[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28423-28446]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11232]



[[Page 28423]]

Vol. 77

Monday,

No. 93

May 14, 2012

Part II





Environmental Protection Agency





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





40 CFR Parts 50, 51 and 81





Final Rule To Implement the 1997 8-Hour Ozone National Ambient Air 
Quality Standard: Classification of Areas That Were Initially 
Classified Under Subpart 1; Revision of the Anti-Backsliding Provisions 
To Address 1-Hour Contingency Measure Requirements; Deletion of 
Obsolete 1-Hour Ozone Standard Provision; Final Rule

Federal Register / Vol. 77 , No. 93 / Monday, May 14, 2012 / Rules 
and Regulations

[[Page 28424]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51 and 81

[EPA-HQ-OAR-2007-0956; FRL-9668-4]
RIN 2060-AO96


Final Rule To Implement the 1997 8-Hour Ozone National Ambient 
Air Quality Standard: Classification of Areas That Were Initially 
Classified Under Subpart 1; Revision of the Anti-Backsliding Provisions 
To Address 1-Hour Contingency Measure Requirements; Deletion of 
Obsolete 1-Hour Ozone Standard Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The EPA is revising the rules for implementing the 1997 8-hour 
ozone national ambient air quality standards (NAAQS) to address certain 
limited portions of the rules vacated by the U.S. Court of Appeals for 
the District of Columbia Circuit. This final rule assigns Clean Air Act 
(CAA or Act) classifications and associated state planning and control 
requirements to selected ozone nonattainment areas. This final rule 
also addresses three vacated provisions of the 1997 8-hour NAAQS--Phase 
1 Implementation Rule (April 30, 2004) that provided exemptions from 
the anti-backsliding requirements relating to nonattainment area New 
Source Review (NSR), CAA section 185 penalty fees, and contingency 
measures, as these three requirements applied for the 1-hour standard. 
This rule also reinstates the 1-hour contingency measures as applicable 
requirements that must be retained until the area attains the 1997 8-
hour ozone standard. Finally, this rule deletes an obsolete provision 
that stayed the EPA's authority to revoke the 1-hour ozone standard 
pending the Agency's issuance of a final rule that revises or 
reinstates its revocation authority and considers and addresses certain 
other issues. That rule has now been issued.

DATES: This rule is effective on June 13, 2012.

ADDRESSES: The EPA has established a docket for this rule, identified 
by Docket ID No. EPA-HQ-OAR-2007-0956. All documents in the docket are 
listed in www.regulations.gov. Although listed in the index, some 
information is not publicly available, i.e., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the Air and 
Radiation Docket and Information Center, EPA Headquarters Library, Room 
Number 3334 in the EPA West Building, located at 1301 Constitution Ave. 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For further general information or 
information on classification of former subpart 1 areas, contact Mr. 
Butch Stackhouse, Office of Air Quality Planning and Standards, U.S. 
Environmental Protection Agency, (C539-01), Research Triangle Park, NC 
27711, phone number (919) 541-2363, fax number (919) 541-0824 or by 
email at stackhouse.butch@epa.gov. For information on the 1-hour 
contingency measures associated with the 1-hour ozone standard contact 
Mr. H. Lynn Dail, Office of Air Quality Planning and Standards, (C504-
03), U.S. EPA, Research Triangle Park, North Carolina 27711, phone 
number (919) 541-2363, fax number (919) 541-0824, or by email at 
dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include 
State, local, and tribal governments and specifically include the areas 
identified in Table 1.

      Table 1--Affected Areas Initially Classified Under Subpart 1
------------------------------------------------------------------------
            State                                 Area
------------------------------------------------------------------------
Arizona......................  Phoenix-Mesa.
California...................  Amador and Calaveras Counties (Central
                                Mountain), Chico, Kern County (Eastern
                                Kern), Mariposa and Tuolumne Counties
                                (Southern Mountain), Nevada County, San
                                Diego, Sutter County (Sutter Buttes).
Colorado.....................  Denver, Boulder, Greeley, Ft. Collins &
                                Loveland.
Nevada.......................  Las Vegas.
New York.....................  Albany-Schenectady-Troy, Buffalo-Niagara
                                Falls, Essex County (Whiteface Mtn.),
                                Jamestown, Rochester.
Pennsylvania.................  Pittsburgh-Beaver Valley.
------------------------------------------------------------------------

    Entities potentially affected indirectly by this action include 
owners and operators of sources of emissions of volatile organic 
compounds (VOCs) and nitrogen oxides (NOX), the two 
pollutants that contribute to ground-level ozone concentrations.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice is also available on the World Wide Web. A copy of this 
notice will be posted at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.

C. How is this document organized?

    The information presented in this Document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is this document organized?
II. What is the background for this rule?
III. This Action
    A. Classification of 8-Hour Ozone Nonattainment Areas That the 
EPA Had Classified Under Subpart 1
    1. The Proposal
    2. Final Rule
    3. Comments and Responses
    a. Classification of Former Subpart 1 Areas
    b. Timing of SIP Submission Under Subpart 2 Classification
    c. Timing of Attainment Date
    d. Data Used for Classification
    e. Other Comments on Classification of Former Subpart 1 Areas
    B. Anti-Backsliding Under Revoked 1-Hour Ozone Standard-In 
General
    1. Proposal
    2. Final Rule
    3. Comments
    C. Contingency Measures
    1. Proposal
    2. Final Rule
    3. Comments and Responses
    D. Section 185 Fee Program for 1-Hour NAAQS
    1. Proposal
    2. Final Rule

[[Page 28425]]

    3. Comments and Responses
    E. Deletion of Obsolete 1-Hour Ozone Standard Provision
    1. Proposal
    2. Final Rule
    3. Comments and Responses
    F. Other Comments
    G. Correction to a Footnote in Proposal Rule
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review
    L. Determination Under Section 307(d)
V. Statutory Authority

II. What is the background for this rule?

    On January 16, 2009, the EPA proposed revisions to the Phase 1 Rule 
for implementing the 1997 8-hour ozone NAAQS \1\ (Phase 1 Rule) to 
address several of the limited portions of the rule vacated by the U.S. 
Court of Appeals for the District of Columbia Circuit in South Coast 
Air Quality Management District, et al., v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was 
limited to the issues on which the court granted the petitions for 
review). (South Coast). The proposal addressed the classification 
system for the subset of initial 8-hour ozone nonattainment areas that 
the Phase 1 Rule originally covered under CAA title I, part D, subpart 
1. The proposal also addressed how contingency measures that are 
triggered by failure to attain or make reasonable progress toward 
attainment of the 1-hour standard should apply under the anti-
backsliding provisions of the Phase 1 Rule. In addition, the proposal 
identified the vacated provisions of the rule that provided exemptions 
from the anti-backsliding requirements relating to 1-hour nonattainment 
NSR, the CAA section 185 penalty fees for failure to attain the 1-hour 
standard, and contingency measures as these requirements applied for 
the 1-hour standard. In the proposal, we planned to remove these 
provisions from the regulatory text in 40 CFR 51.905(e). Finally, we 
proposed to delete a provision that stayed the EPA's authority to 
revoke the 1-hour ozone standard. A more detailed description of the 
background for this rule appears in the January 16, 2009, notice of 
proposed rulemaking (74 FR 2936).
---------------------------------------------------------------------------

    \1\ 74 FR 2936, January 16, 2009.
---------------------------------------------------------------------------

III. This Action

A. Classification of 8-Hour Ozone Nonattainment Areas That the EPA Had 
Classified Under Subpart 1

    There are a number of areas currently designated nonattainment for 
the 1997 8-hour ozone NAAQS (0.08 parts per million (ppm)) that 
originally did not receive a classification under subpart 2. In this 
action, the EPA is establishing initial classifications for these 16 
areas and immediately finalizing the proposed reclassifications to 
Moderate for the areas that would be classified as Marginal but that 
failed to meet the June 15, 2007 attainment date for Marginal areas for 
the 1997 ozone NAAQS.
    Based on the area classifications, the CAA establishes certain 
planning and control requirements for the areas, and in this rule, the 
EPA is specifying the deadlines by which states must submit plans to 
meet these requirements. Once the ozone air quality in these areas 
meets the 1997 8-hour standard, certain of these requirements may be 
suspended by a determination of attainment (Clean Data Determination, 
pursuant to 40 CFR 51.918, 70 FR 71702). The obligation to complete and 
submit those requirements would be suspended as long as the area 
continues to attain the standard, and would no longer apply once the 
area is redesignated to attainment following the requirements of CAA 
107(d)(3). However, other requirements will continue to apply, and 
appropriate SIP elements must be submitted and approved prior to 
redesignation to attainment.
1. The Proposal
    In the January 16, 2009, proposed rule, the EPA proposed that all 
areas designated nonattainment for the 1997 8-hour ozone standard would 
be classified under and subject to the nonattainment planning 
requirements of subpart 2. We proposed to modify the regulatory text to 
remove current Sec.  51.902(b), which was vacated by the Court and 
which subjected certain nonattainment areas to regulation only under 
subpart 1.\2\ The Court vacated the Phase 1 rule to the extent it 
placed certain areas solely under the implementation provisions of 
subpart 1. Therefore, the proposal addressed which provisions of the 
CAA should apply to those areas.\3\
---------------------------------------------------------------------------

    \2\ As the Court made clear in its decision on rehearing, the 
CAA does not mandate coverage under subpart 2 of all areas 
designated nonattainment for an ozone NAAQS. As EPA moves forward to 
develop an implementation strategy for any future new ozone NAAQS, 
we may consider whether subpart 1 alone might apply for some areas 
for purposes of implementing that NAAQS.
    \3\ We note that areas subject to subpart 2 are also subject to 
subpart 1 to the extent subpart 1 specifies requirements that are 
not suspended by more specific obligations under subpart 2.
---------------------------------------------------------------------------

    We also noted that the classifications that would be established 
pursuant to this final rule would be the initial classifications for 
the affected areas for the 1997 ozone standard. Therefore, we proposed 
to use the 2003 8-hour ozone design values (derived from 2001-2003 air 
quality data), which were used to designate these areas nonattainment 
initially, as the basis for classification. We also proposed to use the 
classification table in 40 CFR 51.903 (established by the Phase 1 Rule) 
to classify these areas. We noted that CAA section 181(a) provides that 
``at the time'' areas are designated for the ozone NAAQS, they will be 
classified ``by operation of law'' based on the ``design value'' of the 
areas and in accordance with Table 1 of that section. We concluded that 
this language specifies that the area will be classified based on the 
design value that existed for the area at the time of designation. 
Areas were designated nonattainment in 2004, based on design values 
derived from data from 2001-2003.
    Since the classifications under this proposal would be the initial 
classifications for the 1997 8-hour standard for the affected areas, 
the EPA proposed that the provision of CAA section 181(a)(4) would 
apply to these areas. This provision would allow the Administrator in 
her discretion to adjust the classification--within 90 days after the 
initial classification--to a higher or lower classification ``* * * if 
the design value were 5 percent greater or 5 percent less than the 
level on which such classification was based.'' The EPA proposed to 
address requests for such classification adjustments for the newly-
classified areas in a manner similar to the way requests were handled 
for the original round of subpart 2 classifications in 2004. This 
process is described at 69 FR 23863 et seq. (April 30, 2004). We 
indicated in the proposal, however, that if a state requests a 
reclassification from Moderate to

[[Page 28426]]

Marginal for an area that is currently violating the standard, the EPA 
would not grant the request for the reclassification because the 
Marginal attainment deadline has already passed.
    We noted that the classification table of 40 CFR 51.903 provides an 
outside attainment date based on the number of years after the 
effective date of the nonattainment designation (e.g., 3 years for 
Marginal and 6 years for Moderate). For all nonattainment areas other 
than Denver, the effective date of designation for the 8-hour standard 
was June 15, 2004. Thus, Marginal nonattainment areas (with the 
exception of Denver) had a maximum statutory attainment date of June 
15, 2007. Since the Marginal area attainment date has passed, the EPA 
proposed that any area that would be classified as Marginal based on 
its 2003 design value and that had not attained by June 15, 2007, or 
that did not meet the criteria for an attainment date extension under 
CAA section 181(a)(5)(B) and 40 CFR 51.907, would be reclassified 
immediately as Moderate under the final rule.
    In addition, we noted that a number of areas that were initially 
placed in subpart 1 under the vacated provision of the Phase 1 Rule 
have since been redesignated to attainment for the 1997 8-hour 
standard. We indicated that since these areas are now designated 
attainment for the 1997 8-hour standard, the classification provisions 
of the final rule would not apply.
    In the proposal, the EPA took the position that transportation 
conformity requirements, and current transportation plan and 
transportation improvement program conformity determinations for the 
1997 8-hour ozone standard remain valid, and would not be impacted by 
this final action. These areas are already required to satisfy the 
applicable CAA section 176(c) conformity requirements for the 1997 8-
hour ozone standard based on their nonattainment designation in June 
2004. Thus, no new conformity deadline would be triggered for these 
areas after the areas are classified under subpart 2. These areas would 
continue to make future conformity determinations according to the 
applicable requirements of 40 CFR 93.109(d) and (e). The EPA indicated 
that any areas classified as Moderate that are using the interim 
emissions tests would be required to meet additional test requirements 
that do not apply to Marginal areas [40 CFR 93.119(b)(1)]. Moderate 
ozone nonattainment areas are required to satisfy both interim 
emissions tests in order to demonstrate conformity. Therefore, any area 
classified as Moderate would be required to demonstrate that emissions 
in the build scenario are less than the no-build scenario and that 
emissions in the build scenario are less than emissions in the 2002 
base year. Marginal areas are required to demonstrate conformity using 
the ``no greater than'' form of one of the two interim emissions tests 
[40 CFR 93.119(b)(2)(i) and 40 CFR 93.119(b)(2)(ii)(A)&(B)].
    The EPA proposed to require states to submit all required State 
Implementation Plan (SIP) elements of the areas' Marginal or Moderate 
classification no later than 1 year after the effective date of this 
final rule. The proposal noted that the EPA believed this to be an 
appropriate and reasonable amount of time given the attainment dates 
that will apply to these areas, and that these areas should have made 
significant progress toward developing SIPs, originally due June 15, 
2007, based on the obligations that applied before the subpart 1 
provision of the Phase 1 Rule was vacated in December 2006.
2. Final Rule
    The final rule generally reflects the approach we proposed. The 
final rule provides that:
     All areas originally placed under subpart 1 and that 
remain designated nonattainment for the 1997 8-hour ozone standard at 
the time of this final rule are now classified under and subject to the 
nonattainment planning and emissions control requirements of subpart 2, 
sections 181-185. There are sixteen such areas.
     Initial classifications are based on the 8-hour ozone 
design values (derived from 2001-2003 air quality data) that were used 
to designate these areas nonattainment initially.
     The classification table in 40 CFR 51.903 (established by 
the Phase 1 Rule) is used for the classifications. The classification 
table of 40 CFR 51.903 provides a maximum attainment date based on a 
number of years after the effective date of the nonattainment 
designation (e.g., 3 years for Marginal; 6 years for Moderate). For all 
areas other than Denver,\4\ the effective date of nonattainment 
designation and classification for the 8-hour standard was June 15, 
2004. Thus, other than Denver, Marginal nonattainment areas had a 
maximum statutory attainment date of June 15, 2007. Since the Marginal 
area attainment date of June 15, 2007 has passed, any area that would 
have been initially classified as Marginal, and that did not attain by 
June 15, 2007 (based on 2004-6 data), and was unable to attain pursuant 
to the 1-year attainment date extensions allowed under section 
181(a)(5)(B) and 40 CFR 51.907, is reclassified from Marginal to 
Moderate under this rule.
---------------------------------------------------------------------------

