd
from 42.3 tpsd to 38.1 tpsd. These reductions, and anticipated future
reductions, are due to the following permanent and enforceable
measures.
1. Stationary Point Sources
Federal NOX SIP Call (66 FR 43795, August 21, 2001)
2. Stationary Area Sources
Solvent Cleaning (68 FR 2206, January 16, 2003)
Portable Fuel Containers (69 FR 70893, December 8, 2004)
3. Highway Vehicle Sources
Federal Motor Vehicle Control Programs (FMVCP)
    --Tier 1 (56 FR 25724, June 5, 1991)
    --Tier 2 (65 FR 6698, February 10, 2000)
Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21, 1997,
and 65 FR 59896, October 6, 2000)
National Low Emission Vehicle (NLEV) Program (PA) (64 FR 72564,
December 28, 1999)
Vehicle Emission Inspection/Maintenance Program (70 FR 58313, October
6, 2005)
4. Non-Road Sources
Non-road Diesel (69 FR 38958, June 29, 2004)

    EPA believes that permanent and enforceable emissions reductions
are the cause of the long-term improvement in ozone levels and are the
cause of the Area achieving attainment of the 8-hour ozone standard.

D. The Erie Area Has a Fully Approvable Maintenance Plan Pursuant to
Section 175A of the CAA

    In conjunction with its request to redesignate the Erie Area to
attainment status, Pennsylvania submitted a SIP revision to provide for
maintenance of the 8-hour ozone NAAQS in the Area for at least 11 years
after redesignation. The Commonwealth is requesting that EPA approve
this SIP revision as meeting the requirement of CAA 175A. Once
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure
that the SIP for the Erie Area meets the requirements of the CAA
regarding maintenance of the applicable 8-hour ozone standard.
What Is Required in a Maintenance Plan?
    Section 175 of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the Commonwealth must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan. An ozone
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory;
    (b) A maintenance demonstration;
    (c) A monitoring network;
    (d) Verification of continued attainment; and
    (e) A contingency plan.
Analysis of the Erie Area Maintenance Plan
    (a) Attainment inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. PADEP determined that the appropriate attainment
inventory year is 2004. That year establishes a reasonable year within
the three-year block of 2004-2006 as a baseline and accounts for
reductions attributable to implementation of the CAA requirements to
date. The 2004 inventory is consistent with EPA guidance and is based
on actual ``typical summer day'' emissions of VOC and NOX
during 2004 and consists of a list of sources and their associated
emissions.
    The 2002 and 2004 point source data was compiled from actual
sources. Pennsylvania requires owners and operators of larger
facilities to submit annual production figures and emission
calculations each year. Throughput data are multiplied by emission
factors from Factor Information Retrieval (FIRE) Data Systems and EPA's
publication series AP-42, and are based on Source Classification Codes
(SCC). The 2002 area source data was compiled using county-level
activity data, from census numbers, from county numbers, etc. The 2004
area source data was projected from the 2002 inventory using temporal
allocations provided by the Mid-Atlantic Regional Air Management
Association (MARAMA).
    The on-road mobile source inventories for 2002 and 2004 were
compiled using MOBILE6.2 and Pennsylvania Department of Transportation
(PENNDOT) estimates for VMT. The PADEP has provided detailed data
summaries to document the calculations of mobile on-road VOC and
NOX emissions for 2002, as well as for the projection years
of 2004, 2009, and 2018 (shown in Tables 5 and 6 below).
    The 2002 and 2004 emissions for the majority of non-road emission
source categories were estimated using the EPA NONROAD 2005 model. The
NONROAD model calculates emissions for diesel, gasoline, liquefied
petroleum gasoline, and compressed natural gas-fueled non-road
equipment types and includes growth factors. The NONROAD model does not
estimate emissions from locomotives or aircraft. For 2002 and 2004
locomotive emissions, the PADEP projected emissions from a 1999 survey
using national fuel consumption information and EPA emission and
conversion factors. There are no significant commercial aircraft
operations (aircraft that can seat over 60 passengers) in Erie County.
The Erie Airport in Erie County supports some air taxi operations that
account for a very small amount of emissions. For 2002 and 2004
aircraft emissions, PADEP estimated emissions using small airport
operations statistics from http://www.airnav.com, and emission factors

