
[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 30160-30171]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11605]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2010-0885, FRL-9667-9]
RIN 2060-AR32


Implementation of the 2008 National Ambient Air Quality Standards 
for Ozone: Nonattainment Area Classifications Approach, Attainment 
Deadlines and Revocation of the 1997 Ozone Standards for Transportation 
Conformity Purposes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final rule, the EPA is establishing the air quality 
thresholds that define the classifications assigned to all 
nonattainment areas for the 2008 ozone national ambient air quality 
standards (NAAQS) (the ``2008 ozone NAAQS'') which were promulgated on 
March 12, 2008. The EPA is also granting reclassification for selected 
nonattainment areas that voluntarily reclassified under the 1997 ozone 
NAAQS. This rule also establishes December 31 of each relevant calendar 
year as the attainment date for all nonattainment area classification 
categories. Finally, this rule provides for the revocation of the 1997 
ozone NAAQS for transportation conformity purposes to occur 1 year 
after the effective date of designations for the 2008 ozone NAAQS.

DATES: This rule is effective on July 20, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2010-0885. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air and Radiation Docket and Information Center, EPA/DC, EPA West 
Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Dr. Karl Pepple, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency (C539-01), 
Research Triangle Park, NC 27711, phone number (919) 541-2683, or by 
email at pepple.karl@epa.gov; or Mr. Butch Stackhouse, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency 
(C539-01), Research Triangle Park, NC 27711, phone number (919) 541-
5208, or by email at stackhouse.butch@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this final rule include 
state, local, and tribal governments. Entities potentially affected 
indirectly by the final rule include owners and operators of sources of 
emissions [volatile organic compounds (VOCs) and nitrogen oxides 
(NOX)] 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 will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under ``recent actions.''

C. How is this notice organized?

    The information presented in this notice is organized as follows:


[[Page 30161]]


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 notice organized?
II. Background
III. What are the final classification thresholds for nonattainment 
areas for the 2008 ozone NAAQS?
    A. Summary of Proposed Classification Thresholds
    B. Brief Summary of Comments on the Proposed Rule
    C. Final Classification Thresholds
IV. How will areas that were voluntarily reclassified under the 1997 
ozone NAAQS be addressed?
    A. Summary of Proposed Reclassification of Selected Areas
    B. Brief Summary of Comments Received
    C. Final Action
V. What are the attainment deadlines for each classification?
    A. Summary of Proposed Attainment Deadlines
    B. Brief Summary of Comments Received
    C. Final Action
VI. When is the EPA revoking the 1997 ozone NAAQS for transportation 
conformity purposes?
    A. Summary of Proposal
    B. Final Date for Revoking the 1997 Ozone NAAQS for 
Transportation Conformity Purposes
VII. 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 Concerning Regulations 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 Act
VIII. Statutory Authority
List of Subjects

II. Background

    On March 27, 2008,\1\ the EPA published revisions to both the 
primary and secondary NAAQS for ozone to a level of 0.075 parts per 
million (ppm) (annual fourth-highest daily maximum 8-hour average 
concentration, averaged over 3 years). On July 16, 2009, the EPA 
announced that it would initiate a rulemaking to reconsider the NAAQS 
for various reasons, including the fact that the 0.075 ppm level fell 
outside of the range recommended by the Clean Air Scientific Advisory 
Committee. The EPA proposed reconsideration of the NAAQS on January 6, 
2010. However, the EPA has not taken final action on the proposed 
reconsideration; thus, the current NAAQS for ozone remains at 0.075 
ppm, as established in 2008. The 2008 ozone NAAQS retains the same 
general form and averaging time as the 0.08 ppm NAAQS set in 1997 but 
is set at a more protective level.
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    \1\ See 73 FR 16436. The secondary ozone standard, designed to 
protect public welfare, was set at the same level and with the same 
averaging time as the primary standard. Since the primary and 
secondary standards are identical, we refer to them, both 
individually and together, as the ``2008 ozone standard'' (or, 
alternatively, the ``2008 ozone NAAQS'') throughout this preamble. 
For a detailed explanation of the calculation of the 3-year 8-hour 
average, see 40 CFR part 50, Appendix I.
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    The EPA deferred initial designation of areas for the 2008 ozone 
NAAQS until March 12, 2011, pending the NAAQS reconsideration.\2\ See 
75 FR 2936, January 19, 2010. After the March 12, 2011, designation 
deadline passed, WildEarth Guardians and Elizabeth Crowe (WildEarth 
Guardians) filed a lawsuit seeking to compel the EPA to take action to 
designate areas for the 2008 ozone NAAQS. WildEarth Guardians and 
Elizabeth Crowe v. Jackson (D. Ariz. 11-CV-01661). The EPA and 
WildEarth Guardians settled the case by entering into a consent decree 
that requires the EPA Administrator to sign a final rule designating 
areas for the 2008 ozone NAAQS by May 31, 2012. In September 2011, the 
EPA reinitiated efforts \3\ to designate areas for the 2008 ozone 
NAAQS, and notified states of the EPA's preliminary designation 
decisions on or about December 9, 2011.\4\ On February 14, 2012, the 
EPA proposed this rulemaking to address the classifications and 
attainment deadlines that apply to the areas that are designated as 
nonattainment for the 2008 ozone NAAQS. See 77 FR 8197. The public 
comment period for this rule ran to March 15, 2012. The EPA received 41 
comments on the Notice of Proposed Rulemaking. This document discusses 
the comments received and how they were considered by the EPA in 
general terms. The Response to Comments document provides more detailed 
responses to the comments received. The public comments received on 
this rulemaking and the EPA's Response to Comments document are posted 
in the docket at www.regulations.gov.
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    \2\ The 2008 ozone NAAQS were promulgated on March 12, 2008. The 
presumptive 2-year designation requirement found in CAA Sec.  
107(d)(1)(B) required designations for areas by March 12, 2010. The 
EPA invoked the additional year for designations as allowed under 
CAA Sec.  107(d)(1)(B) because we determined that due to the 
reconsideration there was insufficient information to designate 
areas.
    \3\ http://www.epa.gov/airquality/ozonepollution/pdfs/OzoneMemo9-22-11.pdf.
    \4\ http://www.epa.gov/airquality/ozonepollution/designations/2008standards/state.htm.
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    We are taking four actions in this final rule: (1) Establishing the 
air quality thresholds that define each of the five Clean Air Act (CAA) 
classifications for areas designated nonattainment for the 2008 ozone 
NAAQS; (2) establishing the attainment deadline associated with each 
classification; (3) granting reclassification for selected 
nonattainment areas that voluntarily reclassified under the 1997 ozone 
NAAQS; and (4) revoking the 1997 ozone NAAQS for purposes of 
transportation conformity one year after the effective date of the 
designations for the 2008 ozone NAAQS.
    First, we are establishing the air quality thresholds for 
classification categories that are assigned to all areas designated 
nonattainment for the 2008 ozone NAAQS according to the ``percent-
above-the-standard'' methodology. In accordance with CAA section 
181(a)(1), each area designated as nonattainment for the 2008 ozone 
NAAQS will be classified by operation of law at the same time as the 
area is designated by the EPA. Under subpart 2 of part D of title I of 
the CAA, state planning and emissions control requirements for ozone 
are determined, in part, by a nonattainment area's classification. In 
1990, Congress amended part D of title I of the CAA by adding several 
new subparts, including subpart 2, which specifies implementation 
requirements for ozone nonattainment areas. For areas classified under 
subpart 2, these requirements apply in addition to the general State 
Implementation Plan (SIP) planning requirements applicable to all 
nonattainment areas under subpart 1 of part D. Under subpart 2, ozone 
nonattainment areas are classified based on the severity of their ozone 
levels (as determined based on the area's ``design value,'' which 
represents air quality in the area for the most recent 3 years).\5\ The 
possible classifications are Marginal, Moderate, Serious, Severe, and 
Extreme. Nonattainment areas with a ``lower'' classification have ozone 
levels that are closer to the standard than areas with a ``higher'' 
classification.
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    \5\ The air quality design value for the 8-hour ozone NAAQS is 
the 3-year average of the annual 4th highest daily maximum 8-hour 
average ozone concentration. See 40 CFR Part 50, Appendix I.