    \4\ Denver's special circumstancs as a former EAC area were 
discussed in the proposal. (74 FR 2939-2941). The nonattainment 
designation for the Denver area became effective November 20, 2007. 
(72 FR 53952 and 53953, September 21, 2007).
---------------------------------------------------------------------------

     CAA section 181(a)(4) applies to all areas affected by 
this final rule. This provision allows the Administrator in her 
discretion to adjust the classification--within 90 days after the 
initial classification--to a higher or lower classification ``* * * if 
the design value were 5 percent greater or 5 percent less than the 
level on which such classification was based.'' The process for making 
these adjustments is described at 69 FR 23863 et seq. (April 30, 2004). 
However, the EPA will not grant a request for reclassification to a 
lower classification if (1) the attainment date for that lower 
classification has passed, and (2) the area is or has violated the 
standard such that it would not qualify for the first and second 1-year 
attainment date extensions. Since the Marginal attainment date has 
passed, no area initially classified Moderate by this notice will be 
eligible for a downward adjustment to Marginal. Further, since none of 
the initial Moderate areas affected by this notice had a classification 
design value within 5 percent of the Serious threshold of 0.107 ppm, no 
areas are eligible for an upward classification adjustment to Serious.
     Areas originally placed under subpart 1 that have already 
been redesignated to attainment are not affected by these 
classification provisions, which apply only to areas that remain 
designated nonattainment for the 1997 ozone standard.
    In this rulemaking, the EPA is responding to the Court's vacatur of 
the provision that placed certain nonattainment areas solely under 
subpart 1 and is now classifying those areas under subpart 2. There are 
sixteen such areas identified in Table 2 that are being initially 
classified under subpart 2 based on the area's design value at the time 
of designation. To determine the area's design value, we used 2001-2003 
ambient air quality data. We then took the following steps to determine 
whether any areas classified Marginal should be immediately 
reclassified to Moderate.
    Step 1. If the area would be classified as Marginal based on its 
design value at the time of designation, we determined if the area 
attained by the June 15, 2007 attainment date based on 2004-2006 
ambient air quality data. If so (and if the area has not been formally 
redesignated

[[Page 28427]]

to attainment) \5\ the area remains classified as Marginal. There are 8 
areas classified Marginal as a result of this Step. (See Table 2 column 
for ``Status in 2007'', which identifies 8 Marginal areas as 
``Attaining''.)
---------------------------------------------------------------------------

    \5\ Section 107(d)(3) of the CAA allows states to request 
nonattainment areas to be redesignated to attainment provided 
certain criteria are met that include an approved SIP, a 
determination that air quality improvement is due to permanent and 
enforceable reductions in emissions, an approved maintenance plan, 
and other section 110 and part D requirements.
---------------------------------------------------------------------------

    Step 2. If the Marginal area did not attain by the June 15, 2007 
attainment date, we determined if the area would be eligible for the 
first 1-year extension under CAA section 181(a)(5) and 40 CFR 
51.907.\6\ If the area would not have been eligible for the first 1-
year extension, we are reclassifying Amador and Calaveras Counties 
(Central Mountain), CA to Moderate as a result of this Step.
---------------------------------------------------------------------------

    \6\ Under 40 CFR 51.907, an area would be eligible for the first 
1-year extension of its attainment date for the 1997 ozone standard 
if the 4th highest daily maximum 8-hour average in 2006 is equal to 
or less than 0.084 ppm.
---------------------------------------------------------------------------

    Step 3. For any Marginal area that was eligible for the first 1-
year extension, we reviewed the ambient air quality data from 2005-2007 
to determine if the area attained the standard by the end of the first 
1-year extension. If so, we are classifying the area as Marginal. No 
areas are classified Marginal as a result of this Step.
    Step 4. For any Marginal area that was eligible for the first 1-
year extension, but did not attain by the end of that extension, we 
then determined if it would have been eligible for the second 1-year 
extension.\7\ If the area would not have been eligible for the second 
1-year extension, we are reclassifying the area to Moderate. Mariposa 
and Tuolumne Counties (Southern Mountain), CA are reclassified to 
Moderate as a result of this Step.
---------------------------------------------------------------------------

    \7\ Under 40 CFR 50.907, an area is eligible for the second 1-
year extension if the 2-year average of 4th highest daily maximum 8-
hour averages for 2006 and 2007 at the monitor with the highest 
level is equal to or less than 0.084 ppm.
---------------------------------------------------------------------------

    Step 5. For any Marginal area that was eligible for the second 1-
year extension, we then reviewed the ambient air quality data from 
2006-2008 to determine if the area attained the standard. If so, we are 
classifying the area as Marginal. If the area did not attain, we are 
reclassifying the area as Moderate. No areas are classified Marginal or 
reclassified Moderate as a result of this Step.
    Any Moderate area that did not attain by June 15, 2010 and would 
not have been eligible for the first or second 1-year extension, would 
be subject to the CAA's statutory provisions for reclassification 
(bump-up) to Serious, the next higher classification category. At the 
time the January 16, 2009 proposed rule was issued, the Moderate area 
attainment date of June 15, 2010, had not passed. Thus, the proposed 
rule did not address reclassification from Moderate to Serious. The EPA 
will address reclassifications from Moderate to Serious, as necessary, 
in separate rulemaking action.
    Table 2 identifies the final subpart 2 classification for each area 
that was originally classified under subpart 1 pursuant to our Phase 1 
Rule (69 FR 23989, April 30, 2004), and that remains nonattainment for 
the 1997 ozone standard.

  Table 2--Summary of Nonattainment Areas Initially Classified Under Subpart 1 Receiving Reclassification Under
                                                    Subpart 2
----------------------------------------------------------------------------------------------------------------
                                             2004 Initial
                                            classification/       Status in 2007          Current subpart 2
      State                Area           design value 2001-   (based on 2004-2006         classification
                                              2003 (ppm)           data) (ppm)
----------------------------------------------------------------------------------------------------------------
CA...............  Chico, CA...........  Marginal (0.089)....  Attaining (0.084)..  Marginal
CA...............  Sutter Co. (Sutter    Marginal (0.088)....  Attaining (0.081)..  Marginal
                    Buttes), CA.
NV...............  Las Vegas, NV.......  Marginal (0.086)....  Attaining (0.083)..  Marginal d e
AZ...............  Phoenix-Mesa, AZ....  Marginal (0.087)....  Attaining (0.083)..  Marginal \e\
CO...............  Denver-Boulder-       Marginal \a\ (0.087)  Attaining \a\        Marginal
                    Greeley-Ft Collins-                         (0.082).
                    Loveland, CO.
NY...............  Albany-Schenectady-   Marginal (0.087)....  Attaining (0.078)..  Marginal \d\
                    Troy, NY.
NY...............  Rochester, NY.......  Marginal (0.088)....  Attaining (0.074)..  Marginal \d\
NY...............  Essex Co. (Whiteface  Marginal (0.091)....  Attaining (0.071)..  Marginal \d\
                    Mtn), NY.
CA...............  Amador and Calaveras  Marginal (0.091)....  Not attaining        Moderate
                    Counties (Central                           (0.093) \b\.
                    Mtn), CA.
CA...............  Mariposa and          Marginal (0.091)....  Not attaining        Moderate
                    Tuolumne Counties                           (0.086) \c\.
                    (Southern Mtn), CA.
NY...............  Buffalo-Niagara       Moderate (0.099)....  n/a................  Moderate \d\
                    Falls, NY.
PA...............  Pittsburgh-Beaver     Moderate (0.094)....  n/a................  Moderate \d\
                    Valley, PA.
NY...............  Jamestown, NY.......  Moderate (0.094)....  n/a................  Moderate \d\
CA...............  Kern Co. (Eastern     Moderate (0.098)....  n/a................  Moderate
                    Kern), CA.
CA...............  Nevada Co. (Western   Moderate (0.098)....  n/a................  Moderate
                    Part), CA.
CA...............  San Diego, CA.......  Moderate (0.093)....  n/a................  Moderate
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Denver was identified as an Early Action Compact (EAC) area at the time of designation in 2004 and the
  effective date of its nonattainment designation was deferred pending the EAC process. The EAC program was
  later terminated and the nonattainment designation for the area became effective on November 20, 2007, based
  on a 2001-2003 design value of 0.087 ppm placing it in the Marginal classification. The Denver area attained
  the standard by its attainment date of November 20, 2010 (3 years after the date the area was designated
  nonattainment) and continues to attain based on 2008-10 data.
\b\ Amador and Calaveras Counties did not attain by the attainment date and were not eligible for the first 1-
  year extension based on 2006 4th highest daily 8-hour average of 0.098 ppm. Thus, the area's classification
  was changed to Moderate. The area now attains the standard based on 2008-10 data.
\c\ Mariposa and Tuolumne Counties did not attain by the attainment date and were eligible for the first 1-year
  extension based on 2006 4th highest daily 8-hour average of 0.084 ppm. The area was not eligible for the
  second 1-year extension based on the average of the original attainment year (2006) and first extension year
  (2007) 4th highest daily 8-hour average of 0.085 ppm. Thus, the area's classification was changed to Moderate.
  The area now attains the standard based on 2008-10 data.
\d\ Albany-Schenectady-Troy, Rochester, Essex County, Buffalo, Pittsburgh, Jamestown, and Las Vegas have
  received Clean Data Determinations.

[[Page 28428]]

 
\e\ Las Vegas and Phoenix have requested redesignation to attainment.

    Subpart 2 contains SIP requirements that differ from subpart 1. 
These include different attainment deadlines, different RFP 
requirements, requirements to adopt RACT-based controls for certain 
categories of NOX and VOC sources, specific major source 
thresholds and NSR offset ratio requirements for each classification. 
Table 3 lists new subpart 2-related SIP requirements for Marginal and 
Moderate nonattainment areas. The EPA is aware that many of the subpart 
2 SIP requirements have already been satisfied through previous SIP 
submissions or the requirements have been suspended due to a Clean Data 
Determination. For example, all of the areas that would be affected by 
the Moderate area vehicle inspection and maintenance (I/M) program 
requirement are already implementing approved programs, and the three 
areas in the Ozone Transport Region (Pittsburgh, PA; Jamestown, NY; and 
Buffalo-Niagara, NY) have already submitted SIPs to address the VOC and 
NOX RACT requirements. Similarly some areas affected by this 
rulemaking were previously nonattainment under the 1-hour ozone 
standards, and may have already established an emissions statement rule 
and completed RACT determinations. Also, 7 of the 16 areas affected by 
this final rule have received Clean Data Determinations that suspend 
certain planning requirements.\8\
---------------------------------------------------------------------------

    \8\ The seven areas that have received Clean Data Determinations 
are Pittsburgh-Beaver Valley, PA, 76 FR 31237-39, May 31, 2011; 
Buffalo-Niagara Falls, Jamestown, NY and Essex County (Whiteface 
Mountain), 74 FR 63993, December 7, 2009; Albany-Schenectady-Troy, 
NY, Rochester, NY, 73 FR 15672, March 25, 2008; and Clark County 
(Las Vegas), NV, 76 FR 17343, March 29, 2011.
---------------------------------------------------------------------------

    As indicated in Table 3, attainment demonstrations and RFP plans 
are suspended by a Clean Data Determination, while the remaining 
requirements are not. However, it is longstanding EPA policy that if an 
area submits a complete request for redesignation including a 
maintenance plan before certain nonattainment area requirements become 
due, those elements do not need to be submitted in order for the area 
to be redesignated to attainment.\9\
---------------------------------------------------------------------------

    \9\ EPA guidance with respect to redesignations to attainment 
can be found in a memorandum entitled ``Procedures for Processing 
Requests to Redesignate Areas to Attainment,'' John Calcagni, 
Director, Air Quality Management Division, September 4, 1992. See 
http://www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf. 
This memorandum notes, for example, that, for the purposes of 
redesignation, a state must meet the applicable requirements of 
section 110 and Part D that become due prior to the state's 
submittal of a complete redesignation request to EPA. For the 
purposes of evaluating a redesignation request, the EPA will not 
need to consider the required SIP elements that became due after 
submittal of the redesignation request. However, such requirements 
remain due until EPA completes final action approving a 
redesignation request.

  Table 3--Additional SIP Elements Associated With Subpart 2 for Previous Subpart 1 8-Hour Ozone Nonattainment
                                                      Areas
                              [This table is not inclusive of all CAA requirements]
----------------------------------------------------------------------------------------------------------------
                                                                                       Is requirement suspended
 Ozone subpart 2 SIP requirement (CAA      Marginal areas          Moderate areas            by clean data
               section)                                                                     determination?
----------------------------------------------------------------------------------------------------------------
Attainment demonstration including     Not Required..........  Required.............  Yes.
 RACM (Sec.   182(b)(1)).
Reasonable Further Progress (Sec.      Not Required..........  Required.............  Yes.
 182(b)(1)).
Periodic Emissions Inventory (Sec.     Required..............  Required.............  No.
 182(a)(3)(A)).
Emissions Statement Rule (Sec.         Required..............  Required.............  No.
 182(a)(3)(B)).
Subpart 2 RACT for VOCs and NOX (Sec.  Not Required..........  Required.............  No.
   182(b)(2)(f)).
Pre-1990 RACT fix-up (Sec.             Required..............  Not Required.........  No.
 182(a)(2)(A)).
New Source Review (Sec.                Required..............  Required.............  No.
 182(a)(2)(C), (a)(4), (b)(5)).
Vehicle I/M (Sec.   182(a)(2)(B),      Not Required..........  Required+............  No.
 (b)(4)).
----------------------------------------------------------------------------------------------------------------
+ Applies only in nonattainment areas with population >200,000 based on 1990 census. (See 74 FR 41818-22, August
  19, 2009.)

