6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51 and 81

[EPA-HQ-OAR-2007-0956, FRL-_____]

RIN 2060-AO96

Final Rule to Implement the 1997 8-Hour Ozone National Ambient Air
Quality Standard: Classification of Areas That Were Initially Classified
as 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 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 [INSERT 30 DAYS FROM DATE OF
PUBLICATION IN THE FEDERAL REGISTER].  

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) 54l-2363, fax number (919) 54l-0824 or by
email at  HYPERLINK "mailto:stackhouse.butch@epa.gov"
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  HYPERLINK
"mailto:dail.lynn@epa.gov" 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 & Love

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  HYPERLINK
"http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/"
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. Reclassification of Subpart 1 Areas.

b. Timing of SIP Submission under New 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.

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 (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). 

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 §51.902(b), which was vacated by the Court and which subjected
certain nonattainment areas to regulation only under subpart 1. 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.

	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 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,
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. 

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 to
attainment) 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”.)

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. If
the area would not have been eligible for the first 1-year extension, we
are reclassifying Amador and Calaveras Counties (Central Mountain), CA
are reclassified to Moderate as a result of this Step.

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. 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. 

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

State	Area	2004 Initial Classification/

Design Value

2001-2003 (ppm)	Status in 2007 (based on 2004-2006 data)(ppm)	Current

 Subpart 2 Classification

CA	Chico, CA	Marginal (0.089)	Attaining

(0.084)	Marginal

CA	Sutter Co. (Sutter Buttes), CA	Marginal (0.088)	Attaining

(0.081)	Marginal

NV	Las Vegas, NV	Marginal (0.086)	Attaining

(0.083)	Marginald,e

AZ	Phoenix-Mesa, AZ	Marginal (0.087)	Attaining

(0.083)	Marginale

CO	Denver-Boulder-Greeley-Ft Collins-Love, CO	Marginala (0.087)
Attaininga

(0.082)	Marginal

NY	Albany-Schenectady-Troy, NY	Marginal (0.087)	Attaining

(0.078)	Marginald

NY	Rochester, NY	Marginal (0.088)	Attaining

(0.074)	Marginald

NY	Essex Co. (Whiteface Mtn), NY	Marginal (0.091)	Attaining

(0.071)	Marginald

CA	Amador and Calaveras Counties (Central Mtn), CA	Marginal (0.091)	Not
attaining

(0.093)b	Moderate

CA	Mariposa and Tuolumne Counties (Southern Mtn),CA	Marginal (0.091)	Not
attaining

(0.086)c	Moderate

NY	Buffalo-Niagara Falls, NY	Moderate (0.099)	n/a	Moderated

PA	Pittsburgh-Beaver Valley, PA	Moderate (0.094)	n/a	Moderated

NY	Jamestown, NY	Moderate (0.094)	n/a	Moderated

CA	Kern Co. (Eastern Kern), CA	Moderate (0.098)	n/a	Moderate

CA	Nevada Co. (Western Part), CA	Moderate (0.098)	n/a	Moderate

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. 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.

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.  



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.)

Ozone Subpart 2 SIP Requirement

(CAA Section)	Marginal Areas	Moderate Areas	Is Requirement Suspended by
Clean Data Determination?

Attainment demonstration including RACM (§182(b)(1))	Not Required
Required	Yes

Reasonable Further Progress (§182(b)(1))	Not Required	Required	Yes

Periodic Emissions Inventory (§182(a)(3)(A))	Required	Required	No

Emissions Statement Rule (§182(a)(3)(B))	Required	Required	No

Subpart 2 RACT for VOCs and NOx (§182(b)(2)(f))	Not Required	Required
No

Pre-1990 RACT fix-up (§182(a)(2)(A))	Required	Not Required	No

New Source Review  (§182(a)(2)(C),(a)(4),(b)(5))	Required	Required	No

Vehicle I/M (§182(a)(2)(B), (b)(4))	Not Required	Required+	No

+ 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)). 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).

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 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. 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.

	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 “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 §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 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. §
107(d), 42 U.S.C. § 7407(d); Pub. L. 105-178, § 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 §§
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 § 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 §§ 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 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. 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.  

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 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, §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. 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. 

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 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.   

3. Comments.

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 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 (D.C. 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 (D.C. 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.,  HYPERLINK
"http://www.lexis.com/research/buttonTFLink?_m=7de17f924086be303b0fa5f42
0a3e75b&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b53%20Duke%
20L.J.%20291%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=485&_bu
tInline=1&_butinfo=%3ccite%20%20" 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 August 29, 2007, based on a permit
program that was consistent with the waiver in 40 CFR 51.905(e)(4).