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[[Page 30162]]

    Areas in the lower classification levels have fewer and/or less 
stringent mandatory air quality planning and control requirements than 
those in higher classifications. For instance, among other things, for 
a Marginal area a state is required to adopt an emissions statement 
rule for stationary sources, submit a baseline emissions inventory, and 
implement a nonattainment area preconstruction permit program; however, 
states are not required to prepare an attainment demonstration and 
associated contingency measures for Marginal areas. For a Moderate 
area, a state needs to comply with the Marginal area requirements plus 
certain other requirements, including the requirement to submit a 
demonstration that the area will attain in 6 years, the requirement to 
adopt and implement certain emissions controls, such as reasonably 
available control technology, a basic vehicle inspection and 
maintenance program if the area meets the applicable population 
threshold, and provisions for greater emissions offsets for new or 
modified sources under the state's new source review (NSR) program. 
Each higher classification similarly requires emissions controls and 
stricter NSR offset requirements in addition to those required for the 
lower classifications. In addition, under the higher classifications, 
smaller sources are considered ``major sources'' for permitting and 
other requirements.
    Second, the EPA is setting the attainment date as the number of 
years specified in Table 1 in section 181(a) from December 31, 2012. 
Because the attainment dates established in Table 1 have all passed and 
application of those dates would produce an absurd result, the EPA must 
reasonably interpret Table 1 to establish attainment dates for the 2008 
ozone NAAQS. We believe the approach we are adopting is consistent with 
the intent of Congress at the time Table 1 was enacted as part of the 
CAA Amendments of 1990.
    Third, the EPA is addressing situations where states have 
voluntarily requested reclassifications for areas under the 1997 ozone 
NAAQS. Six areas in California and one area in Texas were voluntarily 
reclassified at the request of the states for the 1997 ozone NAAQS. 
These areas have initial classifications for the 2008 ozone NAAQS under 
the percent-above-the-standard approach we are promulgating that are 
higher than their classifications under the 1997 NAAQS. In some cases, 
this would result in these areas being required to attain the more 
stringent 2008 ozone NAAQS prior to the deadline associated with the 
area's classification for the 1997 ozone NAAQS. The EPA proposed to 
interpret the voluntary reclassification requests for the 1997 ozone 
NAAQS for such areas to also apply for the more stringent 2008 ozone 
NAAQS unless the state were to expressly request otherwise. Texas 
requested that the voluntary reclassification for the 1997 NAAQS for 
the Houston area not apply for the 2008 NAAQS. California commented 
that it supports the approach of applying its requests for voluntary 
reclassification for the six areas for the 1997 NAAQS to the 2008 ozone 
NAAQS. The EPA is finalizing the voluntary reclassifications for the 
six California areas for the 2008 ozone NAAQS.
    Fourth, in this rulemaking, the EPA is revoking the 1997 primary 
and secondary ozone NAAQS for transportation conformity purposes 
only.\6\ The revocation of the 1997 ozone NAAQS for this limited 
purpose will occur 1 year after the effective date of the initial area 
designation for each area for the 2008 ozone NAAQS. This approach 
results in only one ozone NAAQS--the more protective 2008 ozone NAAQS--
applying for purposes of transportation conformity, after the end of 
the 1-year transportation conformity grace period that applies to newly 
designated nonattainment areas. See CAA section 176(c)(6). In the 
absence of this final action, areas currently in nonattainment or 
maintenance for the 1997 ozone NAAQS that are designated nonattainment 
for the 2008 ozone NAAQS would be required to implement the 
transportation conformity program for both the 1997 and 2008 ozone 
NAAQS concurrently. The EPA intends to address potential revocation of 
the 1997 ozone NAAQS for all other purposes in a future, separate 
rulemaking.
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    \6\ When the EPA revises a NAAQS, the prior NAAQS is not 
automatically revoked. Accordingly, both the 1997 ozone NAAQS and 
the more stringent 2008 ozone NAAQS are active standards unless and 
until the EPA takes action to revoke the previous 1997 standard.
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III. What are the final classification thresholds for nonattainment 
areas for the 2008 ozone NAAQS?

A. Summary of Proposed Classification Thresholds

    The subpart 2 classification table in CAA section 181(a)(1) is 
based on 1-hour ozone nonattainment area design values (DVs) (i.e., 
beginning at a level of 0.121 ppm) because it was designed for 
implementation of the 0.12 ppm 1-hour standard, which was the effective 
ozone standard when Congress added the table to the CAA in 1990. 
Because the table is based on DVs for a 0.12 ppm 1-hour standard, the 
EPA recognized that it did not make sense to apply the thresholds 
listed in the table for implementing an 8-hour form of the ozone 
standard, first established in 1997. See 69 FR at 23998. We adopted by 
regulation a modified version of the subpart 2 classification table for 
the 1997 8-hour ozone standard which contains 8-hour DV thresholds for 
each classification, rather than the statutory 1-hour DV thresholds. 40 
CFR 51.903(a). We translated the classification thresholds in the 
subpart 2 classification table from 1-hour DVs to 8-hour DVs based on 
the percentage by which each classification threshold in the table 
exceeds the 1-hour ozone NAAQS. We noted that these percentages, as 
established by Congress in 1990, set the classification thresholds at 
certain percentages or fractions above the level of the standard.\7\ 
See 69 FR at 23957. We refer to this method as the ``percent-above-the-
standard'' method. We proposed to take the same approach for the 2008 
ozone NAAQS. After analyzing various alternative options, we proposed 
to use the same ``percent-above-the-standard'' methodology as was used 
for the 1997 ozone NAAQS \8\ modified to account for the new level of 
0.075 ppm as compared to the level of 0.08 ppm used to establish the 
classification table for the 1997 ozone NAAQS. See 77 FR at 8201-02.
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    \7\ The upper thresholds of the Marginal, Moderate, Serious, and 
Severe classifications are precise percentages or fractions above 
the level of the standard, namely 15 percent (3/20ths more than the 
standard), 33.33 percent (one-third more than the standard), 50 
percent (one-half more than the standard), and 133.3 percent (one 
and one-third more than the standard).
    \8\ Background Information Document: Additional Options 
Considered for Classification of Nonattainment Areas under the 
Proposed 2008 Ozone NAAQS. January 2012.
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    The proposed percent-above-the-standard method is a simple and 
straightforward method for establishing classification thresholds that 
is based on principles inherent in the subpart 2 classification table 
itself. The principles include the following:
     Areas are grouped by the severity of their air quality 
problem as characterized by the degree of nonattainment based on their 
DV.
     Classification would occur ``by operation of law'' without 
relying on the EPA exercising discretion for individual situations 
(prior to any application of the 5 percent adjustment provision under 
section 181(a)(4) which may occur in the 90-day period following 
initial designations and classifications). See section III.C of this 
rule for additional details on how the EPA intends to address previous 
requests for

[[Page 30163]]

voluntary reclassification for the 1997 ozone NAAQS.
     Classification thresholds are derived using the same 
percentages above the standard that Congress used when promulgating 
Table 1 in section 181(a) for purposes of the 1-hour ozone standard, 
and reflect reasonable attainment periods for most areas that fall into 
the various classifications.