    With respect to transportation conformity, current transportation 
plan and transportation improvement program conformity determinations 
for the 1997 8-hour ozone standard remain valid, and are not impacted 
by this action. Areas formerly classified under subpart 1 were already 
required to satisfy the applicable CAA section 176(c) conformity 
requirements for the 1997 8-hour ozone standard based on their 
designation as nonattainment. Thus, no new conformity deadline is 
triggered in these areas based on their classification under subpart 2. 
These areas would make future conformity determinations according to 
the applicable requirements of 40 CFR 93.109(d) and (e). Any new 
Moderate areas that are using interim emissions tests will be required 
to meet additional test requirements that do not apply to Marginal 
areas (40 CFR 93.119(b)(1)).\10\ Also, areas newly classified under 
subpart 2 that are using budget test 40 CFR 93.118 and whose attainment 
year is within the timeframe of the transportation conformity 
determination and transportation plan must analyze the attainment year 
as required by 40 CFR 93.118(d)(2).
---------------------------------------------------------------------------

    \10\ Moderate ozone nonattainment areas are required to satisfy 
both interim emissions tests in order to demonstrate conformity. 
Therefore, they must demonstrate that emissions in the build 
scenario are less than the no-build scenario and that emissions in 
the build scenario are less than emissions in the 2002 base year. 
(40 CFR 93.119(b)(1)).
---------------------------------------------------------------------------

3. Comments and Responses
a. Classification of Former Subpart 1 Areas
    Comment: A number of commenters opposed placing all the former 
subpart 1 areas under subpart 2. Most of these commenters expressed 
concern that the subpart 2 requirements for local emission controls 
would be too burdensome for some of the areas, are obsolete, and would 
not necessarily be effective in bringing down ozone levels. In the case 
of Cincinnati, two state air agency commenters argued that the 
requirements would produce absurd results because the area had recently 
dropped the vehicle I/M program in the wake of meeting the 1-hour ozone

[[Page 28429]]

standard. Some commenters also argued that certain areas would benefit 
more from regional controls than from local controls. In addition, some 
of the affected areas have already made significant progress toward 
attainment since they were originally designated nonattainment. Another 
commenter stated that the proposal would take away flexibility that 
they believe the CAA allows and that the Court had preserved in its 
ruling by allowing areas with design values below 0.09 ppm to be 
classified under subpart 1. Two commenters supported placing all the 
former subpart 1 areas under subpart 2.
    Response: In South Coast, the Court determined that although the 
CAA does not mandate that 8-hour ozone nonattainment areas with a 
design value below 0.09 ppm be placed under subpart 2, the EPA had not 
identified a reasonable basis for placing any of the 1997 standard 
ozone nonattainment areas under subpart 1. As noted in the proposed 
rule, the EPA was unable to develop a reasonable basis for doing so 
and, despite soliciting comments on potential rationales, none of the 
commenters on the proposed rule identified any such rationale. 
Therefore, at this time, the EPA is not placing any 1997 standard 
nonattainment areas solely under subpart 1.
    We disagree with the commenters that suggest that the subpart 2 
requirements associated with the 1997 NAAQS would not necessarily be 
effective in bringing down ozone levels. Even if the mandated programs 
under subpart 2 are not the most effective programs to achieve emission 
reductions in a specific area, that does not render the programs 
``absurd,'' as the programs will provide benefits by reducing emissions 
of VOC and NOX. We also note that the areas being placed 
under subpart 2 through this rulemaking have been designated 
nonattainment for the 1997 ozone standard for over 7 years. Some of 
those areas have attained the 1997 standard and have had an opportunity 
to seek redesignation to attainment before the mandatory subpart 2 
requirements apply. With regard to those that are still not attaining 
the 1997 standard, we note that the subpart 1 flexibility that has been 
available to these areas to date has not resulted in attainment for 
these areas. Thus, it is difficult to argue for these areas that the 
additional flexibility under subpart 1 is more likely to result in 
attainment than the mandated programs under subpart 2.
    Comment: Some of the commenters that opposed placing all the former 
subpart 1 areas under subpart 2 believed that the EPA did not provide 
sufficient reason for not considering a different threshold for placing 
areas under subpart 1. They noted that the Court in South Coast had set 
forth the 0.09 ppm 8-hour average as a design value to be used, such 
that areas with design values below that value could be placed in 
subpart 1. One commenter recommended that the EPA maximize the use of 
subpart 1 to the extent it could. However, on this matter, several 
environmental organizations commented that the Court in South Coast 
expressly rejected all of the EPA's previously stated rationales for 
placing some areas only under subpart 1. They also commented that the 
EPA has not identified any alternative rationales to justify such an 
approach, and allege that no lawful or non-arbitrary rationales exist.
    Response: Although the Court determined that an 8-hour design value 
of 0.09 ppm is the appropriate threshold for determining which areas 
must be placed under subpart 2 and which areas the Agency has 
discretion to place under subpart 1, the Court rejected the EPA's 
rationale in the Phase 1 Rule for placing areas under subpart 1. At the 
time of proposal, the EPA noted that it had not developed any rationale 
for placing areas in subpart 1 for the 1997 8-hour ozone standard and 
expressly solicited comment on potential rationales. However, no 
commenters presented a rationale that differed from that which the 
Court rejected in South Coast.
    Comment: One state air agency supported the proposal to not place 
under subpart 2 those former subpart 1 areas that have already been 
redesignated attainment.
    Response: As noted in the proposal, because the classification 
provisions apply to areas designated nonattainment, the final rule does 
not classify those former subpart 1 areas that have been redesignated 
to attainment for the 1997 ozone NAAQS.
b. Timing of SIP Submission Under Subpart 2 Classification
    Comment: A number of commenters argued that the proposal did not 
give enough time for states to submit SIPs under the new 
classification. Some argued that the period of 1 year after the 
effective date of this rule for classifying areas was unreasonable and 
arbitrary, and that more time was needed for analysis and the rule 
adoption process, including public hearing. Some commenters argued that 
the EPA should allow the statutory time period in CAA section 181(b)(1) 
from the date of classification (3 years). Several commenters noted 
that even if a state had prepared a SIP under subpart 1 requirements, a 
subpart 2 Moderate area SIP requires much more time and effort due to 
the number of mandatory measures that would have to be adopted.
    Response: As noted in the proposal, subpart 1 areas originally had 
an obligation to submit a SIP under section 172(c), including an 
attainment demonstration, within 3 years after the June 2004 
designations. Although the Court vacated the EPA's placement of areas 
under subpart 1, the decision did not change the requirement that areas 
designated nonattainment must attain as expeditiously as practicable. 
Moreover, we note that areas that would have been subject only to 
subpart 1 if the EPA's rule had not been vacated would have had an 
attainment date of June 2009, 1 year earlier than the attainment date 
for the Moderate classification. While the Court decision did create 
some uncertainty regarding the specific classification that might 
eventually apply to an area, we note that areas have been on notice 
since the EPA's January 2009 proposal that it is likely they would be 
classified under subpart 2. As noted in the proposal, the EPA had 
advised states with areas that had been placed under subpart 1, 
including all of the areas affected by this final rule, to continue 
making progress toward attainment for these areas.\11\ Indeed we are 
aware that many of these states have been working to adopt and 
implement measures necessary for the affected areas to attain the 1997 
ozone standard, and the EPA believes 1 year is an appropriate amount of 
additional time to complete that work.
---------------------------------------------------------------------------

    \11\ Memorandum of March 19, 2007 from William L. Wehrum to EPA 
Regional Administrators, re: ``Impacts of the Court Decision on the 
Phase 1 Ozone Implementation Rule'' (response to Question 2) and 
memorandum of June 15, 2007, from Robert J. Meyers to Regional 
Administrators, re: ``Decision of the U.S. Court of Appeals for the 
District of Columbia Circuit on our Petition for Rehearing of the 
Phase 1 Rule to Implement the 8-Hour Ozone NAAQS'' (Implications for 
Subpart 1 Areas).
---------------------------------------------------------------------------

    For those areas that are still violating the 1997 8-hour ozone 
standard, it is critical for them to move forward and achieve the 
emission reductions needed to ensure timely attainment.
    Comment: One state agency commenter recommended that the effective 
date of the new classifications be 1 year after the rule is issued; if 
the area attains before the effective date, the rule would be waived 
for that area.
    Response: The CAA requires that areas be classified ``at the time 
of designation by operation of law.'' The effective date of designation 
for the 1997 ozone standard was June 15, 2004. While we do not believe 
it is appropriate to treat the classifications as

[[Page 28430]]

``retroactive,'' such that they would be considered effective over 5 
years ago, we also do not believe there is a legal basis for deferring 
the effective date of the classification for 1 year. Moreover, as noted 
above, if the Court had not vacated our placement of areas only under 
subpart 1, the areas affected by this rule would have had an attainment 
date (June 2009) that is 1 year earlier than the attainment date (June 
2010) they would receive if classified as Moderate under this rule. 
Thus, even if the EPA had a legal basis and discretion to delay the 
effective date of the classification, and thus delay the planning and 
attainment obligations, we do not believe in this instance that it 
would be reasonable to do so.
c. Timing of Attainment Date
    Comment: A number of commenters argued that the proposal did not 
provide newly classified Marginal and Moderate areas sufficient time to 
attain and that they should have maximum attainment dates of 3 and 6 
years (respectively) from the effective date of the new 
classifications, not the original nonattainment designations in 2004. 
Several commenters cited the EPA's interpretation of the CAA's 
attainment date in the Phase 1 Rule for support by referring to section 
181(b)(1) that provides that where an area designated attainment or 
unclassifiable is subsequently redesignated to nonattainment, the area 
shall be classified under Table 1 of section 181 and shall be subject 
to the same requirements applicable if it had been classified at the 
time of notice under section 107(d)(3), ``except that any absolute, 
fixed date applicable in connection with any such requirement is 
extended by operation of law by a period equal to the length of time 
between the date of enactment of the CAA Amendments of 1990 and the 
date the area is classified under this paragraph.'' The commenters note 
that while by its terms section 181(b)(1) would not expressly apply to 
reclassification of a nonattainment area, the section indicates that 
retroactive application of time requirements is not favored. The 
commenters note that regarding the proposed rule, the EPA would be 
classifying areas in 2009, not in 2004, and argue that deadlines should 
be calculated from 2009, not from 2004. They also argue that even if 
the EPA believes the deadlines need to be adjusted in some way to 
address this unique situation, the calculation and adjustment should be 
done from 2009 after an assessment of the situation as it exists in 
2009. The commenters also argue that the EPA seems to be doing exactly 
what the U.S. Supreme Court warned against in Whitman when the Court 
rejected the idea of mechanically applying subpart 2's method for 
calculating attainment dates, which is simply to count forward a 
certain number of years from the effective date of the 1990 CAA 
amendments. They point out that the Court observed that simplistically 
using the subpart 2 scheme ``depending on how far out of attainment the 
area started--seems to make no sense for areas that are first 
classified under a new standard after November 14, 1990. If for 
example, areas were classified in the year 2000, many of the deadlines 
would largely have expired at the time of classification.''
    Response: For the reasons articulated in previous responses, we do 
not believe that it is legally supportable to start the attainment 
periods from the time of classification pursuant to this rule, nor do 
we believe that such an approach is reasonable. The primary trigger for 
planning for attainment of a NAAQS is the designation as nonattainment 
for that standard. As noted previously, regardless of whether an area 
is subject only to subpart 1, or is classified as Marginal or higher 
under subpart 2, the obligation is the same--to attain as expeditiously 
as practicable. Thus, there is no legal or policy basis to delink the 
attainment obligation from the time of designation and instead link it 
to the time of classification. We disagree that this situation is 
analogous to the situation where an area is newly designated 
nonattainment and for which section 181(b)(1) provides that any 
submission dates tied to the date of enactment of the CAA Amendments be 
extended to account for the time of designation. In such a case, the 
key is that the area is newly designated as nonattainment--not that the 
area's classification status has changed or been clarified. All of the 
areas that will receive a subpart 2 classification pursuant to this 
rule have been designated nonattainment since June 2004 (except for the 
Denver area, which was designated nonattainment effective November 20, 
2007) and thus should be well on their way toward planning for 
attainment of the 1997 ozone standard as expeditiously as practicable. 
To the extent that those efforts have been delayed, we see no legal 
basis or justification to provide additional time.
    Comment: One state air agency commenter argued that the 5 percent 
reclassification provision of the CAA would be rendered meaningless by 
the timing in the proposal, because the attainment date for Marginal 
areas has already passed.
    Response: We agree as a practical matter that none of the 16 areas 
affected by this final rule are eligible for a classification 
adjustment.
    Comment: Several commenters argued that the Denver area should have 
a June 2007 attainment date for its Marginal classification and thus 
should be reclassified to Moderate because it did not attain by a June 
2007 attainment date. They claim that the Early Action Compact (EAC) 
concept was unlawful. They argue that even assuming the EAC deferral 
was legally permissible, Denver was in fact identified as a 
nonattainment area in the EPA's original April 30, 2004, designations 
action. Moreover, they point out that the EPA agrees, ``as it must 
under the Act,'' that areas identified as of April 30, 2004, as 
violating the 1997 ozone NAAAQS (including Denver) must be classified 
based on their design values as of April 30, 2004. They claim that 
under Sec.  181 of the Act, such classification occurred by operation 
of law no later than April 30, 2004. Furthermore, they claim that 
assigning a November 2010 Marginal area attainment date to Denver (a 
Marginal area) is also unreasonable and arbitrary, given that the EPA 
is assigning a June 2007 attainment date to all other areas classified 
as Marginal based on 2001-03 design values. They argue that even if the 
Act could be read as giving the EPA some discretion in setting the 
outside attainment date, the statute expressly requires the attainment 
date to be ``as expeditiously as practicable.'' They argue that the EPA 
cites no legal or rational basis, and none exists, for finding that 
November 2010 is ``as expeditiously as practicable'' for Denver, when 
every other Marginal area had a 2007 attainment date, nor is there any 
conceivable justification consistent with the Act and its purposes. 
They point out that Denver residents are not somehow less deserving of 
clean air than residents of the other areas, nor is there any rational 
basis for delaying the stronger controls in Denver that would come from 
the reclassification to Moderate required for all other Marginal areas 
that failed to attain by 2007 and were ineligible for attainment date 
extensions. They argue that the EPA cannot claim that it would be 
harder for Denver to adopt Moderate area controls than the other areas 
proposed for Moderate classification, as all of the other areas will 
have had the same amount of time to prepare and implement SIP 
requirements. They argue that neither is there any inequity in 
requiring Denver to adopt the same controls on the same schedules as 
required for other areas initially

