[Federal Register Volume 80, Number 72 (Wednesday, April 15, 2015)]
[Proposed Rules]
[Pages 20175-20178]
[FR Doc No: 2015-08465]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2015-0826; Directorate Identifier 2014-NM-221-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Airbus Model A318, A319, and A320 series airplanes modified by
a particular supplemental type certificate (STC). This proposed AD was
prompted by reports of cracks found during inspections of the in-flight
entertainment system radome assembly. This proposed AD would require
repetitive detailed inspections for cracks in the radome assembly, and
replacement of the radome if necessary. We are proposing this AD to
detect and correct cracks in the radome assembly, which could result in
the radome (or pieces) separating from the airplane and striking the
tail, consequently reducing the controllability of the airplane.

DATES: We must receive comments on this proposed AD by June 1, 2015.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For service information identified in this proposed AD, contact
Live TV, 7415 Emerald Dunes Drive, Orlando, FL 32822; telephone 407-
812-2643; email<EMAIL_ADDRESS>Internet: http://www.LiveTV.net. You may view this referenced service information at the
FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA.
For information on the availability of this material at the FAA, call
425-227-1221.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-
0826; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this proposed AD, the regulatory evaluation, any comments
received, and other information. The street address for the Docket
Office (phone:<PHONE_NUMBER>) is in the ADDRESSES section. Comments will
be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Barry Culler, Aerospace Engineer,
Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office
(ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-
5546; fax:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under the ADDRESSES section. Include ``Docket No. FAA-2015-0826;
Directorate Identifier 2014-NM-221-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    We received reports of cracks in the in-flight entertainment system
radomes of certain Airbus airplanes. The cracks were found during
inspections of the radome assembly on various Airbus Model A318, A319,
and A320 series airplanes that had in-flight entertainment systems
installed using a certain STC issued to Live TV (STC number STC
ST00788SE, http://rgl.faa.gov/Regulatory_and_Guidance_Library/
rgstc.nsf/0/6df40775b10ef09a86257ae200613cfe/$FILE/ST00788SE.pdf).
Investigation of the cause of the cracks revealed that radome
manufacturing variation, due to a lack of dimensional

controls on the radome manufacturing drawings, can result in the
introduction of preload stress on the radome during its assembly with
the skirt fairing. Preload stress combined with flight or handling
stress, such as maintenance personnel stepping on the radome fairing
assembly, might initiate a crack. The radome manufacturing drawings
were revised on September 13, 2010, to add a control dimension, which
was incorporated into production at radome serial number 498. Cracks in
the radome, if not corrected, could result in the radome (or pieces)
separating from the airplane and striking the tail, consequently
reducing the controllability of the airplane.

Related Service Information Under 1 CFR Part 51

    We reviewed Live TV Service Bulletin A320-53-006, Rev 01, dated
September 10, 2014. The service information describes procedures for
repetitive detailed inspections for cracks in the outer ply of the
radome, and replacement of the radome with a new or serviceable radome,
if any crack is found. This service information is reasonably
available; see ADDRESSES for ways to access this service information.

FAA's Determination

    We are proposing this AD because we evaluated all the relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of these same type
designs.

Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified
in the service information described previously. In addition, if any
crack is found in a radome during an inspection, this proposed AD would
require sending the inspection results to Live TV.

Explanation of ``RC'' Steps in Service Information

    The FAA worked in conjunction with industry, under the
Airworthiness Directive Implementation Aviation Rulemaking Committee
(ARC), to enhance the AD system. One enhancement was a new process for
annotating which steps in the service information are required for
compliance with an AD. Differentiating these steps from other tasks in
the service information is expected to improve an owner's/operator's
understanding of crucial AD requirements and help provide consistent
judgment in AD compliance. The steps identified as RC (required for
compliance) in any service information identified previously have a
direct effect on detecting, preventing, resolving, or eliminating an
identified unsafe condition.
    Steps that are identified as RC in any service information must be
done to comply with the proposed AD. However, steps that are not
identified as RC are recommended. Those steps that are not identified
as RC may be deviated from using accepted methods in accordance with
the operator's maintenance or inspection program without obtaining
approval of an alternative method of compliance (AMOC), provided the
steps identified as RC can be done and the airplane can be put back in
a serviceable condition. Any substitutions or changes to steps
identified as RC will require approval of an AMOC.

Costs of Compliance

    We estimate that this proposed AD affects 120 airplanes of U.S.
registry.
    We estimate the following costs to comply with this proposed AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
              Action                    Labor cost        Parts cost     Cost per product         operators
----------------------------------------------------------------------------------------------------------------
Inspections......................  1 work-hour x $85             N/A   $85, per inspection   $10,200, per
                                    per hour = $85, per                 cycle.                inspection cycle.
                                    inspection cycle.
----------------------------------------------------------------------------------------------------------------

    We estimate the following costs to do any necessary replacements
that would be required based on the results of the proposed
inspections. We have no way of determining the number of aircraft that
might need this replacement:

                                               On-Condition Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per
                    Action                                Labor cost               Parts cost        product
----------------------------------------------------------------------------------------------------------------
Replacement..................................  8 work-hours x $85 per hour =                $0             $680
                                                $680.
----------------------------------------------------------------------------------------------------------------

Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a current valid OMB control number. The control
number for the collection of information required by this AD is 2120-
0056. The paperwork cost associated with this AD has been detailed in
the Costs of Compliance section of this document and includes time for
reviewing instructions, as well as completing and reviewing the
collection of information. Therefore, all reporting associated with
this AD is mandatory. Comments concerning the accuracy of this burden
and suggestions for reducing the burden should be directed to the FAA
at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information
Collection Clearance Officer, AES-200.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

Airbus: Docket No. FAA-2015-0826; Directorate Identifier 2014-NM-
221-AD.

(a) Comments Due Date

    We must receive comments by June 1, 2015.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to the airplane models identified in paragraphs
(c)(1), (c)(2), and (c)(3) of this AD, certificated in any category,
with Live TV radomes having part number (P/N) 5063-100-XX (XX
designates the color option) and a serial number in the range of 001
through 497 inclusive, and modified by supplemental type certificate
(STC) STC ST00788SE, http://rgl.faa.gov/
Regulatory_and_Guidance_Library/rgstc.nsf/0/
6df40775b10ef09a86257ae200613cfe/$FILE/ST00788SE.pdf.
    (1) Airbus Model A318-111 and -112 airplanes.
    (2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132,
and -133 airplanes.
    (3) Airbus Model A320-111, 211, -212, -214, -231, -232, and -233
airplanes.

(d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

    This AD was prompted by reports of cracks found during
inspections of the radome assembly. We are issuing this AD to detect
and correct cracks in the in-flight entertainment system radome
assembly, which could result in the radome (or pieces) separating
from the airplane and striking the tail, consequently reducing the
controllability of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Repetitive Inspections and Corrective Actions

    Within 3,900 flight hours after the effective date of this AD:
Perform a detailed inspection for cracks of the radome assembly, in
accordance with the Accomplishment Instructions of Live TV Service
Bulletin A320-53-006, Rev 01, dated September 10, 2014. Repeat the
inspection thereafter at intervals not to exceed 3,900 flight hours.
If any crack is found during any inspection required by this
paragraph, before further flight, replace the radome with a new or
serviceable radome, in accordance with the Accomplishment
Instructions of Live TV Service Bulletin A320-53-006, Rev 01, dated
September 10, 2014.

