Areas designated attainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS (as of revocation of the 1997 ozone NAAQS) have already attained the most stringent existing standard, notwithstanding any existing nonattainment designation. These areas thus have developed nonattainment SIPs that in combination with federal measures and emissions controls in upwind areas have produced sufficient emissions reductions to achieve air quality that attained both the 1997 ozone NAAQS and resulted in an attainment designation for the more protective 2008 ozone NAAQS. They remain subject to the 1997 nonattainment area requirements already approved into the SIP, which can be revised only upon a showing that such revision complies with the anti-backsliding checks in CAA sections 110(l) and 193. Given the succession of NAAQS of increasing stringency that has occurred, the EPA believes that the burden of developing an approvable 110(a)(1) maintenance plan for the 2008 ozone NAAQS would outweigh any compensating benefit for an area that is already attaining that NAAQS and that is subject to prior nonattainment requirements which are already incorporated into the SIP and have been sufficient to bring the area into attainment of both the 1997 and 2008 standards.
d. Comments and Responses
	Comment: A commenter believed that the EPA should adopt the alternative approach. The commenter stated that an inequity arises from the fact that areas designated maintenance for the 1997 ozone NAAQS prior to revocation of the NAAQS have contingency measures that are activated should the area begin to re-violate the 1997 ozone NAAQS. These areas designated attainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS would not be subject to any maintenance plans or contingency measures. Implementing the alternative approach would address this inequity.
      Response: The EPA disagrees with the commenter. The control measures implemented by these areas and included in their SIPs have already produced sufficient emissions reductions to achieve air quality that not only attained the 1997 ozone NAAQS, but also resulted in an attainment designation for the more stringent 2008 ozone NAAQS. These control measures cannot be modified or removed without a demonstration satisfying section 110(l) and in some cases both sections 110(l) and 193. These demonstrations must address not only the 1997 ozone NAAQS but also the 2008 ozone NAAQS as well as any future NAAQS.
      Comment: One commenter believed both proposed approaches violate the plain language of the CAA by not requiring the area to submit a 175A maintenance plan, and thus opposed both options. A second commenter believed that the EPA should continue to require formal 10-year maintenance plan submittals for the 1997 ozone NAAQS from these areas in an attempt to guarantee that controls are not relaxed, thus impacting downwind areas.
      Response: We believe that an approved PSD SIP, in conjunction with the other already-existing statutory and regulatory provisions that govern implementation of ozone standards, and the historical safeguards in place for the area adopted for prior NAAQS, are generally sufficient to prevent backsliding, and to satisfy the requirement for maintenance under section 110(a)(1). The control measures implemented by these areas and included in their SIPs have already produced sufficient emissions reductions to achieve air quality that attained the 1997 ozone NAAQS, and resulted in an attainment designation for the more stringent 2008 ozone NAAQS . These control measures cannot be modified or removed without a 110(l) showing and in some cases both a 110(l) and a 193 showing. Areas designated attainment for the 2008 standard remain subject to the attainment and maintenance requirements of that standard. These include continued implementation of the control measures that brought the area into attainment. For these areas, and for any area designated attainment for the 2008 NAAQS, the CAA's general NAAQS air quality management framework and associated regulatory provisions continue to apply, and serve as the foundation for handling any potential future issues with maintaining the 2008 NAAQS.
3. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Maintenance for the 1997 Ozone NAAQS
a. Summary of the Proposal
	The EPA proposed that for these areas, the area's approved section 175A maintenance plan for the revoked 1997 ozone NAAQS would satisfy the obligation to submit a second approvable maintenance plan under section 175A for the revoked 1997 ozone NAAQS.
b. Final Action
	The EPA is finalizing this as proposed.
c. Rationale
	All areas in this group are already subject to an approved section 175A maintenance plan for the revoked 1997 ozone NAAQS and have been redesignated to attainment for the 1997 ozone NAAQS. As explained elsewhere, the approval of the redesignation request and of the section 175A maintenance plan for the 1997 ozone NAAQS required the EPA to determine that any anti-backsliding requirements of these areas for the 1997 standard, as well as any requirements that might be applicable for the 1-hour standard, have been met. Thus the EPA's approvals of the redesignation request and the maintenance plan for the 1997 standard signify not only that all applicable requirements for the 1997 ozone NAAQS have been met, but also that all applicable anti-backsliding measures for the 1-hour standard have been adopted and approved into the SIP. No revision to the section 175A maintenance plans for these areas can be approved unless it complies with the anti-backsliding checks in CAA sections 110(l) and 193.
	These areas are also designated nonattainment for the more stringent 2008 ozone NAAQS and therefore are subject to nonattainment NSR and other nonattainment requirements for their classification under the more stringent 2008 ozone NAAQS. Thus, the EPA believes that there is no justification for a second 175A maintenance plan to be imposed on these areas solely because at one time they were designated nonattainment under a revoked ozone NAAQS.
d. Comments and Responses
      Comment: A commenter that supported the EPA's approach indicated that the proposed regulatory text for areas designated nonattainment for the 2008 ozone NAAQS and maintenance for the 1997 ozone NAAQS, located in 51.1105(a)(2), should be modified in line with text in section 51.1105(a)(4) to allow maintenance plans to be modified consistent with CAA sections 110(l) and 193.
      Response: The EPA agrees that the text regarding areas designated maintenance for the 1997 ozone NAAQS should be modified. The regulatory text has been adjusted to reflect that maintenance plans can be modified pursuant to CAA sections 110(l) and 193.
      Comment: One commenter indicated that a second 10-year 175A maintenance plan was needed by these areas. The commenter maintained that the EPA's proposed approach does not demonstrate continued maintenance. The commenter stated that an area designated nonattainment for the 2008 ozone NAAQS should prepare a second maintenance plan to assure maintenance and set conformity budgets. Another commenter opposed the proposal because the CAA clearly requires two 10-year maintenance plans. The fact that the area is designated nonattainment under the 2008 ozone NAAQS is no guarantee that there will be no increase in ozone violations. The commenter suggested that the EPA review the record for areas violating a NAAQS for which it had been redesignated to attainment with an approved maintenance plan. Waiving the requirements of a second 10-year maintenance plan as described in CAA section 175A(b) without support is arbitrary and undermines the protections of the Act.
      Response: The EPA recognizes that the approved 175A maintenance plan for the 1997 ozone NAAQS can only be modified via a section 110(l) and, where appropriate, a section 193 showing. These analyses would have to demonstrate that any revisions to the maintenance plan would not interfere with the ability to demonstrate timely attainment for the new standard. The removal of the requirement for the second 10-year plan for maintenance of a revoked, less stringent standard that the areas previously attained allows states to focus planning and control efforts on attaining and maintaining the more stringent and currently applicable 2008 ozone NAAQS in these areas, for the already attained 1997 ozone NAAQS. The areas will remain subject to the MVEBs established in the approved 175A maintenance plan until such time that MVEBs for the more stringent 2008 ozone NAAQS are submitted and are found adequate or are approved, which must be used for transportation conformity determinations under the 2008 ozone NAAQS pursuant to the conformity regulations.
4. 2008 Nonattainment Areas Also Designated Nonattainment for a Prior Revoked Ozone NAAQS
a. Summary of the Proposal
      The EPA proposed that areas designated nonattainment for the 2008 ozone NAAQS and also designated nonattainment for the 1997 ozone NAAQS as of the revocation of the 1997 NAAQS will be subject to applicable anti-backsliding requirements for the applicable prior NAAQS as set forth in 51.1100(o), as well as the pertinent requirements for the current 2008 ozone NAAQS. In addition, if a state seeks to revise any measure already approved into its SIP for any prior standard, the revision must comply with the anti-backsliding checks in CAA sections 110(l) and 193.
b. Final Action
	The EPA is finalizing this as proposed. In an area designated nonattainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS at the time of revocation of the 1997 ozone NAAQS the state will be obligated to implement the applicable requirements set forth in 51.1100(o) for the 1997 ozone NAAQS. This could include, as applicable, anti-backsliding requirements associated with the revoked 1-hour NAAQS if the area was also designated nonattainment for the 1-hour ozone NAAQS when that NAAQS was revoked. Nonattainment NSR applies in these areas in accordance with their highest nonattainment classification under any ozone standard for which they are (or were at the time of revocation) designated nonattainment. Also, if these areas are classified Severe or Extreme at the time of revocation for a prior standard, the requirements of section 185 in relation to that prior standard continue to apply.
c. Rationale
 	The EPA believes that the application of anti-backsliding principles is very clear cut for this category of areas. These areas remain subject to the applicable requirements for the 2008 ozone NAAQS, as well as for any of the revoked ozone NAAQS for which the areas remained nonattainment, until the requirements are satisfied or suspended as detailed in sections IV.D and IV.E. The EPA received no adverse comments on this approach.
D. Satisfaction of Anti-backsliding Requirements for an Area
1. Summary of the Proposal
	The EPA proposed two acceptable procedures through which a state may demonstrate that it is no longer required to adopt any additional applicable requirements for an area which have not already been approved into the SIP for a revoked ozone NAAQS. Both procedures allow a state to remove or revise the nonattainment NSR provisions in the SIP and, upon a showing of consistency with the anti-backsliding checks in CAA sections 110(l) and 193 (if applicable), shift requirements which are contained in the active portion of the SIP to the contingency measures portion of the SIP.
      The first of the proposed procedures is formal redesignation of the area to attainment for the 2008 ozone NAAQS. For areas subject to anti-backsliding requirements for revoked standards, approval of a request for redesignation to attainment for the 2008 ozone NAAQS signifies that the state has satisfied its obligations to adopt anti-backsliding requirements for the revoked standards. This is an extension of the approach that the EPA adopted in the Phase 1 Rule. The EPA proposed that once the area is redesignated and the requirement(s) for nonattainment NSR for the 2008 ozone NAAQS and for any prior ozone NAAQS cease to apply, the state may request that the corresponding nonattainment NSR requirements be removed from the SIP rather than be retained as a maintenance plan contingency measure. The state would instead implement the PSD program.