[[Page 28431]]

classified as Marginal based on 2001-03 design values. To the contrary, 
they argue, allowing Denver more time than other Marginal areas not 
only flouts Congressional intent but is grossly inequitable to the 
other Marginal areas required to attain by 2007. The commenter also 
argues that the EPA cannot rely on the EAC deferral of the effective 
date of Denver's attainment designation and classification because that 
deferral was itself contrary to the Act. ``Nowhere does the Act allow 
the EPA to defer the effective dates of ozone nonattainment 
designations and classifications, or to otherwise delay control 
requirements triggered by designations. To the contrary, the Act 
requires nonattainment designations by date-certain deadlines. Section 
107(d), 42 U.S.C. 7407(d); Pub. L. 105-178, section 6103, 112 Stat. 465 
(June 9, 1998), codified at 42 U.S.C. 7407 Note. Promulgating a non-
effective nonattainment designation--i.e., a paper designation that 
sits in the books without being activated--violates this requirement. 
Further, the Act contains a detailed array of requirements, likewise 
governed by date certain deadlines, applicable to nonattainment areas, 
including submission of implementation plans providing for attainment, 
rate-of-progress, and various specific programs such as new source 
review, conformity, and contingency measures. See, e.g., CAA sections 
181, 182, 110, 172, 173, 176. By refusing to implement these various 
requirements, the EAC scheme violates those provisions. The Act 
likewise prescribes requirements governing redesignation of 
nonattainment areas to attainment (setting forth several prerequisites 
that must be met before such redesignation can be granted), CAA section 
107(d)(3)(E), and requiring the EPA-approved maintenance plans 
sufficient to remedy any relapse into nonattainment that occurs during 
the 20-year period following redesignation. CAA sections 
107(d)(3)(E)(iv), 175A. By shunting these requirements aside, the EPA 
would violate those provisions as well.''
    Response: The EPA acknowledges the commenters' concerns with the 
EAC program. However, the EPA's rules regarding EAC areas under the 
1997 ozone NAAQS were promulgated in 2004, and the proper time for 
challenging the legality of the EAC program and the deferral of the 
effective date of the nonattainment designation for Denver (and other 
EAC areas) was within 60 days of publication in the Federal Register of 
those final actions (40 CFR Part 81, September 21, 2007 (72 FR 53952) 
and April 30, 2004 (69 FR 23857)). To the extent the commenters are 
raising concerns about the effective date of designation for the Denver 
nonattainment area and the attainment date for that area, those were 
established in a final rule published September 21, 2007 (72 FR 53952). 
Thus, these comments are not timely. We note that contrary to the 
claims of the commenters, the Denver area's classification in this 
rulemaking is based on the design value that existed at the time the 
EPA initially published (and deferred the effective date of) the 
nonattainment designation [April 30, 2004 (69 FR 23858)] and was based 
on 2001 to 2003 data. With regard to the claims concerning the time 
periods for SIP submissions, we note that the time periods for 
attainment and SIP submissions for the Denver area are linked to the 
effective date of the designation and/or classification of the area, as 
they are for all areas. With respect to the attainment date, the Denver 
area, which is classified as Marginal under this rule, had an 
attainment date of November 2010--3 years following the effective date 
of designation.
    Comment: One state agency commenter argued that for Moderate areas, 
the requirement to provide reasonable further progress toward 
attainment is rendered meaningless by the timing of the proposal, since 
there would be no time to provide progress prior to the attainment 
date.
    Response: Given the timing of the maximum statutory attainment date 
(June 15, 2010) and SIP submission date (1 year after the effective 
date of this rulemaking) for Moderate areas, any RFP plan not already 
in effect will not have an effect on attainment by the attainment date 
since the attainment date for Moderate areas has already passed. 
However, under the CAA, an RFP plan (to obtain 15 percent VOC emissions 
reductions from baseline emissions within the first 6 years after the 
applicable base year) would still be a required SIP element, even 
though the 6-year period might end after the Moderate area attainment 
date, depending on the base year for the state's RFP calculation. We 
note that under the Clean Data Policy, codified at 40 CFR 51.918 (70 FR 
71702, November 29, 2005), if the area attains the standard, a Clean 
Data Determination under the Clean Data Policy provision would suspend 
the obligation to submit the RFP SIP. The suspension would remain in 
place until such time as the EPA redesignates the area to attainment, 
at which time the requirement would no longer apply, or until EPA 
determines the area has violated the 1997 standard, at which time the 
obligation would apply once again.
d. Data Used for Classification
    A number of the commenters argued that the EPA should use more 
recent data for the classification of the former subpart 1 areas. There 
were several arguments made in these comments, and we address them 
separately here:
    Comment: Commenters claim that using the 2001-2003 data for the 
initial designations ignores the improvements in emissions reductions 
(e.g., through the NOX SIP call) and ambient ozone 
reductions that have occurred since designations were made in 2004. 
Some commenters note that several of the areas are close to attaining 
the standard and would be subjected to mandatory controls that would 
not be necessary to attain the standard. Another commenter notes that 
Appendix A of the January 16, 2009 proposal shows that, with one 
exception, the current subpart 1 areas for which a 2005-2007 design 
value is available had a lower design value in those years than they 
did for 2001-2003, and the one exception (Las Vegas) had the same 
design value in both periods; thus using the earlier data would more 
likely subject areas to a higher classification. Another commenter 
notes that section 181(a) directed the EPA in 1990 to classify areas 
using the most recent data (i.e., data from 1990, or actually, a future 
time when designations would be made), not data from 6 years earlier. 
The commenter also notes that section 181(a) does not state that the 
data used to classify areas must be the data that existed at the time 
of designation. They argue that section 181(a) instead specifies only 
that the classification occur at the time of designation. They point 
out that classification is precisely the thing that did not lawfully 
occur at the time of designation in 2004, through no fault of the 
states. They argue that the temporal connection between classification 
and designation has been irretrievably broken. They argue that a second 
temporal connection in section 181(a), namely the connection between 
classification of areas and data used to classify areas, has not been 
broken and should be preserved by using the most recent data. They 
claim that doing so allows the EPA to better assess where states are 
now and where mandatory requirements of a higher classification are 
really needed to address ozone nonattainment. It avoids creating 
artificial deadlines based on retroactive application of time periods 
and classification based on a backward-looking review of data. It 
avoids

[[Page 28432]]

depriving states of the opportunity to develop strategies to attain the 
revised standard based upon where the state's air quality is, not was. 
They argue this is particularly true for areas like Columbus and 
Cincinnati in Ohio that have attained the 1-hour standard that was 
addressed by subpart 2, and already have or are close to attaining the 
1997 standard. They claim that these areas do not need to be abruptly 
classified at the tougher Moderate classification with its mandatory 
emission control measures.
    Response: As we noted in the proposal, the classifications would be 
the initial classifications for these areas for the 1997 ozone 
standard. We noted that CAA section 181(a) provides that ``at the 
time'' areas are designated for a NAAQS, they will be classified ``by 
operation of law'' based on the ``design value'' of the areas and in 
accordance with Table 1 of that section. We believe this language 
requires that the area be classified based on the design value that 
existed for the area ``at the time'' of designation. Areas were 
designated nonattainment in 2004, based on design values derived from 
data from 2001-2003.
    We also note that arguments that areas should be able to develop 
plans to attain based on what the air quality ``is,'' not what it 
``was,'' would only serve to further delay the progress that should 
already have been made. As noted previously, if the area had remained 
solely subject to subpart 1, the area would have been required to 
attain the 1997 standard by June 2009. Those areas that have attained 
and have been redesignated as of the effective date of this final rule 
will not be classified under subpart 2. The EPA has previously reminded 
states that they should remain on track with planning for attainment 
despite the Court's remand of the subpart 1 classification.
    We also note that it would be inequitable to most areas previously 
classified under subpart 2 to classify a former subpart 1 area with 
similar air quality using current air quality data. Most of the areas 
classified under subpart 2 in 2004 now have cleaner air than they did 
in 2004 and thus, if they were being classified now based on more 
recent air quality data, they too would receive a lower classification.
    Comment: One commenter alleged that using the 2001-2003 data for 
Allegan County, MI, produces an absurd result, requiring mandatory 
local emission controls when the problem is clearly transport from 
outside the state. The commenter cites the study, ``Western Michigan 
Ozone Study--Draft Report'' of November 2008, prepared by the Lake 
Michigan Air Directors Consortium (LADCO) for the EPA, to comply with a 
provision within the Energy Policy Act of 2005. That commenter notes 
that in NRDC v. EPA, 22 F.3d 1125 (D.C. Cir. 1994), the D.C. Circuit 
Court addressed the EPA's failure to meet a November 15, 1991 deadline 
in the CAA for publication of guidance for states' preparation of SIPs 
for ``enhanced'' vehicle inspection and maintenance. Those SIPs were 
due by November 15, 1992. Because the EPA failed to publish the 
necessary guidance until nearly a year after the statutory deadline for 
that guidance, states could not be held to their deadline, and the 
states' SIP submissions deadline was ``properly extended to further the 
CAA's purposes.'' The commenter concludes that for purposes of the 
proposed rule, the EPA's failure in 2004 to meet its statutory 
obligation to classify ozone nonattainment areas lawfully, is no cause 
for the EPA to now use the data it would have used at that time in 
classifying areas, where those data would disadvantage the areas. They 
comment that the effect of the EPA's proposed approach on this issue is 
to penalize states, areas, and sources unfairly for the EPA's legally 
deficient action.
    Response: We disagree with the commenter's suggestion that it would 
be an ``absurd result'' to use designation-era data for classification. 
As we noted previously in relation to the concept of allowing 
exemptions from requirements under subpart 2, the judicial precedents 
in which courts have allowed exceptions from the strict language of a 
law are fairly narrow. For instance, in the final Phase 2 Rule, we 
said: ``In general, we note that to demonstrate an absurd result, a 
State would need to demonstrate that application of the requirement 
would result in more harm than benefit. For example, the programs 
mandated under subpart 2 are generally effective in reducing emissions 
of the two ozone precursors--NOX and VOC--and because 
reductions of those precursors generally lead to improved air quality, 
we believe that such a demonstration could be made, if at all, only in 
rare instances.'' See 70 FR at 71620; November 29, 2005. We do not find 
that the situation at issue here meets the criteria implied by judicial 
precedents.
    We also disagree with the commenter's statement where the commenter 
relies upon NRDC v. EPA to argue against using the data from the time 
of designation. In NRDC, the Court faced an impossibility argument. 
Under the CAA, States were required to develop I/M SIPs consistent with 
the EPA guidance. Because the EPA was late in issuing that guidance 
(which it determined needed to be issued through rulemaking), States 
were unable to submit timely SIPs that were consistent with the 
guidance. There is no impossibility argument here. The data from 2001-
2003 exist and can be used to classify areas. To the extent that SIP 
submission dates for these areas have passed, the EPA is providing 
additional time for submission of those plans. To the extent that a 
Marginal area affected by this rule did not attain the standard by the 
June 15, 2007, attainment date (or the extended deadline), the EPA is 
reclassifying the area to Moderate.\12\ Furthermore, we note that the 
subpart 2 classifications based on 2001-2003 data are not 
``punishment'' for the EPA's failure to classify areas correctly in the 
initial Phase 1 Rule. Using the 2001-2003 data places the areas in the 
position they would have been in if the EPA had initially classified 
all areas under subpart 2 in the initial Phase 1 Rule.
---------------------------------------------------------------------------

    \12\ We do not agree with arguments that we should allow for a 
Marginal area classification with an attainment date in the future. 
As noted in several places, Marginal areas are presumed capable of 
attaining quickly without the adoption of additional local controls. 
For that reason, there are virtually no mandated local control 
requirements for Marginal areas under section 182(a), nor is there a 
requirement to develop an attainment demonstration. Thus, to the 
extent an area would have been classified as Marginal based on its 
2001-2003 design value yet failed to attain by June 2007, we see no 
argument that such areas would have attained if EPA had 
``correctly'' classified them as Marginal in 2004. (We note that 
many of the areas originally identified as subpart 1 have indeed 
attained and been redesignated as attainment.)
---------------------------------------------------------------------------

    Comment: Another commenter notes that 40 CFR Part 50, Appendix I 
states: ``the 3-year average annual fourth-highest maximum 8-hour 
average ozone concentration is also the air quality design value for 
the site.'' The appendix states in section 2.2 that ``The 3-year 
average shall be computed using the three most recent, consecutive 
calendar years of monitoring data meeting the data completeness 
requirements described in this appendix.'' The commenter notes that the 
definition of ``design value'' in the CFR requires that the three most 
recent years be used to calculate it.
    Response: We disagree with commenters that rely on 40 CFR Appendix 
I to argue that there is only one ``design value'' for an area and that 
it is based on the most recent 3 years of data. We agree that the 
current design value for an area is based on the most recent 3 years of 
data, but that does not mean design values for previous 3-year periods 
of time are no longer relevant. As explained previously, we believe 
that the language in section 181(a) of the

[[Page 28433]]

Act provides that classifications be based on the design value used for 
designation.
    Comment: Another commenter claims that ignoring current air quality 
data is out of step with the EPA's new emphasis on science-based 
decisions.
    Response: The EPA is not ignoring current air quality data, but 
must classify areas based on the law as described above.
    Comment: Environmental organization commenters argue that the EPA 
should use the air quality data available at the time of designation 
for initial classification.
    Response: The EPA agrees for the reasons stated in the proposed 
rule and above in response to comments.
e. Other Comments on Classification of Former Subpart 1 Areas
    Comment: One state air agency commented that the proposed rule does 
not adequately address situations like Allegan County, MI, which is 
largely affected by transport but yet is not provided any relief under 
the CAA such as coverage under the rural transport area provision of 
section 182(h).
    Response: We agree that the CAA does not provide relief in the form 
of being identified as a ``rural transport area'' for areas such as 
Allegan County, MI, whose nonattainment area boundary is adjacent to a 
metropolitan statistical area. Part of the EPA's rationale in the Phase 
1 Rule for using subpart 1 was to address situations such as that with 
Allegan County. However, the court in South Coast found that Congress 
intended to constrain such discretion. The commenter has not suggested 
any specific relief available under the CAA that the EPA could have 
applied in this final rule.

B. Anti-Backsliding Under Revoked 1-Hour Ozone Standard--In General

1. Proposal
    The EPA codified anti-backsliding provisions governing the 
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone 
NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained 
most of the 1-hour ozone requirements as ``applicable requirements'' 
[defined in 40 CFR 51.900(f)]. A requirement listed as an ``applicable 
requirement'' is retained for an area if the requirement applied in the 
area based on the area's 1-hour ozone designation and classification as 
of the effective date of its 8-hour designation (for most areas, June 
15, 2004). 40 CFR 51.900(f).
    Section 51.905(b) provides that an area remains subject to the 1-
hour standard obligations defined as ``applicable requirements'' until 
the area attains the 8-hour NAAQS. Furthermore, Sec.  51.905(b) 
provides that such obligations cannot be removed from a SIP, even if 
the area is redesignated to attainment for the 8-hour NAAQS, but must 
remain in the SIP as applicable requirements or as contingency 
measures, as appropriate.
    Section 51.905(e), as promulgated in 2004, indicated that certain 
1-hour standard requirements would no longer apply after revocation of 
the 1-hour standard. Among other things, these included 1-hour NSR, 
section 185 penalty fees for the 1-hour NAAQS, and 1-hour contingency 
measures for failure to attain or make reasonable progress toward 
attainment of the 1-hour NAAQS.\13\ The Court vacated these exemption 
provisions, and in the January 16, 2009, proposed rule, the EPA 
proposed to delete these three vacated provisions from the Code of 
Federal Regulations.\14\
---------------------------------------------------------------------------

    \13\ Note that if the area is nonattainment for the 1997 8-hour 
standard, for purposes of the 1997 standard, it is subject to 
nonattainment NSR, contingency measures and (if classified as Severe 
or Extreme for the 1997 ozone NAAQS) the section 185 penalty fee 
provision.
    \14\ We noted in the proposal that the Court's June 2007 
clarification, South Coast, 489 F3d 1245, confirms that the December 
2006 decision was not intended to establish a requirement that areas 
continue to demonstrate conformity under the 1-hour ozone standard 
for anti-backsliding purposes. Therefore, no revisions were proposed 
to 40 CFR 51.905(e)(3). Section 40 CFR 51.905(e)(3) establishes that 
conformity determinations for the 1-hour standard are not required 
beginning 1 year after the effective date of the revocation of the 
1-hour standard and any state conformity provisions in an applicable 
SIP that require 1-hour ozone conformity determinations are no 
longer federally enforceable. This provision does not require 
revision in light of the Court's decision and clarification, because 
the Court did not require conformity determinations for the 1-hour 
standard, and existing regulations already implement the Court's 
holding that 8-hour ozone nonattainment and maintenance areas must 
use 1-hour ozone budgets to determine conformity to the 1997 8-hour 
standard until such time as 8-hour ozone budgets are approved or 
found adequate for the area. Therefore, current transportation 
conformity-related regulations set forth in 40 CFR part 93 and 40 
CFR 51.905(e)(3), and the general conformity regulations in 40 CFR 
part 93 are consistent with the Court's decision and clarification 
on the Phase 1 Rule and do not require revision.
---------------------------------------------------------------------------