B. Brief Summary of Comments on the Proposed Rule

    The EPA received several comments on the percent-above-the-standard 
methodology. Most of the commenters supported the adoption of this 
approach, stating that it was consistent with the CAA as well as the 
methodology used in the implementation of the 1997 ozone NAAQS. Those 
opposing this option did so for a number of reasons, including concerns 
that: It puts too many areas in the ``Marginal'' category; the outcome 
of the approach does not properly address the role of transport in the 
ability of downwind nonattainment areas to attain by the Marginal or 
Moderate attainment date; and a delay in progress will result from 
Marginal areas not attaining by the specified date in 2015.
    Other commenters that did not directly support or oppose the use of 
the percent-above-the-standard methodology suggested that the EPA 
should have considered other options such as the use of subpart 1 for 
classifying areas. These comments, and the EPA's responses, are 
discussed in more detail in the Response to Comments document in the 
docket.

C. Final Classification Thresholds

    In this section, we describe the EPA's methodology for establishing 
final classification thresholds for purposes of classifying ozone 
nonattainment areas with respect to the 2008 ozone NAAQS as well as the 
basis for the decision. After considering the comments, the EPA is 
finalizing the percent-above-the-standard methodology as proposed. 
Using this approach for the 2008 ozone NAAQS, the classification 
thresholds listed for the 1-hour NAAQS in the subpart 2 classification 
table are translated into a corresponding set of thresholds for the 
2008 8-hour NAAQS by setting threshold DVs in the new table at the same 
percentages above the 2008 ozone NAAQS as the DV levels in the subpart 
2 classification table are above the 1-hour ozone NAAQS. For example, 
the threshold separating the Marginal and Moderate classifications in 
the subpart 2 classification table (0.138 ppm) is 15 percent above the 
1-hour ozone NAAQS (0.12 ppm). Thus, under this approach, the threshold 
separating the Marginal and Moderate classifications for the 2008 ozone 
NAAQS is 0.075 ppm plus 15 percent, or 0.086 ppm. Table 1, below, 
depicts this translation for all classifications as they apply for the 
2008 ozone NAAQS.

  Table 1--Subpart 2 1-Hour Ozone Design Value Classification Table Translation to 8-Hour Design Values for the
                                          2008 Ozone NAAQS of 0.075 PPM
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                                                         1-hour design     Percent above 1-    8-hr ozone design
       Area classification                                value (ppm)      hour ozone NAAQS       value (ppm)
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Marginal........................  From..............               0.121               0.833               0.076
                                  up to \1\.........               0.138              15.000               0.086
Moderate........................  From..............               0.138              15.000               0.086
                                  up to \1\.........               0.160              33.333               0.100
Serious.........................  From..............               0.160              33.333               0.100
                                  up to \1\.........               0.180              50.000               0.113
Severe-15.......................  From..............               0.180              50.000               0.113
                                  up to\1\..........               0.190              58.333               0.119
Severe-17.......................  From..............               0.190              58.333               0.119
                                  up to\1\..........               0.280             133.333               0.175
Extreme.........................  equal to or above.               0.280             133.333               0.175
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Note 1: But not including.

    In conjunction with this final rule, the EPA is also finalizing 
initial nonattainment area designations for 45 areas with ambient ozone 
concentrations exceeding the 2008 ozone NAAQS.\9\ The 45 nonattainment 
areas are distributed in each classification category as shown in Table 
2. As described further in section IV.A of this rule, six areas are 
being voluntarily reclassified to a higher classification as part of 
this rule. Specifically, the areas listed in Table 3 will receive 
higher classifications based on their voluntary reclassification 
requests for the 1997 ozone NAAQS. These higher classifications are 
reflected in Table 2.
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    \9\ The EPA is also intending to designate as nonattainment a 
46th area based on a monitor in the Chicago, IL area that is 
violating the 2008 NAAQS based on final 2009-2011 data. The EPA 
intends to complete that action by May 31, 2012. We anticipate that 
the Chicago nonattainment area will be classified Marginal.

 Table 2--Number of Nonattainment Areas in Each Classification Category
                     Under the 2008 Ozone NAAQS \1\
------------------------------------------------------------------------
                                       Number of
                                  hypothetical areas   Actual number of
         Classification             estimated in the         areas
                                       proposal
------------------------------------------------------------------------
Marginal........................                  43                  36
Moderate........................                   6                   3
Serious.........................                   3                   2
Severe..........................                   0                   3
Extreme.........................                   0                   2
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[[Page 30164]]

 
    Total.......................                  52                  46
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Note 1: The EPA relied on air quality data from 2008-2010 to develop the
  hypothetical nonattainment areas for purposes of the proposed rule.
  Several areas, including the Chicago area, certified their 2011 air
  quality data early, which allowed the EPA to consider that data for
  purposes of final designations. This table includes the Chicago
  nonattainment area in the total number of areas.

    The EPA is finalizing this approach because the percent-above-the-
standard methodology reflects the same approach codified in the CAA, as 
amended in 1990. It also results in the majority of areas receiving a 
classification with an attainment date that we believe the areas can 
meet. The EPA performed an analysis that indicates that the majority of 
areas classified as Marginal will be able to attain the 2008 ozone 
NAAQS within 3 years of designation (i.e., in 2015) due to reductions 
of ozone precursors resulting from a number of federal and state 
emission reduction programs that have already been adopted.\10\ Such 
programs include more stringent emission standards for onroad and 
nonroad vehicles and equipment (with associated fleet turnover), and 
regional reductions in power plant emissions to address interstate 
transport.\11\ For areas classified Moderate and above that are 
required to develop attainment demonstrations and adopt reasonably 
available control measures, it is unlikely that already adopted federal 
and existing state measures will be sufficient to bring the areas into 
attainment. The EPA did not attempt to forecast additional federal, 
regional, state or local control measures that may be implemented prior 
to the relevant attainment dates in 2018 that might help these areas 
attain the NAAQS. However, we note that the federal and regional 
programs already in place, in conjunction with others that may be 
adopted in the next several years, such as maximum achievable control 
technology standards for boilers, will help these areas make progress 
toward attainment. In addition, the CAA requires these areas to meet 
reasonable progress goals out to their attainment date and also 
requires these areas to evaluate what reasonably available control 
measures are available in order to attain as expeditiously as 
practicable. For these reasons, we anticipate that these areas will be 
able to attain the 2008 ozone NAAQS by the attainment date for their 
classification. We note, as provided further below, several areas with 
the most persistent ozone problems are most likely not to attain by the 
attainment date associated with their classification by operation of 
law, and are being voluntarily reclassified to a higher classification 
in this final rule.
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    \10\ Technical note to docket  EPA-HQ-OAR-2010-0885, 
February 2012. ``The Hypothetical Nonattainment Area Projections of 
2008-2010 Design Values to 2015.''
    \11\ Federal Implementation Plans: Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals. August 
8, 2011; 76 FR 48208.
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IV. How will areas that were voluntarily reclassified under the 1997 
ozone NAAQS be addressed?