      The second of the proposed procedures for satisfying anti-backsliding requirements was a new separate route referred to as a "redesignation substitute" for a revoked standard. This redesignation substitute showing would serve as a successor to redesignation to attainment, for which the area would have been eligible were it not for revocation. The showing is based on the CAA's criteria for redesignation to attainment [CAA section 107(d)(3)(E)]. States would have to demonstrate that the area has attained the relevant standard and met all of the requirements for redesignation. After notice-and-comment rulemaking on this showing, the EPA approval of the showing would have the same effect on the area's nonattainment anti-backsliding obligations as would a redesignation to attainment for the revoked standard. The EPA did not propose to require states to go through formal SIP submission procedures to submit a request for approval of a redesignation substitute because it is not a redesignation. The EPA proposed that such an area would no longer be subject to any remaining applicable anti-backsliding requirements and the nonattainment NSR requirements associated with the revoked NAAQS for which the area completed a redesignation substitute would be lifted, leaving the remaining NSR requirements to be determined by the highest remaining classification the area is subject to, whether for the 2008 ozone NAAQS or another revoked NAAQS for which the EPA had not approved a redesignation showing.
2. Final Action
	The EPA is finalizing both routes as acceptable ways to address anti-backsliding requirements. That is, states can choose either to submit a request to redesignate to attainment for the most current NAAQS with an approved 175A maintenance plan that addresses the current and revoked NAAQS, or to submit a redesignation substitute request for a revoked NAAQS. Under both of the these procedures, a state seeking to revise its SIP to remove anti-backsliding measures from the active portion of its SIP must demonstrate, pursuant to section 110(l), that such revision would not interfere with attainment or maintenance of any applicable NAAQS, or any other requirement of the CAA.
3. Rationale
      The first of the procedures, formal redesignation of the area to attainment for the 2008 ozone NAAQS, is an extension of the approach that the EPA adopted in the Phase 1 Rule. Redesignation to attainment for the 2008 ozone NAAQS would allow a state to terminate and remove from the active portion of its SIP any applicable anti-backsliding requirements, including nonattainment NSR requirements associated with its classifications under the 2008 ozone NAAQS, or under the 1997 or 1-hour ozone NAAQS, except for areas in the OTR. The area would instead need, at a minimum, to implement the PSD program. This approach is consistent with the EPA's longstanding interpretation of nonattainment NSR requirements for areas that are redesignated to attainment. Redesignation to attainment would also terminate any obligations to implement section 185 fee programs in a Severe or Extreme area for the 2008 or prior revoked 1997 or 1-hour ozone NAAQS pursuant to the express terms of CAA section 185.
	Approval of a redesignation to attainment for the 2008 ozone NAAQS signifies that the state has satisfied its obligations to adopt anti-backsliding requirements for the current and revoked standards for that area. This same approach was used in the Phase 1 Rule in requiring redesignations for the 1997 ozone NAAQS to address anti-backsliding requirements for the revoked 1-hour standard. Approval of the section 175A maintenance plan for the 2008 ozone NAAQS assures that the area's SIP includes the provisions necessary for maintenance of the 2008 ozone NAAQS, which is the most stringent of the NAAQS. Therefore, upon redesignation to attainment and approval of its plan for maintenance of the 2008 ozone NAAQS, an area will have satisfied its obligations to adopt anti-backsliding requirements. All of the anti-backsliding measures that have been approved into the SIP must continue to be implemented unless or until the state can show that such implementation is not necessary for maintenance, consistent with section 110(l) and section 193 if applicable.
	Experience has shown the EPA that a second mechanism for areas to address the requirements imposed by anti-backsliding requirements is also appropriate. After revocation of the 1997 ozone NAAQS, areas that attain and meet requirements for the revoked 1997 or 1-hour ozone NAAQS would be disadvantaged relative to areas that were redesignated to attainment for those standards prior to their revocation. Absent this second mechanism, areas that would otherwise have qualified for redesignation to attainment for the 1997 or 1-hour ozone NAAQS, were it not for revocation of those NAAQS, would need to continue implementing potentially outdated and onerous requirements for a NAAQS they have attained until they also qualify for redesignation to attainment for the more stringent 2008 ozone NAAQS. The EPA believes that, under any view of anti-backsliding for a revoked standard, it should not mean imposing requirements greater than those that would apply if the standard had not been revoked.
	The EPA has no mechanism for formally redesignating areas for a revoked standard. However, by establishing the redesignation substitute, the EPA is providing a pathway for states to demonstrate and for the EPA to acknowledge that they have satisfied the applicable requirements for the revoked 1-hour or 1997 ozone NAAQS by submitting a showing that functions as a substitute for redesignation to attainment for that revoked standard, and ensures that the substance of the redesignation requirements are met. For a revoked standard, this second mechanism will serve as a successor to redesignation to attainment, for which the area would have been eligible were it not for revocation.
	The EPA believes this is an acceptable approach because it is based on the CAA's criteria for redesignation to attainment [CAA section 107(d)(3)(E)]. A showing would include: attainment of the relevant revoked 1-hour or 1997 ozone NAAQS; a showing that attainment was due to permanent and enforceable emissions reductions; and a demonstration that the area can continue to maintain the standard over the next 10 years. Redesignation criteria in section 107(d)(3)(E)(ii) and (v) would be met by the existing approved SIP, under which the area has attained the revoked standard, in the context of (and reinforced by) the requirements for the new 2008 ozone NAAQS. The EPA will conduct notice-and-comment rulemaking on the state's showings. We believe a notice-and-comment process fulfills the function of redesignation to attainment for the purpose of satisfying anti-backsliding requirements for a revoked standard.
      The EPA believes that requiring more elaborate administrative procedures for purposes of approving a state's request for a redesignation substitute for a revoked NAAQS (for example, requiring states to use the formal SIP adoption process) would needlessly impose burdens because the area will remain subject to all the formal requirements for redesignation to attainment for the 2008 ozone NAAQS. Development of SIP revisions takes time and imposes administrative costs on states, industry and the public. As in the case of a redesignation to attainment for the 2008 ozone NAAQS, at the time of submitting a redesignation substitute request or at any time thereafter, a state may request to revise its SIP so as to cease implementing a specific nonattainment SIP requirement. However, this request could not be granted, and the SIP revised, until the EPA approves the redesignation substitute and a demonstration that the SIP revision meets the requirements of section 110(l). The EPA is not providing this mechanism for the purpose of allowing states to relax or avoid air quality management measures that are needed for attainment and maintenance of the 2008 ozone NAAQS. The showings required, the provisions of section 110(l), and the fact that the area remains subject to CAA requirements for the more stringent 2008 ozone NAAQS, assure that is not the case. It is, however, important to relieve states of requirements that are no longer necessary, or that can be replaced by other forms of protection that might better meet the local needs and circumstances of an area.
	The EPA is providing in the redesignation substitute option a mechanism that demands more than a determination of attainment of the prior NAAQS, and calls for a showing that addresses redesignation criteria for that NAAQS. Moreover, the process under this option occurs while the state remains subject to ongoing requirements to meet the new more stringent standard in that area. In this context, this final action is clearly sufficient for its limited anti-backsliding purpose -- it recognizes and supports the state's progress in having attained the prior standard in that area due to permanent and enforceable emissions reductions, and reinforces continued attainment by calling for a demonstration that the area can maintain the revoked standard.
 4. Comments and Responses
      Comment: Several commenters requested that the EPA preserve the statutory mechanism as described in 42 U.S.C 7407(d)(3) that would allow the EPA to redesignate areas for a revoked NAAQS.
      Response: After the revocation of a standard, the EPA believes that it can no longer take action to reclassify or to redesignate areas for that standard. Revocation of the standard removes both classifications and designations for the revoked standard. The EPA believes the two mechanisms provided in the final rule accomplish the goals of 42 U.S.C 7407(d)(3) [CAA section 107(d)(3)] in a manner consistent with anti-backsliding principles and appropriate for the circumstance where a more stringent NAAQS with the same form and averaging time exists and is being actively implemented.
      Comment: A commenter argued that redesignation to attainment for the 2008 ozone NAAQS is not sufficient to turn off anti-backsliding obligations triggered under the revoked 1-hour or the 1997 ozone NAAQS.
      Response: The EPA disagrees with the commenter. When the EPA approves a redesignation request for the current 2008 ozone NAAQS, we assess whether the area is in attainment for the current and previous NAAQS. The maintenance plan submitted by the state demonstrates that the area being considered for redesignation will continue for the next 10 years to attain the standard that is requisite to protect public health, and that attainment is due to permanent and enforceable emissions reductions. A redesignation to attainment signifies that the area has met the requirements of the 2008, as well as any revoked, NAAQS. CAA section 185 specifically indicates redesignation "as an attainment area for ozone" as a basis for terminating fee requirements. Also, redesignation to attainment historically has terminated nonattainment NSR requirements, which are not required to be kept in the SIP as contingency measures. See Greenbaum v. EPA (370 F.3d at 536). Moreover, redesignation for the current standard was the unchallenged basis for demonstrating satisfaction of anti-backsliding requirements in the EPA's previous Phase 1 anti-backsliding regime (69 FR 23951). We believe the application of the same principle when transitioning from the 1997 to the 2008 ozone NAAQS is an even better fit: it is impossible to attain the 2008 ozone NAAQS without first achieving air quality that would attain the 1997 ozone NAAQS due to the identical form of the two standards.
      Comment: A number of commenters supported the concept of the redesignation substitute, but requested that a more streamlined process be developed. Several commenters suggested that a clean data determination would be sufficient to terminate anti-backsliding requirements for a revoked NAAQS.
      Response: The EPA recognizes that a clean data determination alone is less burdensome for states than a section 107(d)(3) redesignation or a redesignation substitute. A clean data determination only suspends planning requirements associated with the NAAQS for which the determination was granted. However, we believe that the redesignation and redesignation substitute mechanisms represent the minimum set of requirements sufficient to demonstrate satisfaction of anti-backsliding requirements under the EPA's application of the principles of section 172(e). These mechanisms provide a way for states to demonstrate that they have attained these standards, they have met all the requirements for redesignations, and no longer need any anti-backsliding requirements beyond those already approved in their SIPs.
      Comment: Two commenters asked the EPA to reconsider the use of CAA section 172(e). One of these commenters asked that the use of 172(e) be applied to all applicable requirements required of areas subject to anti-backsliding allowing them to substitute measures at least as stringent as the controls listed. The other commenter believed no application of 172(e) is justified, even to section 185 fees where the EPA has historically applied this principle.