2. Final Rule
    This final rule addresses how anti-backsliding principles will 
ensure continued progress toward attainment of the 8-hour ozone NAAQS. 
The final rule removes three vacated provisions of the Phase 1 Rule 
that provided exemptions from the anti-backsliding requirements 
relating to nonattainment NSR, CAA section 185 penalty fees, and 
contingency measures as these requirements applied for the 1-hour 
standard. This rule also reinstates 1-hour contingency measures as 
applicable requirements that must be retained until the area attains 
the 1997 ozone standard. The EPA has issued separate guidance \15\ and 
a separate proposed rule addressing the now-applicable 1-hour 
requirements for NSR (75 FR 51960, August 24, 2010). The EPA will also 
address reinstatement of the section 185 fee program obligations in 
separate action.
---------------------------------------------------------------------------

    \15\ Robert J. Meyers Memorandum, October 3, 2007, New Source 
Review (NSR) Aspects of the Decision of the U.S. Court of Appeals 
for the District of Columbia Circuit on the Phase 1 Rule to 
Implement the 8-Hour Ozone National Ambient Air Quality Standards 
(NAAQS).
---------------------------------------------------------------------------

3. Comments and Responses
    Comment: One group of environmental organizations supported the 
proposal to remove the three exemptions from the regulations, but 
stated that NSR and the section 185 fee requirement must be added to 
the list of ``applicable requirements'' at 40 CFR 51,900(f). Several 
commenters expressed other concerns about the implications of removing 
the 1-hour NSR and section 185 fee program exemptions.
    Response: In this final rule, the EPA is only removing the 
regulatory language at 40 CFR 50.9(c) that provided for the exemptions 
from 1-hour NAAQS requirements in accordance with the court vacatur. 
The EPA has addressed in a separate proposed rulemaking exactly how the 
regulatory provisions should address the now-applicable 1-hour NSR 
requirements (75 FR 51960, August 24, 2010), and plans to address 
application of section 185 fee program requirements for the 1-hour 
standard in separate actions.
    Comment: A state agency commented that the Court never addressed 
the requirements that should still apply to prevent backsliding in 
areas that had already achieved timely attainment of the 1-hour ozone 
standard and only focused on whether NSR was a required control for the 
purposes of CAA section 172(e) anti-backsliding provisions for areas 
not attaining the 1-hour standard (such as South Coast Air Basin).
    The commenter stated that section 51.905(e)(4), which states that 
upon revocation of the 1-hour ozone NAAQS, a 1-hour nonattainment 
area's implementation plans must meet requirements contained in 
paragraphs (e)(4)(ii) through (e)(4)(iv) of this section, should not be 
deleted. Instead, this section should be retained and supplemented with 
further language to appropriately address the circumstances of 1-hour 
standard nonattainment areas

[[Page 28434]]

that attained the 1-hour standard. For example, the further language 
could specify that section 51.905(e)(4) is not applicable in the 
circumstances that were present with the South Coast Air Basin. 
Alternatively, the further language could specify that section 
51.905(e)(4) is applicable only in certain circumstances, including 
those that were present for the Greater Chicago Ozone Nonattainment 
Area, which attained the 1-hour standard prior to the November 2007 
Severe area deadline.
    Response: In South Coast, the Court vacated the regulatory 
provision that did not retain the obligation for States to have 1-hour 
major NSR requirements as part of their approved SIPs. The Court held 
that removing such provisions from a SIP ``would constitute 
impermissible backsliding.'' 472 F.3d 882 (2006), clarified, 489 F.3d 
1245 (DC Cir. 2007), cert. denied, 76 U.S.L.W. 3095 (U.S. Jan. 14, 
2008).
    In this final rule, we are removing the vacated provision that did 
not retain 1-hour NSR obligations from the regulations at 40 CFR part 
51 in order to ensure the published regulatory text is consistent with 
the Court's vacatur. The South Coast decision means that states remain 
obligated to have in their SIPs the 1-hour major NSR thresholds and 
offsets in those 8-hour nonattainment areas that had not been 
redesignated to attainment for the 1-hour ozone NAAQS as of the date of 
designation for the 1997 8-hour ozone NAAQS. The Phase 1 Rule (69 FR 
23972) established the date of the designation for the 1997 8-hour 
ozone NAAQS (June 15, 2004 for most areas) as the relevant date for 
determining what anti-backsliding requirements would apply to areas 
(i.e., the requirements that applied based on the area's 1-hour 
designation and classification as of the effective date of designation 
for the 8-hour standard). In a separate rulemaking, we plan to address 
the circumstances in which 1-hour NSR requirements might be removed 
from a SIP, specifically addressing areas that currently attain the 1-
hour standard such as Chicago.
    We disagree with the commenter that the Court's decision only 
addressed the specific circumstances applicable to the South Coast Air 
Quality Management District (SCAQMD). While SCAQMD, as the ``lead 
petitioner,'' lent its name to the case, the challenges to the rule 
were broad and concerned the anti-backsliding requirements as they 
applied to all types of areas. Furthermore, we note that the anti-
backsliding rules applied in the same manner in the Chicago area as 
they did in SCAQMD. Under the rules, the requirements that were 
retained for an area were those that applied as of the effective date 
of designation for the 1997 8-hour NAAQS. Both the Chicago area and the 
SCAQMD were designated nonattainment for the 1-hour standard at the 
time of designation for the 8-hour standard and were designated 
nonattainment for the 8-hour standard. Thus, both areas were subject to 
the anti-backsliding provisions in 40 CFR 51.905(a)(1) that address 
requirements for ``8-Hour NAAQS Nonattainment/1-Hour NAAQS 
Nonattainment.'' Furthermore, the provisions in 40 CFR 51.905(e) that 
did not retain certain 1-hour requirements applied in the same manner 
to both areas. Thus, to the extent the South Coast decision addresses 
these regulatory provisions, it applies in the same manner to both 
areas.
    Comment: One commenter maintained that we should ensure and confirm 
that the proposed rules do not have retroactive effect. Speaking in 
terms of NSR, the commenter said any changes to the 8-hour ozone 
implementation rule that impose additional or new requirements on 
designated areas should not be effective until after the implementation 
rule is adopted and any necessary SIP revision is adopted and approved 
on a timely basis. To support their comment, they referenced Sierra 
Club v. Whitman, 285 F.3d 63 (DC Cir. 2002). They also commented that 
the Administrative Procedure Act severely restricts retroactive 
rulemaking and Congress did not take the unusual step of giving U.S. 
EPA the ability to implement rules retroactively. The requirement that 
1-hour NSR continues to apply to 8-hour nonattainment areas that attain 
the 1-hour NAAQS will not be officially adopted until mid-2009, at the 
earliest. Hence, for all units that commence construction (e.g., 
contract commitments are in place or building has begun) between 2004 
and 2009, in areas re-designated as attaining the 1-hour NAAQS, 1-hour 
NSR has not applied. They asserted the South Coast court could not have 
intended the retroactive application of the requirement. Further the 
commenter maintained that retroactive application of this rule to 
sources that have already committed contracts is contrary to fairness 
and predictability in regulatory environments.
    Response: In this final rule, we are removing from the regulations 
at 40 CFR part 51 the provision that did not retain 1-hour NSR 
obligations in order to ensure the published regulatory text is 
consistent with the Court's vacatur. We view the portions of the 
Court's decision on the anti-backsliding provisions as self-
implementing; thus, at a minimum, as of the date of the Court's mandate 
(August 29, 2007), areas that were designated nonattainment for the 1-
hour standard as of the effective date of designation as nonattainment 
for the 1997 8-hour standard, have been obligated to adopt and 
implement an NSR program consistent with their 1-hour classification as 
of the effective date of designation for the 1997 ozone standard. We 
note that we have urged states to take steps to comply with the 
decision without waiting for further EPA rulemaking. See e.g., 
Memorandum from Robert Meyers to Regional Administrators (October 3, 
2007). The necessary actions to achieve such compliance may vary 
depending on the specific situation.
    Because this rule merely removes the vacated regulatory text, it 
has no ``retroactive effect'' as suggested by the commenter. As noted 
above, at a minimum, as of the date the mandate issued, areas 
designated nonattainment for the 1997 8-hour standard have been 
obligated to ensure that their SIP includes a 1-hour NSR program 
consistent with their classification for the 1-hour standard as of the 
effective date of designation for the 1997 ozone standard and to 
implement such program. Thus, for any permitting actions that have 
occurred since the issuance of the Court's mandate, we do not believe 
there is any argument that the requirement to meet 1-hour NSR 
obligations is ``retroactive.''
    To the extent the commenter raises the issue of retroactivity, the 
issue is relevant only to the extent to which the Court's vacatur has 
retroactive effect. In some instances, a vacated regulation has been 
held to be ``void ab initio''; in other words, the regulation is 
treated as if it had never existed. See, e.g., United States v. Goodner 
Bros. Aircraft, Inc., 966 F.2d 380 (8th Cir. 1992). In addition, the 
D.C. Circuit has held that there is a presumption of retroactivity for 
adjudications when such adjudications clarify existing law, and that 
the presumption is departed from only when to do otherwise would lead 
to manifest injustice. Qwest Services Corp. v. F.C.C., 509 F.3d 531 
(D.C. Cir. 2007). The D.C. Circuit has stated that vacatur has ``the 
effect of restoring the status quo ante.'' Air Transport Association of 
Canada v. FAA, 254 F.3d 271, 277 (D.C. Cir. 2001). The EPA will work 
with states and sources to resolve any issues arising from permitting 
actions taken between June 15, 2004 and

[[Page 28435]]

August 29, 2007,\16\ based on a permit program that was consistent with 
the waiver in 40 CFR 51.905(e)(4).
---------------------------------------------------------------------------

    \16\ That is, between the effective date of the initial area 
designations for the 1997 8-hour standard and the date of the final 
D.C. Circuit Court ruling on rehearing of the South Coast case.
---------------------------------------------------------------------------

C. Contingency Measures

1. Proposed Rule
    The Court in South Coast Air Quality Management District, et al., 
v. EPA, 472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245, 
vacated 40 CFR 51.905(e)(2)(iii), which did not retain the anti-
backsliding requirement concerning contingency measures, on the basis 
that they were control measures that must continue to apply. Therefore, 
the EPA proposed that states be required to retain 1-hour contingency 
measures in their SIPs that apply based on a failure to meet 1-hour RFP 
milestones or upon a failure to attain the 1-hour standard by the 
area's attainment date. Furthermore, consistent with the EPA's proposal 
to retain these 1-hour contingency measure requirements as anti-
backsliding measures, we also proposed to add ``contingency measures 
under sections 172(c)(9) and 182(c)(9) of the CAA'' to the list of 
applicable requirements under Sec.  51.900(f). The proposal noted that 
in situations where an area attains the 1-hour NAAQS by the applicable 
attainment date for that standard, the area is not subject to the 
requirement to implement contingency measures for failure to attain the 
standard by its attainment date. As a result, any area that has met its 
attainment deadline for the 1-hour standard (or meets its deadline if 
it has not yet passed), would not be required to implement the 
contingency measures for failure to attain the standard by its 
attainment date for purposes of anti-backsliding even if the area 
subsequently lapses into nonattainment. Additionally, the contingency 
measures for failure to meet RFP milestones would not be triggered if 
the area has met those milestones.
    The proposal also noted that in situations where a 1-hour ozone 
nonattainment area is in attainment of that standard based on current 
air quality, the EPA can make a finding of attainment. See Memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards, entitled, ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone Ambient Air Quality Standard,'' dated May 10, 1995. 
Under this policy, which is referred to as the ``Clean Data Policy,'' 
if the EPA determines through rulemaking that the area is meeting the 
1-hour ozone standard, the requirements for the state to submit an 
attainment demonstration and related components such as contingency 
measures for failure to attain or make reasonable further progress are 
suspended as long as the area continues to attain the 1-hour ozone 
NAAQS. (We note that such a determination does not relieve an area of 
the requirement to comply with a contingency measure provision in an 
approved SIP, but merely suspends any outstanding submission 
requirement.) If the area subsequently violates the ozone NAAQS for 
which the determination was made (in this example, the 1-hour ozone 
NAAQS), the EPA would initiate notice-and-comment rulemaking to 
withdraw the determination of attainment, which would reinstate the 
requirement for the state to submit such plans.
    The proposal noted that three federal courts of appeal have upheld 
the EPA rulemakings applying the Clean Data Policy. See Sierra Club v. 
EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 
(7th Cir. 2004) and Our Children's Earth Foundation v. EPA, No. 04-
73032 (9th Cir. June 28, 2005) memorandum opinion. Since the proposal, 
the U.S. Court of Appeals for the District of Columbia Circuit has also 
upheld the Clean Data Policy, which was codified in 40 CFR 51.918 for 
purposes of implementing the 1997 ozone NAAQS, in NRDC v. EPA, 571 F.3d 
1245 (DC Cir. 2009).
    Thus if the EPA makes a determination of attainment of the 1-hour 
ozone standard as provided by the Clean Data Policy, the EPA would find 
that the requirement under the anti-backsliding provisions (40 CFR 
51.905) to submit any outstanding section 172 and 182 contingency 
measures under the 1-hour standard would be suspended for so long as 
the area continues to attain the 1-hour standard.
2. Final Rule
    The final rule takes the same approach as proposed, namely, that 
areas designated nonattainment for the 1997 8-hour ozone NAAQS must 
adopt, if not already adopted, and retain in their SIPs, contingency 
measures for failure to meet 1-hour RFP milestones and for failure to 
attain the 1-hour standard by the area's attainment date. This 
requirement applies where an area remained designated nonattainment for 
the 1-hour standard at the time of the area's designation to 
nonattainment for the 1997 8-hour ozone standard. To clarify that this 
requirement continues to apply, we are including ``contingency measures 
under sections 172(c)(9) and 182(c)(9) of the CAA'' in the section 
51.900(f) list of ``applicable requirements.'' Consistent with 40 CFR 
51.905(b), areas remain obligated to adopt and retain these 
requirements in their SIPs until they attain and are redesignated for 
the 1997 8-hour ozone NAAQS. The rule at Sec.  51.905(b) provides that 
an 8-hour nonattainment area will remain subject to the applicable 
requirements listed in Sec.  51.900(f) until it attains the 8-hour 
standard and that after an area attains the 8-hour standard, the state 
may request that the 1-hour obligations be shifted to contingency 
measures, but may not remove them completely from the SIP.\17\ In 
addition, if prior to attaining the 1997 8-hour ozone standard, the 
area attains the 1-hour standard, the EPA may make a determination of 
attainment for the 1-hour standard which would suspend the obligation 
to submit such contingency measures if the state has not already done 
so.
---------------------------------------------------------------------------

    \17\ The preamble to the Phase 1 Rule clarified that, ``it is 
appropriate to maintain these mandated controls to remain as part of 
the implemented SIP until an area attains the 8-hour NAAQS and is 
redesignated to attainment.'' (69 FR 23983). This accompanying 
preamble text clarifies that an area must not only attain, but also 
must be redesignated to attainment prior to shifting any 
``applicable requirements'' to contingency measures. (69 FR 23982-
83). This is further supported by the portion of Sec.  51.905(b) 
that provides for the shifting of the 1-hour anti-backsliding 
measures to contingency measures. Such a shift can occur only in the 
context of an approved section 175A maintenance plan.
---------------------------------------------------------------------------

