Response: In addition to equity issues, we believe that areas that have not met their planning obligations under the 1 hour standard   if relieved of that obligation after the 1 hour standard is revoked   would provide emission reductions on a more protracted time schedule than areas that had met their 1 hour standard planning obligations, thereby deferring the benefits of either the 1 hour or the 8 hour standard. For example, a area that is classified severe 15 for the 1 hour standard would have to obtain RFP reductions and any additional reductions needed for attainment by the end of 2005, whereas if that same area is moderate under the 8 hour standard, it would not be required to obtain reductions under RFP provisions until 2008 and additional reductions for attainment by some time in 2009. We believe that considerations of cost are secondary to this concern in these situations. We believe that the provisions of the final rule   by offering three alternative means of meeting the 1 hour planning obligation   allow sufficient flexibility for a State in these circumstances to choose the most appropriate means to overcome this deferral of protection.

We are aware that one or more areas may that may have unfulfilled 1 hour ROP and attainment demonstration obligations and a higher classification under the 1 hour standard may also have a low 8 hour classification or may be covered under subpart 1 and may in fact attain the 8 hour standard within 3 years after designation. There may be a concern that such areas would continue to have 1 hour ROP obligations stretching out into the future even after the area attains the 8 hour standard. States with such situations should remember that under our " Clean Data Policy," such areas could avoid additional emission reductions that would no longer be needed for attainment of the 8 hour standard after the 1 hour standard is revoked.] 120 Comment: [ Support some type of obligation] One commenter recommended that EPA provide a flexible planning process that would move directly to an early 8 hour SIP in lieu of 1 hour SIP revisions. Without the flexibility to focus efforts on the more stringent 8 hour standard, states are faced with the possibility of committing valuable resources to address a standard that would shortly be revoked under both options proposed by EPA. Another commenter noted that it is essential that States be allowed to focus on attainment of the 8 hour standard exclusively. To require States to continue to meet 1 hour planning and SIP obligations while simultaneously developing 8 hour attainment demonstrations and SIPs would place an unreasonable and duplicative burden on States. EPA promulgated the 8 hour standard because it believes the 8 hour standard to be a more protective standard; there is no reason to retain both standards. The mandatory controls set in place to attain the 1 hour standard will remain in place except where showings are made that such measures are no longer needed or will actually impede an area from attaining the 8 hour standard. States will then have the resources to focus on 8 hour attainment demonstrations where required and on 8 hour SIP requirements.

A few commenters favored the approach ( Alternative 1) under which an early plan that provided an advance increment of emission reductions toward progress toward the 8 hour standard would be required in lieu of the attainment demonstration SIP revision. One commenter suggested that to require submission of a 1 hour plan would be illogical in light of the fact that the 1 hour standard would be revoked and it would waste resources and imperil a State's ability to plan for and attain the 8 hour standard. Another commenter indicated that an early increment of progress SIP could be a strong way of tying implementation of the 8 hour standard to the revised transportation conformity rule that will define how transportation conformity will work in the interim, before states submit attainment plans. This commenter also suggested an alternative way of defining an advance increment, namely a mobile source inventory decrement of 3 percent per year from a 2002 baseline. The draft regulatory text, which specified a 10 percent increment of reduction elicited several negative responses. In general, these commenters did not appear to oppose the early increment of reduction approach, but believed the 10 percent was arbitrary and not based on any technical support. A number of these commenters urged EPA not to impose the 10 percent  or any other  reduction in emissions of VOC and/ or NOx across the board because: ( 1) this is a new requirement that does not currently exist in the CAA despite being included to address an outstanding attainment demonstration obligation; ( 2) this issue is not one of the " gaps" identified by the Supreme Court and which EPA is required to address on remand ( Whitman v. American Trucking Associations, 531 U. S. 457 ( 2001); ( 3) EPA has not provided a specific justification for the 10% emission reduction requirement ( this requirement may not be necessary for an area to attain the standard); and ( 4) EPA has not fully explained what areas might be affected ( i. e., would it be the areas with the most significant problems  and, if so, how would that be determined  would this apply to bump up areas, or would some other determining criteria be applied?" A few other commenters also suggested we had not provided a justification for the 10 percent reduction and that it appears arbitrary. Some commenters who opposed the 10 percent advance increment of progress commented that the 10 percent increment appeared to be punitive. Some commenters who opposed the 10 percent advance increment of progress commented that there was no technical support for the 10 percent ( or asked that we identify the technical support). One commenter noted that finding 121 additional measures to achieve a 10% reduction in ozone precursor emissions beyond existing requirements by 2007 would be impossible. One commenter stated that EPA should subject the rationale for the 10 percent increment to public comment.

One commenter believed the 10 percent increment was appropriate.

Several commenters favored the approach ( the " second alternative" noted at 68 FR 32822, col. 3) under which the State would be required to submit an early SIP for the 8 hour standard.

Another commenter supported a flexible planning process that would move efficiently to implementation of the 8 hour standard while requiring areas to continue meeting their obligations under the 1 hour standard. The commenter encouraged EPA to adopt a common sense approach that would provide a better use of the State's limited resources and would enable the State to better protect public health and air quality by focusing planning efforts on the more protective 8 hour standard sooner. Without this flexibility, the commenter estimates that the State could be in the position of developing numerous revisions to its SIP to fully address the outstanding 1 hour and the upcoming 8 hour obligations in nonattainment areas within the next couple of years. It is estimated that these additional efforts could cost approximately $ 2.5 million in scarce state resources. These plans would be submitted to EPA after 8 hour designations have occurred and as a result, the commenter would be inappropriately focusing efforts on finalizing plans for a standard that would shortly be revoked under both of the options EPA has proposed. Areas would then be forced to immediately refocus their efforts on 8 hour SIP planning. The state's ability to address the more stringent standard may be seriously impeded without this flexibility.

Response: EPA agrees with the commenters that the submission of an early 8 hour SIP that also provides an early increment of reductions would help address backsliding concerns and would be a sufficient replacement for the 1 hour SIP. In addition, we have retained slightly modified versions of the two other options that we proposed   submit the 1 hour SIP or provide an early increment of progress toward the 8 hour standard. We believe these three options will allow states to make the best decision as to how to spend their resources while also ensuring that momentum is maintained and that progress in emission reductions will continue to be achieved.

It appears that some of the commenters addressing the 10% obligation also assumed that this proposed requirement would apply to all areas, not just those that had failed to meet their 1 hour planning obligations. The rule text has been revised to clarify that if the 1 hour attainment obligation is met, the area need not provide for emission reductions under this provision. While an advance emission reduction increment is not a CAA requirement, submission of an attainment demonstration for certain nonattainment areas is, and the advance increment was put forth and discussed in the June 2, 2003 proposal as an alternative to submitting the actual 1 hour attainment demonstration ( 68 FR 32822). As noted in the final rule notice, we have revised the alternative that would substitute for the obligation by allowing the State several alternatives, including a smaller advance emission reduction increment and an early submission of the 8 hour SIP attainment demonstration. We believe this approach addresses the concerns expressed by some commenters 122 that we should not allow delays in obtaining emission reductions that would ordinarily have occurred if we did not revoke the 1 hour standard. In the June 2, 2003 proposal, we set forth 5 or 10 percent as possibilities for the advance increment of emission reductions. We received much adverse comment on 10 percent as an amount. The final rule for the option of using an advance increment of emission reduction reflects the low end of our proposal, namely 5 percent. The amount was intended to continue momentum toward making emission reductions in the absence of completion and implementation of a required attainment demonstration under the 1 hour standard. In the way of comparison, the CAA's rate of progress provisions require certain nonattainment areas under subpart 2 to obtain an average of 3 percent per year from the 1990 baseline year; however, States may take credit for measures   including federal and regional measures and measures already contained in the SIP   adopted and implemented after enactment of the 1990 CAAAs. We believe a total of 5 percent off a later ( and thus lower baseline year, namely 2002) without providing credit for such measures is roughly comparable to effect continued progress and make up for the fact that the State has not completed and implemented an attainment demonstration. Since the area would not necessarily have completed an 8 hour attainment demonstration at the time when the advance emission reduction increment would have to be implemented, we believe we must rely on a percentage emission reduction off a baseline to set a minimum amount of reduction. The rule provides that these reductions may also be credited toward the area's reasonable further progress plan and attainment demonstration. The purpose of the provision is not punitive, but rather to ensure that areas continue to make progress in reducing emissions and not delay emission reductions that would have occurred if the State had met its obligation to submit a timely attainment demonstration. However, based on comments received, we are reducing the advance increment to 5 percent, and the final rule also allows a State to meet an unmet attainment demonstration obligation by one of two other means if the State chooses not to implement an advance increment of progress.

The final rule allows the State to choose one of three options to meet the requirement, one of which would be to submit its 1 hour attainment demonstration. We do not expect a State to prepare and submit another SIP while review of a submitted SIP is still pending within EPA. Once EPA approves the attainment demonstration that the State had already submitted, the State will have met its obligation.

We noted in the June 2, 2003 proposal that the general rationale for the alternative of some percent increment of progress was to make up for the loss of waiving the obligation to submit a 1 hour attainment demonstration. The proposal gave a range of the suggested increment, and the draft regulatory text provided one example. We did receive a number of comments on the June 2, 2003 proposal advocating that the 1 hour standard remain in effect to avoid any loss of momentum in obtaining emission reductions. While the rule will result in revocation of the 1 hour standard, the rule will also avoid overt backsliding from the emission reductions that would have resulted from retaining the 1 hour standard. 123 Comment: Several commenters believed the draft regulatory text in section 51.905( a)( 1)( ii) was unclear on what will happen if an area has met its 1 hour SIP obligation and has an approved SIP and whether the region also needs to meet a preset percentage reduction in emissions by 2007 or they appeared to assume it did apply to all areas regardless of whether the area met its 1 hour SIP obligation.

Response: The rule text has been revised to clarify that if the 1 hour attainment demonstration obligation is met, the area need not provide for emission reductions under this provision.]

Comment: One commenter believes that the deadline for submission of the plan that substitutes for the 1 hour attainment demonstration should be 2 years rather than 1 year after designation. Another commenter more generically objected that the timeframes for submission and achieving the emission reductions under the advance increment of emission reductions approach were too short.

Response: We believe that it is necessary to require the unmet 1 hour planning obligation   or one of the rule's substitute plans   to be submitted within 1 year after designation ( and to require emission reductions within a short period thereafter) in order to meet the objective of obtaining emission reductions on a similar schedule that would have been required if the 1 hour standard were not revoked. In general, this one year period is after the date by which the area's 1 hour attainment demonstration would otherwise be due.

Comment: Several commenters also expressed concern that the early increment of reduction must be in addition to those efforts already adopted by existing federal, state or local requirements. Several commenters believed we did not provide a rationale for this requirement and believed it is more stringent than the requirement to develop an attainment demonstration. One of these commenters believed that application of this rule would stifle incentives to implement new clean air strategies in the near term since a state or local jurisdiction would not likely adopt a measure in the near term knowing that its emission benefits will not be counted toward meeting the 8 hour emission reduction goal. One of these commenters also believes EPA's proposal does not constitute equitable treatment to areas that have already implemented substantial emission reduction measures ( e. g., most areas in the northeast's ozone transport region) compared to areas that have not yet taken similar steps. Flexibility should be built into the law to allow all new clean air efforts to count towards EPA mandated emission reductions, if not under the 1 hour efforts than towards the 8 hour SIP and conformity emission reduction requirements. The EPA should not penalize jurisdictions for taking air quality beneficial actions prior to finalization of the 8 hour rule.

Response: The purpose of the provision is to ensure that areas continue to make progress in reducing emissions and not delay emission reductions that would have occurred if the State had met its obligation to submit a timely attainment demonstration. The limit on credibility of measures for an area choosing this alternative to meet the 1 hour attainment demonstration obligation is designed to ensure additional progress is made and to not allow areas to simply rely on reductions that are already required by the significant national and regional programs EPA has enacted over the past several years. If a State believes that this option would be punitive, it may choose to submit the 124 outstanding 1 hour attainment SIP or to submit an early 8 hour SIP. We recognize that each of the three options may not be the best fit for particular areas. Thus, we determined to provide States with the choice to select the option that best fits any planning they have already undertaken.