      Response: CAA section 172(e), which addresses relaxations of a NAAQS, requires protections for areas that have not attained a NAAQS prior to a relaxation, by requiring controls that are "not less stringent" than the controls applicable in nonattainment areas prior to any such relaxation. The EPA applied these principles in developing previous guidance on satisfying the anti-backsliding approach for CAA section 185 requirements. As stated in previous EPA guidance, we interpret the principles of 172(e) as authorizing, but not requiring, the Administrator to approve on a case-by-case basis "not less stringent" alternatives to the applicable section 185 fee program requirements associated with a revoked ozone NAAQS. The NRDC challenged this guidance in 2010. Although the court vacated the 2010 guidance memorandum on procedural grounds, it did not prohibit alternative programs, stating that "neither the statute nor our case law obviously precludes that alternative." See NRDC v. EPA, 643 F.3d 332 (D.C. Cir. July 2011). We believe the application of section 172(e) principles to applicable section 185 anti-backsliding requirements is an appropriate and reasonable use of the Administrator's discretion to approve "not less stringent" controls. However, we did not propose and do not intend at this time to promulgate regulatory language to apply principles of section 172(e) to other anti-backsliding requirements.
E. How will the EPA's determination of attainment ("Clean Data") regulation apply for purposes of the anti-backsliding requirements?
1. Summary of the Proposal
	The EPA proposed to apply the same approach with respect to determinations of attainment for the 2008 ozone NAAQS as applied under the 1997 ozone NAAQS under 40 CFR 51.918. Under 40 CFR 51.918, an EPA determination that an area attained the 1997 ozone NAAQS suspended the obligation to submit any attainment-related SIP planning elements for the 1997 ozone NAAQS not yet approved in the SIP, for so long as the area continued to be in attainment of that NAAQS. In order to reflect the ongoing status of the Clean Data Policy and to consolidate in one regulation a comprehensive provision applicable to determinations of attainment for all current and former ozone NAAQS, the EPA proposed to replace 40 CFR 51.918 with proposed 40 CFR 51.1118 after revocation of the 1997 ozone NAAQS.
2. Final Action
	The EPA is finalizing its proposed approach to implementing the Clean Data Policy with respect to the 2008 ozone NAAQS and all prior ozone NAAQS. Under the EPA's Clean Data Regulation, a determination of attainment suspends the obligation to submit certain attainment-related planning requirements for the associated NAAQS for an area as long as the area continues to attain that standard. For those areas that have already incorporated measures into their approved SIPs that satisfy the nonattainment requirements for that standard, section 110(l) functions as an anti-backsliding check to require continued implementation of such measures unless revised in accordance with its provisions.
      The planning elements that may be suspended under section 51.1118 are the same as those suspended under existing section 51.918: RFP requirements, attainment demonstrations, RACM, contingency measures and other state planning requirements related to attainment of the relevant standard. For a Severe or Extreme area, a section 185 fee program is expressly linked by the statute itself to an attainment plan; therefore suspension of the obligation to submit the attainment plan also necessarily suspends the obligation to submit the fee program which is part of the attainment plan (provided that the EPA has not already determined that the area failed to attain by its attainment deadline and thus triggered the obligation to implement a fee program). The EPA notes that a determination of attainment would not, however, suspend obligations to submit non-planning requirements such as nonattainment NSR, subpart 2 RACT or emission inventories under section 182(a)(1).
3. Rationale
	Section 51.1118 applies essentially the same language as 51.918. Upon revocation of the 1997 ozone NAAQS, this section would be applicable to determinations of attainment for all ozone NAAQS: the 2008, 1997 and the already revoked 1-hour ozone NAAQS. With the finalization of 51.1118, the EPA's long-standing Clean Data Policy, which has been upheld by the D.C. Circuit and all other courts that have considered it, is embodied in a regulation applicable for the purpose of all existing and prior ozone NAAQS. The EPA believes that continuation of this approach makes the most sense for implementing the 2008 ozone NAAQS.
4. Comments and Responses
      Comment: Two commenters indicated that a determination that an area has "clean data" for the more-stringent 2008 ozone NAAQS should be sufficient to lift anti-backsliding requirements for the 1997 and the 1-hour ozone NAAQS.
      Response: A clean data determination only suspends specific planning requirements, not mandatory control requirements, which could include, as applicable, anti-backsliding requirements associated with revoked NAAQS. As explained previously, the EPA believes that an approved redesignation to attainment or a redesignation substitute is necessary to lift anti-backsliding requirements. Section 51.1118 clarifies that a clean data determination for a specific standard only affects attainment-related planning requirements for that standard.
      Comment: A commenter requested that the EPA clarify language in the proposed section 51.1118 to indicate more specifically which NAAQS must be attained to suspend planning requirements.
      Response: The EPA will revise the language in 51.1118 to make it clear that a clean data determination for the 2008 NAAQS acts to suspend planning requirements associated with the 2008 and less stringent 1997 ozone NAAQS, which have an identical form.
F. What is the relationship between implementation of the 2008 ozone NAAQS and the CAA title V permits program?
1. Summary of the Proposal
      We proposed, and solicited comment on, two alternative approaches for implementing the title V permit program for sources in areas designated nonattainment for the 2008 ozone NAAQS and subject to anti-backsliding requirements for a prior ozone NAAQS. The EPA co-proposed two approaches to interpreting title V applicability requirements following revocation of the 1997 ozone NAAQS: (1) major source thresholds for title V should be the same as the major source thresholds applicable for purposes of other requirements such as RACT and NSR; and (2) major source thresholds for title V depend solely on the area's classification for the 2008 ozone NAAQS. The EPA specifically solicited comments on whether title V should (or should not) be considered a "control" within the meaning of section 172(e) in light of the fact that title V generally does not impose new substantive air quality control requirements but is intended to assure compliance with all such existing requirements.
2. Final Action
	We are finalizing the first option and the associated proposed revisions to parts 70 and 71. Following revocation of the 1997 ozone NAAQS, major source thresholds for title V will be the same as the major source thresholds applicable for purposes of other requirements, such as RACT and NSR (i.e., the major source threshold associated with the more stringent of the area's classification for the 2008, 1997 and/or 1-hour ozone NAAQS will be the applicable threshold for title V purposes, to the extent that anti-backsliding requirements for the 1997 and/or 1-hour ozone NAAQS apply in the area).
3. Rationale
      The EPA received a wide range of comments on the question of whether the major source thresholds for title V permitting should be considered a "control" for purposes of the anti-backsliding requirements of section 172(e). The EPA recognizes that many of these comments raise valid perspectives. It is true that title V generally does not impose new substantive pollution control requirements on sources, and thus ordinarily the EPA would not describe title V permitting itself as a "control." At the same time, the EPA does believe that one of the underlying purposes of title V is to assure compliance with the pollution control requirements applicable to a source. Thus, it may well be true that title V provides air quality benefits, and should be considered a "control" under the broad, functional analysis used by the court in the South Coast v. EPA decision. The EPA believes it is unnecessary to resolve this precise question at this time, because the EPA believes that regardless of whether title V should be considered a "control" for purposes of section 172(e), it fulfils the purposes and requirements of the Act for title V permitting thresholds to be the same as the permitting thresholds for underlying applicable requirements, particularly NSR which was considered a control by the South Coast court.
      Title V and NSR have long shared a common approach to the definition of major source.[,] The EPA concurs with the commenters, such as Texas and New York, who believe that we should maintain clarity and uniformity in major source threshold determinations for both NSR and title V.
      In addition, the EPA notes that, under CAA section 502, sources are required to operate in accordance with the terms of a title V permit if, inter alia, the source is a major source or the source is required to have a permit under part D of Title I. Thus, even if a source is not a major source for purposes of title V, it is still required to get a title V permit if it is required to have a permit under part D of title I. This provides additional support to the EPA's conclusion that the major source permitting threshold for NSR and RACT should be the same as for title V because otherwise, a source that is not a "major source" for purposes of title V might not understand it is still covered by the applicability provisions of parts 70 and 71, if it is required to have a permit under part D of title I.
      Maintaining consistency between the NSR and title V thresholds in this regard will promote compliance with CAA requirements by providing a simpler permitting regime, ensuring that sources subject to major source NSR understand they are also subject to title V, and enabling permitting authorities to identify sources that are potentially subject to major source NSR. The EPA believes a contrary approach would introduce not only complexity, but anomalies, into the permitting program that would be contrary to the purposes and requirements of the Act. As noted by commenters option 1 is supported by the fact that these thresholds emanate from the same provisions of the CAA (part D of title I), therefore, the intent of the CAA was presumably to keep the thresholds the same. To promote effective program implementation and ensure consistency with the CAA, this final rule will amend the relevant provisions of parts 70 and 71 related to application of title V thresholds.
4. Comments and Responses
      Comment: Several commenters supported the first option, which sets major source title V thresholds equal to those applied for RACT and NSR. One of these commenters supported the first option with the minor conforming amendments to the definition of major source in 40 CFR 70.2 and 71.2 as detailed on page 34225 of the proposal. Commenters stated that this approach would provide applicants with clarity and uniformity regarding applicable major source thresholds, and that this approach maintains the consistency which will ultimately simplify permitting and enforcement. A commenter indicated that option 1 is supported by the fact that these thresholds emanate from the same provisions of the CAA (part D of title I), therefore, the intent of the CAA was to keep the thresholds the same. Several commenters noted that the first approach is consistent with past precedent and compelled by the Act's anti-backsliding requirements as well as court precedent.
      Response: As discussed previously, the EPA agrees with these commenters that the major source threshold for title V should be the same as the major source threshold for NSR and RACT, and the EPA is finalizing the proposed revisions to parts 70 and 71 to make that clear.