(h) Reporting Requirement

    If any crack is found during any inspection required by
paragraph (g) of this AD, submit a report of the findings to Live
TV, Attn: Oscar Hernandez, email:
<EMAIL_ADDRESS>at the applicable time
specified in paragraph (h)(1) or (h)(2) of this AD. The report must
include the information specified in the service bulletin reporting
form provided in Live TV Service Bulletin A320-53-006, Rev 01, dated
September 10, 2014.
    (1) If the inspection was accomplished on or after the effective
date of this AD: Submit the report within 30 days after the
inspection.
    (2) If the inspection was accomplished before the effective date
of this AD: Submit the report within 30 days after the effective
date of this AD.

(i) Special Flight Permit

    Special flight permits, as described in Section 21.197 and
Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197
and 21.199), are not allowed.

(j) Paperwork Reduction Act Burden Statement

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to a penalty
for failure to comply with a collection of information subject to
the requirements of the Paperwork Reduction Act unless that
collection of information displays a current valid OMB Control
Number. The OMB Control Number for this information collection is
2120-0056. Public reporting for this collection of information is
estimated to be approximately 5 minutes per response, including the
time for reviewing instructions, completing and reviewing the
collection of information. All responses to this collection of
information are mandatory. Comments concerning the accuracy of this
burden and suggestions for reducing the burden should be directed to
the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn:
Information Collection Clearance Officer, AES-200.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta Aircraft Certification Office (ACO),
FAA, has the authority to approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19. In accordance with 14
CFR 39.19, send your request to your principal inspector or local
Flight Standards District Office, as appropriate. If sending
information directly to the manager of the ACO, send it to the
attention of the person identified in the Related Information
section of this AD.
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) If any service information contains steps that are
identified as RC (Required for Compliance), those steps must be done
to comply with this AD; any steps that are not identified as RC are
recommended. Those steps that are not identified as RC may be
deviated from using accepted methods in accordance with the
operator's maintenance or inspection program without obtaining
approval of an AMOC, provided the steps identified as RC can be done
and the airplane can be put back in a serviceable condition. Any
substitutions or changes to steps identified as RC require approval
of an AMOC.

(l) Related Information

    (1) For more information about this AD, contact Barry Culler,
Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft
Certification Office (ACO), 1701 Columbia Avenue, College Park, GA
30337; phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    (2) For service information identified in this AD, contact Live
TV, 7415 Emerald Dunes Drive, Orlando, FL 32822; telephone 407-812-
2643; email<EMAIL_ADDRESS>Internet: http://www.LiveTV.net. You may view this referenced service information at
the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW.,
Renton, WA. For information on the availability of this material at
the FAA, call<PHONE_NUMBER>.

    Issued in Renton, Washington, on April 6, 2015.
John P. Piccola, Jr.,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2015-08465 Filed 4-14-15; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: August 13, 2009 (Volume 74, Number 155)]
[Notices]
[Page 40829]
[DOCID:fr13au09-57]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2009-0706]

Certificate of Alternative Compliance for the Offshore Supply
Vessel PAO DE ACUCAR

AGENCY: Coast Guard, DHS.

ACTION: Notice.

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SUMMARY: The Coast Guard announces that a Certificate of Alternative
Compliance was issued for the offshore supply vessel PAO DE ACUCAR as
required by 33 U.S.C. 1605(c) and 33 CFR 81.18.

DATES: The Certificate of Alternative Compliance was issued on May 18,
2009.

ADDRESSES: The docket for this notice is available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-2009-0706 in the ``Keyword'' box, and then clicking
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice,
call CWO2 David Mauldin, District Eight, Prevention Branch, U.S. Coast
Guard, telephone<PHONE_NUMBER>. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    The offshore supply vessel PAO DE ACUCAR will be used for offshore
supply operations. The Certificate of Alternative Compliance allows for
the horizontal distance between the forward and aft masthead lights to
be 21' 10''. Placing the aft masthead light at the horizontal distance
from the forward masthead light as required by Annex I, paragraph 3(a)
of the 72 COLREGS, and Annex I, Section 84.05(a) of the Inland Rules
Act, would result in an aft masthead light location directly over the
cargo deck, where it would interfere with loading and unloading
operations.
    The Certificate of Alternative Compliance allows for the horizontal
separation of the forward and aft masthead lights to deviate from the
requirements of Annex I, paragraph 3(a) of 72 COLREGS, and Annex I,
Section 84.05(a) of the Inland Rules Act.
    This notice is issued under authority of 33 U.S.C. 1605(c) and 33
CFR 81.18.

    Dated: July 27, 2009.
J.W. Johnson,
Commander, U.S. Coast Guard, Chief, Inspections and Investigations
Branch, By Direction of the Commander Eighth Coast Guard District.
[FR Doc. E9-19399 Filed 8-12-09; 8:45 am]

BILLING CODE 4910-15-P


RESPONSE: Subpart 2 does not require marginal areas to submit an attainment demonstration. As noted elsewhere in this preamble, the Act provides for up to two 1 year extensions of the attainment date. However, the Act does not provide for " automatic" extensions.

Comment: One commenter noted that EPA's proposal provides:

" For each nonattainment area, the State must provide for STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 190 implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season." CAA § 51.908( e). Attainment of the eight hour standard is based on analysis of three years of data. Part 51, App. I ¶ 2.3( a) (" The primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the 3 year average of the annual fourth highest daily maximum 8 hour average ozone concentration is less than or equal to 0.08 ppm."). Thus, to meet the statutory requirement that SIPs provide for attainment, the rule must require SIPs to provide for implementation of all control measures needed for attainment no later than three years before the attainment date.

RESPONSE: We disagree with the comment. In section 51.908,

we are adopting the approach we set forth in our proposed rule, namely that emissions reductions needed for attainment must be implemented by the beginning of the ozone season immediately preceding the area's attainment date. We believe that Congress contemplated that control measures would continue to be implemented up to the attainment year.

For example, section 182( c)( 2)( B) requires areas classified as serious or higher to achieve an average of 3 percent reduction in emissions per year over each three year period STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 191 until the area's attainment date. If Congress intended areas to achieve all reductions needed for attainment three years prior to attainment, then the last 9 percent reductions required for serious and above areas would need to be reductions beyond those needed for attainment. We do not believe that Congress mandated these reductions in addition to the reductions needed to attain the standard.

In fact, this requirement is included in the statute as a part of the subparagraph addressing attainment and reasonable further progress, which indicates that Congress intended it to address progress toward attainment. This is further supported by the definition of reasonable further progress in section 171( 1) as " annual incremental reductions in emissions ... for the purpose of ensuring attainment ..."