Comment: Some commenters recommended that EPA distinguish among areas with outstanding attainment SIPs based on whether the area has made a good faith efforts to meet those obligations. They note that an area may have developed and submitted an attainment demonstration but it may have been challenged and overturned by the courts. They believe that such areas should be able to turn their attention to planning for the 8 hour standard rather than continue planning for the 1 hour standard.

Response: While EPA disagrees with the commenter and does not distinguish areas that have made good faith efforts, the final rule provides the State with a choice of three options to meet the requirement, one of which would be to submit an early 8 hour attainment demonstration.

Comment: Several commenters were concerned that areas that would be subject to the advance emission reduction increment were those who had been granted attainment date extensions under EPA's attainment date extension policy due to transported emissions; that policy was overturned by the courts. Several commenters suggested that the requirement only be required of an area that has not submitted a required plan at the time of revocation of the standard. One commenter asked for clarification on this point.

Response: The commenter is correct that many areas that relied on EPA's attainment date extension policy will be subject to this provision of the rule. However, EPA is providing that the submission of a 1 hour attainment demonstration will meet this obligation. Therefore, States that have submitted the required plan ( i. e., a 1 hour attainment demonstration) at the time of revocation of the 1 hour standard will have made the required submission under this provision of the regulations.

Comment: One commenter objected to the advance emission reduction increment apply to the entire 8 hour nonattainment area rather than to just the 1 hour nonattainment area.

Response: Since the purpose of the requirement is to minimize delay in obtaining emission reductions that would have occurred had the 1 hour standard not been revoked, to make up for an unmet obligation to submit an attainment demonstration under the 1 hour standard, and also to make progress toward the 8 hour standard, we believe the advance increment requirement is best applied to the 8 hour nonattainment area. However, the rule also provides other options for fulfilling the unmet obligation, including submission of a 1 hour attainment demonstration ; that requirement could be met by addressing only the 1 hour nonattainment area.

Response: We believe the commenter may not have seen the connection between this provision in the draft regulatory text and the discussion in the June 2, 2003 proposal ( 68 FR 32822) concerning unmet obligations to submit an attainment demonstration under the 1 hour standard; our two 16 Docket documents OAR 2003 0079 0189 and OAR 2003 0079 0191.

17Memorandum of May 10, 1995, " RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," from John S. Seitz, Director, Office of Air Quality Planning and Standards. Available at: http:// www. epa. gov/ ttn/ oarpg/ t1/ memoranda/ clean15. pdf.

125 crosswalks that we prepared and made available in the docket16 and on our implementation web site were designed to help readers link the provisions in the draft regulatory text with the associated portions of the June 2, 2003 proposed rule. The purpose of the provision is to ensure that areas continue to make progress in reducing emissions and not delay emission reductions that would have occurred if the State had met its obligation to submit a timely attainment demonstration.

Comment: One commenter noted that EPA provided no information to the public on how many   and which   States and areas might be affected by this provision.

Response: The following areas are likely to be affected by the regulatory provision concerning areas with an outstanding obligation to submit an attainment demonstration under the 1 hour standard.

° The following are the areas that were recently bumped up to severe for the 1 hour standard:

° San Joaquin, CA ° Washington, D. C, VA, MD. ° Baton Rouge, LA ° Atlanta, GA ° Areas that may be bumped up to severe for the 1 hour standard:

° Beaumont, TX ° Dallas, TX Comment: One commenter is deeply concerned about the uncertainties associated with the requirements under an area's reclassification to " severe" for the 1 hour ozone standard and the concurrent implementation of the new 8 hour standard. Of special concern is the possibility for nonsensical and unproductive regulatory requirements as well as wasted effort and expense associated with the overlap of the two compliance programs.

Response: An area that is reclassified to severe for the 1 hour standard but that actually attains the 8 hour standard may, under the terms of EPA's " Clean Data Policy, 17" be relieved of planning requirements as long as the area remains clean. Thus, after achieving the NAAQS, the area would 126 not be required to continue to implement rate of progress requirements for the 8 hour standard or the 1 hour standard. It would, however, be obligated to achieve the control measure requirements until the time specified in the rule when measures may be made contingency measures.

Comment: One commenter suggested that Section 51.905( a)( 1)( ii) of the draft 8 hour regulatory text be changed to require progress plans for states ( or regions) that have not submitted a required 1 hour attainment demonstration SIP and do not have air quality consistent with the 1 hour ozone standard.

Response: We believe the final rule is consistent with the commenter's suggestion, since the rule allows as an option the submission of an advance increment of progress ( or an early 8 hour SIP) in lieu of a required 1 hour attainment demonstration.

Comment: One commenter asked for clarification of the consequences of not meeting the advance increment of progress.

Response: As noted in the final rule notice, we have revised the alternative that would substitute for the obligation by allowing the State several alternatives, including a smaller advance emission reduction increment and an early submission of the 8 hour SIP attainment demonstration. If the State fails to submit a SIP consistent with one of these alternatives or if EPA finds a submission incomplete or unapprovable, the area would face the possibility of the offset and highway funding sanctions under section 179( a) and ( b) of the Act.

Comment: One commenter asked whether the 10 percent advance emission reduction increment was in addition to the ROP requirement, what was the justification and whether it was more protective.

Response: The advance increment of progress was intended to take the place of an unmet obligation to develop and submit an attainment demonstration under the 1 hour standard. An unmet ROP obligation is a related but separate obligation that must still be met. The final rule for unmet attainment demonstrations allows the State to choose one of three options for addressing the obligation. Note that the final rule also obligates States to address separately ROP that does not overlap with ROP obligations for the 8 hour NAAQS; where the ROP obligations overlap, the area need not separately address ROP for the 1 hour standard.]

Comment: One comment on Section 51.905a.( 1)( ii) ( which states that " The emission reductions from achieving the ten percent reduction must be in addition to those already adopted and required by existing federal, state or local requirements") suggested that EPA needs to define " existing requirements".

Response: The final regulatory text addresses the creditability of emission control measures. 127 Comment: One commenter believes the draft regulatory text was not clear on when the 1 hour SIPs were supposed to have been submitted to avoid the requirement for the advance increment of progress.

Response: The final rule ( section 51.905( a)( 1)( ii)) provides that submission of an outstanding 1 hour attainment demonstration SIP one year after the effective date of designation will fulfill this obligation. This is one of the three alternatives the rule provides to a State to meet an unmet attainment demonstration obligation.

Comment: Several commenters recommended that the baseline year from which the advance emission reduction increment is calculated be clarified in the rule. Another wanted clarification of the baseline year and the period of time by which reductions under the increment requirement must be implemented.

Response: The regulatory text has been revised to clarify the baseline year for the advance emission reduction increment is 2002 and the time by which the reductions must occur, i. e., by 2 year after the deadline for submission of the rule ( 3 years after the effective date of designations under the 8 hour standard).

Comment: One commenter believes the draft 10 percent advance increment of progress approach is unclearly defined, unmotivated, and appears arbitrary. Also, if the 10 percent emission reduction is intended to be calculated off of the new 8 hour base year ( 2002), then this reduction should already be in place prior to 2007 due to 1 hour attainment efforts already underway, and the reductions are not needed. If the reductions are proposed off of a different base, as stated above, the motivation and definition are not established by the draft rule.

Response: The baseline for the advance increment of progress option in the final rule is 2002; as noted elsewhere in this document and in the final rule notice, we are providing three options for the State to meet an unmet 1 hour attainment demonstration planning obligation, one of which is an advance increment of only 5 percent ( not 10 percent as in the draft regulatory text). The purpose of the provision is to ensure that areas continue to make progress in reducing emissions and not delay emission reductions that would have occurred if the State had met its obligation to submit a timely attainment demonstration.

OPPOSING BECAUSE RULE IS NOT STRINGENT ENOUGH Comment: One commenter noted in a footnote: In an apparent attempt to substitute for the attainment demonstration, the proposal provides for a 10% reduction in VOC and/ or NOx to be achieved by 2007. Sect. 51.905( a)( 1)( ii). For reasons stated in several of the commenter's letters, EPA lacks authority to abrogate the statutory attainment demonstration requirement in favor of an agency devised alternative approach. Assuming argumendo that EPA does have authority to establish a surrogate for the attainment demonstration, however, that surrogate ( in this case, 10 % emission reduction prescribed by section 51.905) would need to be in addition to the RFP 128 percentage reductions prescribed by section 51.910. Any other approach would contravene the Act, which requires nonattainment area SIPs to provide both for attainment and RFP.

Response: We disagree with the commenter that we lack authority to address issues related to the transition from the 1 hour to the 8 hour ozone NAAQS. We believe the approach in the final rule that allows a State several alternatives to submission of a 1 hour ozone attainment demonstration after the 1 hour standard is revoked would continue the effort to ensure emission reductions in a timely fashion. Furthermore, the final rule provides that the obligation to address the 1 hour ROP requirements is a separate planning obligation from the 1 hour attainment demonstration obligation.

Comment: One commenter argued against the provision proposed in section 51.905( a)( 1)( iii) that 1 hour ROP plans would not be required to cover periods for which an area is subject to ROP for the 8 hour standard under section 51.910. They believe this provision would result in backsliding since States almost certainly would delay the emission reductions and ozone improvement that would otherwise be required by full compliance with the 1 hour SIP planning mandates. The commenter believes that requirements which merely provide for progress years later toward the 8 hour standard are no substitute for plans to reduce emissions today, and to assure attainment of the 1 hour standard in the near term.

Response: The commenter misunderstood EPA's proposal. We proposed that to the extent 8 hour and 1 hour ROP/ RFP obligations overlap, the State need not address 1 hour ROP separately. As explained in more detail in the preamble to the proposed rule, the State will need to ensure that the area achieves the same level of reductions required for 1 hour ROP in the same period and thus will not be able to delay emission reductions Comment: One commenter questioned why areas   that either did not meet attainment obligations under the 1 hour ozone NAAQS or that violate the 1 hour ozone NAAQS and are attainment/ unclassifiable for the 8 hr ozone NAAQS, but subsequently violate the 8 hour NAAQS   would be subject to an RFP requirement of 10% reduction in emissions instead of being subject to the emission reduction requirements under subpart 2, and would like EPA to explain the rationale behind a 10% reduction requirement.

Response: The provision referred to by the commenter applies to areas that are designated nonattainment for the 1 hour NAAQS with an outstanding obligation to submit an attainment demonstration and that are designated nonattainment for the 8 hour NAAQS. In the June 2, 2003 proposal we suggested an alternative to requiring those areas to submit the outstanding attainment demonstration   to achieve an early increment of progress toward attainment of the 8 hour NAAQS and we suggested a 5 percent or 10 percent reduction. For the final rule notice, we have provided 3 alternatives for state with outstanding attainment demonstration obligations, one of which is an early increment of progress. For purposes of the final rule, we adopted 5 percent. These requirements address the obligation of the area to meet outstanding planning obligations. Contrary to the commenters statements, this obligation is not in place of emission reduction requirements that would apply under subpart 2 based on the area's designation for the 8 hour NAAQS. The area 129 would be subject to all subpart 2 requirements that apply by virtue of its classification for the 8 hour NAAQS, in addition to being obligated to address its outstanding obligation for the 1 hour NAAQS. If the area chooses to achieve an early increment of progress toward the 8 hour NAAQS, it may also count those reductions toward meeting RFP and attainment for the 8 hour NAAQS.

Comment: Several commenters noted that EPA had not fully explained what areas might be affected by the provision of draft regulatory text Sec. 51.905( a)( 1)( ii). One asked whether it would be the areas with the most significant problems  and, if so, how would that be determined  would this apply to bump up areas, or would some other determining criteria be applied. Another commenter claimed it is not clear from the text that all former 1 hour ozone areas are not required to reduce emissions by 10 percent. Although EPA likely intended for the second sentence to modify the first, this intention should be clarified. The commenter provided suggested revision of the wording.