      Comment: Several commenters supported the second approach, in which the major source thresholds for title V permitting are based solely on an area's classification for the 2008 ozone NAAQS. Commenters cited a number of reasons for this, including: this approach would provide relief to small operators, and that this approach makes good sense in a time of resource constraints. Several commenters questioned the utility of setting title V levels based on a revoked NAAQS. Several commenters also commented that EPA's understanding of the impacts of the South Coast v. EPA decision is not correct. These commenters agreed that the classifications of revoked NAAQS can impact the NSR level, but disagreed with the EPA that the title V levels are controlled by anything other than the current 2008 ozone NAAQS.
      Response: The EPA recognizes that the approach being adopted does not solely rely on the area's current classification for purposes of determining major source thresholds for title V. However, even assuming section 172(e) does not directly make title V a "control" for purposes of anti-backsliding, the EPA believes there is ambiguity in the intersection between title V and part D as to whether title V should apply the major source threshold of the area's current classification, or the area's classification for purposes of NSR and other underlying applicable requirements, when that threshold would be lower. As discussed previously, the EPA believes that it is appropriate under the CAA, and consistent with the EPA's longstanding approach to these programs, for a source which is considered to be "major" for purposes of NSR to also be considered "major" for purposes of title V. For the reasons stated previously, the EPA believes maintaining consistency in the major source applicability of the two programs is the best approach to promote consistency and compliance with the purposes and requirements of the CAA. Additional information can be found in the Response to Comments document.
      Comment: The EPA received a wide range of comments on the question of whether the major source thresholds for title V permitting should be considered a "control" for purposes of the anti-backsliding requirements of section 172(e). Several commenters believed that title V should be considered as a control within the meaning of section 172(e). One commenter stated that title V permits represent "controls" for purposes of the Act's anti-backsliding requirements and, as such, the EPA should abide by South Coast v. EPA and use the same major source thresholds for administering the title V permit program as the agency proposes to for the NSR and RACT programs. The commenter stated that title V permits serve as independently enforceable compliance assurance mechanisms that constrain emissions by sources and accordingly should be seen as control measures. Since title V permits collect multiple control requirements in one document, there is no reason for the agency to depart from South Coast v. EPA and treat title V permitting classifications differently than, for example, NSR permitting.
      A number of commenters stated that the title V program is not a control in and of itself. One commenter stated that the EPA has consistently stated that title V is a separate program when compared to the requirements of title I. Several commenters stated that the history of title V rulemaking is clear on this point, indicating that the EPA has stated repeatedly that no substantive controls are imposed simply by having a title V permit. Title V should not be considered a "control" in light of the fact that title V is not intended to impose new substantive air quality control requirements but is instead intended to assure compliance with all existing applicable requirements.
      Response: The EPA recognizes that both sets of comments raise valid perspectives. It is true that title V generally does not impose new substantive pollution control requirements on sources, and thus ordinarily the EPA would not describe title V permitting itself as a "control." At the same time, the EPA does believe that one of the underlying purposes of title V is to improve compliance with the pollution control requirements applicable to a source, and thus it may well be true that title V provides air quality benefits, and should be considered a "control" under the broad, functional analysis used by the court in the South Coast v. EPA decision. The EPA believes it is unnecessary to resolve this precise question at this time, because the EPA believes that regardless of whether title V should be considered a "control" for purposes of section 172(e), it fulfills the purposes and requirements of the CAA for title V permitting thresholds to be the same as the permitting thresholds for underlying applicable requirements, particularly NSR. Thus, the EPA is taking final action adopting the interpretation that major source definitions should be the same for both programs.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
      This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. This action raises novel policy issues. Any changes made in response to OMB recommendations have been documented in the docket.
 B. Paperwork Reduction Act (PRA)
	The information collection activities in this final rule have been submitted for approval to the Office of Management and Budget under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned the EPA ICR number 2347.01 and OMB Reference number<PHONE_NUMBER>-003. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
      The EPA is finalizing this 2008 ozone NAAQS SIP Requirements Rule so that states will know what CAA requirements apply to their nonattainment areas when the states develop their SIPs for attaining and maintaining the NAAQS. The intended effect of the SIP Requirements Rule  is to provide certainty to states regarding their planning obligations such that states may begin SIP development. For purposes of analysis of the estimated paperwork burden, the EPA assumed 46 nonattainment areas,  some of which must prepare an attainment demonstration as well as submit an RFP and RACT SIP. The attainment demonstration requirement would appear in 40 CFR 51.1108 which implements CAA subsections 172(c)(1), 182(b)(1)(A) and 182(c)(2)(B). The RFP SIP submission requirement would appear in 40 CFR 51.1110, and the RACT SIP submission requirement would appear in 40 CFR 51.1112, which implements CAA subsections 172(c)(1) 182(b)(2),(c),(d) and (e).
      States should already have information from many emission sources, as facilities should have provided this information to meet 1-hour and 1997 ozone NAAQS SIP requirements, operating permits and/or emissions reporting requirements. Such information does not generally reveal the details of production processes. But, to the extent it may, confidential business information for the affected facilities is protected. Specifically, submissions of emissions and control efficiency information that is confidential, proprietary and trade secret is protected from disclosure under the requirements of subsections 503(e) and 114(c) of the CAA.
      The annual burden for this information collection averaged over the first 3 years of this ICR is estimated to be a total of 120,000 labor hours per year at an annual labor cost of $2.4 million (present value) over the 3-year period or approximately $91,000 per state for the 26 state air agency respondents, including the District of Columbia. The Information Collection Request Supporting Statement for the 2008 8-hour Ozone National Ambient Air Quality Standard Implementation Rule EPA ICR # 2347.02 in the docket provides the details for the 26 state air agencies that are required to provide the 58 SIP revisions for the 46 areas designated nonattainment for the 2008 ozone standard. The average annual reporting burden is 690 hours per response, with approximately 2 responses per state for 58 state responses from the state air agencies. There are no capital or operating and maintenance costs associated with the proposed rule requirements. Burden is defined at 5 CFR 1320.3(b).
Respondents/affected entities: States with 46 nonattainment areas
Respondent's obligation to respond: mandatory (Clean Air Act, sections 172 and 182)
Estimated number of respondents: 26 state respondents
Frequency of response: Once
Total estimated burden: 40,000 hours (per year). Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: $2.4 million (per year), includes $0 annualized capital or operation & maintenance costs.
	An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.
C.  Regulatory Flexibility Act (RFA)
      I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Entities potentially affected directly by this rule include state, local and tribal governments and none of these governments are small governments. Other types of small entities are not directly subject to the requirements of this rule because this action only addresses how a SIP will provide for adequate attainment and maintenance of the NAAQS and meet the obligations of the CAA. Although some states may ultimately decide to impose economic impacts on small entities, that is not required by this rule and would only occur at the discretion of the state.
D. Unfunded Mandates Reform Act (UMRA)
      This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531 - 1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in [the Clean Air Act without the exercise of any policy discretion by the EPA.
E. Executive Order 13132: Federalism
      This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments
	This action does not have tribal implications as specified in Executive Order 13175. It would not have a substantial direct effect on one or more Indian tribes, since no tribe has to develop a TIP under these regulatory revisions. Furthermore, these regulation revisions do not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.
      Although Executive Order 13175 does not apply to this action, the EPA met with tribal officials in developing the proposal. Meeting summaries are contained in the docket for this rulemaking.
G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks
      The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of "covered regulatory action" in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use
      This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTA)
      This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
      The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment.
      The final revisions to the regulations address the substantive requirements for SIPs to attain the NAAQS, which are designed to protect all segments of the general populations. As such, they do not adversely affect the health or safety of minority or low-income populations and are designed to protect and enhance the health and safety of these and other populations. The EPA encourages states to consider any potential impacts on these populations in developing SIPs to attain the NAAQS.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a "major rule" as defined by 5 U.S.C. 804(2).L. Determination under Section 307(d)
Pursuant to CAA section 307(d)(1)(V), the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to rulemaking under the CAA. Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to "such other actions as the Administrator may determine."
M. Judicial Review
      Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final agency actions by the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of "nationally applicable regulations promulgated, or final actions taken, by the Administrator" or (ii) when such action is locally or regionally applicable, if "such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination."
      This rule implementing the 2008 ozone NAAQS is "nationally applicable" within the meaning of section 307(b)(1). First, the rulemaking addresses a NAAQS that applies to all states and territories in the U.S. Second, the rulemaking addresses issues relevant to specific existing SIP provisions in states across the U.S. that are located in each of the 10 EPA Regions, numerous federal circuits and multiple time zones. Third, the rulemaking addresses a common core of knowledge and analysis involved in formulating the decision and a common interpretation of the requirements of the CAA being applied to SIPs in states across the country. Fourth, the rulemaking, by addressing issues relevant to appropriate SIP provisions in one state, may have precedential impacts upon the SIPs of other states nationwide. Courts have found similar rulemaking actions to be of nationwide scope and effect.
      Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. Under section 307(b) (2) of the Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