and operational characteristics in the EPA-approved model, Emissions
and Dispersion Modeling System (EDMS).
    More detailed information on the compilation of the 2002, 2004,
2009, and 2018 inventories can be found in the Technical Appendices,
which are part of the April 24, 2007 state submittal.
    (b) Maintenance Demonstration--On April 24, 2007, the PADEP
submitted a maintenance plan as required by section 175A of the CAA.
The Erie Area maintenance plan shows maintenance of the 8-hour ozone
NAAQS by demonstrating that current and future emissions of VOC and
NOX remain at or below the attainment year 2004 emissions
levels throughout the Erie Area through the year 2018. A maintenance
demonstration need not be based on modeling. See, Wall v. EPA, supra;
Sierra Club v. EPA, supra. See also, 66 FR at 53099-53100; 68 FR at
25430-25432.
    Tables 4 and 5 specify the VOC and NOX emissions for the
Erie Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim
year in the maintenance demonstration period to demonstrate that the
VOC and NOX emissions are not projected to increase above
the 2004 attainment level during the time of the maintenance period.

           Table 4.--Total VOC Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
                                     2004 VOC     2009 VOC     2018 VOC
         Source category            emissions    emissions    emissions
------------------------------------------------------------------------
Point............................          1.6          1.4          1.8
Area.............................         25.2         25.5         29.1
Mobile...........................          9.4          6.9          4.5
Nonroad..........................          8.5          7.2          5.9
                                  --------------------------------------
    Total........................         44.7         41.0         41.3
------------------------------------------------------------------------

           Table 5.--Total NOX Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
                                     2004 NOX     2009 NOX     2018 NOX
         Source category            emissions    emissions    emissions
------------------------------------------------------------------------
Point............................          3.1          4.5          5.0
Area.............................          2.1          2.2          7.3
Mobile...........................         22.4         16.1          7.3
Non-road.........................         10.5          9.1          7.4
                                  --------------------------------------
    Total........................         38.1         31.9         21.9
------------------------------------------------------------------------