Response: We recognize that the draft regulatory text may have been misinterpreted to apply to more areas than we intended. The final regulatory text was modified to clarify that the planning obligations under the 1 hour standard and the associated emission reductions needed from those obligations ( ROP and/ or attainment demonstrations) only apply to areas that had not yet met those obligations, not to every 1 hour nonattainment area.

Comment: One commenter, in addressing sec. 51.905( c), recommended that the 10% emissions reduction provision should be eliminated and recommended that whether or not additional emissions reductions apply throughout an area should be a decision left to the State on an areaspecific basis, not arbitrarily mandated through this rulemaking. One commenter did not support extending the 10 percent SIP to the entire 8 hour NAA.

Response: EPA disagrees with the first commenter's fundamental premise   that States are not obligated to address outstanding planning requirements for the 1 hour standard, but merely to do what is necessary to attain the 8 hour standard. As many commenters have noted, the 8 hour attainment dates are later than the attainment dates for the 1 hour standard and without retaining the obligation to meet these outstanding planning obligations, States could delay emission reduction beyond the time they would have been required for the 1 hour standard. As explained above, EPA agrees with the commenters that 10% is not the appropriate progress increment to mandate. Instead, we allow the State to meet its unmet 1 hour attainment demonstration obligation through one of three alternative mechanisms, one of which is a 5 percent ( rather than a 10 percent) advance increment of emission reductions. The reduction is applied throughout the entire 8 hour nonattainment area because the obligation is being used to address reductions for purposes of the 8 hour standard, not the1 hour standard. The State has the option of meeting the obligation by submitting an attainment demonstration for the 1 hour standard from local reductions entirely within the 1 hour nonattainment area and accounting for reductions from outside the nonattainment area. If the State chooses to meet the obligation through either alternative option ( an early 8 hour SIP or the advance increment of progress toward the 8 hour standard) those options must address 130 the 8 hour standard and therefore the reductions from the advance increment of progress must be obtained based on the 8 hour nonattainment area.

Comment: One commenter supports the proposal to limit the obligation to implement " applicable requirements" to those portions of the 8 hour NAA that were also designated NAA for the 1 hour.

Response: The final rule ( section 51.905( c)) requires that the applicable requirements that are control measures would be retained in those portions of the 8 hour nonattainment area that were also nonattainment for the 1 hour NAAQS. However, if a State chooses to meet an unmet planning obligation under section 51.905( a)( 1)( ii)( B) or ( C) ( an advance increment of progress or an early 8 hour attainment demonstration), section 51.905( c) would require that the requirement apply throughout the 8 hour nonattainment area.

Other Obligations. ( Section VI. C. 3. a. v. of proposed rule; see 68 FR 32822; Section 51.905( d) of draft regulatory text. There is no parallel provision in the final rule. We do not include language in the final regulatory text providing that States may modify " discretionary" controls consistent with sections 110( l) and 193 of the Act because we believe such language is not necessary.)

Comment: One commenter supported the proposal. Several commenters believed that States should not be held to commitments to submit the mid course review required of some States under their 1 hour SIP. However, at least one commenter supported continuing the requirement to submit a mid course review for the 1 hour standard.

Response: As noted in the June 2, 2003 proposal, these SIP approved commitments are enforceable, and EPA and the States can use these mid course reviews to ensure that progress is being made consistent with the analysis in the area's 1 hour attainment demonstration. We feel that the mid course review is an integral part of the process needed to understand how the current control program is affecting the area. Therefore, the mid course review is needed to provide a solid foundation for the development of the 8 hour ozone attainment demonstration. The State remains obligated to honor these commitments unless modified under the provisions of section 110( l).

Comment: One commenter supports the provision of section 51.905( d). Several commenters noted problems concerning section 51.905( d), which provides that a State may revise or remove requirements in the approved SIP consistent with sections 110( l) and 193 of the Clean Air Act if such requirement is not addressed for that area under paragraph ( a) of this section. The commenters note that it is not clear from this language whether a State could revise a control option that arises under paragraph ( a). For example, the requirement for former 1 hour nonattainment areas to reduce emissions by 10% if they failed to develop a fully approved attainment demonstration falls under paragraph ( a). What if a State wanted to change a control measure selected to achieve the 10% reduction? Based on EPA's proposed rule text in Section 51.905( d), the State could not revise or remove the control because the control relates to a requirement addressed under paragraph ( a). It is doubtful that this was EPA's intention. The commenters 131 therefore encourage EPA to revise Section 51.905( d) to provide that States may revise or remove requirements consistent with section 110( l) and 193 of the Clean Air Act.

Response: Since general provisions for modifying or removing control measures in a SIP are already provided in the statute ( sections 110( l) and 193), we do not believe there is a need to have a duplicative provision in this final rule. Therefore, even though the draft regulatory text contained such a provision ( section 51.905( d)), the final rule does not contain that provision.

Comment: A few commenters expressly supported the proposal. Several commenters believed that States should not be held to commitments to submit the mid course review required of some States under their 1 hour SIPs.

Response: For areas that relied on weight of evidence to support their 1 hour attainmetn demonstrations, EPA required the areas to submit an enforceable commitment to perform a midcourse review to assess progress toward attaining the standard. EPA continues to believe these commitments are important, in particular since a number of these areas did not fully model all of the control measures on which they relied. As stated in the preamble to the June 2003 proposal, rather than using these reviews to assess progress toward attaining the 1 hour NAAQS, EPA and the States can use these mid course reviews to ensure that progress is being made consistent with the analysis in the area's 1 hour attainment demonstration ( i. e., are the measures being implemented and are reductions resulting in air quality improvements) and to help evaluate what control measures may best help an area make progress toward attainment of the 8 hour standard.

Comment: One commenter suggested that draft section 51.905( d) purports to allow relaxation of SIP requirements " consistent with sections 110( l) and 193 of the Clean Air Act if such requirement is not addressed for that area under paragraph ( a) of this section." The commenter noted that EPA cannot lawfully authorize relaxation of SIP commitments in this manner   either for 1 hour or 8 hour nonattainment areas. The agency has no authority to allow SIP revisions that result in failure of the SIP to comply with express requirements of the Act, whether or not the revision also interferes with requirements relating to attainment and RFP.

Response: We believe that   with the exception of subpart 2 mandatory obligations   a State may revise provisions of its SIP as long as it meets the criteria specified in sections 110( l) and 193. One of the provisions of section 110( l) is that the revision must not interfere with any " applicable requirement" of the Act. In the proposed and final rule, we have provided some definition to the term " applicable requirement" to aid in the interpretation of the Act's requirements.

Response: We do not include language in the final regulatory text providing that States may modify " discretionary" controls consistent with sections 110( l) and 193 of the Act because we believe such language is not necessary. These provisions of the Act already apply for purposes of SIP revisions. While we generally don't believe that States will be " relaxing" SIPs, we note that section 110( l) does not prohibit SIP relaxations so long as the state demonstrates that the relaxation will not interfere with attainment, progress or any other applicable requirement of the Act. 132 Comment: One commenter recommends that the draft regulatory text be rephrased to better reflect the actual situation namely, there is both flexibility available for revising or removing control obligations and statutory constraints on that flexibility. The rationale given for this recommendation is: ( 1) existing control measures have brought areas into attainment and maintenance of the 1 hour standard; ( 2) these same control measures are allowing maintenance areas for the 1 hour standard to meet the 8 hour standard and be designated attainment/ unclassifiable for the 8 hour standard; ( 3) without the continuation of existing control measures, it is not certain that areas will be able to continue to maintain the 1 hour standard and the 8 hour standard; ( 4) EPA has determined that the 8 hour standard is more stringent than the 1 hour standard; and ( 5) in the face of such uncertainty, removal of control measures should be undertaken only with caution and adequate technical demonstration. The commenter recommended that the regulatory text be revised to provide:

A State may revise and remove requirements in the approved SIP ( including commitments to take future action) if and only if the following two conditions area met: ( 1) such revision or removal meets the anti backsliding requirements of sections 1l0( 1) and 193 of the Clean Air Act and ( 2) the requirement is not addressed under paragraph ( a) of this section,

Response: We agree with many of the points made by the commenter such as the progress that has resulted from existing controls and that the continued implementation of those controls will help many areas maintain the 8 hour standard. We disagree with the commenter that maintenance of the 1 hour standard is a goal that we should consider. For reasons other than those raised by this commenter, we have deleted this provision from the final regulatory text because it is unnecessary. We believe that sections 110( l) and 193 apply to SIP revisions regardless of whether there is a regulatory reference to those provisions. A separate commenter ( see above) pointed out that the reference to the requirements under paragraph ( a) was confusing since those obligations may also be modified in certain circumstances ( consistent with sections 110( l) and 193) and the regulatory text implies that they may not.

What obligations continue to apply for areas that are designated attainment under the 8 hour standard and that were designated nonattainment for the 1 hour standard on or after November 15, 1990? ( Section VI. C. 3. b. of proposal see 68 FR 32822; section 51.905( a)( 3) of both draft regulatory text; sections 51.905( a)( 3) and ( 4) of the final rule.)

In the preamble to the proposed rule and the draft regulatory text, we addressed 1 hour nonattainment areas and 1 hour maintenance areas in the same section. In the final rule and the preamble to the final rule, we address these types of areas in separate provisions.

Obligations Related to NSR. ( Section VI. C. 3. b( i) of proposal; see 68 FR 32823; no regulatory text in draft or final rule.)

Planning Obligations other than maintenance plans ( Section VI. C. 3. b( ii) of proposed rule; see 68 FR 32823; Section 51.905( a)( 3)( ii) of the draft regulatory text and the final rule.) 18Memorandum of May 10, 1995, " RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," from John S. Seitz, Director, Office of Air Quality Planning and Standards. Available at: http:// www. epa. gov/ ttn/ oarpg/ t1/ memoranda/ clean15. pdf.

133 Comment: One commenter believed that the 1 hour standard should remain in effect, and therefore the planning obligations for the 1 hour standard would remain in effect until the area attained that standard.

Response: As stated in more depth in several of our responses related to revocation of the 1 hour standard, we do not believe that the 1 hour standard must or should continue to apply to areas indefinitely once areas are designated for the 8 hour NAAQS and begin implementing that NAAQS. Because areas designated attainment for the 8 hour standard are meeting the health based ozone standard, EPA does not believe that such areas should be required to address outstanding planning obligations for the 1 hour standard.

COMMENTS OPPOSING DRAFT REGULATORY TEXT PROVISIONS OPPOSITION DUE TO BEING TOO STRINGENT OR UNNECESSARY Comment: One commenter objected to the provisions of sec. 51.905( a)( 3)( ii)( B) because they believe for any nonattainment area requirements to apply, the areas should first be designated nonattainment. One commenter objected to the provisions of sec. 51.905( a)( 3)( ii)( B) because they believe a 10% emissions reduction in addition to numerous specified requirements was not authorized by Congress nor required by the Supreme Court, and may not be necessary to attain the standard.

Response: Under the terms of EPA's " Clean Data Policy, 18" an area that has achieved the NAAQS may be relieved of planning requirements as long as the area remains clean. If the area once again violates the NAAQS, even if it is not designated, the planning requirements must then be met. For consistency with that policy, the final rule offers the State in such a situation a choice between an advance increment of progress ( 5 percent) or submission of an early 8 hour SIP.

Comment: One commenter asked why in section 51.905( a)( 3)( B) how can an area be designated attainment or unclassifiable for the 8 hour NAAQS yet violate the 8 hour NAAQS at the same time. The commenter felt this is contradictory.

Response: An area may be initially designated attainment for the 8 hour standard and then violate after designation. The language in section 51.905( a)( 3)( B) has been revised to make the meaning clearer.

Comment: One commenter regarding section 51.905( a)( 3)( ii)( B) believes achieving 10% reduction in emissions above and beyond current requirements would be impossible and 134 recommends that the provision require a progress plan if a state ( or region) violates the 8 hour standard ( after being designated as an attainment area) and has not submitted a required maintenance plan by the applicable deadline. The commenter also recommends that EPA reconsider the percentage reduction required in such progress plans and provided information about the breakdown of emissions controls being planned. The also suggest that the reasonably available control measure ( RACM) assessment approach is more appropriate and potentially more effective than the flat demand for a percentage reduction. [ OAR 2003 0079 0475 Bay Area Air Management District.]