                            APPENDIX A TO PREAMBLE
                        GLOSSARY OF TERMS AND ACRONYMS

ACT		Alternative Control Techniques (document)
AERR		Air Emissions Reporting Requirements Rule
BACT		Best Available Control Technology
CAA		Clean Air Act
CAAAC	Clean Air Act Advisory Committee
CAIR		Clean Air Interstate Rule
CERR		Consolidated Emissions Reporting Rule
CFR		Code of Federal Regulations
CO		Carbon Monoxide
CSAPR	Cross-State Air Pollution Rule
CTG		Control Technique Guideline
DOT		Department of Transportation
DV		Design Value
EMFAC	EMissions FACtors (a mobile emissions model)
ESRP		Emissions Statement Reporting Program
EGU		Electricity Generating Unit
EO		Executive Order
EPA		Environmental Protection Agency
FIP		Federal Implementation Plan
GDF		Gasoline dispensing facilities
HEDD		High Electric Demand Day
ICR		Information Collection Requirement
I/M		Inspection and Maintenance (i.e., smog check)
km		Kilometers
LAER		Lowest Achievable Emission Rate
MACT		Maximum Achievable Control Technology
MCR 		Mid-course Review
MPO		Metropolitan Planning Organization
NAAQS	National Ambient Air Quality Standards
NOx		Nitrogen Oxides
NPRM		Notice of Proposed Rulemaking
NSR		New Source Review
NTTAA	National Technology Transfer and Advancement Act of 1995
OMB		Office of Management and Budget
OTR		Ozone Transport Region
ORVR		Onboard refueling vapor recovery
PM		Particulate Matter
PM2.5		Fine Particulate Matter
ppb		Parts per Billion
ppm		Parts per Million
PSD		Prevention of Significant Deterioration
RACM		Reasonably Available Control Measures
RACT		Reasonably Available Control Technology
RFA		Regulatory Flexibility Act
RFG		Reformulated Gasoline
RFP		Reasonable Further Progress
ROP		Rate-of-Progress
RPO		Regional Planning Organization
SBA		Small Business Administration
SIP		State Implementation Plan
TAR		Tribal Authority Rule
TAS		Treatment in the Same Manner as a State ("Treatment as State")
TIP	Tribal Implementation Plan; also Transportation Improvement Program (depending on context)
tpd		Tons Per Day
tpy		Tons Per Year
TSP		Total Suspended Particulate
UMRA	Unfunded Mandates Reform Act of 1995
VCS		Voluntary Consensus Standards
VOC		Volatile Organic Compound
APPENDIX B TO FINAL - LIST OF AREAS NONATTAINMENT FOR THE 2008 OZONE NAAQS IN ADDITION TO A PRIOR OZONE NAAQS
Table 1: Areas nonattainment for both the 2008 and 1997 ozone NAAQS