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 §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 (D. C. 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 §51.905(b) provides that an 8-hour nonattainment
area will remain subject to the applicable requirements listed in
§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. 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.

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
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 section 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 section 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. (65 FR 45182, July 20, 2000). These
limitations were codified as §50.9(c). In the final Phase 1 Rule, we
again revised §50.9, this time to revise §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 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.)

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 §
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 section 50.9 reads: 

(b) The 1-hour standards set forth in this section will remain
applicable to all areas notwithstanding the promulgation of 8-hour ozone
standards under § 50.10. The 1-hour NAAQS set forth in paragraph (a) of
this 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 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 section 51.9(a), no longer applied to
areas.  

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 sections 51.908(b), 51.910(b),
51.912(c) and the portions of 51.915 that are subject to section
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 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.
§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 D.C. 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
C.F.R. §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, §§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 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
underlined text 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 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   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a significant regulatory action because
  SEQ CHAPTER \h \r 1 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.  

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 No. 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 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 [INSERT DATE 30 DAYS AFTER PUBLICATION IN
THE FEDERAL REGISTER].

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.

Page 88 of 103 - Final Rule to Implement the 1997 8-Hour Ozone National
Ambient Air Quality Standard: Classification of Areas That Were
Initially Classified as Subpart 1; Revision of the Anti-Backsliding
Provisions to Address 1-Hour Contingency Measure Requirements; Deletion
of Obsolete 1-Hour Ozone Standard Provision

40 CFR Part 81

Air pollution control.

________________________________

Dated: 

________________________________

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

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

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

§50.9—[Amended]

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

PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND

SUBMITTAL OF IMPLEMENTATION PLANS

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]

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

§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.

* * * * *

5.  Section 51.902 is revised to read as follows:

§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
§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]

6.  Section 51.905 is amended as follows:

a.  By adding a sentence to the end of paragraph (b).

b.  By removing and reserving paragraphs (e)(2)(ii) and (e)(2)(iii).

c.  By removing paragraph (e)(4).

§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.

* * * * * 

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

7.  The authority citation for part 81 continues to read as follows:  
42 U.S.C. 7401, et seq.

Subpart C—Section 107 Attainment Status Designations

8.  In §81.303, the table entitled “Arizona—Ozone (8-Hour
Standard)” is amended by revising the entry for Phoenix-Mesa, AZ:
Maricopa County (part) to read as follows:

§81.303 Arizona

* * * * *

ARIZONA—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

Phoenix-Mesa, AZ:

	Maricopa County (part).............

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	..........



Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Marginal



Pinal County (part)......................

	Apache Junction:  T1N, R8E; T1S, R8E (Sections 1 through 12)

	.......



Nonattainment

	INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]



Subpart 2/ Marginal



*	*	*	*	*	*	*

a Includes Indian Country located in each county or area, except
otherwise noted.

1This date is June 15, 2004, unless otherwise noted.



* * * * *

9.  In §81.305, the table entitled “California--Ozone (8-Hour
Standard)” is amended by revising the entry for the following: 

Amador and Calaveras Cos (Central Mtn), CA

Chico, CA

Kern Co. (Eastern Kern), CA

Mariposa and Tuolumne Cos. (Southern Mtn), CA

Nevada Co. (Western Part), CA

San Diego, CA

Sutter Co. (Sutter Buttes), CA

§81.305 California

* * * * *

CALIFORNIA—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

*	*	*	*	*	*	*

Amador and Calaveras Cos., CA:

	(Central Mountain Cos.)

		Amador County .............

		Calaveras County ..........

	..........

..........



Nonattainment

Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Moderate

Subpart 2/ Moderate

Chico, CA:

	Butte County.......................	..........

Nonattainment	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Marginal

Kern County (Eastern Kern), CA ..........

Kern County (part)

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.	..........



Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Moderate



*	*	*	*	*	*	*

Mariposa and Tuolumne Cos., CA:

	(Southern Mountain Counties)

		Mariposa County ............

		Tuolumne County ............

	..........

..........





Nonattainment

Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Moderate

Subpart 2/ Moderate

*	*	*	*	*	*	*

San Diego, CA ............................

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	..........



Nonattainment 

	INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Moderate



*	*	*	*	*	*	*

Sutter County (part), CA:

	Sutter County (part) ..............

(Sutter Buttes) That portion of the Sutter Buttes mountain range at or
above 2,000 feet in elevation.	..........



Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Marginal



*	*	*	*	*	*	*

Nevada County (Western part), CA .....

	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.	..........



Nonattainment

	INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Moderate



*	*	*	*	*	*	*

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.

1This date is June 15, 2004, unless otherwise noted



* * * * *

10.  In §81.306, the table entitled “Colorado-- Ozone (8-Hour
Standard)” is amended by revising the entry for
Denver-Boulder-Greeley-Ft. Collins-Love., CO as follows: 

§81.306 Colorado

* * * * *

COLORADO—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

*	*	*	*	*	*	*

Denver-Boulder-Greeley-Ft. Collins-Love., CO:

	Adams County .....................

	

Arapahoe County ..................

Boulder County (includes part of Rocky Mtn. Nat. Park).............

Broomfield County ................

Denver County ....................

Douglas County ...................

Jefferson County .................

Larimer County (part) (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) ..............

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.

	

2

2

2

2

2

2

2

2

2



Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment	

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

*	*	*	*	*	*	*

a Includes Indian Country located in each county or area, except as
otherwise noted.

1This date is June 15, 2004, unless otherwise noted.

2 Early Action Compact Area, effective date deferred until November 20,
2007.



* * * * *

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

§81.329 Nevada

* * * * *

NEVADA—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

*	*	*	*	*	*	*

Las Vegas, NV:

Clark County.......................

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	

2

Nonattainment	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Marginal

*	*	*	*	*	*	*

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.

1This date is June 15, 2004, unless otherwise noted

2The effective date is September 13, 2004



* * * * *

12.  In §81.833, the table entitled “New York--Ozone (8-Hour
Standard)” is amended by revising the entries for the following:

Albany-Schenectady-Troy, NY

Buffalo-Niagara Falls, NY

Essex County (Whiteface Mtn.), NY

Jamestown, NY

Rochester, NY

§81.333 New York

* * * * *

NEW YORK—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

*	*	*	*	*	*	*

Albany-Schenectady-Troy, NY:

Albany County ....................

Greene County ....................

Montgomery County ................

Rensselaer County ................

Saratoga County ..................

Schenectady County ...............

Schoharie County .................

	..........

..........

..........

..........

..........

..........

..........



Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Buffalo-Niagara Falls, NY:

Erie County ......................

Niagara County ...................

	

..........

..........	

	

Nonattainment

Nonattainment	

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]



Subpart 2/ Moderate

Subpart 2/ Moderate

Essex County (Whiteface Mtn.), NY:

Essex County (part) The portion of Whiteface Mountain above 1,900 feet
in elevation in Essex County.	..........

Nonattainment	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Marginal

*	*	*	*	*	*	*

Jamestown, NY:

Chautauqua County .................	..........

Nonattainment	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Moderate

*	*	*	*	*	*	*

Rochester, NY:

Genesee County ....................

Livingston County .................

Monroe County .....................

Ontario County ....................

Orleans County ....................

Wayne County ......................

	

..........

..........

..........

..........

..........

..........





Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

Subpart 2/ Marginal

*	*	*	*	*	*	*

a Includes Indian Country located in each county or area, except as
otherwise noted.

1This date is June 15, 2004, unless otherwise noted.

2 The effective date is September 13, 2004



* * * * *

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

§81.339 Pennsylvania

* * * * *

PENNSYLVANIA—OZONE [8-Hour Standard]

Designated Area	Designationa	Category/classification

 	Date1	 	Type	Date1	 	Type

*	*	*	*	*	*	*

Pittsburgh-Beaver Valley, PA:

Allegheny County .................

Armstrong County .................

Beaver County ....................

Butler County ....................

Fayette County ...................

Washington County ................

Westmoreland County ..............

	..........

..........

..........

..........

..........

..........

..........



Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

	[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS AFTER FR PUBLICATION]

Subpart 2/ Moderate

Subpart 2/ Moderate

Subpart 2/ Moderate

Subpart 2/ Moderate

Subpart 2/ Moderate

Subpart 2/ Moderate

Subpart 2/ Moderate

*	*	*	*	*	*	*

a Includes Indian Country located in each county or area, except
otherwise noted.

1This date is June 15, 2004, unless otherwise noted

2 The effective date is September 13, 2004



* * * * *

 74 FR 2936, January 16, 2009.

  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.    

 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.

4 Denver’s special circumstances 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)

 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. 

 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.

 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.

 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.

 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.

 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)).

 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).

 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.) 

 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.

 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.

 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).

  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.

 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 section 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.  

 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).

 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. 

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