Response: As noted in the preamble to the final rule, we have modified the provision to allow the State with an area in these circumstances a choice of submitting either an advance increment of emission reductions of 5 percent or an early 8 hour implementation plan.

Obligations Related to Maintenance Plans ( Section VI. C. 3. b( iii) of proposed rule; see 68 FR 32823; Section 51.905( a)( 3)( iii) of draft regulatory text; Sections 51.905( a)( 3)( iii) and ( a)( 4)( ii) of final rule.)

Comment: Some of the commenters who objected to the requirement for a section 110( a)( 1) maintenance plan believed the 1 hour standard should remain in effect and with it any existing 1 hour SIP requirements, including the requirement to attain the 1 hour standard and to develop a section 175A maintenance plan ( which would require conformity determinations). One commenter stated that EPA does not have the authority to waive the requirement for a section 175A maintenance plan. Once an area has been designated nonattainment for the 1 hour standard, it cannot be redesignated to attainment unless and until it has submitted, and received EPA approval of, a maintenance plan meeting the requirements of section 175A.

Response: EPA disagrees with the fundamental premise made by the commenters   that EPA does not have the authority to revoke the 1 hour standard and the it must remain in place as a standard that areas are required to attain and maintain. EPA addresses this issue more fully in the section concerning when the 1 hour standard will be revoked. Because EPA has previously determined that the 1 hour standard is not necessary to protect public health, EPA is obligated to determine how best to effectuate the transition from implementation of the 1 hour standard to implementation of the 8 hour standard. Because the 1 hour standard is not necessary to protect public health, EPA does not believe it is necessary to retain that standard indefinitely or to require areas to meet that standard and to demonstrate that they will maintain that standard.

Comment: Two commenters believed that eliminating the 1 hour triggers in maintenance plans would allow backsliding. EPA has no authority to approve the removal from maintenance SIPS of requirements to implement contingency measures upon a violation of the 1 hour standard. Section 175A of the Act explicitly requires that maintenance plans must contain contingency provisions " to assure that the State will promptly correct any violation of the standard" that occurs after 135 redesignation. The " standard" being referred to is the one the maintenance plan was specifically designed to protect   namely the 1 hour standard.

Response: Since the 1 hour standard will no longer apply, EPA further believes it is appropriate to allow areas to revise their SIPs to replace the 1 hour violation trigger mechanism in their contingency plans. These areas are still required to have a maintenance plan for the 8 hour standard under section 110( a)( 1), including contingency measures. However, they may modify the mechanism for triggering contingency measures so that it reflects the health based 8 hour standard.

Comment: Several commenters objected to eliminating the maintenance requirement under section 175A because it would be a weakening of the protection under the Act. The 110( a)( 1) plan only is required to project for one 10 year period whereas the section 175A plan was required to project to two 10 year periods.

Response: After the 1 hour standard is revoked, we believe that an area   that was previously designated nonattainment for the 1 hour standard or was designated attainment with a maintenance plan   and that initially is designated attainment for the ozone standard, should be required to demonstrate maintenance only for the 8 hour standard at that point. The area was not " redesignated" attainment for the 8 hour standard, and therefore the section 175A maintenance plan requirement does not apply. We believe that the section 110( a)( 1) maintenance provisions   as required in section 51.905   will provide adequate assurance of maintenance of the 8 hour standard. EPA retains the authority to require a State that fails to maintain the standard to revise its SIP to provide additional maintenance measures or to redesignate the area to nonattainment.

Comment: One commenter recommended that EPA require the retention of the maintenance inventories and minimum control requirements in areas previously designated as nonattainment for the 1 hour ozone standard.

Response: The final rule does require that maintenance plan requirements remain in effect as a part of the SIP but allows the State to revise them after the area has an approved 8 hour maintenance plan. We do not believe that maintenance inventories for the 1 hour standard will continue to be needed once the area has in place an 8 hour maintenance plan that demonstrates maintenance without such inventories. In addition, the State will need to demonstrate that revision or removal of any control measures won't interfere with maintenance of the 8 hour NAAQS. Because the 8 hour standard is generally more stringent than the 1 hour standard, EPA does not anticipate that areas will be able to significantly relax their SIPs and continue to demonstrate maintenance.

Comment: Several commenters claimed that the requirement for a section 110( a)( 1) maintenance plan was unnecessary and not required. One commenter suggested that the requirement was premature.

Response: Section 110( a)( 1) of the Act requires all areas to demonstrate that they will attain and maintain the national ambient air quality standards. EPA believes that areas that have historically 136 had an ozone problem are most at risk for a potential future violation of the 8 hour standard and that the 8 hour maintenance plan will be a key element in ensuring that the air remains healthy in these areas.

Comment: One commenter suggested that EPA clarify that any specific maintenance plan requirements which are adopted will apply only to areas previously designated nonattainment for an ozone standard.

Response: The regulatory text of the final rule clarifies that the maintenance plan requirement in section 51.905 apply to areas that were designated nonattainment for the 1 hour standard on or after November 15, 1990. Of course, the State may determine that it is appropriate to consider a larger area in developing the maintenance plan.

Comment: One commenter suggested that areas with limited maintenance plans be provided relief from the requirement to submit maintenance plans under section 110( a)( 1).

Response: We see no basis for relieving these areas from the requirement to develop a section 110( a)( 1) maintenance plan. These areas, like all others developing a section 110( a)( 1) maintenance plan, should work with the appropriate EPA regional office in determining the specific components of the plan.

Comment: One commenter who objected to EPA's proposal to require a section 110( a)( 1) maintenance plan for areas that were designated nonattainment for the 1 hour standard on or after November 15, 1990, and that are initially designated attainment for the 8 hour standard claimed the requirement would burden the State and would detract from efforts to develop plans to meet the 8 hour standard.

Response: As noted in the preamble to the final rule, Section 110( a)( 1) requires all areas to demonstrate that they will attain and maintain the relevant NAAQS. Most of the areas addressed by this provision of the regulation have historically had problems meeting and remaining in attainment of the ozone NAAQS. We think it is important for States to ensure that these areas will continue to have clean air so that the health of citizens will be protected.

Comment: One commenter understood EPA's statements that current 1 hour maintenance areas would be relieved of the obligation to have a maintenance plan under section 175A of the CAA to mean that continued requirements and any obligations as a maintenance area for the 1 hour standard would cease at the time the 1 hour standard is revoked. The commenter requested clarification on any continued specific obligations required of maintenance areas under the 1 hour standard that are not and have never been designated as violating the 8 hour standard.

Response: The commenter is correct that the area would be relieved of the requirement to have a maintenance plan under section 175A of the CAA for such situations. The final rule ( section 51.905( a)( 4), which was not originally included in the draft regulatory text) contains provisions for areas that are initially designated attainment of the 8 hour standard but that had maintenance plans under the 1 hour ozone standard at the time of revocation of the 1 hour standard. The rule for these areas ( as well as 8 hour attainment areas that were designated nonattainment for the 1 hour standard at the time of 8 hour designation) requires such areas to submit a maintenance plan under section 110( a)( 1) within 3 years after the effective date of designation.

One commenter agreed with the requirement.

Comments on draft regulatory text:

COMMENTS SUPPORTING DRAFT REGULATORY TEXT PROVISIONS Comment: One commenter supports the provisions of sec. 51.905( a)( 3)( iii), which would require development of 8 hour maintenance plans within 3 years of designation as an 8 hour attainment area, but cautions EPA concerning its other comments concerning section 51.905( a)( 3)( ii)( B), concerning the unmet planning obligations under the 1 hour NAAQS. One commenter supports EPA's proposal under proposed rule 51.905 that the 1 hour maintenance plans could be modified to address maintenance of the 8 hour standard. The commenter also supports the continued requirement for contingency measures in 8 hour maintenance plans to avoid future redesignations to nonattainment, but notes that EPA's proposal did not specify the trigger for implementing these measures.

Response: EPA plans to issue guidance on section 110( a)( 1) maintenance plans subsequent to publication of the final rule to implement the 8 hour ozone standard.

Comment: With regard to section 51.905( a)( 3)( iii), one commenter does not support the requirement to provide a maintenance plan for areas in attainment of the 8 hour ozone NAAQS, as currently proposed. The commenter states that section 110( a)( 1) does not provide for general contingency measures, nor requires a ten year plan. The commenter believes the draft regulatory language inappropriately merges § 175A maintenance plan requirements for areas being redesignated from nonattainment to areas originally designated attainment for a NAAQS. Requiring areas designated nonattainment for the 1 hour ozone NAAQS to continue to implement the applicable requirements to the extent such requirements were approved in the 1 hour SIP is an adequate mechanism to assure continued attainment of the 8 hour standard. Any § 110( a)( 1) maintenance plan for such areas should be required only to address the continuation of such measures, as appropriate. Additionally, any area initially designated attainment for the 8 hour ozone standard that violates the 8 hour ozone standard would be subject to the Act's requirements relating to areas that become nonattainment.

Response: Without this provision, an area with a current 1 hour maintenance plan could experience backsliding   beyond that required from simply keeping mandatory measures as contingency measures   by being released from a requirement to continue to maintain the NAAQS. In other words, if the 1 hour standard were not revoked, the area would have been required to continue to ensure emissions would remain at levels designed to maintain the 1 hour standard. If the final rule contained no provision comparable to section 51.905( a)( 3)( iii), maintenance of those 138 levels of emissions could not be guaranteed. We see no reason why in transitioning to a more stringent and protective air quality standard why there should be provisions that would provide less protection to public health.

OPPOSITION DUE TO LACK OF STRINGENCY Comment: One commenter believed proposed section 51.905 ( a)( 3)( iii) provision to implement 8 hour ozone maintenance plans under Section 110( a)( 1) of the Clean Air Act for the areas affected ( those that were maintenance or nonattainment under the 1 hour standard but that are attainment under the 8 hour standard)   combined with the potential loss of funding under the Congestion Mitigation and Air Quality ( CMAQ) program   would hamper progress toward maintaining and improving air quality in former nonattainment areas, and eliminate several important tools that prevent emissions increases related to population growth and transportation sources.

Response: Under the final rule, areas affected by section 51.905( a)( 3)( iii) are still required to develop a maintenance plan under section 110( a)( 1) and provide for maintenance for 10 years. Although conformity determinations would no longer be made, the State still has an obligation to ensure that air quality remains clean, and to invoke contingency measures if concentration increases threaten to violate the NAAQS. We plan to address the CMAQ program in the second phase of this rule.

Comment: Several commenters opposed that part of draft section 51.905 that eliminates Section 175A planning requirements in favor of Section 110( a)( 1) maintenance plans. [ OAR 2003 0079 0494 State of New York Department of Transportation; OAR 2003 0079 0461 Oregon Department of Environmental Quality.] One of these commenters urges EPA to amend its proposed rule 51.905 to allow former nonattainment areas an option of implementing maintenance plans under Section 175A, and to continue requiring conformity determinations under the maintenance plan, and continue requiring subsequent plan revisions under this section. Alternatively, states that demonstrate that a Section 175A maintenance plan is not necessary to maintain the standard could be given the option of developing Section 110( a)( 1) maintenance plans if that is more appropriate for a local area. The commenter provided draft language to effect these changes.

Response: Once we revoke the 1 hour standard, the requirement for submission   or subsequent improvements to or additions   of a section 175A maintenance plan under the 1 hour standard are no longer required. Furthermore, maintenance plans under section 175A only accompany redesignation requests; the areas covered here would not be seeking redesignation to attainment, and therefore, section 175A maintenance plans are not an option for these areas.