                         2008 Nonattainment Area Name
                       2008 8-hour Ozone Classification
                       1997 8-hour Ozone Classification

                      1997 Ozone Attainment Determination

Calaveras County, CA*
Marginal
Moderate
Attainment Deadline Determination
Clean Data Determination
Chico Area, CA
Marginal
Marginal
Attainment Deadline Determination
Clean Data Determination
Denver-Boulder-Greeley-Ft. Collins-Loveland Area, CO
Marginal
Marginal

Imperial County Area, CA
Marginal
Moderate
Clean Data Determination
Jamestown Area, NY
Marginal
Moderate
Clean Data Determination **
Kern County (Eastern Kern) Area, CA
Marginal
Moderate
Attainment Deadline Determination
Clean Data Determination
Mariposa County, CA *
Marginal
Moderate
Attainment Deadline Determination
Clean Data Determination
Nevada County (Western part) Area, CA
Marginal
Moderate
Attainment Deadline Determination
Clean Data Determination

Pittsburgh-Beaver Valley Area, PA
Marginal
Moderate
Clean Data Determination **
Sheboygan County, WI
Marginal
Moderate
Clean Data Determination

St. Louis-St. Charles-Farmington, MO-IL *
Marginal
Moderate
Attainment Deadline Determination ***
Clean Data Determination

   * 2008 nonattainment area boundary differs from 1997 nonattainment area boundary.

   ** The EPA published a proposed approval action for the state submitted redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS.

   ** Former subpart 1 areas with Determinations of Attainment prior to subpart 2 classification on May 14, 2012 (77 FR 28424). The EPA is considering approving an Attainment Deadline Determination for the Marginal or Moderate 1997 ozone NAAQS attainment date.

   *** The EPA published a final approval action for the redesignation request submitted by the state of IL under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS. The state of MO submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS.
   Table 2: Areas nonattainment for the 2008, 1997, and 1-hour ozone NAAQS

                         2008 Nonattainment Area Name
                  2008           8-hour Ozone Classifi-cation
                         1-hour Ozone Classifi-cation
                     1-hour Ozone Attainment Determination
                       1997 8-hour Ozone Classifi-cation
                     1997 Ozone  Attainment Determination
Baltimore Area, MD
Moderate
Severe 15
Clean Data Determination
Serious

Dallas-Fort Worth Area, TX *
Moderate
Serious
Clean Data Determination
Serious

Dukes County, MA *
Marginal
Serious
Clean Data Determination, Attainment Deadline Determination
Moderate
Clean Data Determination, Attainment Deadline Determination
Greater Connecticut Area, CT
Marginal
Serious
Clean Data Determination
Moderate
Clean Data Determination,
Attainment Deadline Determination
Houston-Galveston-Brazoria Area, TX
Marginal
Severe 17

Severe 15

Los Angeles and San Bernardino Counties (W Mojave Desert) Area, CA
Severe 15
Severe 17

Severe 15

Los Angeles-South Coast Air Basin Area, CA
Extreme
Extreme

Extreme

Morongo Areas of Indian Country (Morongo Band of Mission Indians) **
Serious

Severe-17

Severe 17

New York-N. New Jersey-Long Island Area, NY, NJ, CT
Marginal
Severe 17
Clean Data Determination
Moderate
Clean Data Determination, Attainment Deadline Determination
Pechanga Areas of Indian Country (Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation) ***
Moderate

Extreme

Severe 17

Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE *
Marginal
Severe 15
Clean Data Determination, Attainment Deadline Determination
Moderate
Clean Data Determination, Attainment Deadline Determination
Riverside County (Coachella Valley) Area (1-hr Southeast Desert), CA
Severe 15
Severe 17

Severe 15

Sacramento Metro Area, CA
Severe 15
Severe 15
Clean Data Determination
Severe 15

San Francisco Bay Area, CA
Marginal
Other
Clean Data Determination, Attainment Deadline Determination
Marginal

San Joaquin Valley Area, CA
Extreme
Extreme

Extreme

Seaford, DE ****
Marginal
Marginal
Clean Data Determination, Attainment Deadline Determination
Moderate
Clean Data Determination, Attainment Deadline Determination
Ventura County (part) Area, CA
Serious
Severe 15
Clean Data Determination, Attainment Deadline Determination
Serious
 Clean Data Determination
Washington Area, DC, MD, VA
Marginal
Severe 15
Clean Data Determination, Attainment Deadline Determination
Moderate
Clean Data Determination, Attainment Deadline Determination

* 2008 nonattainment area boundary differs from 1997 and 1-hr ozone nonattainment area boundary.

** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries.  The EPA published a correction of the classification for the 1997 ozone and 1-hr ozone  NAAQS on September 23, 2013 (78 FR 58189).

*** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. The EPA published a correction of the classification for the 1997 ozone   NAAQS on May 5, 2010 (75 FR 24409).

**** Part of the Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE for 1997 ozone nonattainment area boundary, and part of the Sussex County, DE ozone nonattainment area boundary for the 1-hour ozone NAAQS.

Statutory Authority
      The statutory authority for this action is provided by sections 109; 110; 172; 181 through 185B; 301(a)(1) and 501(2)(B) of the CAA, as amended (42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C. 7511-7511f; 42 U.S.C. 7601(a)(1); 42 U.S.C. 7661(2)(B)).
List of Subjects
40 CFR Part 50
	Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
40 CFR Part 51
	Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Transportation, Volatile organic compounds.
40 CFR Part 52
	Air pollution control, Intergovernmental relations, Ozone, Particulate matter.
40 CFR Part 70
	Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Operating permits, Ozone, Particulate matter, Reporting and record keeping requirements, Volatile organic compounds.

Page 188 of 217 - Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements

40 CFR Part 71
      Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Operating permits, Ozone, Particulate matter, Reporting and record keeping requirements, Volatile organic compounds.

__________________________________
Dated:

__________________________________
Gina McCarthy,
Administrator.

For the reasons stated in the preamble, Title 40, Chapter I of the Code of Federal Regulations is amended as follows:
PART 50 - NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY STANDARDS
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In §50.10, revise paragraph (c) to read as follows:
§50.10 National 8-hour primary and secondary ambient air quality standards for ozone.
 *     *     *     *     *
(c) Until the effective date of the final Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements Rule to be codified at 40 CFR 51.1100 et seq., the 1997 ozone NAAQS set forth in this section will continue in effect, notwithstanding the promulgation of the 2008 ozone NAAQS under §50.15. The 1997 ozone NAAQS set forth in this section will no longer apply upon the effective date of the final SIP Requirements Rule. For purposes of the anti-backsliding requirements of 40 CFR 51.1105 and 51.1114, the area designations and classifications with respect to the revoked 1997 ozone NAAQS are codified in 40 CFR part 81.

PART 51 - REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS
3. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
SUBPART X-PROVISIONS FOR IMPLEMENTATION OF 8-HOUR OZONE NATIONAL AMBIENT AIR QUALITY STANDARDS
4. Add §51.919 to read as follows:
§51.919 Applicability.
As of the effective date of the SIP Requirements Rule codified at 40 CFR 51.1100 et seq. for the 2008 ozone NAAQS, the provisions of Subpart AA shall replace the provisions of Subpart X, 51.900 to 51.918, which will cease to apply, with the exception of 51.907 for the anti-backsliding purposes of 51.1105(d)(2).