    Additionally, the following programs are either effective or due to
become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
     The Clean Air Interstate Rule (CAIR) (71 FR 25328, April
28, 2006).
     The Federal NOX SIP Call (66 FR 43795, August
21, 2001).
     Area VOC regulations concerning portable fuel containers
(69 FR 70893, December 8, 2004), consumer products (69 FR 70895,
December 8, 2004), and architectural and industrial maintenance
coatings (AIM) (69 FR 68080, November 23, 2004).
     Federal Motor Vehicle Control Programs (light-duty ) (Tier
1, Tier 2; 56 FR 25724, June 5, 1991; 65 FR 6698, February 10, 2000).
     Vehicle emission/inspection/maintenance program (70 FR
58313, October 6, 2005)
     Heavy duty diesel on-road (2004/2007) and low sulfur on-
road (2006); 66 FR 5002, (January 18, 2001).
     Non-road emission standards (2008) and off-road diesel
fuel 2007/2010); 69 FR 38958 (June 29, 2004).
     NLEV/PA Clean Vehicle Program (54 FR 72564, December 28,
1999)--Pennsylvania will implement this program in car model year 2008
and beyond.
     Pennsylvania Heavy-Duty Diesel Emissions Control Program.
(May 10, 2002).
    Based on the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that PADEP has successfully demonstrated that the 8-hour
ozone standard should be maintained in the Erie Area.
    (c) Monitoring Network--There is currently one monitor measuring
ozone in the Erie Area. PADEP will continue to operate its current air
quality monitor (located in Erie County), in accordance with 40 CFR
part 58.
    (d) Verification of Continued Attainment--In addition to
maintaining the key elements of its regulatory program, the
Commonwealth will track the attainment status of the ozone NAAQs in the
Area by reviewing air quality and emissions data during the maintenance
period. The Commonwealth will perform an annual evaluation of Vehicle
Miles Traveled (VMT) data and emissions reported from stationary
sources, and compare them to the assumptions about these factors used
in the maintenance plan. The Commonwealth will also evaluate the
periodic (every three years) emission inventories prepared under EPA's
Consolidated Emission Reporting Regulation (40 CFR part 51, subpart A)
to see if they exceed the attainment year inventory (2004) by more than
10 percent. The PADEP will also continue to operate the existing ozone
monitoring station in the Area pursuant to 40 CFR part 58 throughout
the maintenance period and submit quality-assured ozone data to EPA
through the AQS system. Section 175A(b) of the CAA states that eight
years following redesignation of the Erie Area, PADEP will be required
to submit a second maintenance plan that will ensure attainment through
2028. PADEP has made that commitment to meet the requirement section
175A(b).
    (e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the CAA requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the Commonwealth will promptly correct a
violation of the NAAQS that occurs after redesignation. The maintenance
plan should identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
    The ability of the Erie Area to stay in compliance with the 8-hour
ozone standard after redesignation depends upon VOC and NOX
emissions in the Area remaining at or below 2004 levels. The
Commonwealth's maintenance plan projects VOC and NOX
emissions to decrease and stay below 2004 levels through the year 2018.
The Commonwealth's maintenance plan outlines the procedures for the
adoption and implementation of contingency measures to further reduce
emissions should a violation occur.
    Contingency measures will be considered if for two consecutive
years the fourth highest 8-hour ozone concentrations at the Erie County
monitor are above 84 ppb. If this trigger point occurs, the
Commonwealth will evaluate whether additional local emission control
measures should be implemented in order to prevent a violation of the
air quality standard. PADEP will also analyze the conditions leading to
the excessive ozone levels and evaluate which measures might be most
effective in correcting the excessive ozone levels. PADEP will also
analyze the potential emissions effect of Federal, state, and local
measures that have been adopted but not yet implemented at the time the
excessive ozone levels occurred. PADEP will then begin the process of
implementing any selected measures.
    Contingency measures will also be considered in the event that a
violation of the 8-hour ozone standard occurs at the Erie County,
Pennsylvania monitor. In the event of a violation of the 8-hour ozone
standard, PADEP will adopt additional emissions reduction measures as
expeditiously as practicable in accordance with the implementation
schedule listed later in this notice and in the Pennsylvania Air
Pollution Control Act in order to return the Area to attainment with
the standard. Contingency measures to be considered for the Erie Area
will include, but not be limited to the following:
    Regulatory measures:

--Additional controls on consumer products.
--Additional controls on portable fuel containers.

    Non-Regulatory measures:

--Voluntary diesel engine ``chip reflash'' (installation software to
correct the defeat device option on certain heavy-duty diesel engines).

--Diesel retrofit, including replacement, repowering or alternative
fuel use, for public or private local on-road or off-road fleets.
--Idling reduction technology for Class 2 yard locomotives.
--Idling reduction technologies or strategies for truck stops,
warehouses and other freight-handling facilities.
--Accelerated turnover of lawn and garden equipment, especially
commercial equipment, including promotion of electric equipment.
--Additional promotion of alternative fuel (e.g., biodiesel) for home
heating and agricultural use.