A. Summary of Proposed Reclassification of Selected Areas

    CAA section 181(b)(3) provides that a state may voluntarily request 
that the EPA reclassify a nonattainment area within the state to a 
higher classification. The EPA has no discretion to deny such requests. 
Once an area is reclassified to a higher classification, it becomes 
subject to the associated additional planning and control requirements 
for that higher classification as well and must attain the standard no 
later than the later maximum attainment date for that classification.
    There are seven areas for which states requested a voluntary 
reclassification with respect to the 1997 ozone NAAQS. The EPA has 
granted voluntary reclassification requests for six of these areas, and 
is in the process of completing the request for one area.\12\ These 
areas are initially classified for the 2008 ozone NAAQS with a lower 
classification than the areas have for the 1997 ozone NAAQS. Moreover, 
the maximum attainment date for the 2008 ozone NAAQS based on that 
lower classification would be before the maximum attainment date for 
the area for the less stringent 1997 ozone NAAQS. The EPA proposed to 
interpret the voluntary reclassification requests for the 1997 ozone 
NAAQS for such areas also to apply for the more stringent 2008 ozone 
NAAQS unless the state were to expressly request otherwise. Based on 
discussions with affected areas, we believed it was reasonable to 
expect that in most instances, where a state requested a voluntary 
reclassification under the less stringent 1997 ozone NAAQS, it would 
make the same request for the 2008 ozone NAAQS. The EPA proposed this 
approach in order to minimize burden on states and to address the 
concern that some areas might have an earlier attainment date for the 
more stringent 2008 ozone standard. Moreover, this approach would 
obviate the need to process separate voluntary reclassification 
requests for the 2008 NAAQS which might have the effect of delaying 
certain actions while an area's classification was being modified.
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    \12\ Ventura County, CA was reclassified from Moderate to 
Serious (Approved 05/20/2008, 73 FR Page 29073, Effective: 06/19/
2008). Houston-Galveston-Brazoria, TX was reclassified from Moderate 
to Severe-15 (Approved 10/01/2008, 73 FR Page 56983, Effective: 10/
31/2008). Reclassification of the Los Angeles-South Coast, San 
Joaquin Valley, Riverside County, and Sacramento Metro areas (May 5, 
2010, 75 FR 24409) became effective June 4, 2010. The EPA is in the 
process of approving the requested voluntary reclassification of 
West Mojave Desert, CA from Moderate to Severe.
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B. Brief Summary of Comments Received

    The EPA received several comments on the application of the 
voluntary reclassification requests for the 1997 ozone NAAQS to the 
more stringent 2008 ozone NAAQS. Supporters of the proposal included 
the affected state and local air quality management agencies in 
California. Almost all of the commenters supporting this approach 
indicated that an area that needed to request more time to attain the 
1997 ozone NAAQS would likely need additional time to meet the more 
stringent 2008 ozone NAAQS. The State of Texas indicated that it did 
not want the voluntary reclassification request for the Houston area 
for the 1997 ozone NAAQS to be interpreted to also apply for the 2008 
ozone NAAQS. One commenter questioned the authority of the EPA to apply 
the reclassification request for an area under the 1997 ozone NAAQS to 
the area's classification

[[Page 30165]]

under the 2008 ozone NAAQS. These comments, and the EPA's responses, 
are discussed in more detail in the Response to Comments document in 
the docket.

C. Final Action

    Once the initial area designations and classifications for the 2008 
ozone NAAQS are completed, the CAA provides three mechanisms for 
addressing nonattainment areas that may not be attaining or are not 
able to attain by the attainment date provided for their 
classification. First, section 181(a)(4) provides that within 90 days 
of the effective date of designation and classification, the 
Administrator may exercise discretion to reclassify an area to a higher 
classification if its DV is within 5 percent of the DV range of the 
higher classification.\13\ Any state interested in taking advantage of 
this flexibility should submit a request to the EPA in sufficient time 
for the Administrator to make a determination within the 90 days 
provided.
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    \13\ This CAA provision also provides the same authority for 
reclassifying areas to a lower classification. Since the vast 
majority of nonattainment areas for the 2008 NAAQS are classified 
Marginal, very few areas are eligible to request a reclassification 
to a lower classification. We anticipate that no states will request 
a reclassification to a lower classification because our analyses 
indicate that these areas will need longer than 3 years to attain 
the NAAQS and additional controls will be necessary for attainment.
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    The second mechanism, as provided in section 181(b)(3), allows a 
state to voluntarily request at any time that the EPA reclassify the 
area to a higher classification. The EPA has no discretion to deny such 
requests. Once an area is reclassified to a higher classification, it 
becomes subject to the associated additional planning and control 
requirements for that higher classification and must attain the 
standard no later than the later maximum attainment date for that 
classification. Any state may request a voluntary reclassification 
under the 2008 ozone NAAQS at any time prior to the area's attainment 
deadline.
    The third mechanism, as provided in section 181(b)(2), requires 
that an area be reclassified to the next higher classification (i.e., 
``bumped-up'') if the EPA determines that the area has failed to attain 
the standard by the area's attainment date and does not qualify for a 
1-year attainment date extension as allowed under CAA section 
181(b)(2).\14\ Areas classified as Severe are not reclassified to 
Extreme, as provided under CAA section 181(b)(2)(A), but instead are 
subject to other requirements as provided in section 181(b)(4).
---------------------------------------------------------------------------

    \14\ We note that for purposes of the 1997 ozone NAAQS, we 
promulgated a regulation interpreting CAA section 181(b)(4) for 
purposes of an 8-hour ozone NAAQS. 40 CFR 51.907. We anticipate that 
we will propose a similar regulation for the 2008 ozone standard as 
part of the proposed implementation rule.
---------------------------------------------------------------------------

    The areas for which states requested a voluntary reclassification 
would initially have been classified with a lower classification with 
an earlier maximum attainment date for the more stringent 2008 NAAQS 
than the area had for the 1997 NAAQS. At the time the EPA issued the 
proposed rule, we believed it likely that these areas would as a result 
have requested a similar reclassification for the 2008 NAAQS. The EPA 
is obligated to approve such voluntary reclassification requests if 
made. During the comment period, the State of California confirmed that 
it wished for the EPA to interpret its voluntary reclassification 
requests for areas within the state for the 1997 ozone NAAQS to also 
apply for the 2008 ozone NAAQS. The State of Texas indicated that it 
did not wish for the EPA to interpret its reclassification request for 
the 1997 ozone NAAQS for the Houston area as applying to the 2008 
NAAQS. Therefore, we are treating the prior requests made for the 
nonattainment areas in California listed in Table 3 as requests that 
also apply to the 2008 ozone NAAQS. This final rule reduces the burden 
on the State of California and the affected air management districts by 
obviating the need to go through a separate process to request bump-up 
for the 2008 NAAQS.