Other provisions in the CAA also support the concept that areas do not need to achieve 3 years in advance of the attainment date the full complement of reductions needed for attainment. For example, Congress only provided marginal areas with three years to attain the standard and did require at least minimal additional controls be implemented in such areas. In addition, the fact that Congress provided for two 1 year extensions of the attainment date also indicated that Congress believed that some areas might not STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 192 be fully implementing all measures needed for attainment 3 years in advance of the attainment date. Rather, Congress contemplated that areas would have air quality healthy enough to make it substantially likely the area would attain within the next one or two years. Finally, we note that the standard itself does not contemplate that air quality must be at " attainment levels" for each of the three years on which attainment is based. Rather, attainment is determined based on an average of the 4th high reading at a monitor over a three year period. Thus, the 4th high reading for an area could be above the standard for one or both of the years preceding the attainment year, but so long as the 4th high level for the other year( s) was low enough to produce an average at or below 0.084 ppm, the area would be attaining the standard.

As noted in the June 2003 preamble, despite the fact that we believe an area need not have all controls implemented until the beginning of the final attainment season, the State needs to consider that attainment is based on a 3 year average. Thus, the State will need to ensure that implementation of controls is not unduly delayed. A State that plans to achieve reductions by the beginning of the ozone season prior to the attainment date may still STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 193 experience meteorology conducive to very high ozone formation in that last ozone season that may result in the area having more than the allowed number of days with concentrations above the level of the 8 hour standard,

making it ineligible for the first of the 1 year extensions.

Such an area   if classified under subpart 2   would then be reclassified ( bumped up) to a higher classification and be subject to additional planning requirements and mandatory control measures. Thus, a State should be aware of the consequences of delaying too long to implement control measures needed for attainment. Additionally, in reviewing implementation timeframes in SIPs, EPA will consider whether those timeframes are as expeditious as practicable. A guidance memorandum from John Seitz of November 30, 1999 reiterates the need to implement measures as expeditiously as practicable:

In order for the EPA to determine whether an area has provided for implementation as expeditiously as practicable,

the State must explain why the selected implementation schedule is the earliest schedule based on the specific circumstances of that area. Such claims cannot be general claims that more time is needed but rather should be specifically grounded in evidence of economic or technologic STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 194 infeasibility. While it may be appropriate for some control measures to be implemented shortly after adoption, the EPA recognizes that other measures may need a longer period.

The EPA will review the State's submission to ensure that sufficient information is provided for the EPA to determine whether the State has adopted all RACE necessary for attainment as expeditiously as practicable and provided for implementation of those measures as expeditiously as practicable. The EPA will make those determinations based on the information provided by the State and any other information available to the EPA at the time the Agency approves or disapproves the attainment demonstration.

Comment: In addition, a commenter stated that this timing was inconsistent with the draft modeling guidance which essentially requires areas with an attainment date of 2013 to have their controls in place by 2011 to perform an attainment demonstration. The 2011 date is inconsistent from the proposal which would require that the emissions reductions be in place in 2012. The commenter further stated that it seems inappropriate that the draft modeling guidance would be driving the schedule for implementation of control measures as opposed to the 8 hour implementation rule. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 36EPA issued the memorandum " Boundary Guidance on Air Quality Designations for the 8 Hour Ozone National Ambient Air Quality Standard ( NAAQS or Standard)" on March 28, 2000, from John S. Seitz, Director, Office of Air Quality Planning and Standards, to the Air Directors, Regions I X, to provide guidance to State and local agencies and Tribes on 195 RESPONSE: Comments on the modeling requirements will be addressed in Phase 2 of this rulemaking. The approach on when emission reductions needed for attainment must be in place was not based on the modeling requirements, but on the rationale stated in the preamble to the final rule.

E. COMMENTS ON OTHER ISSUES We received comments on other issues associated with elements of this final rulemaking. We address those comments here. Comments on any other issues not mentioned here will be addressed in the second phase of this final rulemaking.

1. Designations of nonattainment and attainment areas: We received a number of comments on the designation process.

RESPONSE: As we noted in the June 2, 2003 proposal, we did not propose to establish attainment/ nonattainment designations nor did we address the principles that will be considered in the designation process; we issued guidance on the principles that States should consider in making designation recommendations in March 2000.36 The STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 designating areas and EPA's views on boundaries for nonattainment areas for the 8 hour NAAQS.

196 designation process is being conducted separately.

2. Early Action Compacts ( EACs): We received a number of comments that addressed EACs. The June 2, 2003 proposal included a description and background information concerning EACs, but the proposal made clear that we were not proposing any rulemaking on EACs in that notice.

RESPONSE: The comments we received will be addressed when we take final action on the proposed rule to defer the effective date for EAC areas and are not addressed in this current rulemaking.

3. Health and environmental concerns: We received a number of general comments related to health and environmental concerns. Some of these cited national health statistics or provided information concerning the levels of ozone in their communities or information concerning the adverse health symptoms of themselves or friends, relatives,

or patients. These commenters generally cited this information as a way of encouraging EPA to ensure expeditious attainment of the 8 hour ozone standard and in some cases to support leaving the 1 hour standard and its implementation process in place. RESPONSE: We have STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 197 addressed these latter concerns above in discussion of the classification system, revocation of the 1 hour standard and the anti backsliding provisions that serve to ensure that the 8 hour standard is attained as expeditiously as practicable with little or no delay in emission reductions as a result of revoking the 1 hour standard.

4. Clarity and understandability of proposed rule: A number of commenters expressed concern about the complexity of the proposed rule, and the lack of apparent clarity and transparency. A number of these commenters complained that due to the possible large number of combinations and permutations of options that were possible from the proposal, it was difficult or impossible to determine exactly what the effect of the rule would be. RESPONSE:

One of our principles in drafting the proposal was to make the rule as understandable as possible. However, the Supreme Court's ruling on our previous implementation approach left it to EPA to develop an implementation scheme with only general guidance as to how to proceed. Because the consequences of implementation under a particular approach might be fairly large, we felt obligated to place as many practicable options in our proposal as possible to assess public reaction and comment. This approach obviously STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 198 added complexity to the proposal. We tried to minimize the complexity by setting forth two example frameworks for how some options could work in conjunction with each other. We also attempted in the draft regulatory text to focus on one set of options to illustrate how one set of options would work together. We attempted to simplify where we could and to provide other materials in the docket and on our website for this rulemaking ( e. g., the " roadmap" and the crosswalks between the June 2, 2003 proposal and the draft regulatory text) to enable the reader to more easily see relations between various sections of the proposal and to provide a synopsis of the options being proposed. Although the very nature of the proposal was complex, we believe that the public had sufficient opportunity to comment on the rule.