    The plan lays out a process to have any regulatory contingency
measures in effect within 19 months of the trigger. The plan also lays
out a process to implement the non-regulatory contingency measures
within 12-24 months of the trigger.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Erie Maintenance Plan Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e., RFP SIPs and attainment demonstration
SIPs) and maintenance plans identify and establish MVEBs for certain
criteria pollutants and/or their precursors to address pollution from
on-road mobile sources. In the maintenance plan, the MVEBs are termed
``on-road mobile source emission budgets.'' Pursuant to 40 CFR part 93
and 51.112, MVEBs must be established in an ozone maintenance plan. An
MVEB is the portion of the total allowable emissions that is allocated
to highway and transit vehicle use and emissions. An MVEB serves as a
ceiling on emissions from an area's planned transportation system. The
MVEB concept is further explained in the preamble to the November 24,
1993, transportation conformity rule (58 FR 62188). The preamble also
describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the NAAQS. If a transportation plan does
not ``conform,'' most new projects that would expand the capacity of
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA
policy, criteria, and procedures for demonstrating and ensuring
conformity of such transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB contained
therein ``adequate'' for use in determining transportation conformity.
After EPA affirmatively finds the submitted MVEB is adequate for
transportation conformity purposes, that MVEB can be used by state and
federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the
CAA. EPA's substantive criteria for determining ``adequacy'' of a MVEB
are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic
steps: Public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Transportation Conformity
Rule Amendments--Response to Court Decision and Additional Rule
Change'' on July 1, 2004 (69 FR 40004). EPA consults this guidance and
follows this rulemaking in making its adequacy determinations.
    The MVEBS for the Erie Area are listed in Table 1 of this document
for 2009 and 2018, and are the projected emissions for the on-road
mobile sources plus any portion of the safety margin allocated to the
MVEBs (safety margin allocation for 2009 and 2018 only). These emission
budgets, when approved by EPA, must be used for transportation
conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: The Erie Area first attained the 8-hour ozone NAAQS during the
2002 to 2004 time period. The State used 2004 as the year to determine
attainment levels of emissions for the Erie Area. The total emissions
from point, area, mobile on-road, and mobile non-road sources in 2004
equaled 44.7 tpsd of VOC and 38.1 tpsd of NOX. The PADEP
projected emissions out to the year 2018 and projected a total of 41.3
tpsd of VOC and 21.9 tpsd of NOX from all sources in the
Erie Area. The safety margin for 2018 would be the difference between
these amounts, or 3.4 tpsd of VOC and 16.2 tpsd of NOX. The
emissions up to the level of the attainment year including the safety
margins are projected to maintain the area's air quality consistent
with the 8-hour ozone NAAQS. The safety margin is the extra emissions
reduction below the attainment levels that can be allocated for
emissions by various sources as long as the total emission levels are
maintained at or below the attainment levels. Table 6 shows the safety
margins for the 2009 and 2018 years.

             Table 6.--2009 and 2018 Safety Margins for Erie
------------------------------------------------------------------------
                                                    VOC          NOX
                Inventory year                   emissions    emissions
                                                   (tpsd)       (tpsd)
------------------------------------------------------------------------
2004 Attainment...............................         44.7         38.1
2009 Interim..................................         41.0         31.9
2009 Safety Margin............................          3.7          6.2
2004 Attainment...............................         44.7         38.1
2018 Final....................................         41.3         21.9

2018 Safety Margin............................          3.4         16.2
------------------------------------------------------------------------

    The PADEP allocated 0.4 tpsd VOC and 0.5 tpsd NOX to the
2009 interim VOC projected on-road mobile source emissions projection
and the 2009 interim NOX projected on-road mobile source
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs
the PADEP allocated 0.5 tpsd VOC and 0.6 tpsd NOX from the
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the
mobile source budgets these portions of the safety margins are no
longer available, and may no longer be allocated to any other source
category. Table 7 shows the final 2009 and 2018 MVEBs for Erie.