                                     Table 3--Areas Receiving Voluntary Reclassification Under the 2008 Ozone NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Voluntary reclassification under 2008
                Nonattainment area                        State         Initial 2008 ozone NAAQS classification                ozone NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles-South Coast Air Basin................  CA.................  Serious................................  Extreme.
San Joaquin Valley...............................  CA.................  Serious................................  Extreme.
Riverside County (Coachella Valley)..............  CA.................  Moderate...............................  Severe.
Sacramento Metro.................................  CA.................  Serious................................  Severe.
Ventura County...................................  CA.................  Moderate...............................  Serious.
Western Mojave...................................  CA.................  Moderate...............................  Severe.
--------------------------------------------------------------------------------------------------------------------------------------------------------

V. What are the attainment deadlines for each classification?

A. Summary of Proposed Attainment Deadlines

    The CAA provides that the primary NAAQS attainment dates for areas 
subject to subpart 2 must be as expeditious as practicable but no later 
than the deadlines provided in the subpart 2 classification table in 
CAA section 181(a)(1). The deadlines for attainment in the subpart 2 
classification table are specified in terms of a certain number of 
years from the date of enactment of the 1990 Amendments to the CAA 
(i.e., November 15, 1990). For instance, the attainment date for 
Moderate areas is expressed as ``6 years after November 15, 1990.'' 
Because these time periods are clearly inappropriate for a new ozone 
standard promulgated in 2008, we proposed to interpret the attainment 
deadlines in the subpart 2 classification table as they would apply to 
the 2008 ozone NAAQS.
    The EPA proposed two options for establishing the maximum 
attainment dates for areas in each nonattainment classification. Under 
the first option, the attainment dates would be the precise number of 
years specified in Table 1 with such time period running from the 
effective date of designation. Under the second option, the attainment 
dates would be December 31 of the year that is the specified number of 
years in Table 1 after the effective date of designation.
    The first option, which was the same approach we took for the 1997 
ozone NAAQS, would interpret ``year'' in the subpart 2 classification 
table to mean consecutive 365-day periods,\15\ and we would substitute 
``after the effective date of designation'' for the CAA's ``after 
November 15, 1990'' language in the subpart 2 classification table. 
Under this approach, the attainment deadline would fall a precise 
number of years after the effective date of designation.
---------------------------------------------------------------------------

    \15\ Except in the case of a leap year, where the year would be 
a rolling 366-day period.

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

[[Page 30166]]

    For the second option, the attainment date would be specified as a 
certain number of years from the end of the calendar year in which an 
area's nonattainment designation is effective (i.e., from December 31, 
2012). The EPA explained in its proposal that where the designation is 
effective late in the ozone season, as we expected to be the case for 
the 2008 ozone NAAQS, the first option had the effect of providing one 
less complete ozone season for areas to improve their air quality than 
was accorded areas under the CAA as amended in 1990. We described that 
under the first option, a Marginal area effectively would have only two 
full ozone seasons following the effective date of designation to 
improve its air quality in order to attain by its attainment date. This 
is because attainment is based on three full ozone seasons of air 
quality data; thus in order to attain ``by'' its attainment date, the 
area could not consider air quality for an ozone season during which 
the attainment date falls.
    We explained our belief that the second option is consistent with 
the time periods provided for attainment of the 1-hour ozone NAAQS at 
the time the CAA was amended. The CAA Amendments were enacted on 
November 15, 1990, after the end of the ozone season for virtually all 
areas, and for the few areas that had year-round ozone seasons, the EPA 
interpreted the Act to allow consideration of air quality in the 
attainment year even though the attainment date fell on November 15. 
Thus, when the CAA was amended in mid-November 1990, 1-hour Marginal 
areas had three full ozone seasons to achieve any reductions necessary 
for attainment, and Moderate areas had six full ozone seasons, because 
the attainment deadline was the anniversary of the enactment of the 
1990 CAA (November 15).

B. Brief Summary of Comments Received

    The EPA received numerous comments on the attainment deadlines 
proposal. A few commenters supported the first option based on what 
they believed to be a plain reading of the CAA. A number of commenters 
opposed the first option, because it would not allow air quality data 
from the attainment year to be used in determining if the area attained 
the NAAQS by the deadline. Most of the commenters supported the 
adoption of the second option believing that it was most consistent 
with the 1990 CAA Amendments and that it would ensure that at least 
three full ozone seasons of data following designation (2013-2015) 
would be used for Marginal areas (and six (2013-2018) for Moderate 
areas, etc.) to determine attainment with the 2008 ozone NAAQS. Those 
opposing the second option indicated it would result in further delays 
in implementing controls in areas required to attain the 2008 ozone 
NAAQS, and that it arbitrarily endangers human health. These comments, 
and the EPA's responses, are discussed in more detail in the Response 
to Comments document in the docket.

C. Final Action

    The EPA is finalizing the second proposed option. Attainment 
deadlines for the 2008 ozone NAAQS nonattainment areas will be December 
31 of the calendar year that is the number of years specified for each 
classification in Table 1 with the number of years running from 2012. 
The EPA believes that this approach is appropriate for several reasons. 
First, we believe it is consistent with the intent of Congress at the 
time the CAA Amendments of 1990 were enacted. Since ozone seasons for 
most areas run during the spring, summer and fall,\16\ the CAA, as 
amended in 1990, allowed Marginal areas three full ozone seasons to 
attain and maintain the NAAQS (and six full ozone seasons for Moderate 
areas, etc.) after the time that areas were designated and classified 
by operation of law at the time of enactment of the CAA Amendments. If 
the attainment date runs from the effective date of designation (i.e., 
mid-2012), to the extent measures beyond federal measures or state 
measures that are already in place would be needed for attainment of 
the 2008 ozone NAAQS by Marginal areas, states would have 18 to 21 
months \17\ to adopt and implement such measures no later than the 
beginning of the 2014 ozone season. This is less time than such areas 
had for purposes of the 1-hour ozone standard under the CAA as amended 
in 1990. At that time, states with Marginal areas had over two years to 
adopt and implement such measures prior to the final ozone season used 
for purposes of determining attainment.\18\ In addition, this approach 
is consistent with the regulatory provisions specifying how to 
determine whether an area has attained the 2008 ozone NAAQS, which 
require an evaluation of monitoring data from 3 consecutive calendar 
years running from January 1 to December 31 of each year.
---------------------------------------------------------------------------

    \16\ A few of the most southern areas in the country do have a 
year-round ozone season. For purposes of the 1-hour NAAQS, the EPA 
effectively interpreted the November 15 attainment date as the end 
of the calendar year (i.e., the end of calendar years 1993, 1996, 
1999, 2005, 2007 and 2010).
    \17\ The ozone season for all areas of California, Nevada, 
Arizona, Southern Texas and Southern Louisiana starts in January, 
which would provide 18 months for areas classified as Marginal in 
such states to adopt and implement any additional measures needed 
for attainment. The ozone season for all areas of Colorado, Northern 
Texas, Northern Louisiana, Alabama, Mississippi, Georgia, Florida, 
Tennessee and Kentucky starts in March, which would provide 20 
months for areas classified as Marginal in such states to adopt and 
implement any additional measures needed for attainment. The ozone 
season for all other areas designated nonattainment for the 2008 
NAAQS begins in April, which would provide 21 months for areas 
classified as Marginal in such states to adopt and implement any 
additional measures needed for attainment.
    \18\ The same is true for the higher classifications if the 
attainment date falls in the middle of the year. For example, under 
Option 1, Moderate areas would have approximately 4\1/2\ years to 
adopt and implement measures necessary to attain the 2008 ozone 
NAAQS (i.e., no later than the beginning of the 2016 ozone season, 
which would be the final ozone season relied on for attainment), 
whereas at the time of the CAA Amendments of 1990, Moderate areas 
had approximately 5 years to adopt and implement measures prior to 
the beginning of the 1996 ozone season, which was the final ozone 
season considered for determining whether an area attained by the 
November 1996 Moderate area attainment date.
---------------------------------------------------------------------------