3. Comments and Responses
    Comment: One environmental organization commenter recommended that 
contingency measures for the 8-hour standard should be at least as 
stringent as those for the 1-hour standard.
    Response: The proposal addresses the contingency measure 
requirement as it relates to anti-backsliding for the 1-hour standard, 
which was vacated by the Court. It does not interpret the contingency 
measure obligations for the 8-hour standard. Because states have 
discretion in selecting the measures to adopt as contingency measures, 
concerns regarding the adequacy of contingency measures are best 
addressed in the context of a specific SIP rulemaking.
    Comment: Several commenters noted that the preamble to the proposed 
rule describes two situations in which states would no longer need to 
retain or implement 1-hour contingency measures: (1) Where a 
nonattainment area meets or has met its 1-hour attainment date, even if 
the area

[[Page 28436]]

subsequently lapses into nonattainment; and (2) where--whether before 
or after its 1-hour attainment date--a nonattainment area has 1-hour 
attainment air quality and the EPA makes a finding of 1-hour attainment 
pursuant to the Clean Data Policy that has been in effect since 1995. 
They recommended that the EPA reaffirm these principles in its final 
action in this rulemaking.
    Response: The EPA reaffirms the position stated in the proposal 
that contingency measures for failure to attain would not be triggered 
where an area attains the 1-hour standard by its attainment date, even 
if the area subsequently lapses into nonattainment. However, the 
commenter misinterprets the scope of the Clean Data Policy. Clean Data 
Determinations under the Clean Data Policy only suspend the requirement 
to submit certain outstanding planning requirements (such as 
contingency measures that would be triggered by a failure to attain by 
the applicable attainment date). In addition, the obligation to submit 
such a SIP is suspended only for so long as the area remains in 
attainment. If the area is redesignated to attainment, the obligation 
to make such submission would no longer apply. Furthermore, when an 
area is redesignated to attainment, it may also move adopted 
contingency measures linked to a failure to attain to the contingency 
measure portion of the maintenance plan. To the extent contingency 
measures have been adopted and approved into the SIP, a Clean Data 
Determination under the Clean Data Policy does not authorize the state 
to remove them from the SIP. Nor does a Clean Data Determination affect 
the requirement that areas comply with SIP-approved measures, such as 
contingency measures. Thus, if an area fails to attain by its 
attainment date and contingency measures approved into the SIP are 
triggered by that failure, a Clean Data Determination that is issued 
subsequently would not suspend the obligation to implement the 
contingency measures consistent with terms of the approved SIP.
    Comment: One state agency commenter supported removing the vacated 
provision of the regulations that provided that states need not retain 
1-hour standard contingency measures for failure to attain or make 
reasonable further progress toward attaining the 1-hour standard.
    Response: The EPA has removed the vacated provision from the 
regulatory text.
    Comment: One state agency commenter supported use of the Clean Data 
Policy for the 1-hour standard but does not agree with the portion of 
the policy that would require states to meet any planning requirements 
stayed pursuant to the policy if there is a subsequent violation of a 
revoked standard.
    Response: We note first that the proposed rule did not set forth 
any proposal concerning the Clean Data Policy, but merely described a 
situation in which the Clean Data Policy might be applied. As noted in 
the Clean Data Policy and the regulation codifying that policy for 
purposes of the 1997 8-hour ozone standard, a determination of 
attainment suspends the obligation to submit certain planning 
requirements for only so long as the area continues to attain the 
standard. We note that redesignation of the area to attainment for the 
1997 8-hour standard would relieve the area permanently of the 
obligation to submit such planning SIPs.

D. Section 185 Fee Program for 1-Hour NAAQS

1. Proposal
    The EPA proposed to remove the language relating to the vacated 
provisions of the Phase 1 Rule that did not retain the requirement for 
areas that were classified as Severe or Extreme for the 1-hour standard 
at the time of designation for the 1997 8-hour standard to include in 
their SIP a CAA section 185 penalty fee program for the 1-hour standard 
(i.e., 40 CFR 51.905(e)(2)(ii)). In South Coast, the Court vacated this 
exemption provision.
2. Final Rule
    We are removing the language in 40 CFR 51.905(e)(2)(ii) that did 
not retain the requirement for areas that were classified as Severe or 
Extreme for the 1-hour standard at the time of designation for the 1997 
8-hour standard to include a CAA section 185 penalty fee program for 
the 1-hour standard in their SIP.
3. Comments and Responses
    Comment: Several commenters expressed support for not defining the 
1-hour section 185 fee provision as an ``applicable requirement'', as 
promulgated in Sec.  51.905(e), and indicated that the fees should only 
apply until an area attains the 1-hour standard.
    Response: The EPA believes that not defining the section 185 fee 
provision as an ``applicable requirement'' is in conflict with the 
ruling of the Court. Nevertheless, in this rulemaking, the only issue 
the EPA is addressing regarding the applicability of section 185 
requirements is the removal of the regulatory provision that was 
vacated by the Court in South Coast. Exactly how the EPA plans to 
address this applicable anti-backsliding requirement for section 185 
fee programs will be addressed in separate action.
    Comment: Several commenters oppose the requirement to have 3 years 
of attaining air quality data under the Clean Data Policy in order to 
suspend section 185 fees temporarily. They believe fees should be 
suspended for any year with data indicating compliance with the 1-hour 
standard. They believe requiring a 3-year period of attainment is a 
more appropriate criterion for permanent cessation of the 1-hour 
section 185 fees.
    Response: In this rulemaking, the only issue the EPA is addressing 
regarding the section 185 requirements is the removal of the regulatory 
provision that was vacated by the Court in South Coast. The EPA plans 
to address anti-backsliding requirements for section 185 fee programs 
in separate action.

E. Deletion of Obsolete 1-Hour Ozone Standard Provision

1. Proposal
    The EPA proposed to delete 40 CFR 50.9(c) because it is obsolete. 
In the proposal the EPA explained that when we promulgated the 8-hour 
ozone standard on July 18, 1997 (62 FR 38856), we also revised 40 CFR 
50.9 to provide that the 1-hour ozone standard would be revoked for an 
area once the EPA determined that the area had air quality meeting the 
1-hour standard. Subsequently, because the pending litigation over the 
1997 8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and 
associated implementation requirements, we revised 40 CFR 50.9 to place 
two limitations on our authority to apply the revocation rule: (1) The 
1997 8-hour NAAQS must no longer be subject to legal challenge, and (2) 
it must be fully enforceable.\18\ (65 FR 45182, July 20, 2000). These 
limitations were codified as Sec.  50.9(c). In the final Phase 1 Rule, 
we again revised Sec.  50.9, this time to revise Sec.  50.9(b) to 
provide for revocation of the 1-hour standard 1 year after designation 
of areas for the 1997 8-hour ozone standard. However, according to our 
proposal, in promulgating the Phase 1 rule, we neglected to remove 
paragraph (c) which was no longer necessary since the

[[Page 28437]]

8-hour standard is no longer subject to legal challenge and the 
standard has been upheld and is enforceable. American Trucking Assoc. 
v. EPA, 283 F.3d 355. (D.C. Cir. 2002) (resolving all remaining legal 
challenges to the 8-hour ozone standard and upholding the EPA's rule 
establishing that standard.)
---------------------------------------------------------------------------

    \18\ In addition, in June 2003, we stayed our authority to apply 
the revocation rule pending our reconsideration in the 
implementation rule for the 1997 NAAQS of the basis for revocation. 
(68 FR 38160, June 26, 2003). We completed that reconsideration in 
the Phase 1 Rule, which was published in the Federal Register of 
April 30, 2004. (69 FR 23951).
---------------------------------------------------------------------------

2. Final Rule
    In reviewing the regulatory text in light of one of the comments 
received on the proposal, we realized that we incorrectly described the 
obsolete regulatory text in 50.9(c). The language described in the 
proposal, which stayed the EPA's authority to revoke the 1-hour ozone 
standard while the 8-hour standard remained subject to legal challenge, 
was language that was actually removed in the Phase 1 Rule (69 FR 
23951, Apr. 30, 2004). That language was added to the second sentence 
of 50.9(b) at the time that the status of the 1997 8-hour standard 
remained uncertain because of the ongoing litigation challenging that 
standard and our ability to enforce it. (65 FR 45200, July 20, 2000.) 
Because the litigation challenging the 1997 standard and our ability to 
enforce that standard was fully resolved, we deleted that regulatory 
language in the Phase 1 Rule.
    However, in June 2003, consistent with a settlement agreement in a 
lawsuit challenging the revocation provision we had promulgated 
simultaneous with the 1997 ozone standard, we separately stayed our 
authority to revoke the 1-hour ozone standard. (68 FR 38163, June 26, 
2003). Specifically, we added 40 CFR 50.9(c), which provides that our 
authority to revoke the 1-hour ozone standard is stayed until ``EPA 
issues a final rule revising or reinstating'' the revocation authority 
and considers and addresses certain issues in that rulemaking process. 
We considered and addressed those issues in the rulemaking for 
implementing the 1997 ozone standard and as part of the final Phase 1 
Rule. We revised and reinstated our authority to revoke the 1-hour 
standard. (68 FR 32818-19, June 2, 2003; 69 FR 23969-71, April 30, 
2004). However, we neglected at that time to remove 40 CFR 50.9(c), 
which became obsolete upon the issuance of the Phase 1 Rule.
    Despite the confusion created by our incorrect description in the 
proposed rule, we are deleting 40 CFR 50.9(c). As provided above, the 
provision is obsolete because the future rulemaking it refers to is the 
Phase 1 Rule, which was promulgated in April 2004. Although we 
incorrectly described the provision in the proposal, we correctly 
indicated that the provision was obsolete and thus we are deleting it 
in this final action as proposed.
3. Comments and Responses
    Comment: One commenter expressed concern about the background 
statements and explanation regarding the removal of 40 CFR 50.9(c). The 
commenter claims there is an incorrect citation in the preamble. In the 
Background discussion at 74 FR 2938, col 2, paragraph B, the proposal 
said, referring to the two limitations we placed on our authority to 
apply the revocation rule, that ``These limitations were codified as 
Sec.  50.9(c).''
    Response: As provided above, we recognize that the explanation in 
the proposal was confusing because we described regulatory text that 
was removed from 40 CFR 50.9(b) at the time we promulgated the Phase 1 
Rule, rather than describing the regulatory text we planned to delete, 
which is provided in 40 CFR 50.9(c). However, as explained above, the 
regulatory text in 50.9(c) is obsolete as noted in the proposal and 
thus we are moving forward to remove it from the CFR as proposed.
    Comment: One environmental commenter expressed concern about 
confusing language in 40 CFR 50.9(b) and recommended that the second 
sentence of that provision be removed.
    Response: Paragraph (b) of Sec.  50.9 states that the 1-hour 
standards set forth in the section will remain applicable to all areas 
notwithstanding the promulgation of 8-hour ozone standards under Sec.  
50.10. The 1-hour NAAQS set forth in paragraph (a) of the section will 
no longer apply to an area one year after the effective date of the 
designation of that area for the 8-hour ozone NAAQS pursuant to section 
107 of the Clean Air Act. Area designations and classifications with 
respect to the 1-hour standards are codified in 40 CFR part 81.
    The commenter does not specify why the sentence is confusing and we 
disagree that it is. Rather, that sentence is the operative sentence 
for revoking the 1-hour standard. Pursuant to this sentence of the 
regulation, the 1-hour standard was revoked for most areas on June 15, 
2005, the date 1 year after their effective date of designation for the 
1997 8-hour standard. For 13 EAC \19\ areas with a deferred effective 
date of designation, the 1-hour standard was revoked April 15, 2009, 
the date 1 year following their effective date of designation as 
attainment for the 1997 NAAQS. For the Denver EAC area, which was 
designated nonattainment for the 1997 NAAQS effective November 20, 
2007, the 1-hour standard was revoked November 20, 2008. We believe 
that it is important to retain this sentence because it specifies the 
time at which the 1-hour standard, identified in 40 CFR 51.9(a), no 
longer applied to areas.
---------------------------------------------------------------------------

    \19\ Early Action Compacts (EAC) allowed states to pledge to 
meet the 1997 8-hour ozone standard earlier than required. State 
seeking an EAC must meet a number of criteria and must agree to meet 
certain milestones. The most significant milestone was that the EAC 
areas had to be in attainment by December 31, 2007, based on air 
quality data from 2005, 2006, and 2007.
---------------------------------------------------------------------------

F. Other Comments

    Comment: Several commenters advised that this rulemaking addressing 
the 1997 ozone standard should be integrated with planning to address 
the 2008 ozone NAAQS. Several commenters recommended that addressing 
the 1997 standard should not result in additional paperwork beyond what 
is needed for the 2008 standard. One commenter recommended that the EPA 
rulemaking focus on implementation of the 2008 ozone NAAQS and deal 
with implementation deficiencies of the 1997 standard within the 
context of implementing the 2008 NAAQS. One local air agency commenter 
argued that reclassification of subpart 1 areas should not be a 
priority concern when viewed against other more important priorities, 
such as implementation of the 2008 ozone NAAQS.
    Response: The Court in South Coast vacated portions of the Phase 1 
Rule that addressed certain anti-backsliding provisions for the 1-hour 
standard and the portion of the rule that classified certain 1997 8-
hour standard nonattainment areas under subpart 1. We plan to address 
the transition from the 1997 standard to the 2008 standard in separate 
rulemaking.
    Comment: One commenter noted that there are several provisions of 
subpart X that continue to refer to subpart 1 even though the EPA has 
now proposed to classify all nonattainment areas for the 1997 ozone 
standard under subpart 2. These include Sec. Sec.  51.908(b), 
51.910(b), 51.912(c) and the portions of Sec.  51.915 that are subject 
to Sec.  51.902(b). The commenter suggests that these provisions may be 
extraneous if there are no areas covered under subpart 1.
    Response: As an initial matter, we note that the general 
implementation requirements in subpart 1 also apply to areas classified 
under subpart 2; thus, we cannot automatically conclude that the 
provisions referred to by the commenter are extraneous. We choose to 
err on the side of retaining provisions that may not apply to any areas 
rather

[[Page 28438]]

than to remove them in this final rule without notice and an 
opportunity for comment.
    Comment: One environmental organization commenter indicated support 
for the proposal only if the rule could be interpreted as requiring 
Marginal areas to meet the CAA reasonably available control measures 
(RACM) requirement. The commenter noted that the Denver area was a 
former EAC area that failed to attain and was subsequently designated 
nonattainment. Under the proposed rule, Denver would be classified as 
Marginal. The commenter pointed out that the table in the proposal that 
summarized CAA requirements applicable under both subparts 1 and 2 
indicates that RACM (under subpart 1) applies to subpart 2 areas also 
and thus should apply to Marginal areas.
    Response: It is true that the RACM requirement, which is contained 
in subpart 1, applies to areas classified under subpart 2. However, the 
EPA has interpreted the RACM requirement for many years in the context 
of the requirement to demonstrate attainment as expeditiously as 
practicable and subpart 2 specifically exempts Marginal areas from the 
requirement to submit an attainment demonstration. In light of that 
exemption, the EPA has historically not required Marginal areas to meet 
the RACM test required of Moderate and higher classified areas. 
However, we note that under our EAC regulations, we required EAC areas 
that were subsequently designated nonattainment (like Denver) to submit 
an attainment demonstration within 1 year of the effective date of 
designation. 40 CFR 81.300(e)(3)(ii)(D). Therefore, the RACM 
requirements currently apply to the Denver nonattainment area.
    Comment: One state air agency commenter recommended that the EPA 
should approve requests for redesignation to attainment for the 1-hour 
ozone standard.
    Response: Because the EPA revoked the 1-hour ozone standard, the 
EPA indicated in the Phase 1 Rule that we were no longer obligated to 
redesignate areas to attainment or nonattainment for the 1-hour 
standard because once that standard was revoked it was no longer 
effective in an area. See 40 CFR 51.905(e). We are not reconsidering 
that issue as a part of this rulemaking.
    Comment: Several environmental commenters alleged that there were 
incorrect statements in the discussion of conformity in the anti-
backsliding portion of the proposal. In one comment, the commenter 
says:

    On page 2940, column 1 of the proposal, the EPA states: ``Areas 
that would be reclassified under subpart 2 are already satisfying 
the applicable CAA section 176(c) conformity requirements for the 
1997 8-hour ozone standard.'' The EPA offers no evidence and 
analysis to support this claim, which goes far beyond the scope of 
the rulemaking proposal. It is neither necessary nor appropriate for 
the EPA to make a blanket statement that areas that would be 
reclassified are already in fact satisfying applicable conformity 
requirements. What the EPA can say is that areas that would be 
reclassified under subpart 2 are already required to satisfy 
applicable section 176(c) conformity requirements for the 8-hour 
standard.