           Table 7.--2009 and 2018 Final MVEBs for Erie County
------------------------------------------------------------------------
                                                    VOC          NOX
                Inventory year                   emissions    emissions
                                                   (tpsd)       (tpsd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected          6.5         15.6
 emissions....................................
2009 Safety Margin Allocated to MVEBs.........          0.4          0.5
2009 MVEBs....................................          6.9         16.1
2018 projected on-road mobile source projected          4.0          6.7
 emissions....................................
2018 Safety Margin Allocated to MVEBs.........          0.5          0.6
2018 MVEBs....................................          4.5          7.3
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2009 and 2018 MVEBs for the Erie Area are approvable because
the MVEBs for VOCs and NOX continue to maintain the total
emissions at or below the attainment year inventory levels as required
by the transportation conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the Erie
Maintenance Plan?

    The MVEBs for the Erie Area maintenance plan are being posted to
EPA's conformity Web site concurrently with this proposal. The public
comment period will end at the same time as the public comment period
for this proposed rule. In this case, EPA is concurrently processing
the action on the maintenance plan and the adequacy process for the
MVEBs contained therein. In this proposed rule, EPA is proposing to
find the MVEBs adequate and also proposing to approve the MVEBs as part
of the maintenance plan. The MVEBs cannot be used for transportation
conformity until the maintenance plan and associated MVEBs are approved
in a final Federal Register notice, or EPA otherwise finds the budgets
adequate in a separate action following the comment period.
    If EPA receives adverse written comments with respect to the
proposed approval of the Erie MVEBs, or any other aspect of our
proposed approval of this updated maintenance plan, we will respond to
the comments on the MVEBs in our final action or proceed with the
adequacy process as a separate action. Our action on the Erie Area
MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/index.htm
 (once there, click

on ``Adequacy Review of SIP Submissions'').

VIII. Proposed Actions

    EPA is proposing to determine that the Erie Area has attained the
8-hour ozone NAAQS. EPA is also proposing to approve the redesignation
of the Erie Area from nonattainment to attainment for the 8-hour ozone
NAAQS. EPA has evaluated Pennsylvania's redesignation request and
determined that it meets the redesignation criteria set forth in
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation
request and monitoring data demonstrate that the Erie Area has attained
the 8-hour ozone standard. The final approval of this redesignation
request would change the designation of the Erie Area from
nonattainment to attainment for the 8-hour ozone standard. EPA is also
proposing to approve the associated maintenance plan for the Erie Area,
submitted on April 24, 2007, as a revision to the Pennsylvania SIP. EPA
is proposing to approve the maintenance plan for the Erie Area because
it meets the requirements of section 175A as described previously in
this notice. EPA is also proposing to approve the 2002 base-year
inventory for the Erie Area, and the MVEBs submitted by Pennsylvania
for the Erie Area in conjunction with its redesignation request. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.

IX. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)).
This action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal

Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will it 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), because it merely proposes to approve a state rule
implementing a Federal requirement, and does not alter the relationship
or the distribution of power and responsibilities established in the
Clean Air Act. This proposed rule also is not subject to Executive
Order 13045 (62 FR 19885, April 23, 1997), because it approves a state
rule implementing a Federal standard. In reviewing SIP submissions,
EPA's role is to approve state choices, provided that they meet the
criteria of the Clean Air Act. In this context, in the absence of a
prior existing requirement for the State to use voluntary consensus
standards (VCS), EPA has no authority to disapprove a SIP submission
for failure to use VCS. It would thus be inconsistent with applicable
law for EPA, when it reviews a SIP submission, to use VCS in place of a
SIP submission that otherwise satisfies the provisions of the Clean Air
Act. Redesignation is an action that affects the status of a
geographical area and 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.
As required by section 3 of Executive Order 12988 (61 FR 4729, February
7, 1996), in issuing this proposed rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct.
EPA has complied with Executive Order 12630 (53 FR 8859, March 15,
1988) by examining the takings implications of the rule in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order.
    This rule, proposing to approve the redesignation of the Erie Area
to attainment for the 8-hour ozone NAAQS, the associated maintenance
plan, the 2002 base-year inventory, and the MVEBs identified in the
maintenance plan, does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

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

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

    Dated: July 16, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E7-14360 Filed 7-24-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 180 (Friday, September 16, 2016)]
[Notices]
[Page 63853]
[FR Doc No: 2016-22136]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Commercial Space Transportation Advisory Committee--Open Meeting

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Commercial Space Transportation Advisory Committee
open meeting.