    Accordingly, areas initially classified as Marginal are required to 
attain the 2008 ozone NAAQS no later than December 31, 2015, and the 
EPA will evaluate whether the area attained the NAAQS based on 
monitored ozone data from 2013-2015. Areas initially classified as 
Moderate are required to attain the 2008 ozone NAAQS no later than 
December 31, 2018, and the EPA will evaluate whether the area attained 
the NAAQS based on monitored ozone data from 2016-2018. Serious, 
Severe, and Extreme areas are required to attain the 2008 ozone NAAQS 
by December 31, 2021, 2027 and 2032, respectively. Table 4 summarizes 
the final attainment deadlines for all classification categories.

[[Page 30167]]



                           Table 4--Attainment Dates for the 2008 Primary Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                           Attainment dates for areas designated
             Classification                       Attainment date                         in 2012
----------------------------------------------------------------------------------------------------------------
Marginal................................  December 31 of the calendar      December 31, 2015.
                                           year 3 years from the date of
                                           designation.
Moderate................................  December 31 of the calendar      December 31, 2018.
                                           year 6 years from the date of
                                           designation.
Serious.................................  December 31 of the calendar      December 31, 2021.
                                           year 9 years from the date of
                                           designation.
Severe..................................  December 31 of the calendar      December 31, 2027.
                                           year 15 years from the date of
                                           designation.
Extreme.................................  December 31 of the calendar      December 31, 2032.
                                           year 20 years from the date of
                                           designation.
----------------------------------------------------------------------------------------------------------------

VI. When is the EPA revoking the 1997 ozone NAAQS for transportation 
conformity purposes?

A. Summary of Proposal

    Transportation conformity is required under CAA section 176(c) to 
ensure that transportation plans, transportation improvement programs 
(TIPs) and federally supported highway and transit projects are 
consistent with (``conform to'') the purpose of the SIP. Conformity to 
the purpose of the SIP means that transportation activities will not 
cause new air quality violations, worsen existing violations, or delay 
timely attainment of the relevant NAAQS or interim reductions and 
milestones. The EPA's Transportation Conformity Rule (40 CFR 51.390 and 
Part 93, subpart A) establishes the criteria and procedures for 
determining whether transportation activities conform to the SIP.
    The EPA proposed to revoke the 1997 ozone NAAQS one year after the 
effective date of designations for the 2008 ozone NAAQS for 
transportation conformity purposes only. As the EPA described in the 
proposal, revoking the 1997 ozone NAAQS for transportation conformity 
purposes would bring certainty to the transportation planning process 
in ozone nonattainment and maintenance areas. It would also ensure that 
backsliding does not occur for purposes of transportation conformity as 
areas designated nonattainment for the 2008 ozone NAAQS will be 
required to use adequate or approved SIP motor vehicle emissions 
budgets for the 1997 ozone NAAQS or 1-hour ozone NAAQS, if the area has 
such SIP budgets for one of these ozone NAAQS, until SIP budgets are 
found adequate or are approved for the 2008 ozone NAAQS as required by 
recent court decisions discussed below and as required by CAA 176(c)(1) 
and by the transportation conformity rule (40 CFR 93.109(c)(2)).\19,20\ 
Specifically, CAA section 176(c)(1) states, in part, ``No metropolitan 
planning organization designated under section 134 of Title 23 shall 
give its approval to any project, program, or plan which does not 
conform to an implementation plan approved or promulgated under section 
7410 of this title.'' Under the EPA's regulations (40 CFR 
93.109(c)(2)), adequate or approved motor vehicle emissions budgets for 
a prior NAAQS must be used in transportation conformity determinations 
for a revised NAAQS until such time that budgets for the revised NAAQS 
are either found adequate or are approved. The EPA is finalizing this 
limited revocation of the 1997 ozone NAAQS at this time to provide 
certainty to the transportation planning process. In a subsequent 
rulemaking the EPA will consider whether to also revoke the 1997 ozone 
NAAQS on the same timeline for all other purposes.
---------------------------------------------------------------------------

    \19\ A motor vehicle emissions budget is that portion of the 
total allowable emissions defined in the submitted or approved 
control strategy implementation plan revision or maintenance plan 
for a certain date for the purpose of meeting reasonable further 
progress milestones or demonstrating attainment or maintenance of 
the NAAQS, for any criteria pollutant or its precursors, allocated 
to highway and transit vehicle use and emissions.
    \20\ On March 14, 2012, the EPA finalized a revision to the 
transportation conformity rule, which among other things revised the 
rule to specifically require that a nonattainment area that has 
approved or adequate motor vehicle emissions budgets in an 
applicable implementation plan or implementation plan submission for 
another NAAQS for the same pollutant must use those budgets in 
transportation conformity determinations until motor vehicle 
emissions budgets for the current NAAQS are submitted by the state 
and found adequate or are approved by the EPA. This revision to the 
conformity rule was effective on April 13, 2012. (77 FR 14979.)
---------------------------------------------------------------------------

    This approach was the same approach the EPA used to transition from 
the 1-hour ozone NAAQS to the more stringent 1997 ozone NAAQS. For that 
transition, our Phase 1 implementation rule for the 1997 ozone NAAQS 
revoked the 1-hour ozone NAAQS for all purposes one year after the 
effective date of the initial area designations for the 1997 ozone 
NAAQS. See 69 FR 23954. The Phase 1 rule also established comprehensive 
anti-backsliding provisions to ensure that requirements for the 1-hour 
ozone NAAQS would continue in place as areas transitioned to 
implementing the more stringent 1997 ozone NAAQS.
    The revocation of the 1-hour standard and the associated anti-
backsliding provisions were the subject of litigation. In its December 
2006 decision on that challenge, as modified following rehearing, the 
Court held with respect to the anti-backsliding approach for 
transportation conformity that 1-hour motor vehicle emissions budgets 
must be used where such budgets have been found adequate or approved, 
as part of 8-hour conformity determinations until 8-hour motor vehicle 
emissions budgets are available (South Coast Air Quality Management 
District v. EPA, 472 F.3d at 882). In addition, the Court affirmed more 
broadly that in order for transportation conformity determinations to 
fulfill the requirements of CAA section 176(c)(1), motor vehicle 
emissions budgets for a prior NAAQS must be used in transportation 
conformity determinations under a revised NAAQS until emissions budgets 
for the revised NAAQS are either found adequate or are approved, but 
that conformity determinations need not be made for a revoked standard. 
Therefore, areas designated nonattainment for the 2008 ozone NAAQS that 
have adequate or approved SIP budgets for either the 1997 ozone NAAQS 
or the 1-hour ozone NAAQS must continue to use such budgets in 
transportation conformity determinations until budgets for the 2008 
ozone NAAQS are found adequate or are approved.\21\
---------------------------------------------------------------------------