In another comment they say:

    The EPA is also incorrect in stating (at 2941 n.18) that 40 
C.F.R. Sec.  51.905(e)(3) does not require revision. That rule 
includes language stating that ``any state conformity provisions in 
an applicable SIP that require 1-hour ozone conformity 
determinations are no longer federally enforceable.'' The DC Circuit 
has ruled that the EPA cannot declare conformity provisions of an 
approved SIP to be unenforceable. Environmental Defense v. EPA, 467 
F.3d 1329, 1337 (D.C. 2 Cir. 2006). The approved provisions of a SIP 
remain enforceable until the state submits and the EPA approves 
their revocation. Id. Accordingly, 40 CFR Sec.  51.905(e)(3) must be 
revised to delete the above-quoted clause.

    Response: We agree with the first comment that the quoted sentence 
was worded poorly. We did not intend by that statement to make a 
determination that any specific area is satisfying the conformity 
requirements. We agree with the commenter's suggestion as to how the 
statement could have been better phrased.
    Regarding the second statement, we disagree that 40 CFR 
51.905(e)(3) requires revision. That regulatory provision states that 
``[u]pon revocation of the 1-hour NAAQS for an area, conformity 
determinations pursuant to section 176(c) of the CAA are no longer 
required for the 1-hour NAAQS. At that time, any provisions of 
applicable SIPs that require conformity determinations in such areas 
for the 1-hour NAAQS will no longer be enforceable pursuant to section 
176(c)(5) of the CAA.'' Since there is no 1-hour NAAQS, there is no 
ongoing conformity requirement for that NAAQS under section 176(c). The 
regulation also specifically refers to section 176(c)(5), which states 
that conformity determinations apply only in nonattainment and 
maintenance areas. Therefore, the intent of the regulations is to 
clarify that SIP provisions requiring conformity demonstrations for the 
revoked 1-hour NAAQS are essentially meaningless in light of section 
176(c)(5). Of course, 1-hour ozone budgets in approved SIPs must be 
used to demonstrate conformity to the 8-hour ozone NAAQS if no 8-hour 
ozone budget exists.
    Comment: Several environmental commenters allege that the Clean 
Data Policy is unlawful. One commenter states that for reasons 
explained in briefs filed in NRDC v. EPA, No. 06-1045 (D.C. Cir.) 
(which were incorporated by reference, and attached to the comment), 
the EPA is completely without authority to suspend the Act's mandates 
for submission and implementation of these SIP components merely 
because an area is meeting standards at a given point in time. They 
note that the Act provides no exception or waiver for submission of 
these SIP elements on grounds of temporary attainment. To the contrary, 
they note that section 175A(c) of the Act makes crystal clear that all 
requirements for nonattainment areas must remain in full force and 
effect unless and until the area is redesignated to attainment and has 
an approved maintenance plan. For all of these same reasons, they claim 
the EPA cannot suspend any Part D requirements retained pursuant to the 
Act's anti-backsliding provisions merely because an area is temporarily 
meeting either the 1-hour or 8-hour standards. They assert that the 
EPA's ``clean data'' policy is nothing more than an illegal attempt to 
circumvent the Act's redesignation provisions, section 107(d)(3)(E) and 
175A(c).
    Another environmental organization commenter also alleged that the 
EPA lacks authority to suspend controls from a SIP by finding the area 
is meeting the 1-hour standard. That commenter alleged that the CAA's 
redesignation procedures of section 107 provide a specific method that 
a nonattainment area must follow in order to remove controls from a 
SIP. They note that the CAA is silent on any alternative manner for a 
nonattainment area to remove controls from its SIP, besides being 
redesignated to a different classification. They thus claim it is clear 
that Congress intended the extensive redesignation process described in 
section 107 to be the only manner in which an area was to be permitted 
to remove controls from its SIP. The commenter also notes that the 
proposed rule ignores the statutorily-required redesignation procedures 
provided in section 107. The commenter further claims that even 
assuming the Clean Data Policy is valid as written, it cannot be used 
to waive fees required under section 185 of the CAA. They point out 
that the 1995 Seitz memorandum has never even applied to waive the 
section 185 fees controls, only other planning requirements. Thus, the 
EPA would take the Seitz memorandum reasoning beyond the situations to

[[Page 28439]]

which it purported to apply, yet the EPA does not even acknowledge this 
extension, much less explain why the Seitz memo rationale can be 
extended to section 185 fees. The commenter further notes that the 1-
hour standard is no longer the standard that the EPA deems requisite to 
protect public health with an adequate margin of safety. Therefore, 
they argue, attaining the 1-hour standard should have no bearing on 
whether a state may remove contingency measures from its SIP.
    Response: The Clean Data Policy, first articulated by the EPA in 
1995 with regard to the 1-hour ozone standard, and subsequently upheld 
by several Courts of Appeals, is not unlawful. The EPA's interpretation 
of the Clean Data Policy for the 1-hour ozone standard is the basis for 
its Clean Data Policy regulation for the 8-hour ozone standard, which 
was codified at 40 CFR 51.918 and upheld by the D.C. Circuit in NRDC v. 
EPA 571 F.3d 1245 (D.C. Cir. 2009).
    A commenter objects to the Clean Data Policy because it is not ``a 
valid manner of removing controls from a SIP,'' and that it ``permits 
EPA to remove applicable controls from an area's SIP by merely making a 
`factual finding' of attainment.'' This comment misconstrues the Clean 
Data Policy--it is not applied to remove any controls from the SIP. 
Rather, it is the EPA's interpretation that the obligation to submit 
certain requirements, including those for RFP and contingency measures, 
is suspended for so long as an area attains the standard. Once SIP 
provisions have been approved into the SIP, the Clean Data Policy does 
not operate to remove them. The same commenter contends that attainment 
of the 1-hour standard should have no significance because it has been 
``discarded.'' Although the 1-hour standard has been revoked, the 1-
hour designation and classification status of an area at the time of 
designation for the 8-hour standard remains the basis for determining 
the 1-hour ozone anti-backsliding requirements for that area. 
Independent of and in addition to the 1-hour standard, the EPA 
continues to separately implement the 8-hour ozone standard and all 
requirements applicable under that NAAQS. As the EPA noted in its 
proposal, attainment of and redesignation for the 8-hour standard also 
affects the anti-backsliding requirements under the 1-hour standard. 40 
CFR 51.905(b) Proposal at 74 FR 2942.
    The EPA's Clean Data Policy does not expressly address the 
suspension of the requirement that affected emissions sources submit 
section 185 fees. Substantive issues concerning when and how section 
185 fees apply for purposes of the 1-hour standard are not addressed as 
part of this rulemaking action and thus we are not addressing 
substantive comments on such issues here.

G. A Correction to a Footnote in Proposed Rule

    The January 16, 2009, proposed rule, in the discussion of 
contingency measures, stated, ``In situations where a 1-hour ozone 
nonattainment area is in attainment based on current air quality (e.g., 
after the area's attainment date), EPA can propose to make a finding of 
attainment.'' Footnote 16 followed that sentence and read as follows: 
``This applies even if the area did not attain by the attainment date; 
however, the CAA requires EPA in these cases to make a finding of 
failure to attain by the attainment date and either reclassify the area 
or apply other requirements (such as section 185) as specified for the 
area's classification.'' (74 FR at 2941, 2942; January 16, 2009.) The 
text ``however, the CAA requires EPA in these cases to make a finding 
of failure to attain by the attainment date and either reclassify the 
area or apply other requirements (such as section 185) as specified for 
the area's classification'' was in error and should have been deleted. 
The wording would have been appropriate had the situation applied to an 
existing ozone standard, such as the 1997 8-hour standard. However, for 
the revoked 1-hour standard, EPA has adopted a regulation, that was not 
challenged, providing that upon revocation of the NAAQS, the EPA would 
no longer be obligated to make findings of failure to attain the 1-hour 
standard or to reclassify areas for failure to attain the 1-hour 
standard by the area's attainment date under the 1-hour standard. (See 
40 CFR 51.905(e)(2)(i).) Thus, the EPA is clarifying that the portion 
of footnote 16 stating that the EPA remains obligated to make a finding 
of failure to attain the 1-hour ozone standard by an area's attainment 
date (under section 181(b)(2) or section 179(c)) and to reclassify the 
area was erroneous and in conflict with Sec.  51.905(e)(2)(i).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a significant regulatory action because it raises novel legal 
or policy issues arising out of legal mandates. Accordingly, the EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action sets forth the EPA's rule for addressing portions of the 
partial vacatur of the EPA's Phase 1 Rule for implementation of the 
1997 8-hour ozone NAAQS. However, OMB has previously approved the 
information collection requirements contained in the existing Phase 1 
Rule (April 30, 2004; 69 FR 23951) and the Phase 2 Rule (November 29, 
2005; 70 FR 71612) regulations and has been assigned OMB Control Number 
2060-0594. The OMB control numbers for the EPA's regulations in 40 CFR 
are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any regulation subject 
to notice-and-comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of these regulation revisions 
on small entities, small entity is defined as: (1) A small business 
that is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards (See 13 CFR 121.); (2) A 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) A small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact of these revisions to the 
regulations on small entities, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities. This rule will not impose any requirements on small entities. 
The EPA is aware that the two small entities listed in Table 2, Essex 
County and Jamestown, NY, have either satisfied the requirements 
through previous SIP

[[Page 28440]]

revisions or certain requirements have been suspended due to receiving 
a Clean Data Determination.

D. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This rule restores provisions that existed under the 1-hour 
ozone standard and that would have continued under the 1-hour standard 
had not the EPA issued a revised ozone standard. Those provisions were 
revoked when the EPA revoked the 1-hour standard itself. Although a 
court upheld the EPA's right to revoke the 1-hour standard, the court 
ruled that the EPA erroneously revoked several 1-hour NAAQS provisions 
and vacated those portion of the EPA's rule. Thus, the court's own 
ruling restored the former 1-hour NAAQS provisions. This rule merely 
sets forth a corrective regulatory mechanism for restoring the 1-hour 
provisions that the court had already restored. Therefore, this action 
is not subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The EPA has 
determined that these regulation revisions contain no regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have Federalism implications.'' 
Policies that have ``Federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule restores provisions that 
existed under the 1-hour ozone standard and that would have continued 
under the 1-hour standard had not the EPA issued a revised ozone 
standard. Those provisions were revoked when the EPA revoked the 1-hour 
standard itself. Although a court upheld the EPA's right to revoke the 
1-hour standard, the court ruled that the EPA erroneously revoked 
several 1-hour NAAQS provisions and vacated those portion of the EPA's 
rule. Thus, the court's own ruling restored the former 1-hour NAAQS 
provisions. This rule merely sets forth a corrective regulatory 
mechanism for restoring the 1-hour provisions that the court had 
already restored. Thus, Executive Order 13132 does not apply to these 
regulation revisions.
    In the spirit of Executive Order 13121 and consistent with the EPA 
policy to promote communications between EPA and state and local 
governments, the EPA solicited comments on the proposal from state and 
local officials.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It does not have a substantial direct effect on 
one or more Indian tribes, since no tribe has to develop a SIP under 
these regulatory revisions. Furthermore, these regulation revisions do 
not affect the relationship or distribution of power and 
responsibilities between the Federal government and Indian tribes. The 
CAA and the Tribal Air Rule establish the relationship of the Federal 
government and Tribes in developing plans to attain the NAAQS, and 
these revisions to the regulations do nothing to modify that 
relationship. Thus, Executive Order 13175 does not apply.
    The EPA specifically solicited additional comment on the proposed 
revisions to the regulations from tribal officials.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the EO has the potential to influence the regulation. This action is 
not subject to Executive Order 13045 because these rule revisions 
address NAAQS-related SIP obligations of the CAA. The NAAQS are 
promulgated to protect the health and welfare of sensitive populations, 
including children. However, the EPA solicited comments on whether the 
proposed action would result in an adverse environmental effect that 
would have a disproportionate effect on children. No comments were 
received on this specific topic.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
the EPA did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the

[[Page 28441]]

environment. The revisions to the regulations revise SIP obligations 
related to the ozone NAAQS, which are designed to protect all segments 
of the general populations. As such, they do not adversely affect the 
health or safety of minority or low income populations and are designed 
to protect and enhance the health and safety of these and other 
populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 13, 2012.

L. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

V. Statutory Authority

    The statutory authority for this action is provided 42 U.S.C. 7409; 
42 U.S.C. 7410; 42 U.S.C. 7511-7511f; 42 U.S.C. 7601(a)(1).

List of Subjects

40 CFR Part 50

    Environmental protection, Air pollution control, Ozone.

40 CFR Part 51

    Air pollution control, Intergovernmental relations, Ozone, 
Transportation, Nitrogen oxides, Volatile organic compounds.

40 CFR Part 81

    Air pollution control.

    Dated: April 27, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY 
STANDARDS

0
1. The authority citation for part 50 continues to read as follows:

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


Sec.  50.9  [Amended]

0
2. Section 50.9 is amended by removing paragraph (c).

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
3. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart X--[Amended]

0
4. Section 51.900 is amended by adding paragraph (f)(14) to read as 
follows:


Sec.  51.900  Definitions.

* * * * *
    (f) * * *
    (14) Contingency measures required under CAA sections 172(c)(9) and 
182(c)(9) that would be triggered based on a failure to attain the 1-
hour NAAQS by the applicable attainment date or to make reasonable 
further progress toward attainment of the 1-hour NAAQS.
* * * * *

0
5. Section 51.902 is revised to read as follows:


Sec.  51.902  Which classification and nonattainment area planning 
provisions of the CAA shall apply to areas designated nonattainment for 
the 1997 8-hour NAAQS?

    (a) An area designated nonattainment for the 1997 8-hour NAAQS will 
be classified in accordance with section 181 of the CAA, as interpreted 
in Sec.  51.903(a), for purposes of the 1997 8-hour NAAQS, and will be 
subject to the requirements of subpart 2 that apply for that 
classification.
    (b) [Reserved].