5. Regulatory text: A number of commenters chastised us for not providing regulatory text with the proposal.

RESPONSE: As noted above, we did provide for public comment draft regulatory text, which reflected one set of proposed options. On August 6, 2002 ( 68 FR 46536), we published a notice of availability of the draft regulatory text for the proposed rule to implement the 8 hour ozone NAAQS. This notice started a 30 day public comment period on the draft regulatory text. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 37OAR 2003 0079 0081, 0085 American Petroleum Institute ( API) requests for extension to the August 1st, 2003 comment deadline.

38OAR 2003 0079 0405 Request for Extension of Time for Filing Comments on Draft Regulatory Text for Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard ( NAAQS) submitted by Howard J. Feldman, Director, American Petroleum Institute.

39OAR 2003 0079 0542, 0589, 0590 Request for Extension of time for 15 day comment period on approaches to implement the 8 hour ozone NAAQS, submitted by Gregory Dana, Vice President Environmental Affairs, Alliance of Automobile Manufacturers.

OAR 2003 0079 0555 Request for extension of time for 15 day comment period on alternative approaches to implement the 8 hour ozone NAAQS submitted by Howard Feldman, Director Regulatory Analysis and Scientific Affairs, American Petroleum Institute ( API).

OAR 2003 0079 0572 Request for Extension of Public Comment Period submitted by Leslie S. Ritts, Counsel to The National Environmental Development Associations Clean Air Regulatory Project ( NEDA/ CARP).

40See, for instance, OAR 2003 0079 0165 Letter from S. Page, Director, OAQPS to H. J. Feldman, Director, API, denying extension of comment period.

199 6. Requests for Extension of Comment Periods: We received a number of requests for extension of the comment periods on the three notices related to our proposal ( the June 2, 2003 proposal, 37 the notice of availability of the draft regulatory text, 38 and the notice reopening the comment period on the classification approach. 39) We did not grant any of these requests. 40 We provided a 60 day comment STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 200 period on our full implementation proposal, which was published on June 2, 2003. We also provided a separate 30 day comment period on draft regulatory text ( notice of availability was published on August 6, 2003). The October 21, 2003 notice was very narrow, supplementing just one aspect of the June 2, 2003 proposal. We believe that a 15 day comment period was sufficient to address this limited issue. That notice was based on several comments which were submitted during the public comment period. Those comments have been available to the public since early August. We are committed by a consent decree to designate areas for the 8 hour ozone NAAQS by April 15, 2004. We believe it was essential to move forward to provide the public health protection that implementation of the 8 hour standard will yield. We have recognized the strong interest from many stakeholders in our issuance of a final implementation rule prior to the April 2004 designation deadline. These interests, in conjunction with the reasons set forth above,

support our denial of requests for an extension of the comment period. However, as is normally the case, we considered comments received after the close of the comment period to the extent we were able to do so without impeding the process for issuing the final rule. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 201 F. EPA's Final Action xxx NEED TO ADD SUMMARY V. STATUTORY AND EXECUTIVE ORDER REVIEWS A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735, October 4,

1993), the Agency must determine whether the regulatory action is " significant" and, therefore, subject to Office of Management and Budget ( OMB) review and the requirements of the Executive Order. The Order defines " significant regulatory action" as one that is likely to result in a rule that may:

( 1) have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State,

local, or Tribal governments or communities;

( 2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

( 3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order." STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 202 Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a " significant regulatory action" because it raises novel legal or policy issues arising out of legal mandates. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

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. This rule merely interprets the requirement to develop State implementation plans to achieve a new or revised NAAQS. This requirement is prescribed in the CAA sections 110 and part D, subparts 1 and 2 of Title 1. The present final rule does not establish any new information collection burden apart from any that required by law. A SIP contains rules and other requirements designed to achieve the NAAQS by the deadlines established under the CAA, and also contains a demonstration that the State's requirements will in fact result in attainment.

Such a document is not considered information collection.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 203 disclose or provide information to or for a Federal agency.

This includes the time needed to review instructions;

develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information;

adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an Agency to prepare a regulatory flexibility analysis of any rule 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 STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 204 entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule 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 impacts of today's rule 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. Rather, this rule interprets the obligations established in the CAA for States to submit implementation plans in order to attain the 8 hour ozone NAAQS. We are issuing this rule so that States and Tribes will know how we plan to classify areas and transition from implementation of the 1 hour NAAQS to implementation of the 8 hour NAAQS. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 205 D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104 4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " Federal mandates" that may result in expenditures to State,

local, and Tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any 1 year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law.

Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 206 that may significantly or uniquely affect small governments,

including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing,

educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. The estimated administrative burden hour and costs associated with implementing the 8 hour, 0.08 ppm NAAQS were developed upon promulgation of the standard and presented in Chapter 10 of U. S. EPA 1997, Regulatory Impact Analyses for the Particulate Matter and Ozone National Ambient Air Quality Standards, Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, N. C., July 16, 1997. The estimated costs presented there for States in 1990 dollars totaled $ 0.9 million. The STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 207 corresponding estimate in 1997 dollars is $ 1.1 million.

Should the more traditional classification option be adopted as the implementation framework, these costs may increase modestly, but would not reach $ 100 million. Thus, today's rule is not subject to the requirements of section 202 and 205 of the UMRA.

The CAA imposes the obligation for States to submit SIPs to implement the 8 hour ozone NAAQS; in this rule, EPA is merely fleshing out those requirements. However, even if this rule did establish a requirement for States to submit SIPs, it is questionable whether a requirement to submit a SIP revision would constitute a Federal mandate in any case.

The obligation for a State to submit a SIP that arises out of section 110 and part D of the CAA is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421( 5)( 9a)( I) of UMRA ( 2 U. S. C. 658( a)( I)). Even if it did,

the duty could be viewed as falling within the exception for a condition of Federal assistance under section 421( 5)( a)( i)( I) of UMRA ( 2 U. S. C. 658( 5)( a)( i)( I)).

In this rule, EPA has determined that this rule STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 208 contains no regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. Nonetheless, EPA carried out consultations with governmental entities affected by this rule.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999), requires 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" is 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 rule 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. As described in section D, above ( on UMRA), EPA previously determined the costs to States to STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 209 implement the 8 hour ozone NAAQS to be approximately $ 1 million. While this rule considers options not addressed at the time the NAAQS were promulgated, the costs for implementation under these options would may rise modestly.

This rule fleshes out the statutory obligations of States in implementing the 8 hour ozone NAAQS. Finally, the CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus,

Executive Order 13132 does not apply to this rule.

Although section 6 of Executive Order 13132 does not apply to this rule, EPA actively engaged the States in the development of this rule. EPA held regular calls with representatives of State and local air pollution control agencies. EPA also held three public meetings at which it described the approaches it was considering and provided an opportunity for States and various other governmental officials to comment on the options being considered.

Finally, EPA held three public hearings after the proposed rule was published to obtain public comments.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 210 Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249,

November 9, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." This determination is stated below.

This rule concerns the implementation of the 8 hour ozone standard in areas designated nonattainment for that standard. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The regulations flesh out the statutory obligations of States and Tribes that develop plans to implement the 8 hour ozone NAAQS. The TAR gives Tribes the opportunity to develop and implement CAA programs such as the 8 hour ozone NAAQS, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt.

This rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8 hour ozone STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 211 NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply.

EPA also notes that even if Tribes choose to develop plans to implement the 8 hour ozone NAAQS in the future,

these regulations would not impose substantial direct compliance costs on such Tribes, nor would they preempt Tribal law. As provided above, EPA has determined that the total costs for implementing the 8 hour ozone NAAQS by State, local, and Tribal governments is approximately $ 1 million in all areas designated nonattainment for the standard. The percentage of Indian country that will be designated nonattainment for the 8 hour ozone standard is very small. For Tribes that choose to regulate sources under their jurisdiction, the costs would be attributed to inspecting regulated facilities and enforcing adopted regulations.

Although Executive Order 13175 does not apply to this STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 212 rule, EPA did consult with Tribal officials in developing this rule and encouraged Tribal input at an early stage.

EPA supports a national " Tribal Designations and Implementation Work Group" which provided an open forum for all Tribes to voice concerns to EPA about the designation and implementation process for the 8 hour ozone standard.

These discussions have given EPA valuable information about Tribal concerns regarding implementation of the 8 hour ozone NAAQS. The work group sent issue summaries and suggestions for addressing them to the newly formed National Tribal Air Association ( NTAA), who in turn sent them to Tribal leaders.

EPA encouraged Tribes to participate in the national public meetings held to take comment on early approaches to the rule. Several Tribes made public comments at the April 2002 public meeting in Tempe, Arizona.

Furthermore, EPA sent individualized letters to all federally recognized Tribes about the proposal and gave Tribal leaders the opportunity for consultation. EPA received comment from the NTAA raising several questions:

( 1) NTAA asked for clarification on the nature of EPA's support for Tribes without Treatment in a similar manner as a State ( TAS) status and asked if EPA would provide technical assistance in interpreting SIP documentation to a STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 213 Tribe without TAS approval; ( 2) NTAA asked EPA to explain how it envisions its role in continuing consultation with Tribes throughout the execution of SIPs. These comments will be addressed in the technical support document. The NTAA's final comment cited concerns with the impact of NSR requirements on the Tribes. EPA intends to address these NSR comments in the Tribal NSR Rule.

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks Executive Order 13045: " Protection of Children From Environmental Health and Safety Risks" ( 62 FR 19885, April 23, 1997) applies to any rule that ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The rule is not subject to Executive Order 13045 because it implements a previously promulgated health based STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 214 Federal standard ( this rule implements the 8 hour ozone NAAQS). Nonetheless, we have evaluated the environmental health or safety effects of the 8 hour ozone NAAQS on children. The results of this evaluation are contained in 40 CFR part 50, National Ambient Air Quality Standards for Ozone, Final Rule ( 62 FR 38855 38896; specifically, 62 FR 38855, 62 FR 38860 and 62 FR 38865).

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a " significant energy action" as defined in Executive Order 13211, " Actions That Significantly Affect Energy Supply, Distribution, or Use,"

( 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.

Information on the methodology and data regarding the assessment of potential energy impacts is found in Chapter 6 of U. S. EPA 2003, Cost, Emission Reduction, Energy, and Economic Impact Assessment of the Proposed Rule Establishing the Implementation Framework for the 8 Hour, 0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, N. C. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 215 April 24, 2003.

IX. National Technology Transfer Advancement Act Section 12( d) of the National Technology Transfer Advancement Act of 1995 ( NTTAA), Public Law No. 104 113,

section 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards ( VCS) 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 VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This rulemaking does not involve technical standards.

Therefore, EPA is not considering the use of any VCS.

EPA will encourage the States and Tribes to consider the use of such standards, where appropriate, in the development of the implementation plans.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations Executive Order 12898 requires that each Federal agency STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   2/ 26/ 04 216 make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low income populations.

EPA believes that this rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8 hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety. The rule provides a framework for improving environmental quality and reducing health risks for areas that may be designated nonattainment.

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. 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 217 United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 Rule to Implement the 8 Hour Ozone Standard Page ___ of ___

218 days after it is published in the Federal Register. This action is a " major rule" as defined by 5 U. S. C. 804( 2).

This rule will be effective ( Insert 60 days from date of publication).

LIST OF SUBJECTS in 40 CFR Part 51 Air pollution control, Intergovernmental relations, Ozone,

Particulate matter, Transportation, Volatile organic compounds.

AUTHORITY 42 U. S. C. 7408; 42 U. S. C. 7410; 42 U. S. C. 7501 7511f; 42 U. S. C. 7601( a)( 1).

________________________________

Dated:

________________________________

Administrator. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 219 APPENDIX A DRAFT EXAMPLE FOR 8 HR O3 PREAMBLE PORTION DEALING WITH ANTI BACKSLIDING AND OUTSTANDING 1 HR ROP OBLIGATION.

For example, consider a 1 hour nonattainment area classified as Severe 15. For simplicity, only one precursor is assumed here, and this example does not account for issues of creditability established by the Act. The 1 hour Severe 15 areas are required to reach attainment no later than 15 years after the 1990 base year, i. e., in year 2005.

The ROP requirement over this 15 year period would be accomplished by an initial 15% reduction in emissions in the first six years, followed by additional 3% per year reductions ( 9% averaged over three years) until attainment is reached but no later than the attainment date ( with any additional reductions needed for attainment). Suppose an area started with a base year emissions inventory of 1000 tons/ day ( t/ d); after an initial 15% reduction, the area's emissions in 1996 would be 850 t/ d. Subsequent additive linear 9% reductions would net 24%, 33%, and 42% reductions,

leaving emissions of 760 t/ d in 1999, 670 t/ d in 2002, and STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 220 580 t/ d in 2005. ( Since each subsequent 9 year incremental reduction toward attainment would have to account for adjustments in the base year inventory because of noncreditable reductions, actual reductions would vary somewhat from those shown here.)

Assume that the same area is classified Serious for the 8 hour NAAQS. Under one of our proposed options for such an area, the area would be required to submit an RFP plan in 2006 that shows ( for the 6 year period from the end of 2002 to the end of 2008) an 18% reduction from a 2002 base year.

The 1 hour NAAQS ROP schedule thus overlaps the 8 hour one,

which begins in base year 2002 and continues to year 2013.