    \21\ Areas without adequate or approved SIP budgets for either 
the 1997 ozone NAAQS or the 1-hour ozone NAAQS are required to 
demonstrate conformity using one or both of the interim emissions 
tests depending on their classification as required by 40 CFR 
93.119.
---------------------------------------------------------------------------

    Similar to our rationale in the Phase 1 rule for implementation of 
the 1997 ozone NAAQS, we explained at proposal that we believe this 
approach makes the most sense because it would result in only one ozone 
NAAQS--the 2008 ozone NAAQS--applying for purposes of transportation 
conformity, after the end of the 1-year transportation conformity grace 
period that applies to newly designated nonattainment areas (CAA 
section 176(c)(6)). If the 1997

[[Page 30168]]

ozone NAAQS were to remain in place after conformity applies for the 
2008 ozone NAAQS, metropolitan planning organizations and other state, 
local, and federal transportation and air quality agencies in areas 
that are currently nonattainment or maintenance for the 1997 ozone 
NAAQS and will be designated nonattainment for the 2008 ozone NAAQS 
would be required to implement the transportation conformity program 
for both ozone NAAQS concurrently. This could lead to unnecessary 
complexity for conformity determinations, especially if an area's 
boundaries for the two ozone NAAQS differ from one another and the same 
test of conformity cannot be used for both ozone NAAQS. Even where an 
area's boundaries are unchanged, different analysis years under the 
conformity rules may be required for each ozone NAAQS. Furthermore, we 
believe that it is more important to determine conformity for the new 
2008 ozone NAAQS that is more protective of health and welfare. 
Therefore, for transportation conformity purposes, this final rule 
provides a seamless transition from demonstrating conformity for the 
1997 ozone NAAQS to demonstrating conformity for the 2008 ozone NAAQS. 
Revoking the 1997 ozone NAAQS one year after the effective date of 
designations for the limited purpose of transportation conformity would 
leave no gap in conformity's application in any 2008 ozone 
nonattainment area.

B. Final Date for Revoking the 1997 Ozone NAAQS for Transportation 
Conformity Purposes

    The EPA received many comments regarding the revocation of the 1997 
ozone NAAQS for purposes of transportation conformity. Most of the 
commenters supported revoking the 1997 ozone NAAQS for transportation 
conformity purposes one year after the effective date of designations 
for the 2008 ozone NAAQS, as proposed, because this would minimize the 
burden on states, and focus efforts on the more stringent 2008 ozone 
NAAQS. Those opposing this option did so as a result of concerns about 
backsliding and the legality of revoking the 1997 ozone NAAQS at all. 
Several other comments were received that were directed at topics such 
as general conformity and revocation of the 1997 ozone NAAQS for other 
purposes that will be addressed in a subsequent rule addressing SIP 
requirements for the 2008 ozone NAAQS. These comments, and the EPA's 
responses, are discussed in more detail in the Response to Comments 
document in the docket. After considering the comments and for the 
reasons described above, the EPA is finalizing the proposed revocation.
    This final rule does not revoke the 1997 ozone NAAQS for purposes 
other than transportation conformity. A subsequent proposal addressing 
SIP requirements for the 2008 ozone NAAQS will cover the broader anti-
backsliding requirements that might apply if the 1997 standard is 
revoked for purposes other than transportation conformity.

VII. Statutory and Executive Order Reviews

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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).
    The final Classifications Rule for the 2008 ozone NAAQS establishes 
the air quality thresholds associated with each classification, which 
is assigned by operation of law at the time of designation as provided 
in section 181(a) of the CAA. It also reclassifies six areas in 
California to a higher classification, consistent with the State of 
California's previous request to reclassify such areas for the 1997 
ozone NAAQS. This rule establishes the attainment date as December 31st 
of the year that is the number of years specified in Table 1 in CAA 
section 182(a) running from the year of designation (i.e., 2012). This 
rule also revokes the 1997 ozone NAAQS for transportation conformity 
purposes only. This limited revocation will bring certainty to the 
transportation conformity process consistent with prior court decisions 
and CAA section 176(c). This rule, in conjunction with another 
implementation rule we plan to propose in the future, will help states 
identify planning requirements that apply for purposes of attaining and 
maintaining the 2008 ozone NAAQS. No new information needs to be 
collected from the states as a result of this final rule.

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 final rules on small 
entities, small entity is defined as: (1) A small business as defined 
in the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    The CAA requires the EPA to designate areas and provides for 
nonattainment areas to be classified by operation of law at the time of 
designation, and allows areas to request reclassification to a higher 
classification. This rule establishes the thresholds that define these 
initial classifications and reclassifies some areas, and also 
establishes the attainment deadline for each classification. The CAA 
also requires that nonattainment and maintenance areas make 
transportation conformity determinations. This rule revokes the 1997 
ozone NAAQS one year after the effective date of designations so that 
areas designated nonattainment for the 2008 ozone NAAQS are required to 
address conformity requirements for only the more protective 2008 ozone 
NAAQS.
    After considering the economic impacts of this final rule on small 
entities, the EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
This final 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, and tribal governments, in the aggregate, 
or the private sector. This action imposes no enforceable duty on any 
state, local or tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of section 202 and 205 
of the UMRA.

[[Page 30169]]

    This action is not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    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. The requirements to designate 
nonattainment areas, which are then classified by operation of law, as 
well as the requirement to grant reclassification requests are imposed 
by the CAA. Thus, Executive Order 13132 does not apply to these final 
regulations.
    Although this action does not have federalism implications as 
defined in Executive Order 13132, the EPA recognizes that the adoption 
in 2008 of the more health-protective ozone standard has triggered CAA 
requirements for state agencies responsible for managing air quality 
programs. Under the CAA, achieving these health benefits requires the 
combined efforts of the federal, state, and local governments, each 
accomplishing the tasks for which they are best suited. In the spirit 
of Executive Order 13132 and consistent with the EPA policy to promote 
communications between the EPA and state and local governments, the EPA 
solicited comments on the proposal to this final rule 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 (65 FR 67249, November 9, 2000). The final rules 
do not have a substantial direct effect on one or more Indian tribes 
under these regulatory revisions, and does not significantly or 
uniquely affect the communities of Indian tribal governments. 
Furthermore, these final regulatory 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. These proposed 
regulatory revisions do not have tribal implications. Thus, Executive 
Order 13175 does not apply to this action.
    The EPA solicited comment on the proposal for this final action 
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 Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 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. The 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.
    These final revisions to the regulations do 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 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 final 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 final regulations establish classification thresholds 
and attainment deadlines for designated nonattainment areas for the 
2008 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. Today's action also revokes the 1997 ozone NAAQS for 
transportation conformity purposes only. Such a revocation would not 
lead to disproportionately high and adverse human health or 
environmental effects on minority or low-income populations as the CAA 
requires transportation conformity to apply in any area that is 
designated nonattainment or maintenance by the EPA. This final rule 
ensures that transportation conformity is demonstrated in all areas 
that are designated nonattainment for the more protective 2008 ozone 
NAAQS.

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 60 day s after publication in the 
Federal Register.