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

SUMMARY: Pursuant to Section 10(a)(2) of the Federal Advisory Committee
Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a
meeting of the Commercial Space Transportation Advisory Committee
(COMSTAC). The meeting will take place on Tuesday, October 25, 2016,
from 1:00 p.m. to 5:00 p.m., and Wednesday, October 26, 2016 from 8:00
a.m. to 5:00 p.m. at the National Transportation Safety Board
Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594. This
will be the 64th meeting of the COMSTAC.
    The proposed schedule for the COMSTAC working group meetings on
October 25th and 26th is below:

--International Space Policy (Oct 25 1:00 p.m.-3:00 p.m.)
--Business/Legal (Oct 25 3:00 p.m.-5:00 p.m.)
--Standards (Oct 26 8:00 a.m.-10:00 a.m.)
--Operations (Oct 26 10:00 a.m.-12:00 p.m.)

    The full Committee will meet on October 26, from 1:00 p.m. to 5:00
p.m. The proposed agenda for that meeting features speakers relevant to
the commercial space transportation industry; and reports and
recommendations from the working groups.
    Interested members of the public may submit relevant written
statements for the COMSTAC members to consider under the advisory
process. Statements may concern the issues and agenda items mentioned
above and/or additional issues that may be relevant for the U.S.
commercial space transportation industry. Interested parties wishing to
submit written statements should contact Michael Beavin, COMSTAC
Executive Director, (the contact person listed below) and Designated
Federal Officer in writing (mail or email) by October 14, 2016, so that
the information can be made available to COMSTAC members for their
review and consideration before the October 25-26, 2016 meeting.
Written statements should be supplied in the following formats: one
hard copy with original signature and/or one electronic copy via email.
    An agenda will be posted on the FAA Web site at www.faa.gov/go/ast.
For specific information concerning the times and locations of the
COMSTAC working group meetings, contact the contact person listed
below.
    Individuals who plan to attend and need special assistance, such as
sign language interpretation or other reasonable accommodations, should
inform the contact person listed below in advance of the meeting.

FOR FURTHER INFORMATION CONTACT: Michael Beavin, telephone (202) 267-
9051; email<EMAIL_ADDRESS>FAA Office of Commercial Space
Transportation, 800 Independence Avenue SW., Room 331, Washington, DC
20591.
    Complete information regarding COMSTAC is available on the FAA Web
site at: http://www.faa.gov/about/office_org/headquarters_offices/ast/advisory_committee/.

    Issued in Washington, DC, on September 8, 2016.
 George C. Nield,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 2016-22136 Filed 9-15-16; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Rules and Regulations]
[Pages 37764-37766]
[FR Doc No: 2023-12418]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0463]
RIN 1625-AA00

Safety Zone; Laguna Madre, South Padre Island, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
certain navigable waters in the Laguna Madre. The safety zone is needed
to protect personnel, vessels, and the marine environment from
potential hazards created by a firework display launched from a barge
in the Laguna Madre, South Padre Island, Texas. Entry of vessels or
persons into this zone is prohibited unless specifically authorized by
the Captain of the Port Sector Corpus Christi or a designated
representative.