Subpart AA -- Provisions for Implementation of the 2008 Ozone National Ambient Air Quality Standards
5. In §51.1100, add paragraphs (o) through (cc) to read as follows:

§51.1100 Definitions.
*     *     *     *     *
(o)  Applicable requirements for an area means the following requirements, to the extent such requirements apply to the area  pursuant to its classification under CAA section 181(a)(1) for the 1-hour NAAQS or the 1997 ozone NAAQS at the time of revocation of the 1997 ozone NAAQS:
(1) Reasonably available control technology (RACT).
(2) Vehicle inspection and maintenance programs (I/M) under CAA section 182(b)(4) and 182(c)(3).
(3) Major source applicability cut offs for purposes of RACT.
(4) Reductions to achieve Reasonable Further Progress (RFP).
(5) Clean fuels fleet program under CAA section 183(c)(4).
(6) Clean fuels for boilers under CAA section 182(e)(3).
(7) Transportation Control Measures (TCMs) during heavy traffic hours as specified under CAA section 182(e)(4).
(8) Enhanced (ambient) monitoring under CAA section 182(c)(1).
(9) Transportation controls under CAA section 182(c)(5).
(10) Vehicle miles traveled provisions of CAA section 182(d)(1).
(11) NOx requirements under CAA section 182(f).
(12) Attainment demonstration.
(13) Nonattainment contingency measures required under CAA sections 172(c)(9) and 182(c)(9) for failure to attain the 1-hour or 1997 ozone NAAQS by the applicable attainment date or to make reasonable further progress toward attainment of the 1-hour or 1997 ozone NAAQS.
(14) Nonattainment NSR major source thresholds and offset ratios.
(15) Penalty fee program requirements for Severe and Extreme Areas under CAA section 185.
(16) Contingency measures associated with areas utilizing CAA section 182(e)(5).
(17) Reasonably available control measures (RACM) requirements under CAA section 172(c)(1).
(p) CSAPR means the Cross State Air Pollution Rule
(q) CAIR means the Clean Air Interstate Rule codified at 40 CFR 51.123(a) through (ee).
(r)  NOx SIP Call means the rules codified at 40 CFR 51.121 and 51.122.
(s)  Ozone transport region (OTR) means the area established by CAA section 184(a) or any other area established by the Administrator pursuant to CAA section 176A for purposes of ozone.
(t)  Reasonable further progress (RFP) means both the emissions reductions required under CAA section 172(c)(2) which EPA interprets to be an average 3 percent per year emissions reductions of either VOC or NOx and CAA sections 182(c)(2)(B) and (c)(2)(C) as well as the overarching program of both the 15 percent reductions over the first six years of the plan and the following three percent per year average.
(u)  Rate-of-progress (ROP) means the 15 percent progress reductions in VOC emissions over the first 6 years required under CAA section 182(b)(1).
(v) Revocation of the 1-hour NAAQS means the time at which the 1-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b).
(w)  Revocation of the 1997 ozone NAAQS means the time at which the 1997 8-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.10(c).
(x)  Subpart 1 means subpart 1 of part D of title I of the CAA.
(y)  Subpart 2 means subpart 2 of part D of title I of the CAA.
 (z)  I/M refers to the inspection and maintenance programs for in-use vehicles required under the 1990 Clean Air Act and defined by subpart S of 40 CFR part 51.
(aa) An area "Designated nonattainment for the 1-hour ozone NAAQS" means, for purposes of section 51.1105, an area that is subject to applicable 1-hour ozone NAAQS anti-backsliding requirements at the time of revocation of the 1997 ozone NAAQS.
(bb) Base year inventory for the nonattainment area means a comprehensive, accurate, current inventory of actual emissions from sources of VOC and NOx emitted within the boundaries of the nonattainment area as required by CAA section 182(a)(1).
(cc) Ozone season day emissions means an average day's emissions for a typical ozone season work weekday. The state shall select, subject to EPA approval, the particular month(s) in the ozone season and the day(s) in the work week to be represented, considering the conditions assumed in the development of RFP plans and/or emissions budgets for transportation conformity.
6. Add §§51.1104 through 51.1119 to read as follows:

§51.1104 [Reserved]

§51.1105 Transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS and anti-backsliding.
(a)  Requirements that continue to apply after revocation of the 1997 ozone NAAQS.
(1) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS nonattainment. The following requirements apply to an area designated nonattainment for the 2008 ozone NAAQS and also designated nonattainment for the 1997 ozone NAAQS, or nonattainment for both the 1997 and 1-hour ozone NAAQS, at the time of revocation of the 1997 ozone NAAQS: the area remains subject to the obligation to adopt and implement the applicable requirements defined in §51.1100(o), for any NAAQS for which it was designated nonattainment at the time of revocation, in accordance with its classification for that NAAQS at the time of that revocation, except as provided in paragraph (b) of this section.
(2) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS maintenance.
For an area designated nonattainment for the 2008 ozone NAAQS that was redesignated to attainment for the 1997 ozone NAAQS prior to [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] (hereinafter a "maintenance area") the approved SIP, including the maintenance plan,  can be considered to satisfy the applicable requirements defined in section 51.1100(o) for the revoked NAAQS. The measures in the approved SIP and maintenance plan shall continue to be implemented in accordance with the terms in the SIP. Any measures associated with applicable requirements that were shifted to contingency measures prior to [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] may remain in that form. After [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], and to the extent consistent with any SIP for the 2008 ozone NAAQS and with sections 110(l) and 193, the state may request that obligations under the applicable requirements of section 51.1100(o) be shifted to the SIP's list of maintenance plan contingency measures.
(3) 2008 ozone NAAQS attainment and 1997 ozone NAAQS nonattainment.
For an area that is designated attainment for the 2008 ozone NAAQS, and designated nonattainment for the 1997 ozone NAAQS or for both the 1997 and the 1-hour ozone NAAQS as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] the area is no longer subject to nonattainment NSR and the state may at any time request that the nonattainment NSR provisions applicable to the area be removed from the SIP. The state may request, consistent with CAA section 110(l) and 193, that SIP measures adopted to satisfy other applicable requirements of §51.1100(o) be shifted to the SIP's list of maintenance contingency measures.  The area's approved PSD SIP shall satisfy the state's obligations with respect to the area's maintenance of the 2008 ozone NAAQS pursuant to CAA section 110(a)(1).
 (4) 2008 ozone NAAQS attainment and 1997 ozone NAAQS maintenance.
An area that is designated attainment of the 2008 ozone NAAQS and which has been redesignated to attainment for the 1997 ozone NAAQS with an approved section 175A maintenance plan, can be considered to satisfy the applicable requirements set forth in section 51.1100(o) through implementation of the provisions of its SIP and maintenance plan. After [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], and to the extent consistent with sections 110(l) and 193, the state may request that obligations under the applicable requirements of section 51.1100(o) be shifted to its list of maintenance plan contingency measures.
For an area that is initially designated attainment for the 2008 ozone NAAQS and which has been redesignated to attainment for the 1997 ozone NAAQS with an approved section 175A maintenance plan and an approved PSD SIP, the area's approved section 175A plan and PSD SIP shall initially be considered to satisfy the state's obligations under CAA section 110(a)(1) with respect to maintenance of the 2008 ozone NAAQS.
(b)  Effect of Redesignation or Redesignation Substitute.
(1) A state remains subject to the anti-backsliding obligations for a revoked NAAQS under paragraphs (a)(1) and (a)(2) of this section until either (1) EPA approves a redesignation to attainment for the area for the 2008 ozone NAAQS; or (2) EPA approves a state's showing for the area in a redesignation substitute procedure for a revoked NAAQS. Under this redesignation substitute procedure for a revoked NAAQS, and for this limited anti-backsliding purpose, the state must show that the area has attained that revoked NAAQS due to permanent and enforceable emission reductions, and demonstrate that the area will maintain that NAAQS for 10 years from the date of EPA's approval of this showing.
(2) If EPA, after notice-and-comment rulemaking, approves a redesignation the state may request that provisions for nonattainment NSR be removed from the SIP, and that other anti-backsliding obligations be shifted to contingency measures provided that such action is consistent with CAA sections 110(l) and 193.
(3) If EPA, after notice and comment rulemaking, approves a redesignation substitute for a revoked NAAQS, the state may request to remove from the SIP provisions for nonattainment NSR for that revoked NAAQS. The state may also request to shift other anti-backsliding obligations for the relevant revoked NAAQS to contingency measures provided that such action is consistent with CAA sections 110(l) and 193.
(c) Portions of an area designated nonattainment or attainment for the 2008 ozone NAAQS that remain subject to the obligations identified in paragraph (a) of this section.
Only that portion of the designated nonattainment or attainment area for the 2008 ozone NAAQS that was required to adopt the applicable requirements in §51.1100(o) for purposes of the 1-hour or 1997 ozone NAAQS is subject to the obligations identified in paragraph (a) of this section. 40 CFR part 81, subpart C identifies the areas designated nonattainment and associated area boundaries for the 1997 ozone NAAQS. Areas that are designated nonattainment for the 1997 ozone NAAQS at the time of designation for the 2008 ozone NAAQS may be redesignated to attainment prior to the effective date of revocation of that ozone NAAQS.
(d)  Obligations under the 1997 ozone NAAQS that no longer apply after revocation of the 1997 ozone NAAQS.
(1) Second 10-year Maintenance plans. As of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], an area with an approved 1997 ozone NAAQS maintenance plan under CAA section 175A is not required to submit a second 10-year maintenance plan for the 1997 ozone NAAQS 8 years after approval of the initial 1997 ozone NAAQS maintenance plan.
(2) Determinations of failure to attain the 1997 and/or 1-hour NAAQS.
(i) As of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], the EPA is no longer obligated to determine pursuant to CAA section 181(b)(2) or section 179(c) whether an area attained the 1997 ozone NAAQS by that area's attainment date for the 1997 ozone NAAQS.
(ii) As of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], the EPA is no longer obligated to reclassify an area to a higher classification for the 1997 ozone NAAQS based upon a determination that the area failed to attain the 1997 ozone NAAQS by the area's attainment date for the 1997 ozone NAAQS.
(iii) For the revoked 1-hour and 1997 ozone NAAQS, the EPA is required to determine whether an area attained the 1-hour or 1997 ozone NAAQS by the area's attainment date solely for anti-backsliding purposes to address an applicable requirement for nonattainment contingency measures and section 185 fee programs. In making such a determination, the EPA may consider and apply the provisions of CAA section 181(a)(5) and former section 51.907 in interpreting whether a 1-year extension of the attainment date is applicable under section 172(a)(2)(C) of the CAA.
(e) Continued applicability of the FIP and SIP requirements pertaining to interstate transport under CAA section 110(a)(2)(D)(i) and (ii) after revocation of the 1997 ozone NAAQS. All control requirements associated with a FIP or approved SIP in effect for an area as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], such as the NOx SIP Call, the CAIR, or the CSAPR shall continue to apply after revocation of the 1997 ozone NAAQS. Control requirements approved into the SIP pursuant to obligations arising from section 110(a)(2)(D)(i) and (ii), including 40 CFR §§51.121, 51.122, 51.123, and 51.124, may be modified by the state only if the requirements of §§51.121, 51.122, 51.123, and 51.124, including statewide NOx emission budgets continue to be in effect. Any such modification must meet the requirements of CAA section 110(l).
(f)  New source review. An area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] remains subject to the obligation to adopt and implement the major source threshold and offset requirements for nonattainment NSR that apply or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182 based on the highest of: (i) the area's classification under CAA section 181(a)(1) for the 1-hour NAAQS as of the effective date of revocation of the 1-hour ozone NAAQS; (ii) the area's classification under 40 CFR §51.903 for the 1997 ozone NAAQS as of the date a permit is issued or as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], whichever is earlier; and (iii) the area's classification under 40 CFR 51.1103 for the 2008 ozone NAAQS. Upon removal of nonattainment NSR obligations for a revoked NAAQS under §51.1105(b)(ii), the state remains subject to the obligation to adopt and implement the major source threshold and offset requirements for nonattainment NSR that apply or applied to the area for the remaining applicable NAAQS consistent with this paragraph.