[[Page 30170]]

VIII. Statutory Authority

    The statutory authority for this action is provided by sections 
110; 176; 181; and 301(a)(1) of the CAA, as amended (42 U.S.C. 7409; 42 
U.S.C. 7506; 42 U.S.C. 7511; 42 U.S.C. 7601(a)(1)).

List of Subjects

40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

40 CFR Part 51

    Air pollution control, Intergovernmental relations, Ozone, 
Particulate matter, Transportation, Volatile organic compounds.

    Dated: April 30, 2012 .
Lisa P. Jackson,
Administrator.

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

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

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

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


0
2. Section 50.10 is amended by adding a paragraph (c) to read as 
follows:


Sec.  50.10  National 8-hour primary and secondary ambient air quality 
standards for ozone.

* * * * *
    (c) The 1997 ozone NAAQS set forth in paragraph (a) of this section 
will no longer apply to an area for transportation conformity purposes 
1 year after the effective date of the designation of the area for the 
2008 ozone NAAQS pursuant to section 107 of the CAA. The 1997 ozone 
NAAQS set forth in this section will continue to remain applicable to 
all areas for all other purposes notwithstanding the promulgation of 
the 2008 ozone NAAQS under Sec.  50.15 or the designation of areas for 
the 2008 ozone NAAQS. Area designations and classifications with 
respect to the 1997 ozone NAAQS are codified in 40 CFR part 81.

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

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

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


0
4. Part 51 is amended by adding subpart AA to read as follows:
Subpart AA--Provisions for Implementation of the 2008 Ozone National 
Ambient Air Quality Standards
Sec.
51.1100 Definitions.
51.1101 Applicability of Part 51.
51.1102 Classification and nonattainment area planning provisions.
51.1103 Application of classification and attainment date provisions 
in CAA section 181 of subpart 2 to areas subject to Sec.  
51.1102(a).

Subpart AA--Provisions for Implementation of the 2008 Ozone 
National Ambient Air Quality Standards


Sec.  51.1100  Definitions.

    The following definitions apply for purposes of this subpart. Any 
term not defined herein shall have the meaning as defined in 40 CFR 
51.100.
    (a) 1-hour NAAQS means the 1-hour primary and secondary ozone 
national ambient air quality standards codified at 40 CFR 50.9.
    (b) 1997 NAAQS means the 1997 8-hour primary and secondary ozone 
national ambient air quality standards codified at 40 CFR 50.10.
    (c) 2008 NAAQS means the 2008 8-hour primary and secondary ozone 
NAAQS codified at 40 CFR 50.15.
    (d) 1-hour ozone design value is the 1-hour ozone concentration 
calculated according to 40 CFR part 50, Appendix H and the 
interpretation methodology issued by the Administrator most recently 
before the date of the enactment of the CAA Amendments of 1990.
    (e) 8-hour ozone design value is the 8-hour ozone concentration 
calculated according to 40 CFR part 50, Appendix P.
    (f) CAA means the Clean Air Act as codified at 42 U.S.C. 7401--
7671q (2010).
    (g) Attainment area means, unless otherwise indicated, an area 
designated as either attainment, unclassifiable, or attainment/
unclassifiable.
    (h) Attainment year ozone season shall mean the ozone season 
immediately preceding a nonattainment area's maximum attainment date.
    (i) Designation for the 2008 NAAQS shall mean the effective date of 
the designation for an area for the 2008 NAAQS.
    (j) Higher classification/lower classification. For purposes of 
determining whether a classification is higher or lower, 
classifications under subpart 2 of part D of title I of the CAA are 
ranked from lowest to highest as follows: Marginal; Moderate; Serious; 
Severe; and Extreme.
    (k) Initially designated means the first designation that becomes 
effective for an area for the 2008 NAAQS and does not include a 
redesignation to attainment or nonattainment for the 2008 NAAQS.
    (l) Maintenance area means an area that was designated 
nonattainment for a specific NAAQS and was redesignated to attainment 
for that NAAQS subject to a maintenance plan as required by CAA section 
175A.
    (m) Nitrogen Oxides (NOX) means the sum of nitric oxide 
and nitrogen dioxide in the flue gas or emission point, collectively 
expressed as nitrogen dioxide.
    (n) Ozone season means for each state, the ozone monitoring season 
as defined in 40 CFR part 58, Appendix D, section 4.1(i) for that 
state.


Sec.  51.1101  Applicability of Part 51.

    The provisions in subparts A-X of part 51 apply to areas for 
purposes of the 2008 NAAQS to the extent they are not inconsistent with 
the provisions of this subpart.


Sec.  51.1102  Classification and nonattainment area planning 
provisions.

    An area designated nonattainment for the 2008 ozone NAAQS will be 
classified in accordance with CAA section 181, as interpreted in Sec.  
51.1103(a), and will be subject to the requirements of subpart 2 of 
part D of title I of the CAA that apply for that classification.


Sec.  51.1103  Application of classification and attainment date 
provisions in CAA section 181 of subpart 2 to areas subject to Sec.  
51.1102.

    (a) In accordance with CAA section 181(a)(1), each area designated 
nonattainment for the 2008 ozone NAAQS shall be classified by operation 
of law at the time of designation. The classification shall be based on 
the 8-hour design value for the area at the time of designation, in 
accordance with Table 1 below. A state may request a higher or lower 
classification as provided in paragraphs (b) and (c) of this section. 
For each area classified under this section, the attainment date for 
the 2008 NAAQS shall be as expeditious as practicable but not later 
than the date provided in Table 1 as follows:

[[Page 30171]]



     Table 1--Classification for 2008 8-Hour Ozone NAAQS (0.075 ppm) for Areas Subject to Section 51.1102(a)
----------------------------------------------------------------------------------------------------------------
                                                                                     Primary standard attainment
                                                                   8-hour design          date (years after
              Area class                                         value (ppm ozone)  designation for 2008 primary
                                                                                               NAAQS)
----------------------------------------------------------------------------------------------------------------
Marginal.............................  from...................               0.076  3 years after December 31,
                                                                                     2012.
                                       up to *................               0.086
Moderate.............................  from...................               0.086  6 years after December 31,
                                                                                     2012.
                                       up to *................               0.100
Serious..............................  from...................               0.100  9 years after December 31,
                                                                                     2012.
                                       up to *................               0.113
Severe-15............................  from...................               0.113  15 years after December 31,
                                                                                     2012.
                                       up to *................               0.119
Severe-17............................  from...................               0.119  17 years after December 31,
                                                                                     2012.
                                       up to *................               0.175
Extreme..............................  equal to or above......               0.175  20 years after December 31,
                                                                                     2012.
----------------------------------------------------------------------------------------------------------------
* But not including.

     (b) A state may request, and the Administrator must approve, a 
higher classification for any reason in accordance with CAA section 
181(b)(3).
    (c) A state may request, and the Administrator may in the 
Administrator's discretion approve, a higher or lower classification in 
accordance with CAA section 181(a)(4).
    (d) The following nonattainment areas are reclassified for the 2008 
ozone NAAQS as follows: Serious--Ventura County, CA; Severe--Los 
Angeles-San Bernardino Counties (West Mojave Desert), Riverside County 
(Coachella Valley), and Sacramento Metro, CA; Extreme--Los Angeles-
South Coast Air Basin, and San Joaquin Valley, CA.


[FR Doc. 2012-11605 Filed 5-18-12; 8:45 am]
BILLING CODE 6560-50-P