Likewise, conformity determinations under the 1 hour standard will not only not be required but may not be made. EPA believes that conformity cannot apply in 1 hour maintenance areas once the standard is revoked. Clean Air Act section 176( c)( 5) restricts conformity to nonattainment areas and areas that are required to submit maintenance plans under section 175A; in these areas, the Federal government's sovereign immunity is waived so that states can require conformity to be 139 determined by the U. S. Department of Transportation. However, after revocation of the 1 hour standard, the areas previously required to submit 175A maintenance plans under the statute for the 1 hour standard will no longer be required to do so. Thus, conformity can no longer be required in 1 hour maintenance areas, since the Act no longer waives the Federal government's sovereign immunity for these areas after revocation.

Therefore, we must reject the commenters recommended changes. However, we note that under the final rule, areas affected by section 51.905( a)( 3)( iii) are still required to develop a maintenance plan under section 110( a)( 1) and provide for maintenance for 10 years. Although conformity determinations would no longer be made, the State still has an obligation to ensure that air quality remains clean, and to invoke contingency measures if concentration increases threaten to violate the NAAQS.

COMMENTS PROVIDING SUGGESTIONS OR ASKING FOR CLARIFICATIONS OF DRAFT REGULATORY TEXT PROVISONS Comment: One commenter expressed concern about the lack of specificity concerning the content and process for section 110( a)( 1) maintenance plans and believed modeling should not be required for these plans, since at least one EPA SIP approval rulemaking noted that modeling is not required for section 175A maintenance plans.

Response: We plan to issue guidance on the content and preparation of section 110( a)( 1) maintenance plans following publication of the final rule on implementation of the 8 hour standard.

General Comments related to regulatory text Comment: One commenter suggested changes for formatting consistency in section 51.905 of the draft regulatory text. These included:  Add new definitions ( including " baseline," " existing requirements," " effective date of designation."   Modifying the definition of " applicable requirements" to include a date for their determination.   The rule should specify procedures for requesting a lower classification ( under the proposed " incentive feature"). The rule should also address provisions for the 5 percent classification adjustment in section 181( a)( 4) of the CAA.

Response: Some of these changes have been made.  We did include a definition of " designation for the 8 hour NAAQS" based on the effective date. The rule itself addresses any baseline questions. The final rule ( section 51.905( a)( 1)( ii)( B)) specifies the creditability of emission reductions needed for the advance increment of progress plan.   The definition of " applicable requirements," specifies the date of determining an area's applicable requirements as the date the Administrator signs the final rule designating areas for the 8 hour NAAQS. 140   As discussed in more detail elsewhere in this document, the final rule does not include the proposed incentive feature that would have allowed requests for lower classifications based on projected attainment timing. The final rule does include references to both the 5 percent adjustment of section 181( a)( 4) and the voluntary bump up procedure under section 181( b)( 3) of the CAA.

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Obligations Related to Conformity ( Section VI. C. 3. b( iv) of proposed rule; see 68 FR 32823; Section 51.905( e)( 3) of draft regulatory text and final rule.)

Comments and responses are under the section What additional obligations under Part D of Title I of the CAA would not continue to apply after the 1 hour standard is revoked.

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What happens with respect to the NOx SIP Call? ( Section VI. C. 3( c); see 68 FR 32824; section 51.905( f) of both draft regulatory text and final rule.)

Comments and Responses Comments on the June 2, 2003 proposal:

Comment: Only a handful of commenters addressed this issue, and all supported the proposal. Several of these recommended that we lift the stay of the NOx SIP call as it relates to the 8 hour standard.

Response: We acknowledge the support on this requirement. As noted in the preamble, we do intend to lift the stay of the NOx SIP Cal as it relates to the 8 hour ozone standard.

Comment: One commenter urged EPA to adopt strong anti backsliding provisions when revoking the 1 hour standard to ensure continued progress as 8 hour SIPs are developed and to ensure reduction in transported pollution to downwind areas and noted that any regulatory program that reduces emissions to achieve the 1 hour standard also makes progress toward achieving the 8 hour standard. The commenter specifically noted that programs such as the NOx SIP Call and Tier 2 vehicle standards must also continue because they provide relief from transported pollution and EPA has found the benefits of these programs to be very effective with respect to the 8 hour standard. One commenter supported EPA's proposal that State's must continue to adhere to the emission budgets established by the NOx SIP Call after the 1 hour ozone standard is revoked.

Response: The final rule would retain provisions of the NOx SIP call. 141 Comments on the draft regulatory text:

Comment: Several commenters supported to provisions of draft section 51.905( f), that would retain implementation of the NOx SIP call provisions. One commenter supports the provisions of the section subject to modifications consistent with section 110( 1) of the Act.

Comment: One commenter urges the U. S. EPA to proceed with Phase II of the NOx SIP call which included control of emissions from internal combustion engines as well as corrections to the original requirements.

Response: The EPA Administrator signed the Phase II rule of the NOx SIP call on April 2, 2004. See http:// www. epa. gov/ airlinks/ rule4104. pdf *********************** What additional obligations under part D of title I of the CAA would not continue to apply after the 1 hour standard is revoked? ( Section VI. C. 3( d) of proposed rule; see 68 FR 328224; section 51.905( e) of final rule.)

Comments and Responses Comments on June 2, 2003 proposal:

Comment: Several commenters addressed this portion of the proposal. Most agreed with the proposal. A few of the commenters disagreed with the proposal. One cited equity reasons and possible delay in obtaining emission reductions. One of these commenters believe we should not revoke the 1 hour standard at all. One commenter disagrees with the proposal that after total or partial revocation of the 1 hour standard in an area, the Agency would not make findings of failure to attain the 1 hour standard or reclassify areas that failed to timely attain the 1 hour standard. 68 Fed. Reg. 32824/ 2. This proposal conflicts with the express terms of the Act, which mandates that EPA make a finding of nonattainment within 6 months following the applicable attainment date, and further mandates reclassification " by operation of law" for areas that EPA finds have not timely attained. CAA § 181( b)( 2), 42 U. S. C. § 7511( b)( 2). Moreover, the Act's reclassification requirements are part and parcel of the specific control obligations mandated by Subpart 2   obligations that EPA itself concedes must remain in effect regardless of whether of 1 hour standard is " revoked." EPA's proposal would also produce grossly inequitable results. For example, where EPA failed to timely reclassify an area prior to revocation of the 1 hour standard, that area effectively would receive a grandfathered exemption from the stronger subpart 2 control requirements that would continue to apply in areas that were reclassified on time. The proposal tries to justify a waiver of bump ups on that ground that states should focus resources on attainment of the 8 hour standard, and that " it would be counterproductive to establish new obligations for States with respect to the 1 hour standard after they have begun planning for the 8 hour standard." 68 Fed. Reg. at 32824/ 2. There is absolutely no support, however, for the notion that bump ups would divert resources from 8 hour planning, or that the stronger control requirements for a higher 19Docket documents OAR 2003 0079 0149, 0259, 0260 ( Texas Commission on Environmental Quality).

20Docket document OAR 2003 0079 0239 ( Sacramento Metropolitan Air Quality Management District).

21Docket document OAR 2003 0079 0140 ( Bay Area Air Quality Management District).

142 1 hour classification would somehow by " counterproductive" with respect to the 8 hour standard. As EPA itself has repeatedly stated, controls to achieve the 1 hour standard invariably contribute to attainment of the 8 hour standard as well.

Response: Elsewhere in this document, we respond to the issue of whether we can revoke the 1 hour standard. After the 1 hour standard is revoked, it would not exist, nor would designations or classifications under the 1 hour standard exist. Therefore, we would not find that an area failed to attain that standard, nor would we reclassify the area based on a failure to attain that standard. However, the anti backsliding provisions of section 51.905 would continue to require progress in achieving the health based standard that remains in place ( viz., the 8 hour standard), and would not allow backsliding of measures to reduce emissions that were required under the 1 hour standard.

We disagree with the comment that there is no support for the notion that classification bump ups would divert resources from 8 hour planning. Several commenters have provided estimates of the costs of preparing implementation plans for attainment of the NAAQS. One commenter stated that plans 7 areas would cost about $ 2.5 million. 19 Another commenter stated that the cost to preparation of a single local agency SIP can well exceed $ 1 million by itself. 20 Another commenter stated that the cost to prepare and submit a federal ozone attainment plan for the 1 hour standard is well over $ 2 million. 21 Continuing to spend resources of that magnitude on new planning for the 1 hour standard after the area fails to achieve the 1 hour standard   while at the same time preparing plans to achieve the 8 hour standard   would seem to spread those resources too thin.

We also disagree that there is no support for the claim that the stronger control requirements for a higher 1 hour classification would somehow be " counterproductive" with respect to the 8 hour standard. A higher classification requires the area to adopt mandatory control rules. Some of those mandatory controls are far more expensive per ton of reduction than other controls that may be more effective in reducing ozone concentrations. By spending limited resources in implementing the less effective mandatory controls, an air agency would be left with fewer resources to implement controls that would be more effective in bringing about attainment more expeditiously.

Comment: Several commenters urged that after EPA revokes the 1 hour standard, the Agency should no longer make findings of failure to attain the 1 hour standard, reclassify areas to a higher classification, or impose Section 185 penalties for failure to attain, stating that with a more 143 protective 8 hour standard and strong anti backsliding measures, the administrative and planning requirements for keeping the 1 hour standard in effect are not justified and would be a severe drain on state and local resources.

Several commenters urged EPA to confirm explicitly what is implicit in its proposal: that any penalties associated with failure to attain the 1  hour NAAQS by Subpart 2 deadlines would not be imposed upon revocation of the 1 hour NAAQS. Such penalties include the emission fee penalty for severe nonattainment areas described in section 185 of the Act, which is triggered under section 181( b)( 4) of the Act upon a finding that the area failed to attain by its attainment date. Thus, for the same reason that EPA would not, after revocation of the 1 hour NAAQS, make findings of failure to attain the 1 hour NAAQS ( and would not reclassify areas under section 181( b)( 2) of the Act), a 1 hour severe nonattainment area's failure to attain the 1 hour NAAQS would not, after revocation of that NAAQS, trigger the section 185 penalty fee provision for that area under section 181( b)( 4). Indeed, EPA recognizes in its proposed rule that the section 185 penalty fee provision is not a SIP emission control measure that would remain applicable after revocation of the 1 hour NAAQS but is instead a financial penalty imposed solely as a consequence of a finding that an area has failed to attain. Accordingly, just as there would be no basis for a finding of failure to attain the 1 hour NAAQS after that NAAQS is revoked, there would be no basis for imposing the section 185 penalty fee provision for that NAAQS. One of these commenters noted that it is implicit in the proposed rule that this penalty fee would not be imposed since it is not listed as an " applicable requirement" in Appendix B of the proposed rulemaking.

Response: The final rule provides that once the 1 hour standard is revoked, we will no longer make findings of failure to attain the 1 hour standard and, therefore, areas that were classified as severe for the 1 hour NAAQS are not obligated to impose fees as provided under sections 181( b)( 4) and 185A of the CAA. Since the obligations to reclassify areas and impose fees are based on a determination that an area has failed to meet the standard, those obligations also would no longer apply for the 1 hour standard once the 1 hour standard has been revoked.

Comment: One commenter stated that EPA's options for revocation of the 1 hour standard, if not carried out with appropriate safeguard, could result in ( 1) reduced progress by agencies at all levels of government to control emissions from sources within their jurisdictions, ( 2) competitive disadvantages for businesses in the South Coast due to other areas not being bumped up in response to a failure to attain the 1 hour standard, and ( 3) diminished incentives to develop needed new emission control technologies. This commenter noted the consequences that would befall an area if it failed to attain the 1 hour standard by its attainment date, such as: ( 1) a $ 5,000 per ton emissions fee that applies to emissions in excess of 80% of actual emissions in the attainment deadline year; ( 2) a requirement to implement contingency measures and an economic incentive program; ( 3) a requirement to submit a SIP revision to correct the failure to attain. The commenter believed that the elimination of these consequences would reduce pressure for source operators, developers of new control technologies, and governments at all levels to make expeditious progress in achieving emissions reductions. The commenter is also concerned that the lack of near term consequences for failure to attain would make it more difficult for the local areas to obtain 144 cooperation from the federal government to regulate sources within its jurisdiction. If attainment deadlines are extended to 2021, the federal government could more easily take the position that it need not commit to do more because the district and state have time to attempt to obtain needed reductions from sources within their control.