DATES: This rule is effective from 9:30 p.m. through 11:59 p.m. from
June 9, 2023 through August 25, 2023.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0463 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander Anthony Garofalo, Sector Corpus
Christi Waterways Management Division, U.S. Coast Guard; telephone 361-
939-5130, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. We must
establish this safety zone immediately to protect personnel, vessels,
and the marine environment from potential hazards created by the
fireworks display and lack sufficient time to provide a reasonable
comment period and then to consider those comments before issuing the
rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with fireworks launched from a barge in the waters of the Laguna Madre.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Corpus Christi (COTP) has
determined that potential hazards associated with the fireworks
displays occurring from 9:30 p.m. through 11:59 p.m. ong several dates
from June 9, 2023 through August 25, 2023, will be a safety concern for
anyone within the waters of the Laguna Madre area with a 700 yard
radius from the following point; 26[deg]6'02.1'' N, 97[deg]10'17.7'' W.
The purpose of this rule is to ensure safety of vessels and persons on
these navigable waters in the safety zone while the display of the
fireworks takes place in the Laguna Madre.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone each night on June 9,
13, 16, 20, 23, 27, 30; July 7, 11, 14, 18, 21, 25, 28 and August 1, 4,
8, 11, 18, 25. The safety zone will encompass certain navigable waters
of the Laguna Madre and is defined by a 700 yard radius around the
launching platform. The regulated area encompasses a 700 yard radius
from the following point; 26[deg]6'02.1'' N, 97[deg]10'17.7'' W. The
fireworks display will take place in waters of the Laguna Madre. No
vessel or person is permitted to enter the temporary safety zone during
the effective period without obtaining permission from the COTP or a
designated representative, who may be contacted on Channel 16 VHF-FM
(156.8 MHz) or by telephone at 361-

939-0450. The Coast Guard will issue Broadcast Notices to Mariners,
Local Notices to Mariners, and/or Safety Marine Information Broadcasts,
as appropriate.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866, as amended by
Executive Order 14094 (Modernizing Regulatory Review). Accordingly,
this rule has not been reviewed by the Office of Management and Budget
(OMB).
    This regulatory action determination is based on the size,
location, and duration of the safety zone. The temporary safety zone
will be enforced for a short period of 2.5 hours, each night on June 9,
13, 16, 20, 23, 27, 30; July 7, 11, 14, 18, 21, 25, 28 and August 1, 4,
8, 11, 18, 25. The zone is limited to a 700 yard radius from the
launching position of in the navigable waters of the Laguna Madre. The
rule does not completely restrict the traffic within a waterway and
allows mariners to request permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
temporary safety zone may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
impact on any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, and Environmental Planning, COMDTINST 5090.1
(series), which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f) and have
determined that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves establishment of a temporary safety
zone for navigable waters of the Laguna Madre in a zone defined by a
700-yard radius from the following coordinate: 26[deg]6'02.1'' N,
97[deg]10'17.7'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
fireworks display in the waters of the Laguna Madre. It is
categorically excluded from further review under paragraph L60 of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A
record of environmental consideration is not necessary, but will be
provided if needed.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T08-0463 to read as follows:

Sec.  165.T08-0463  Safety Zone; Laguna Madre, South Padre Island, TX.

    (a) Location. The following area is a safety zone: all navigable
waters of the Laguna Madre encompassed by a 700-yard radius from the
following point; 26[deg]6'02.1'' N, 97[deg]10'17.7'' W.
    (b) Enforcement period. This section is subject to enforcement from
9:30 p.m. through 11:59 p.m. each night, on June 9, 13, 16, 20, 23, 27,
30; July 7, 11, 14, 18, 21, 25, 28 and August 1, 4, 8, 11, 18, 25.
    (c) Regulations. (1) According to the general regulations in Sec.
165.23 of this part, entry into the temporary safety zone described in
paragraph (a) of this section is prohibited unless authorized by the
Captain of the Port Sector Corpus Christi (COTP) or a designated
representative. They may be contacted on Channel 16 VHF-FM (156.8 MHz)
or by telephone at<PHONE_NUMBER>.
    (2) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
    (d) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and date for this
safety zone through Broadcast Notices to Mariners, Local Notices to
Mariners, and/or Safety Marine Information Broadcasts as appropriate.

    Dated: June 6, 2023.
J.B. Gunning,
Captain, U.S. Coast Guard, Captain of the Port Sector Corpus Christi.
[FR Doc. 2023-12418 Filed 6-7-23; 11:15 am]
BILLING CODE 9110-04-P