As the same 1 hour Severe 15 area transitions to an 8 hour serious nonattainment area, overlap occurs during years 2002 through 2005. During this interval, the area will complete its last 9% incremental reduction in year 2005 for its 1

hour obligation while at the same time beginning to meet the 8 hour obligation of 18% by 2008. Therefore, between 2002  2005, the area will need to get ( 670 t/ d  580 t/ d =) 90 t/ d reductions to meet its 1 hour obligation. The area would also be required to get between 2002  2008 an 18%

reduction from the 2002 base inventory of 670 t/ d which equals a 121 t/ d in reductions. However, since the 90 t/ d STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 221 is already obtained for the 2002  2005 period, the area need only get an additional ( 121 t/ d  90 t/ d =) 31 t/ d reductions to meet the 8 hour obligation from 2005 out to 2008. Therefore, if this area had not actually submitted a 1 hour ROP plan that covered the 2002 2005 period, and it submitted its 8 hour RFP plan that achieves the 121 t/ d reduction, it would be deemed to have met its 1 hour ROP obligation, provided that the RFP plan insured that 90 t/ d would be achieved by 2005. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 222 For the reasons stated in the preamble, the Environmental Protection Agency revises 40 CFR Part 50, and amends 40 CFR Part 51 as follows:

40 CFR Part 50   National Primary and Secondary Ambient Air Quality Standards The second sentence of 40 CFR 50.9( b) is amended to read as follows:

Sec. 50.9 National 1 hour primary and secondary ambient air quality standards for ozone.

* * * * *

( b) . . . The 1 hour NAAQS set forth in section 50.9( a) 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.

40 CFR Part 51   Requirements for Preparation, Adoption, and Submittal of Implementation Plans 40 CFR 51 is amended by adding a new subpart X to read as follows:

Subpart X   Provisions for Implementation of 8 hour Ozone STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 223 National Ambient Air Quality Standard.

Sec. 51.900 Definitions.

Sec. 51.901 Applicability of Part 51.

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

Sec. 51.903 How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to section 51.902( a)?

Sec. 51.904 How do the classification and attainment date provisions in section 172( a) of subpart 1 of the CAA apply to areas subject to section 51.902( b)?

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

Sec. 51.906 [ Reserved]

Sec. 51.907 For an area that fails to attain the 8 hour NAAQS by its attainment date, how does EPA interpret sections 172( a)( 2)( C)( ii) and 181( a)( 5)( B) of the CAA?

Sec. 51.908 What is the required timeframe for obtaining emission reductions to ensure attainment by the attainment date?

Sec. 51.909 [ Reserved] STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 224 Sec. 51.910 [ Reserved]

Sec. 51.911 [ Reserved]

Sec. 51.912 [ Reserved]

Sec. 51.913 [ Reserved]

Sec. 51.914 [ Reserved]

Sec. 51.915 [ Reserved]

Sec. 51.916 [ Reserved]

Sec. 51.900 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 ozone national ambient air quality standards codified at 40 CFR 50.9.

( b) 8 hour NAAQS means the 8 hour ozone national ambient air quality standards codified at 40 CFR 50.10.

( c) 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.

( d) 8 Hour ozone design value is the 8 hour ozone concentration calculated according to 40 CFR part 50,

Appendix I. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 225 ( e) CAA means the CAA as codified at 42 U. S. C. sections 7401  7671q ( 2003).

( f) Applicable requirements means for an area the following requirements to the extent such requirements apply or applied to the area for the area's classification under section 181( a)( 1) of the CAA for the 1 hour NAAQS:

( 1) Reasonably available control technology ( RACT).

( 2) Inspection and maintenance programs ( I/ M).

( 3) Offset ratios for new source review ( NSR).

( 4) Major source applicability cut offs for purposes of RACT and NSR.

( 5) Rate of Progress ( ROP) reductions.

( 6) Stage II vapor recovery.

( 7) Clean fuels fleet program under section 183( c)( 4) of the CAA.

( 8) Reformulated gasoline as required under section 211( k)( 1)( D) of the CAA.

( 9) Clean fuels for boilers under section 182( e)( 3) of the CAA.

( 10) Transportation Control Measures ( TCMs) during heavy traffic hours as provided under section 182( e)( 4) of the CAA.

( 11) Enhanced ( ambient) monitoring under section 182( c)( 1) STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 226 of the CAA.

( 12) Transportation controls under section 182( c)( 5) of the CAA.

( 13) Vehicle miles traveled provisions of section 182( d)( 1)

of the CAA.

( 14) NOx requirements under section 182( f) of the CAA.

( g) Attainment year ozone season shall mean the ozone season immediately preceding a nonattainment area's attainment date.

( h) Designation for the 8 hour NAAQS shall mean the effective date of the 8 hour designation for an area.

( i) Higher classification/ lower classification. For purposes of determining whether a classification is higher or lower, classifications are ranked from lowest to highest as follows: classification under subpart 1 of the CAA;

marginal; moderate; serious; severe 15; severe 17; and extreme.

( j) Initially designated means the first designation that becomes effective for an area for the 8 hour NAAQS and does not include a redesignation to attainment or nonattainment for that standard.

( k) Maintenance area for the 1 hour NAAQS means an area that was designated nonattainment for the 1 hour NAAQS on or STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 227 after November 15, 1990 and was redesignated to attainment for the 1 hour NAAQS subject to a maintenance plan as required by section 175A of the CAA.

( l) Nitrogen Oxides ( NOx) means the sum of nitric oxide and nitrogen dioxide in the flue gas or emission point,

collectively expressed as nitrogen dioxide.

( m) NOx SIP Call means the rules codified at 40 CFR 51.121 and 51.122.

( n) Ozone season means for each State, the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 2.5 for that State.

( o) Ozone transport region means the area established by section 184( a) of the CAA or any other area established by the Administrator pursuant to section 176A of the CAA for purposes of ozone.

( p) Reasonable further progress ( RFP) means for the purposes of the 8 hour NAAQS, the progress reductions required under section 172( c)( 2) and section 182( b)( 1) and ( c)( 2)( B) and ( c)( 2)( C) of the CAA.

( q) Rate of progress ( ROP) means for purposes of the 1 hour NAAQS, the progress reductions required under section 172( c)( 2) and section 182( b)( 1) and ( c)( 2)( B) and ( c)( 2)( C)

of the CAA. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 228 ( r) Revocation of the 1 hour NAAQS means the time at which the 1 hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9( b).

( s) Subpart 1 means subpart 1 of part D of title I of the CAA.

( t) Subpart 2 means subpart 2 of part D of title I of the CAA.

Sec. 51.901 Applicability of Part 51. The provisions in subpart( s) A W of part 51 apply to areas for purposes of the 8 hour NAAQS to the extent they are not inconsistent with the provisions of this subpart.

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

( a) Classification under subpart 2. An area designated nonattainment for the 8 hour NAAQS with a 1 hour ozone design value equal to or greater than 0.121 ppm at the time the Administrator signs a final rule designating or redesignating the area as nonattainment for the 8 hour NAAQS will be classified in accordance with section 181 of the CAA, as interpreted in section 51.903( a) of this part, for purposes of the 8 hour NAAQS, and will be subject to the requirements of subpart 2 that apply for that STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 229 classification.

( b) Covered under subpart 1. An area designated nonattainment for the 8 hour ozone NAAQS with a 1 hour design value less than 0.121 ppm at the time the Administrator signs a final rule designating or redesignating the area as nonattainment for the 8 hour NAAQS will be covered under section 172( a)( 1) of the CAA and will be subject to the requirements of subpart 1.