Response: We believe that with the revocation of the 1 hour standard, the anti backsliding provisions promulgated in the final rule will not result in any wholesale delay of emission reductions that are required under the 1 hour standard. Furthermore, EPA always retains the authority to require a State that may fail to attain the standard to revise its SIP to provide additional control measures or, if the area actually fails to attain, to redesignate the area nonattainment and require a new attainment demonstration.

Comments on draft regulatory text ( sect. 51.905( e) of the draft):

Comment: Several commenters supported this provision. One commenter supports, in part, our proposal to allow amendment of maintenance plans, but takes issue with the fact that States would face a continuing obligation to implement contingency measures after revocation of the 1 hour standard and the criteria for approval of such amendments. After the 1 hour NAAQS is revoked, a State's obligation to implement contingency measures should automatically be lifted. With respect to the criteria for approval of amendments to maintenance plans, there are some 8 hour NAAs that have 1 hour maintenance plans that will not have an obligation to submit an 8 hour attainment demonstration, and hence may face continuing obligations for the 1 hour NAAQS after it has been revoked. Marginal areas, for example, are not required to submit an attainment demonstration. For such areas, the commenter notes that it appears that we intend these obligations to remain in place until 2007. By 2007, many of these areas will already have been required to update their 1 hour maintenance plans. The commenter recommends that amendments to the maintenance plans for these areas be approved after the 1 hour NAAQS has been revoked. Another commenter also notes that the draft regulatory text on this provision is not clear with regard to areas classified marginal.

Response: Once we revoke the 1 hour standard, the requirement for submission   or subsequent improvements to or additions   of a section 175A maintenance plan under the 1 hour standard are no longer required. Furthermore, maintenance plans under section 175A only accompany redesignation requests; the areas covered here would not be seeking redesignation to attainment, and therefore, section 175A maintenance plans are not an option for these areas. After revocation of the 1 hour standard, the areas previously required to submit 175A maintenance plans under the statute for the 1 hour standard will no longer be required to do so. We note that under the final rule, areas affected by section 51.905( a)( 3)( iii) are still required to develop a maintenance plan under section 110( a)( 1) and provide for maintenance for 10 years. The State still has an obligation to ensure that air quality remains clean, and to invoke contingency measures if concentration increases threaten to violate the NAAQS. 145 The final rule provides that, 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 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 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. One revision that the State could consider is replacement of contingency measure triggers that are based on 1 hour ozone concentrations with triggers that are based on 8 hour ozone concentrations. The final rule provides that EPA would 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 110( l) and 193 of the CAA.

For areas that are not required to submit attainment demonstrations ( e. g., marginal areas), the SIP revisions that affect prior maintenance plans under the 1 hour standard may be made when other portions of the 8 hour SIP are due ( e. g, the NSR provisions).

Comment: Several commenters support the predication that upon revocation of the 1 hour standard, EPA would no longer be required to determine whether an area has attained the 1 hour standard by its 1 hour attainment deadline or to reclassify the area to a higher classification based on a " failure to attain" determination. The commenter suggest that the language of the regulatory text should affirm this position by changing the phrase " is no longer obligated to" to " shall not" in § 501.905( e)( 2).

Response: We are not incorporating the recommended change. The federal government generally does not make rules that bind itself to take or refrain from taking certain actions.

Comment: One commenter agrees with EPA's approach to allow States to request the removal of obligations to submit an 8 year update to 1 hour maintenance plans and implement contingency measures upon a violation of the standard. However, the commenter believes the SIP modifications to address these issues should be incorporated as part of the 8 hour SIP submittals, rather than a separate process.

Response: The rule would require removal of control measures through a revision of the 8 hour ozone SIP.

Comment: One commenter recommended that, in general, the rule should make it clear that any revocation actions must comply with Sections 1l0( 1) and 193.

Response: The proposed rule   as well as the final rule   provides that EPA will not approve revisions to the maintenance plan until EPA approves the area's 8 hour SIP for either attainment or 146 maintenance, which will ensure non interference with the 8 hour standard. However, the final rule also includes a requirement that the changes must be in accordance with sections 110( l) and 193.

Comment: One commenter believes that proposed 40 C. F. R. § 51.905( e)( l) contains an apparent misstatement that EPA should correct. That provision states that upon revocation of the 1 hour NAAQS, an area with an approved maintenance plan for that NAAQS may modify that plan to remove the obligation under CAA § 175A( b) to submit a " second round" maintenance plan eight years after redesignation to attainment and to remove the obligation to implement contingency measures upon a 1 hour NAAQS violation. The provision goes on to say that EPA will not approve a SIP revision making these modifications until the state submits and EPA approves: ( 1) an 8 hour attainment demonstration, if the area is designated nonattainment for the 8 hour NAAQS; or ( 2) an 8 hour maintenance SIP under proposed 40 C. F. R. § 51.905( a)( 3)( iii), if the area is designated attainment for the 8 hour standard. Option ( 2) does not make sense, however. Proposed 40 C. F. R. § 51.905( e) by its terms applies to areas with approved 1 hour maintenance plans. Thus, these areas by definition have been redesignated to attainment   i. e., are no longer nonattainment   for the 1 hour NAAQS. Yet proposed 40 C. F. R. § 51.905( a)( 3)( iii) applies only to areas that are " designated nonattainment for the 1 hour NAAQS at the time of revocation of the 1 hour NAAQS". Thus, contrary to the last clause of § 51.905( e)( l), areas that are maintenance for the 1 hour NAAQS and attainment for the 8 hour NAAQS cannot be subject to § 51.905( a)( 3)( iii).

Response: The commenter has pointed out a flaw in the proposal. The final rule has been modified from the proposal to account for this situation. A separate parallel provision has been established in section 51.905( a)( 4) for areas that have 1 hour maintenance plans at the time of revocation of the 1 hour standard under which they would be obligated to submit a maintenance plan under section 110( a)( 1). Section 51.905( e)( 1) has been modified to provide that the State would not be able to modify the existing 1 hour maintenance plan until EPA approves the new 8 hour maintenance plan.

Comment: One commenter recommended that section 51.905( e)( 2) be revised to indicate whether EPA is still obligated to implement a FIP after revocation of the 1 hour standard.

Response: FIPs   like SIPs   remain in effect unless modified by EPA rulemaking. The same antibacksliding principles that apply to SIPs will apply to FIPs, and unless modified, EPA will continue to implement FIPs. We do not believe a change is needed in the rule itself to ensure this happens.

Comment: With regard to section 51.905( e)( 1), one commenter notes that EPA would be required to act upon these maintenance plans pursuant to section 110( k) ( 12 months after completion) while also reviewing SIPs for 8 hour attainment.

Response: We recognize that section 110( k) would provide that EPA must act on SIP revisions within 12 months after a determination of completeness of the revision.

General Characterization of Comments Related to Conformity 147 Comments: About twice as many commenters were against revoking the 1 hour ozone standard and its implications for conformity once the 8 hour standard applies than were in support of it. Those commenting against revoking the 1 hour standard for conformity were concerned about backsliding. Many commenters thought that 1 hour motor vehicle emissions budgets should remain in effect because otherwise 8 hour areas will be able to use the build/ no build test and this test allegedly allows emissions to increase. Other commenters specifically mentioned that revoking the 1 hour standard conflicts with our proposal that Clean Air Act section 110( l) must be met in maintenance areas. Some commenters were also concerned revocation means that conformity will no longer apply in areas that are attaining the 8 hour standard.

Response: More detailed comment summaries and responses follow.

Comment: Commenters against revoking the 1 hour standard were most concerned that areas would no longer have to meet the motor vehicle emissions budgets established for the 1 hour standard. Instead, 8 hour ozone nonattainment areas that were nonattainment or maintenance for the 1 hour standard would be able to determine conformity using other tests, such as the " build/ nobuild test, until 8 hour budgets become available.

Some commenters stated that the build/ no build test allows traffic and pollution growth even when increased emissions will exacerbate adverse health effects, because emissions from the " build" case only have to be less than the " no build" case, rather than less than some certain amount of emissions. One commenter said that if conformity is weakened, billions of dollars will be spent on transportation without accountability for public health impacts.

To avoid these results, commenters suggested a variety of alternative points for revoking the 1 hour standard. Commenters suggested retaining conformity for the 1 hour standard until:

° motor vehicle emissions budgets for the 8 hour standard are available; ° areas submit and EPA approves a maintenance plan for the 8 hour standard. This maintenance plan should provide for continued maintenance of the 8 hour standard for at least 10 years and should include contingency measures that would be implemented upon a violation of the 8 hour standard. ° the end of the 1 hour maintenance planning period; or ° it is demonstrated that conformity is no longer necessary for maintenance of the 8 hour standard.

A coalition of environmental groups also suggested that instead of the build/ no build test, areas should demonstrate conformity by showing that a transportation plan or program achieves no net increase in emissions in the period between designation and the point where 8 hour budgets are adequate. Finally, some air quality agencies were concerned that air quality progress made under the 1 hour ozone standard be maintained until 8 hour SIPs are established several years after designations. Until 8 hour SIPs are in place, these commenters believed that existing 1 hour SIP 148 budgets in control strategy SIPs and maintenance plans be used for transportation conformity purposes, rather than the relatively lenient build/ no build test.

Response: EPA's Office of Transportation and Air Quality proposed conformity regulations for the new 8 hour ozone standard and new fine particulate matter standard on November 5, 2003 ( 68 FR 62690  62729). We proposed that new 8 hour ozone areas that have 1 hour ozone SIPs would meet one of several tests, and the menu of options we offered differed depending on how the 8 hour area boundary relates to the 1 hour area boundary. We will consider these issues in that rulemaking and provide a full response in the context of that rulemaking. Therefore, please refer to docket number OAR 2003 0049 for the complete response to these comments.

However, at this point EPA can respond to the suggestions to revoke the 1 hour standard at a later point such as when 8 hour budgets are available, or the end of the 1 hour maintenance planning period. Under these scenarios, there would be a period of years where conformity would have to be determined for both standards at the same time: a result that EPA believes could lead to confusion and additional burden for transportation and air quality planners. EPA believes it is sufficient that conformity be determined for one ozone standard at a time. EPA also believes that conformity cannot apply in 1 hour maintenance areas once the standard is revoked. Clean Air Act section 176( c)( 5) restricts conformity to nonattainment areas and areas that are required to submit maintenance plans under section 175A; in these areas, the Federal government's sovereign immunity is waived so that states can require conformity to be determined by the U. S. Department of Transportation. However, after revocation of the 1 hour standard, the areas previously required to submit section 175A maintenance plans under the statute for the 1 hour standard will no longer be required to do so. Thus, conformity can no longer be required in 1 hour maintenance areas, since the Act no longer waives the Federal government's sovereign immunity for these areas after revocation. Finally, since the 8 hour standard is the more stringent of the two standards, we believe conforming to that standard will be sufficient.

Comment: Several commenters indicated that revoking the 1 hour standard and terminating conformity for the 1 hour standard is backsliding. Commenters specifically made the point that revoking the 1 hour standard in areas that are maintenance for that standard conflicts with EPA's proposal that areas can modify discretionary measures only if section 110( l) is met.

Commenters also remarked that revoking the 1 hour ozone standard is of particular concern in areas that are currently nonattainment or maintenance for the 1 hour ozone standard that are projected to be attainment for the 8 hour ozone standard, because once the standard is revoked, these areas will no longer be subject to conformity for any ozone standard.

Two commenters referring to the same area argued that eliminating conformity in that area, a maintenance area for the 1 hour ozone standard that monitors attainment for the 8 hour standard, would have significant implications for the state's economic recovery. In their region, one commenter explained, motor vehicle emissions budgets for transportation have been purposefully set to allow industrial expansion. This region has made a specific decision to limit emissions from 149 the transportation sector so that desired economic expansion for the industrial base could take place. A couple of commenters also argue that eliminating transportation conformity in areas that are maintenance means that the region loses the ability to forecast whether a violation could occur. Instead, the area would know of a violation only when one occurs. One commenter is concerned that, if the area should violate the standard, the likely result would be a reduction in industrial emissions, which could inadvertently limit economic development.