0
6. Section 51.905 is amended by:
0
a. Revising the section heading.
0
b. Adding a sentence to the end of paragraph (b).
0
c. Removing and reserving paragraphs (e)(2)(ii) and (e)(2)(iii).
0
d. Removing paragraph (e)(4).
    The revisions and addition read as follows:


Sec.  51.905  How do areas transition from the 1-hour NAAQS to the 1997 
8-hour NAAQS and what are the anti-backsliding provisions?

* * * * *
    (b) * * * Once an area attains the 1-hour NAAQS, the section 172 
and 182 contingency measures under the 1-hour NAAQS can be shifted to 
contingency measures for the 1997 8-hour ozone NAAQS and must remain in 
the SIP until the area is redesignated to attainment for the 1997 8-
hour NAAQS.
* * * * *
    (e) * * *
    (2) * * *
    (ii) [Reserved]
    (iii) [Reserved]
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

Subpart C--Section 107 Attainment Status Designations

0
8. In Sec.  81.303, the table entitled ``Arizona--Ozone (8-Hour 
Standard)'' is amended by revising the entries for Phoenix-Mesa, AZ: 
Maricopa County (part) and Pinal County (part) to read as follows:


Sec.  81.303  Arizona.

* * * * *

                                                            Arizona--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phoenix-Mesa, AZ:
    Maricopa County (part)..............  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.

[[Page 28442]]

 
    T1N, R1E (except that portion in
     Indian Country); T1N, R2E; T1N,
     R3E; T1N, R4E; T1N, R5E; T1N, R6E;
     T1N, R7E; T1N, R1W; T1N, R2W; T1N,
     R3W; T1N, R4W; T1N, R5W; T1N, R6W;
     T2N, R1E; T2N, R2E; T2N, R3E; T2N,
     R4E; T2N, R5E, T2N, R6E; T2N, R7E;
     T2N, R8E; T2N, R9E; T2N, R10E; T2N,
     R11E; T2N, R12E (except that
     portion in Gila County); T2N, R13E
     (except that portion in Gila
     County); T2N, R1W; T2N, R2W; T2N,
     R3W; T2N, R4W; T2N, R5W; T2N, R6W;
     T2N, R7W; T3N, R1E; T3N, R2E; T3N,
     R3E; T3N, R4E; T3N, R5E; T3N, R6E;
     T3N, R7E; T3N, R8E; T3N, R9E; T3N,
     R10E (except that portion in Gila
     County); T3N, R11E (except that
     portion in Gila County); T3N, R12E
     (except that portion in Gila
     County); T3N, R1W; T3N, R2W; T3N,
     R3W; T3N, R4W; T3N, R5W; T3N, R6W;
     T4N, R1E; T4N, R2E; T4N, R3E; T4N,
     R4E; T4N, R5E; T4N, R6E; T4N, R7E;
     T4N, R8E; T4N, R9E; T4N, R10E
     (except that portion in Gila
     County); T4N, R11E (except that
     portion in Gila County); T4N, R12E
     (except that portion in Gila
     County); T4N, R1W; T4N, R2W; T4N,
     R3W; T4N, R4W; T4N, R5W; T4N, R6W;
     T5N, R1E; T5N, R2E; T5N, R3E; T5N,
     R4E; T5N, R5E; T5N, R6E; T5N, R7E;
     T5N, R8E; T5N, R9E (except that
     portion in Gila County); T5N, R10E
     (except that portion in Gila
     County); T5N, R1W; T5N, R2W; T5N,
     R3W; T5N, R4W; T5N, R5W; T6N, R1E
     (except that portion in Yavapai
     County); T6N, R2E; T6N, R3E; T6N,
     R4E; T6N, R5E; T6N, R6E; T6N, R7E;
     T6N, R8E; T6N, R9E (except that
     portion in Gila County); T6N, R10E
     (except that portion in Gila
     County); T6N, R1W (except that
     portion in Yavapai County); T6N,
     R2W; T6N, R3W; T6N, R4W T6N, R5W
     T7N, R1E (except that portion in
     Yavapai County); T7N, R2E; (except
     that portion in Yavapai County);
     T7N, R3E; T7N, R4E; T7N, R5E; T7N,
     R6E; T7N, R7E; T7N, R8E; T7N, R9E
     (except that portion in Gila
     County); T7N, R1W (except that
     portion in Yavapai County); T7N,
     R2W (except that portion in Yavapai
     County); T8N, R2E (except that
     portion in Yavapai County); T8N,
     R3E (except that portion in Yavapai
     County); T8N, R4E (except that
     portion in Yavapai County); T8N,
     R5E (except that portion in Yavapai
     County); T8N, R6E (except that
     portion in Yavapai County); T8N,
     R7E (except that portion in Yavapai
     County); T8N, R8E (except that
     portion in Yavapai and Gila
     Counties); T8N, R9E (except that
     portion in Yavapai and Gila
     Counties); T1S, R1E (except that
     portion in Indian Country); T1S,
     R2E (except that portion in Pinal
     County and in Indian Country); T1S,
     R3E; T1S, R4E; T1S, R5E; T1S, R6E;
     T1S, R7E; T1S, R1W; T1S, R2W; T1S,
     R3W; T1S, R4W; T1S, R5W; T1S, R6W;
     T2S, R1E (except that portion in
     Indian Country); T2S, R5E; T2S,
     R6E; T2S, R7E; T2S, R1W; T2S, R2W;
     T2S, R3W; T2S, R4W; T2S, R5W; T3S,
     R1E; T3S, R1W; T3S, R2W; T3S, R3W;
     T3S, R4W; T3S, R5W; T4S, 1E; T4S,
     R1W; T4S, R2W; T4S, R3W; T4S, R4W;
     T4S, R5W.
    Pinal County (part).................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Apache Junction: T1N, R8E; T1S, R8E
     (Sections 1 through 12).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *

0
9. In Sec.  81.305, the table entitled ``California--Ozone (8-Hour 
Standard)'' is amended by revising the entries for the following:
0
a. Amador and Calaveras Cos (Central Mtn), CA
0
b. Chico, CA
0
c. Kern Co. (Eastern Kern), CA
0
d. Mariposa and Tuolumne Cos. (Southern Mtn), CA
0
e. San Diego, CA
0
f. Sutter Co. (part), CA
0
g. Nevada Co. (Western Part), CA


Sec.  81.305  California.

* * * * *

                                                           California--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Amador and Calaveras Cos., CA:
(Central Mountain Cos.)
    Amador County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Calaveras County....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
Chico, CA:
    Butte County........................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
Kern County (Eastern Kern), CA..........  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Kern County (part)

[[Page 28443]]

 
    That portion of Kern County (with
     the exception of that portion in
     Hydrologic Unit Number 18090205--
     the Indian Wells Valley) east and
     south of a line described as
     follows: Beginning at the Kern-Los
     Angeles County boundary and running
     north and east along the northwest
     boundary of the Rancho La Liebre
     Land Grant to the point of
     intersection with the range line
     common to Range 16 West and Range
     17 West, San Bernardino Base and
     Meridian; north along the range
     line to the point of intersection
     with the Rancho El Tejon Land Grant
     boundary; then southeast,
     northeast, and northwest along the
     boundary of the Rancho El Tejon
     Grant to the northwest corner of
     Section 3, Township 11 North, Range
     17 West; then west 1.2 miles; then
     north to the Rancho El Tejon Land
     Grant boundary; then northwest
     along the Rancho El Tejon line to
     the southeast corner of Section 34,
     Township 32 South, Range 30 East,
     Mount Diablo Base and Meridian;
     then north to the northwest corner
     of Section 35, Township 31 South,
     Range 30 East; then northeast along
     the boundary of the Rancho El Tejon
     Land Grant to the southwest corner
     of Section 18, Township 31 South,
     Range 31 East; then east to the
     southeast corner of Section 13,
     Township 31 South, Range 31 East;
     then north along the range line
     common to Range 31 East and Range
     32 East, Mount Diablo Base and
     Meridian, to the northwest corner
     of Section 6, Township 29 South,
     Range 32 East; then east to the
     southwest corner of Section 31,
     Township 28 South, Range 32 East;
     then north along the range line
     common to Range 31 East and Range
     32 East to the northwest corner of
     Section 6, Township 28 South, Range
     32 East, then west to the southeast
     corner of Section 36, Township 27
     South, Range 31 East, then north
     along the range line common to
     Range 31 East and Range 32 East to
     the Kern-Tulare County boundary.
 
                                                                      * * * * * * *
Mariposa and Tuolumne Cos., CA:
(Southern Mountain Counties)
    Mariposa County.....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Tuolumne County.....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
San Diego, CA...........................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
San Diego County (part).................
    That portion of San Diego County
     that excludes the areas listed
     below: La Posta Areas 1
     and 2 \b\, Cuyapaipe Area
     \b\, Manzanita Area \b\, Campo
     Areas 1 and 2.\b\
 
                                                                      * * * * * * *
Sutter County (part), CA:                 ...........  Nonattainment............................      6/13/12  Subpart 2/Original.
    Sutter County (part)................
    (Sutter Buttes) That portion of the
     Sutter Buttes mountain range at or
     above 2,000 feet in elevation.
 
                                                                      * * * * * * *
Nevada County (Western part), CA........  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
Nevada County (part)....................
    That portion of Nevada County, which
     lies west of a line, described as
     follows: beginning at the Nevada-
     Placer County boundary and running
     north along the western boundaries
     of Sections 24, 13, 12, 1, Township
     17 North, Range 14 East, Mount
     Diablo Base and Meridian, and
     Sections 36, 25, 24, 13, 12,
     Township 18 North, Range 14 East to
     the Nevada-Sierra County boundary.
 

[[Page 28444]]

 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise noted.
\b\ The boundaries for these designated areas are based on coordinates of latitude and longitude derived from EPA Region 9's GIS database and are
  illustrated in a map entitled ``Eastern San Diego County Attainment Areas for the 8-Hour Ozone NAAQS,'' dated March 9, 2004, including an attached set
  of coordinates. The map and attached set of coordinates are available at EPA's Region 9 Air Division office. The designated areas roughly approximate
  the boundaries of the reservations for these tribes, but their inclusion in this table is intended for CAA planning purposes only and is not intended
  to be a federal determination of the exact boundaries of the reservations. Also, the specific listing of these tribes in this table does not confer,
  deny, or withdraw Federal recognition of any of the tribes so listed nor any of the tribes not listed.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *

0
10. In Sec.  81.306, the table entitled ``Colorado--Ozone (8-Hour 
Standard)'' is amended by revising the entry for Denver-Boulder-
Greeley-Ft. Collins-Loveland, CO as follows:


Sec.  81.306  Colorado.

* * * * *

                                                            Colorado--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Denver-Boulder-Greeley-Ft. Collins-
 Loveland, CO:
    Adams County........................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Arapahoe County.....................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Boulder County (includes part of              \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
     Rocky Mtn. Nat. Park).
    Broomfield County...................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Denver County.......................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Douglas County......................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Jefferson County....................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Larimer County (part)...............          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    (includes part of Rocky Mtn. Nat.
     Park). That portion of the county
     that lies south of a line described
     as follows: Beginning at a point on
     Larimer County's eastern boundary
     and Weld County's western boundary
     intersected by 40 degrees, 42
     minutes, and 47.1 seconds north
     latitude, proceed west to a point
     defined by the intersection of 40
     degrees, 42 minutes, 47.1 seconds
     north latitude and 105 degrees, 29
     minutes, and 40.0 seconds west
     longitude, thence proceed south on
     105 degrees, 29 minutes, 40.0
     seconds west longitude to the
     intersection with 40 degrees, 33
     minutes and 17.4 seconds north
     latitude, thence proceed west on 40
     degrees, 33 minutes, 17.4 seconds
     north latitude until this line
     intersects Larimer County's western
     boundary and Grand County's eastern
     boundary.
    Weld County (part)..................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    That portion of the county that lies
     south of a line described as
     follows: Beginning at a point on
     Weld County's eastern boundary and
     Logan County's western boundary
     intersected by 40 degrees, 42
     minutes, 47.1 seconds north
     latitude, proceed west on 40
     degrees, 42 minutes, 47.1 seconds
     north latitude until this line
     intersects Weld County's western
     boundary and Larimer County's
     eastern boundary.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Early Action Compact Area, effective date deferred until November 20, 2007.

* * * * *

0
11. In Sec.  81.329, the table entitled ``Nevada--Ozone (8-Hour 
Standard)'' is amended by revising the entry for Las Vegas, NV as 
follows:


Sec.  81.329  Nevada.

* * * * *

[[Page 28445]]



                                                             Nevada--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Las Vegas, NV:
    Clark County........................          \2\  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    That portion of Clark County that
     lies in hydrographic areas 164A,
     164B, 165, 166, 167, 212, 213, 214,
     216, 217, and 218 but excluding the
     Moapa River Indian Reservation and
     the Fort Mojave Indian
     Reservation.\b\
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise noted.
\b\ The use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a federal determination of the
  exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table confer, deny or withdraw Federal recognition of any of
  the Tribes listed or not listed.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ The effective date is September 13, 2004.

* * * * *

0
12. In Sec.  81.333, the table entitled ``New York--Ozone (8-Hour 
Standard)'' is amended by revising the entries for the following:
0
a. Albany-Schenectady-Troy, NY
0
b. Buffalo-Niagara Falls, NY
0
c. Essex County (Whiteface Mtn.), NY--Essex County (Part)
0
d. Jamestown, NY
0
e. Rochester, NY


Sec.  81.333  New York.

* * * * *

                                                            New York--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Albany-Schenectady-Troy, NY:
    Albany County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Greene County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Montgomery County...................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Rensselaer County...................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Saratoga County.....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Schenectady County..................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Schoharie County....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
Buffalo-Niagara Falls, NY:
    Erie County.........................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Niagara County......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
Essex County (Whiteface Mtn.), NY:
    Essex County (part).................
    The portion of Whiteface Mountain     ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
     above 1,900 feet in elevation in
     Essex County.
 
                                                                      * * * * * * *
Jamestown, NY:
    Chautauqua County...................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
 
                                                                      * * * * * * *
Rochester, NY:
    Genesee County......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Livingston County...................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Monroe County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Ontario County......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Orleans County......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
    Wayne County........................  ...........  Nonattainment............................      6/13/12  Subpart 2/Marginal.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ The effective date is September 13, 2004.

* * * * *

0
13. In Sec.  81.339 the table entitled ``Pennsylvania--Ozone (8-Hour 
Standard)'' is amended by revising the entries for Pittsburgh-Beaver 
Valley, PA as follows:


Sec.  81.339  Pennsylvania.

* * * * *

[[Page 28446]]



                                                          Pennsylvania--Ozone [8-Hour Standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation \a\                                     Category/classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Pittsburgh-Beaver Valley, PA:
    Allegheny County....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Armstrong County....................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Beaver County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Butler County.......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Fayette County......................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Washington County...................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
    Westmoreland County.................  ...........  Nonattainment............................      6/13/12  Subpart 2/Moderate.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ The effective date is September 13, 2004.

* * * * *
[FR Doc. 2012-11232 Filed 5-11-12; 8:45 am]
BILLING CODE 6560-50-P