Sec. 51.903 How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to section 51.902( a)?

( a) In accordance with section 181( a)( 1) of the CAA, each area subject to section 51.902( a) shall be classified by operation of law at the time of designation. However, the classification shall be based on the 8 hour design value for the area, in accordance with Table 1 below, or such higher or lower classification as the State may request as provided in paragraphs ( b) and ( c) below. The 8 hour design value for the area shall be calculated using the three most recent years of air quality data. For each area classified under this section, the primary standard attainment date for the 8 hour NAAQS shall be as expeditious as practicable but not later than the date provided in Table 1, below. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 230 TABLE 1 CLASSIFICATION FOR 8 HOUR OZONE NAAQS Area class 8 hour design value ( ppm ozone) Maximum Period for Attainment Dates in State Plans ( years after effective date of nonattainment designation for 8 hour NAAQS) Marginal from 0.085 3 up to* 0.092 Moderate from 0.092 6 up to* 0.107 Serious from 0.107 9 up to* 0.120 Severe 15 from 0.120 15 up to* 0.127 Severe 17 from 0.127 17 up to* 0.187 Extreme equal to or above 0.187 20 * but not including ( b) A State may request a higher classification for any reason in accordance with section 181( b)( 3) of the CAA.

( C) A State may request a lower classification in accordance with section 181( a)( 4) of the CAA. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 231 Sec. 51.904 How do the classification and attainment date provisions in section 172( a) of subpart 1 of the CAA apply to areas subject to section 51.902( b)?

( a) Classification. The Administrator may classify an area subject to section 51.902( b) as an overwhelming transport area if:

( 1) the area meets the criteria as specified for rural transport areas under section 182( h) of the Act;

( 2) transport of ozone and/ or precursors into the area is so overwhelming that the contribution of local emissions to observed 8 hour ozone concentration above the level of the standard is relatively minor; and ( 3) The Administrator finds that sources of VOC ( and, where the Administrator determines relevant, NOx) emissions within the area do not make a significant contribution to the ozone concentrations measured in other areas.

( b) Attainment Dates. For an area subject to section 51.902( b), the Administrator will approve an attainment date consistent with the attainment date timing provision of section 172( a)( 2)( A) at the time the Administrator approves an attainment demonstration for the area.

Sec. 51.905 Transition from the 1 hour NAAQS to the 8 hour NAAQS and anti backsliding. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 232 ( a) What requirements that applied in an area for the 1

hour NAAQS continue to apply after revocation of the 1 hour NAAQS for that area?

( 1) 8 Hour NAAQS Nonattainment/ 1 Hour NAAQS Nonattainment The following requirements apply to an area designated nonattainment for the 8 hour NAAQS and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS for that area.

( i) The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900( f), except as provided in paragraph ( a)( 1)( iii) of this section, and except as provided in paragraph ( b) of this section.

( ii) If the area has not met its obligation to have a fullyapproved attainment demonstration SIP for the 1 hour NAAQS,

the State must comply with one of the following:

( A) Submit a 1 hour attainment demonstration no later than 1 year after designation;

( B) Submit a RFP plan for the 8 hour standard no later than 1 year following designations for the 8 hour NAAQS providing a 5 percent increment of emissions reduction from the area's 2002 emissions baseline, which must be in addition to measures ( or enforceable commitments to STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 233 measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures and must be achieved no later than 2 years after the required date for submission ( 3 years after designation).

( C) Submit an 8 hour ozone attainment demonstration no later than 1 year following designations that demonstrates attainment of the 8 hour standard by the area's attainment date; provides for 8 hour RFP for the area's classification out to the attainment date; and for the initial period of RFP for the area's classification ( between 2003 2008), achieve the emission reductions by December 31, 2007.

( iii) If the area has an outstanding obligation for an approved 1 hour ROP SIP, it must develop and submit to EPA all outstanding 1 hour ROP plans; where a 1 hour obligation overlaps with an 8 hour RFP requirement, the State's 8 hour RFP plan can be used to satisfy the 1 hour ROP obligation if the 8 hour RFP emission target is at least as stringent as the 1 hour ROP emission target for the 1 hour ROP period.

( 2) 8 Hour NAAQS Nonattainment/ 1 Hour NAAQS Maintenance Area An area designated nonattainment for the 8 hour NAAQS that is a maintenance area for the 1 hour NAAQS at the time of STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 234 designation for the 8 hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900 ( f) to the extent such obligations are required by the approved SIP, except as provided in paragraph ( b) of this section. Mandatory measures in the SIP must continue to be implemented;

however, if these measures were shifted to contingency measures prior to designation for the 8 hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area's classification under the 8 hour standard. The State may not remove such measures from the SIP.

( 3) 8 Hour Attainment or Unclassifiable/ 1 Hour Nonattainment ( i) Obligations in an approved SIP. For an area designated attainment or unclassifiable for the 8 hour NAAQS and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS, the State may request that obligations under the applicable requirements of section 51.900( f) be shifted to contingency measures, consistent with sections 110( l) and 193 of the CAA, after revocation of the 1 hour NAAQS; however, the State cannot remove the obligations from the SIP. For such areas, the State may request that the nonattainment NSR provisions be removed STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 235 from the SIP on or after the date of revocation of the 1

hour standard and need not be shifted to contingency measures, provided that a program for the prevention of significant deterioration pursuant to section 51.166 or 52.21 covering the 8 hour standard is in effect.

( ii) Attainment demonstration and ROP plans.

( A) To the extent an area designated attainment or unclassifiable for the 8 hour NAAQS and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS does not have an approved attainment demonstration or ROP plan that was required for the 1 hour NAAQS under the CAA, the obligation to submit such an attainment demonstration or ROP plan ( 1) is deferred for so long as the area continues to maintain the 8 hour NAAQS; and ( 2) no longer applies once the area has an approved maintenance plan pursuant to paragraph ( a)( 3)( iii) of this section.

( B) For an area designated attainment or unclassifiable for the 8 hour NAAQS and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS that violates the 8 hour NAAQS, prior to having an approved maintenance plan for the 8 hour NAAQS as provided under STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 236 paragraph ( a)( 3)( iii) of this section, subparagraphs ( a)( 3)( ii)( 1), ( 2), and ( 3) of this section shall apply.

( 1) In lieu of any outstanding obligation to submit an attainment demonstration, within one year after the date on which EPA publishes a determination that a violation of the 8 hour NAAQS has occurred, the State must submit ( or revise a submitted) maintenance plan for the 8 hour NAAQS, as provided under paragraph ( a)( 3)( iii) of this section, to

( A) address the violation by relying on modeling that meets EPA guidance for purposes of demonstrating maintenance of the NAAQS; or ( B) submit a SIP providing for a 3 percent increment of emissions reductions from the area's 2002 emissions baseline; these reductions must be in addition to measures ( or enforceable commitments to measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures.

( 2) The plan required under paragraph ( a)( 3)( ii)( B)( 1) of this section must provide for the emission reductions required within 3 years after the date on which EPA publishes a determination that a violation of the 8 hour NAAQS has occurred.