Response: The Clean Air Act specifically states that conformity applies only in " a nonattainment area..." and " an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 7505a of this title..." ( 42 U. S. C. 7506( 5)). With this provision of the statute in mind, we will first address the comment that revoking the 1 hour standard conflicts with EPA's proposal that areas must meet section 110( l) before modifying discretionary measures, and second address the concern regarding revoking the 1 hour standard in 8 hour attainment areas.

Maintenance areas. As stated in the proposal ( 68 FR 32842), we have concluded that the better interpretation of the statute is that conformity would not apply in 1 hour ozone maintenance areas once the 1 hour ozone standard is revoked, because maintenance areas are relieved of the obligation under section 175A of the CAA ( 42 U. S. C. 7505a) to have a maintenance plan. Since these areas are no longer required to have a maintenance plan, conformity no longer applies for the 1 hour ozone standard in these areas as a matter of law, and no waiver of sovereign immunity applies to allow imposition of conformity requirements. We acknowledged in the proposal that our interpretation that conformity would not apply in 1 hour ozone maintenance areas differs from the approach we planned to take in 1997. In 1997, we interpreted revoking the 1 hour ozone standard to mean that conformity would not apply for the 1 hour ozone standard in areas that were nonattainment for the 1 hour ozone standard, but that conformity would continue to apply for the 1 hour ozone standard in areas with a maintenance plan. This interpretation lead to an unfair and counter intuitive result: areas that had attained the standard and had made the effort to establish a maintenance plan would have to continue a required program, but areas that had not attained would not. We reconsidered this result and found it to be unfair and inappropriate. Further, upon reanalyzing CAA section 176( c)( 5), we concluded that this interpretation did not fit with the text of the statute.

EPA now believes that conformity cannot apply in 1 hour maintenance areas once the 1 hour standard is revoked. Clean Air Act section 176( c)( 5) restricts conformity to nonattainment areas and areas that are required to submit maintenance plans under section 175A; in these areas, the Federal government's sovereign immunity is waived so that states can require conformity to be determined by the U. S. Department of Transportation. However, after revocation of the 1 hour standard, the areas previously required to submit 175A maintenance plans under the statute for the 1 hour standard will no longer be required to do so. Therefore, the statute will no longer waive sovereign immunity to allow states to require conformity determinations in such areas after revocation. Thus, although section 110( l) would normally require areas to demonstrate that removing prior SIP requirements would not interfere with any applicable requirements of the Act, 150 where the Act itself now forbids application of a prior requirement such a demonstration would be unnecessary. Further, it would interfere with the statutory limitation on the applicability of conformity to require conformity determinations in areas that are no longer required by the Act to submit 175A maintenance plans.

Areas attaining the 8 hour ozone standard. We promulgated the 8 hour ozone standard in response to the latest data and science regarding ozone; we believe the 8 hour ozone standard is more protective of public health. EPA has made the decision to replace the 1 hour ozone standard with the 8 hour ozone standard, because we recognize that it is difficult for states to plan for both standards and because EPA concludes that the 8 hour standard is the more appropriate standard to protect health and welfare. It is our conclusion that areas that are in attainment for the 8 hour standard would not be subject to conformity because the statute explicitly limits the applicability of conformity to designated nonattainment and maintenance areas. These areas still have incentive to monitor the growth of emissions from the transportation sector; if these areas violate the 8 hour standard, EPA would designate them nonattainment for the 8 hour standard and conformity would then apply.

Last, EPA notes that although States could not implement conformity for attainment areas as a matter of Federal law, they could still work with their MPOs to estimate regional emissions that would be generated by the planned transportation system to see whether a violation could occur, and to address motor vehicle emissions growth. These type of State activities may be done under State law, when possible, or on a voluntary basis.

Comment: Comments submitted by a coalition of environmental organizations made a few arguments regarding the legality of the revocation proposal.

First, commenters assert that EPA does not have the discretion to revoke the 1 hour ozone standard. The commenters point toward the Court's conclusion that the congressional scheme for implementing the 1 hour standard " reaching so far into the future was not enacted to be abandoned the next time the EPA reviewed the ozone standard   which Congress knew could happen at any time." Commenters also quoted the following from the Court's decision: " The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion," and conclude that because the regulatory scheme in Subpart 2 was enacted to require implementation of the 1 hour ozone standard, that standard must continue to be implemented.

The same commenter in a separate comment letter made the same point in commenting on the definition of " applicable requirements" in section 51.900( f) of the draft regulatory text. The commenter noted that the definition omitted the conformity requirements of CAA § 176( c) which apply to areas that are designated nonattainment for the pollutant ozone or that were designated nonattainment for ozone but that were later redesignated by the Administrator as an attainment areas. The omission of conformity requirements from the list of applicable requirements for any area that is designated as nonattainment or attainment ( maintenance) for ozone pursuant to either 151 NAAQS violates the Act. In further support hereof, we incorporate by reference applicable arguments filed in the litigation challenging EPA's initial revocation of the 1 hour ozone NAAQS. See docket number 0479.

Second, commenters assert that even if Congress had not codified the 1 hour ozone standard by enacting Table 1 and required its implementation by enacting the provisions of Subpart 2, EPA may not lawfully revoke conformity requirements currently in effect. Commenters state that any area currently designated nonattainment for ozone retains that designation until the area has been redesignated to attainment pursuant to section 107( d)( 3)( E), even assuming that the 1 hour standard could be revoked. Areas currently nonattainment for ozone, they argue, will therefore remain subject to the conformity provisions of the Act as either nonattainment or redesignated attainment areas. Further, the Act offers EPA no option to waive the requirement of section 176( c) when a new standard is promulgated, or an existing standard is revised or revoked.

Commenters also indicate that EPA has created by rulemaking the motor vehicle emissions budget in a SIP as the mechanism for implementing the statutory requirement for consistency between transportation activities and the SIP. Once approved, the budget is part of the applicable implementation plan, and EPA may not by fiat remove the budgets from a SIP or render them nugatory for transportation conformity purposes. Commenters assert that EPA may not unilaterally revise a state's SIP or suspend it, and in order to require states to revoke the budgets in their SIPs, EPA would have to find the budgets inadequate. Nor may EPA lawfully allow states to discontinue implementation of the budgets in their current SIPs, and if states were to decide on their own that budgets no longer apply for conformity purposes, commenters believe EPA's obligation is to impose sanctions pursuant to section 179( a)( 3).

Third, commenters assert that states may not revise their SIPs to remove budgets without complying with section 110( l), which states that EPA cannot approve revisions " if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress ( as defined in section 171), or any other applicable requirement of this Act."

Response: In response to the first point, EPA disagrees with commenters' interpretation of the court decision. The Court could have specifically stated that the 1 hour ozone standard could not be revoked; it did not. Instead, the Court instructed EPA to find a means of implementing the 8 hour ozone standard that does not ignore subpart 2, the specific requirements for ozone areas that apply based on an area's classification. Elsewhere in this response to comment document is a response to legal questions concerning revocation of the 1 hour ozone standard.

In response to the second point, Congress gave EPA the authority to create and revise the standards. In CAA section 109( d)( 1), Congress directed EPA to review the standards every 5 years and " make such revisions in such criteria and standards and promulgate such new standards...." EPA interprets " make such revisions in... standards" to mean that EPA has the authority to replace one standard with another. We do not believe that Congress intended to have overlapping standards every 5 years for the same pollutant. If that were the case, states would be required to 152 develop and implement a SIP for each version of the standard. Duplicating these efforts would waste limited resources because the goal of each standard is the same: to protect public health. We believe that implicit in the authority to revise standards is the authority to revoke a standard. Certainly the Court did not tell us otherwise. We need to be able to revoke standards so that states and areas can move on to implementing the new standard and not have to implement old standards in perpetuity.

EPA disagrees with the relevance of the third point summarized above, which is that states cannot revise their SIPs to remove budgets without a demonstration that section 110( l) is met. However, states are not revising their SIPs to remove budgets. At the point when EPA revokes the 1 hour ozone standard, conformity will no longer apply for that standard as a matter of law. States are not taking any action to remove the budgets for the 1 hour ozone standard in their SIPs, nor are they required to do so. In fact, EPA has proposed that 8 hour nonattainment areas would be able to use these budgets if they exist for that area in our November 5, 2003, proposed rule ( 68 FR 62690  62729). Thus, although the 1 hour budgets would remain in the SIP, areas previously designated nonattainment or maintenance for the 1 hour standard would no longer be required to show conformity under CAA section 176( c)( 5). Similarly, EPA would have no grounds for imposing sanctions where conformity is not conducted in these areas because there would be no SIP planning or implementation failure.

Comment: One commenter noted that the proposal indicates that areas attaining the 8 hour standard at the time of designation would no longer be subject to conformity requirements for the ozone standard. The commenter asked what effect would that have on existing conformity SIPs and regulations, whether approved or submitted? Would separate application and action be necessary to repeal those SIPs and local rules/ procedures after conformity no longer applies? Response: Once the 1 hour ozone standard is revoked, conformity will no longer be required under Clean Air Act section 176( c)( 5) and 40 CFR 93.102( d) of the conformity rule for areas that are attaining the 8 hour standard. States are not required to take any action to remove the budgets for the 1 hour ozone standard in their control strategy SIPs or maintenance plans or remove state and local procedures for conformity requirements for the 1 hour standard in conformity SIPs. Although the 1 hour SIPs would continue to remain, areas previously designated nonattainment or maintenance for the 1 hour standard would no longer be required to show conformity under the statute. Although the SIP may continue to include regulations requiring conformity in areas designated nonattainment or maintenance for the 1 hour standard, since no areas would be so designated such regulations would have no effect.

Comment: The comments submitted by a coalition of environmental organizations rebutted EPA's assertion that revoking the 1 hour standard is necessary so that agencies can focus on planning for the 8 hour standard. Commenters state that neither the revocation of the 1 hour standard or the budgets is justified on this basis with respect to transportation and emissions modeling, because under either standard, similar work in establishing base year inventories, and future forecasts of travel and emissions must be done. Commenters state that once the resources are in place to make future forecasts, the level of effort in both time and money to produce analyses to different regional 153 boundaries is relatively small, and ample resources are available to pay for the additional analyses needed to determine conformity to both standards.

Response: While this comment focuses on the resources necessary to determine conformity for both standards, EPA believes a discussion of resources should include all aspects of attainment planning. Under EPA's proposal, With revocation of the 1 hour standard, conformity will no longer apply for that standard as a matter of law. Therefore, in order for conformity to apply for both standards as the commenter requests, both standards have to be implemented at the same time, i. e., the 1 hour standard would have to be implemented in addition to the 8 hour standard. This would mean no revocation of the standard and continuation of the requirement to demonstrate attainment and maintenance of the 1 hour as well as the 8 hour standard. However, EPA no longer believes the 1 hour ozone standard is adequately protective of public health. Further, EPA believes that it would be a substantial increase in burden for states to plan for attainment of both standards, which includes conformity but also includes creating inventories for each source sector, determining feasible control measures, writing rules to implement control measures, permitting stationary sources, establishing ROP plans, running iterations of air shed modeling, and demonstrating attainment. Where they are not required by anti backsliding provisions, EPA does not believe that the additional burden states would undertake in planning to achieve both the 1 hour and the 8 hour standard would result in a significant benefit to public health over attainment planning for the 8 hour standard alone, especially in light of the fact that the 1 hour standard is less protective of public health.

Comment: A number of commenters supported EPA's proposal that conformity apply for one standard at a time. One commenter stated that determining conformity for two separate ozone standards would result in undue administrative burden, create confusion about requirements in the public process and make synchronization of the air quality and transportation planning processes more difficult. A couple of commenters argued that having to determine conformity for both ozone standards would drain limited resources in transportation and environmental agencies. One of these commenters continued that demonstrating conformity for two ozone standards could in fact delay progress, due to the high administrative burdens. One commenter wanted clarification that conformity would not apply in 1 hour nonattainment areas after the standard is revoked.