( 3) The State shall submit an ROP plan to achieve any STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 237 outstanding ROP reductions that were required for the area for the 1 hour NAAQS, and the three year period or periods for achieving the ROP reductions will begin January 1 of the year following the three year period on which EPA bases its determination that a violation of the 8 hour NAAQS occurred.

( iii) Maintenance Plans for the 8 hour NAAQS. For areas initially designated attainment for the 8 hour NAAQS, and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8

hour NAAQS, a maintenance plan for the 8 hour NAAQS in accordance with section 110( a)( 1) of the CAA. The maintenance plan must provide for continued maintenance of the 8 hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8 hour NAAQS pursuant to CAA section 107( d)( 3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.

( 4) 8 Hour Attainment or Unclassifiable/ 1 Hour Attainment with Maintenance Plan ( i) Obligations in an approved SIP. For an area designated attainment or unclassifiable for the 8 hour ozone NAAQS and STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 designated attainment for the 1 hour NAAQS and having an approved 1 hour maintenance plan at the time of designation for the 8 hour NAAQS, the State may request that obligations under the applicable requirements of section 51.900( f) be shifted to contingency measures, consistent with sections 110( l) and 193 of the CAA, after revocation of the 1 hour NAAQS; however, the State cannot remove the obligations from the SIP.

( ii) Maintenance Plans for the 8 hour NAAQS. For areas initially designated attainment for the 8 hour NAAQS and subject to the maintenance plan for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8 hour NAAQS, a maintenance plan for the 8 hour NAAQS in accordance with section 110( a)( 1) of the CAA. The maintenance plan must provide for continued maintenance of the 8 hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8 hour NAAQS pursuant to section 107( d)( 3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.

( b) Does attainment of the ozone standard affect the obligations under paragraph ( a) of this section? A State STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 239 remains subject to the obligations under paragraphs ( a)( 1)( i) and ( a)( 2) of this section until the area attains the 8 hour NAAQS. After the area attains the 8 hour NAAQS,

the State may request such obligations be shifted to contingency measures, consistent with sections 110( l) and 193 of the CAA; however, the State cannot remove the obligations from the SIP.

( c) Which portions of an area designated for the 8 hour NAAQS remain subject to the obligations identified in paragraph ( a) of this section?

( 1) Except as provided in paragraph ( c)( 2) of this section,

only the portion of the designated area for the 8 hour NAAQS that was required to adopt the applicable requirements in 51.900( f) for purposes of the 1 hour NAAQS is subject to the obligations identified in paragraph ( a) of this section,

including the requirement to submit a maintenance plan for purposes of paragraph ( a)( 3)( iii) of this section. 40 CFR Part 81, Subpart E identifies the boundaries of areas and the area designations and classifications for the 1 hour NAAQS at the time the 1 hour NAAQS no longer applied to each area.

( 2) For purposes of paragraph ( a)( 1)( ii)( B) and ( C) of this section, the requirement to achieve emission reductions STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 240 applies to the entire area designated nonattainment for the 8 hour ozone NAAQS.

( d) Reserved ( e) What obligations that applied for the 1 hour NAAQS will no longer apply after revocation of the 1 hour NAAQS for an area?

( 1) Maintenance Plans. Upon revocation of the 1 hour NAAQS,

an area with an approved 1 hour maintenance plan under section 175A of the CAA may modify the maintenance plan: ( a)

to remove the obligation to submit a maintenance plan for the 1 hour NAAQS 8 years after approval of the initial 1 hour maintenance plan; and ( b) to remove the obligation to implement contingency measures upon a violation of the 1 hour NAAQS. However, such requirements will remain enforceable as part of the approved SIP until such time as EPA approves a SIP revision removing such obligations. The EPA shall not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8 hour NAAQS for an area initially designated nonattainment for the 8 hour ozone NAAQS or a maintenance SIP for the 8 hour NAAQS for an area initially designated attainment for the 8 hour NAAQS. Any revision to such SIP must meet the requirements of section STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 241 110( l) and 193 of the CAA.

( 2) Findings of failure to attain the 1 hour NAAQS. Upon revocation of the 1 hour NAAQS for an area, EPA is no longer obligated   ( i) to determine pursuant to section 181( b)( 2) or section 179( c) of the CAA whether an area attained the 1 hour NAAQS by that area's attainment date for the 1 hour NAAQS; or ( ii) to reclassify an area to a higher classification for the 1 hour NAAQS based upon a determination that the area failed to attain the 1 hour NAAQS by the area's attainment date for the 1 hour NAAQS.

In addition, the State is no longer required to impose under CAA sections 181( b)( 4) and 185 fees on emissions sources in areas classified as severe or extreme for failure to meet the 1 hour attainment date.

( 3) Conformity determinations for the 1 hour NAAQS. Upon 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. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 242 ( f) What is the continued applicability of the NOx SIP Call after revocation of the 1 hour NAAQS? The NOx SIP Call shall continue to apply after revocation of the 1 hour NAAQS. Control obligations approved into the SIP pursuant to 40 CFR sections 51.121 and 51.122 may be modified by the State only if the requirements of sections 51.121 and 51.122, including the statewide NOx emission budgets,

continue to be met and the State makes a showing consistent with section 110( l).

Sec. 51.906 [ Reserved]

Sec. 51.907 For an area that fails to attain the 8 hour NAAQS by its attainment date, how does EPA interpret sections 172( a)( 2)( C)( ii) and 181( a)( 5)( B) of the CAA?

For purposes of applying sections 172( a)( 2)( C) and 181( a)( 5)

of the CAA, an area will meet the requirement of section 172( a)( 2)( C)( ii) or 181( a)( 5)( B) of the CAA pertaining to 1

year extensions of the attainment date if:

( a) for the first 1 year extension, the area's 4th highest daily 8 hour average in the attainment year is 0.084 ppm or less.

( b) for the second 1 year extension, the area's 4th highest daily 8 hour value, averaged over both the original attainment year and the first extension year, is 0.084 ppm STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 243 or less.

Sec. 51.908 What is the required timeframe for obtaining emission reductions to ensure attainment by the attainment date?

For each nonattainment area, the State must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season.

Sec. 51.909 [ Reserved]

Sec. 51.910 [ Reserved]

Sec. 51.911 [ Reserved]

Sec. 51.912 [ Reserved]

Sec. 51.913 [ Reserved]

Sec. 51.914 [ Reserved]

Sec. 51.915 [ Reserved]

Sec. 51.916 [ Reserved]

40 CFR Part 81   Designation of Areas for Air Quality Planning Purposes 40 CFR 81 is proposed to be amended by adding and reserving a new subpart E to read as follows:

Subpart E [ Reserved] STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   02/ 19/ 04 244 [ Note   this subpart will identify area designations and classifications for the 1 hour NAAQS in place at the time the 1 hour NAAQS no longer applies to each area; this is being done to implement the rule on anti backsliding under 40 CFR 51.905.]