Several commenters suggested that EPA provide areas a choice in allowing the 1 hour budgets to be used. A couple of commenters thought that allowing 8 hour ozone nonattainment areas to use 1 hour ozone budgets for conformity would provide continuity and eliminate possible backsliding. Some commenters added that if the 1 hour budgets are used, then an area should not also be subject to the interim emissions tests ( that is, the build/ no build test and the baseline year test).

Response: EPA is maintaining the position in the final rule for implementation of the 8 hour ozone standard that conformity no longer applies for the 1 hour standard once it is revoked. EPA has also proposed in its conformity rule that areas can continue to use the budgets from SIPs that address the 1 hour standard for determining conformity to the 8 hour standard, as appropriate. We also 154 have specifically proposed that in areas where the 1 hour boundary is the same as, or encompasses the 8 hour area boundary, the budget test could be the sole test needed. Please refer to the November 5, 2003, transportation conformity proposal at 68 FR 62690 62729 for further information. The docket number for this rulemaking is OAR 2003 0049.

Comment: One commenter preferred the first revocation option to the second because it seemed to the commenter to provide more certainty in the conformity process. This commenter is concerned that Option 2 would require that conformity be done for both the 1 hour standard and the 8 hour standard at the same time, until areas attain the 1 hour standard. However, the commenter acknowledged that if conformity does not apply for both standards at once, then option 2 could be acceptable.

Response: EPA proposed two revocation options that differed in method but not in results. Under either revocation option proposed, conformity would apply for only one ozone standard at a time.

Comment: One commenter recommended that EPA provide an option that allows states to submit budgets for the 8 hour ozone standard early for conformity purposes, and suspend the requirement to determine conformity under the 1 hour ozone standard at the time that the 8 hour budgets are determined to be adequate. A second commenter suggested something similar, that EPA require states to expedite budgets for the 8 hour standard in areas where the 8 hour boundary is larger or contiguous to the pre existing l hour boundary, which would require the new nonattainment areas to develop " rough draft" SlPs that have sufficient detail to extract the budgets from projected attainment emission inventories.

Response: EPA did not propose to revoke the 1 hour standard earlier than 1 year after designations, in part because we did not believe that areas would be able to submit an 8 hour SIP earlier. Furthermore, EPA's proposal was intended to align the revocation of the 1 hour standard with the application of conformity requirements for the 8 hour standard one year after the effective date of 8 hour nonattainment designations. EPA continues to believe it is unlikely that areas will have adequate budgets that address the 8 hour standard before EPA revokes the 1 hour standard. Such budgets cannot stand alone but have to be associated with adopted control measures and demonstrations of either attainment or reasonable further progress, and we believe developing these SIPs will take States some time. Once the SIPs are submitted, EPA must find them adequate, a process which EPA intends to complete within 90 days of receiving a SIP. It is very unlikely that States will be able to complete the work to submit 8 hour ozone SIPs one year from the effective date of 8 hour ozone area designations, and much less likely that States have submitted them sufficiently in time for EPA to find them adequate before the 1 hour standard is revoked.

Given these facts and that fact that EPA did not propose an option for revoking the standard earlier than 1 year after 8 hour designations are effective, EPA does not intend to provide for early revocation of the 1 hour standard, nor will EPA require 8 hour areas to expedite development of their 8 hour SIP for this purpose. All areas must turn in SIPs as soon as practicable, and EPA wants States to develop quality SIPs to support attainment demonstrations and conformity 155 determinations. Prior to the revocation of the 1 hour standard, new transportation plan and TIPs must conform to the applicable SIP budgets for the 1 hour standard.

NSR Under the 1 Hour Standard Comment: Some commenters believed that the NSR requirements under the 8 hour standard should apply at the time that the 1 hour standard is revoked. One of the commenters noted that the major stationary source thresholds and offset ratios under the 8 hour NAAQS classifications would apply for major NSR purposes once the 1 hour NAAQS is revoked.

Some commenters more generally noted that with a more protective 8 hour standard, keeping the 1 hour requirements in place was unnecessary.

Comment: Other commenters preferred that the 1 hour NSR requirements no longer apply, provided there was some type of demonstration regarding the 8 hour standard. One commenter advocated that major source thresholds under the 8 hour classifications apply instead of 1 hour classifications where the 8 hour classifications are less restrictive. According to the commenter, however, this would only be allowed if a demonstration can be made that the area has equivalent or more stringent thresholds in place in other forms. The commenter stated that this would allow areas with BACT and offset thresholds at or below the federal NSR major source program to avoid extraneous and administrative requirements.

Some commenters believed that a SIP measure under the 1 hour standard could be modified or removed if a State demonstrates that such modification or removal will not interfere with attainment or maintenance of the 8 hour standard. Others more generally agreed that measures that do not assist in attaining the 8 hour standard should be removed.

Several commenters asserted that ozone emissions would continue to decline regardless of how major NSR applies under the 8 hour standard, due to other programs such as the NO x SIP call, the Acid Rain program under Title IV, SIP revisions, and bump ups. These commenters further noted that many sources are still in the process of installing controls to meet the 1 hour standard, and that emission reductions due to those controls have not been realized.

Comment: Although they differed on when the 1 hour NSR requirements should be removed, some commenters believed that the 1 hour NSR requirements should remain in effect after revocation of the 1 hour standard. Some commenters believed the 1 hour NSR requirements should remain in effect until the 1 hour NAAQS is achieved. Some commenters agreed with our proposal that to the extent higher major stationary source thresholds and offset ratios apply under the 1 hour standard, those requirements should remain in place under the 8 hour standard.

Some commenters believed the 1 hour NSR requirements should remain in effect until the 8 hour NAAQS is achieved. Other commenters believed the 1 hour NSR requirements should remain in effect until both the 1 hour NAAQS and 8 hour NAAQS are achieved. One commenter is 156 concerned that there not be a window during which new sources of pollution can be installed without meeting standards that were previously in place under the l hour rule. If a region faced more stringent requirements under the l hour standard than they initially would under the new standard, those more stringent requirements should remain in place until the area has attained both the 1 hour and the 8 hour health standards. Likewise, the new 8 hour standard should not serve as a pass granting extensions to air quality improvement measures that should have been implemented under the l hour standard.

Response: We agree with commenters who stated that it is inappropriate to mandate that a State continue to apply 1 hour nonattainment NSR requirements to areas that are designated nonattainment for the 8 hour standard. Therefore, the final rule specifies that, at the time that the 1 hour NAAQS is revoked, a State is no longer required to retain a nonattainment NSR program in its SIP based on the requirements that applied by virtue of the area's previous classification under the 1 hour standard. Instead, SIPs will be required to include an NSR program based on the area's designation and classification under the 8 hour standard.

We further agree with commenters that a finding that 8 hour NSR will not interfere with the State's ability to reach attainment of the 8 hour standard is an important consideration. Accordingly, our final rules provide that a State may request approval of a SIP revision to remove its 1 hour nonattainment NSR program from its SIP and replace it with a NSR program based on its 8 hour classification. We will approve such changes to a State's SIP because we have determined based on section 110( l) of the Act that such changes will not interfere with any State's ability to reach attainment of the 8 hour standard and will be consistent with reasonable further progress. NSR is a prospective permitting program that only applies to future emissions from new and modified sources. Any source that is subject to the 1 hour NSR requirements is required to continue to comply with those requirements. In this respect, there will be no degradation of air quality by virtue of this SIP change. Moreover, unlike control measures, States do not rely on the NSR program to generate emissions reductions to move an area further toward attainment. The essential question is whether the NSR program changes will hinder future air quality improvements based on future growth projections. Such a question inherently involves a look at the present day air quality, which is best reflected by the current 8 hour classifications. As long as the State plans to manage growth within the emissions inventory and include growth in their attainment plans, new source growth will be consistent with RFP and not interfere with the State's ability to attain. Therefore, we believe that the 8 hour NSR program requirements, based on an area's present air quality needs, will assure that progress continues toward attainment despite future economic growth.

We also agree with those commenters who noted that ozone emissions are declining due to various control measures in place, such as the NO x SIP call, and that such controls are also achieving reductions of ozone precursors. Unlike control requirements such as RACT and I/ M, the NSR program is a growth measure and is not specifically designed to produce emissions reductions. Instead, its purpose is to allow new source growth to occur without interfering with an area's ability to attain. The statute and regulatory history identify nonattainment NSR as a growth 22For a more complete discussion of NSR as a growth measure, see the promulgation preamble at V. C. 5.

157 measure. 22 An 8 hour NSR program, including LAER and offsets for major stationary sources, will be implemented in conjunction with a State's control measures to assure, consistent with the requirements in Section 172( c)( 4), that the emissions from new sources will be consistent with RFP and not interfere with attainment of the applicable NAAQS.

For the reasons stated above, we are unpersuaded by commenters who state that 1 hour NSR requirements should be retained after the 1 hour NAAQS is revoked, either until the 1 hour or 8 hour NAAQS is attained.

NSR when Area is redesignated attainment for 1 hour standard Comment: One commenter agreed that areas that were designated non attainment for the 1 hour standard, and have been redesignated to attainment for the 1 hour standard, would not need to revert back to the NSR program it had for purposes of the 1 hour standard.

*********************** Does the requirement for continued implementation of the obligations addressed above expire at some point? ( Section VI. C. 4 of proposed rule; see 68 FR 32824; section 51.905( b) of both draft regulatory text and final rule.)

Comments from June 2, 2003 proposal:

Several commenters supported Option 1 ( mandatory measures can be shifted to contingency measures when the area achieves the level of the 1 hour standard). One commenter commented that this option gives the states flexibility to move control measures to the contingency plan as warranted.

Several commenters supported Option 2 ( mandatory measures can be shifted to contingency measures when the area attains the 8 hour standard). One commenter commented that this approach would allow EPA to evaluate an areas air quality programs and obligations in detail during the approval of a maintenance plan under CAA Section 175A for the 8 hour ozone NAAQS. One commenter said that this option allows states to continue to focus on the 158 8 hour standard. One commenter recommended that to ensure no backsliding, EPA should modify the classification system for 8 hour nonattainment areas so as to avoid placing most areas into lower classifications than under the 1 hour standard. Alternatively, EPA should require that control requirements specified in the Clean Air Act for 1 hour nonattainment areas continue in effect at least until such areas attain the eight hour standard.

Several commenters supported options other than Option 1 or 2. One commenter suggested the time for the shifting occur when the area achieves both standards. Another commenter recommended that the rule should only allow States to move measures to contingency measures if the State can demonstrate that such a move will not interfere with attainment or maintenance of the 8 hour standard.

Another commenter recommended that 1 hr requirements remain in place only to the extent that they will help with attainment of the 8 hr standard.

Comments from draft regulatory text:

Comment: One comment opposed the provision, and one commenter was unclear about the provision, stating only that 1 hr mandatory SIP measures that do not help toward attainment of the 8 hour standard should not be continued. One other commenter supported the provision. One commenter supports backsliding provisions to the extent that these provisions help an area attain and maintain the 8 hour standard. Once the 1 hour standard is revoked for an area, there should no longer be requirements that are in place solely to achieve attainment of the 1 hour NAAQS; attainment and maintenance of the 8 hour NAAQS should be the driving force behind SIP requirements.

Response: As noted in the June 2, 2003 proposed rulemaking, the obligations for the 1 hour ozone standard under subpart 2 were imposed " by operation of law" based on an area's classification and therefore must remain in force until the area attains the applicable ozone standard. We have decided that the point in time when such measures may be relegated to contingency measures is when the area attains the 8 hour standard and is redesignated to attainment. Also as noted in the June 2, 2003 proposal, if implementation any particular subpart 2 mandatory measure would cause an " absurd result," in a particular area, we proposed to entertain a request to waive the requirement for the area.

Comment: Regarding this provision, one commenter recommends that if the 1 hour standards are being met and the obligations not used or required, that they be allowed to be applied to the 8 hour SIP as a control measure or any other way needed to obtain emission reductions required under the new standard.