§51.1106 Redesignation to nonattainment following initial designations.
For any area that is initially designated attainment for the 2008 ozone NAAQS and that is subsequently redesignated to nonattainment for the 2008 ozone NAAQS, any absolute, fixed date applicable in connection with the requirements of this part other than an attainment date is extended by a period of time equal to the length of time between the effective date of the initial designation for the 2008 ozone NAAQS and the effective date of redesignation, except as otherwise provided in this subpart. The maximum attainment date for a redesignated area would be based on the area's classification, consistent with Table 1 in §51.1103.

§51.1107 Determining eligibility for 1-year attainment date extensions for the 2008 ozone NAAQS under CAA section 181(a)(5).
(a) A nonattainment area will meet the requirement of CAA section 181(a)(5)(B) pertaining to 1-year extensions of the attainment date if:
(1) For the first 1-year extension, the area's 4th highest daily maximum 8 hour average in the attainment year is 0.075 ppm or less.
(2) For the second 1-year extension, the area's 4th highest daily maximum 8 hour value, averaged over both the original attainment year and the first extension year, is 0.075 ppm or less.
(b) For purposes of paragraph (a) of this section, the area's 4th highest daily maximum 8 hour average for a year shall be from the monitor with the highest 4th highest daily maximum 8 hour average for that year of all the monitors that represent that area.

§51.1108 Modeling and attainment demonstration requirements.
 (a) An area classified as Moderate under §51.1103(a) shall be subject to the attainment demonstration requirement applicable for that classification under CAA section 182(b), and such demonstration will be submitted no later than 36 months after the effective date of the area's designation for the 2008 ozone NAAQS.
(b) An area classified as Serious or higher under §51.1103(a) shall be subject to the attainment demonstration requirement applicable for that classification under CAA section 182(c), and such demonstration shall be submitted no later than 48 months after the effective date of the area's designation for the 2008 ozone NAAQS.
(c) Attainment demonstration criteria. An attainment demonstration due pursuant to paragraph (a) or (b) of this section must meet the requirements of §51.112; the adequacy of an attainment demonstration shall be demonstrated by means of a photochemical grid model or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective.
(d) Implementation of control measures. For each nonattainment area, the state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season.

§51.1109 [Reserved]

§51.1110 Requirements for reasonable further progress (RFP).
(a) RFP for nonattainment areas classified pursuant to §51.1103. The RFP requirements specified in CAA section 182 for that area's classification shall apply.
(1) Submission deadline. For each area classified as Moderate or higher pursuant to §51.1103, the state shall submit a SIP revision no later than 36 months after the effective date of designation as nonattainment for the 2008 ozone NAAQS that provides for RFP as described in paragraphs (a)(2) - (4) of this section.
(2) RFP requirements for areas with an approved 1-hour or 1997 ozone NAAQS 15 percent VOC ROP plan. An area classified as Moderate or higher that has the same boundaries as an area, or is entirely composed of several areas or portions of areas, for which EPA fully approved a 15 percent plan for the 1-hour or 1997 ozone NAAQS is considered to have met the requirements of CAA section 182(b)(1) for the 2008 ozone NAAQS and instead:
(i) If classified as Moderate or higher, the area is subject to the RFP requirements under CAA section 172(c)(2) and shall submit a SIP revision that:
(A) Provides for a 15 percent emission reduction from the baseline year within 6 years after the baseline year;
(B) Provides for an additional emissions reduction of 3 percent per year from the end of the first 6 years up to the beginning of the attainment year if a baseline year earlier than 2011 is used; and
(C) Relies on either NOx or VOC emissions reductions (or a combination) to meet the requirements of (a)(2)(i)(A) and (B). Use of NOx emissions reductions must meet the criteria in CAA section 182(c)(2)(C).
(ii) If classified as Serious or higher, the area is also subject to RFP under CAA section 182(c)(2)(B) and shall submit a SIP revision no later than 48 months after the effective date of designation providing for an average emissions reduction of 3 percent per year:
(A) For all remaining 3-year periods after the first 6-year period until the year of the area's attainment date; and
(B) That relies on either NOx or VOC emissions reductions (or a combination) to meet the requirements of (a)(2)(ii)(A) and (B). Use of NOx emissions reductions must meet the criteria in CAA section 182(c)(2)(C).
(3) RFP requirements for areas for which an approved 15 percent VOC ROP plan for the 1-hour or 1997 ozone NAAQS exists for only a portion of the area. An area that contains one or more portions for which EPA fully approved a 15 percent VOC ROP plan for the 1-hour or 1997 ozone NAAQS (as well as areas for which EPA has not fully approved a 15 percent plan for either the 1-hour or 1997 ozone NAAQS) shall meet the requirements of either paragraph (a)(3)(i) or (ii) below.
(i) The state shall not distinguish between the portion of the area with a previously approved 15 percent ROP plan and the portion of the area without such a plan, and shall meet the requirements of (a)(4) of this section for the entire nonattainment area.
(ii) The state shall treat the area as two parts, each with a separate RFP target as follows:
(A) For the portion of the area without an approved 15 percent VOC ROP plan for the 1-hour or 1997 ozone NAAQS, the state shall submit a SIP revision as required under paragraph (a)(4) of this section.
(B) For the portion of the area with an approved 15 percent VOC ROP plan for the 1-hour or 1997 ozone NAAQS, the state shall submit a SIP as required under paragraph (a)(2) of this section.
(4) ROP Requirements for areas without an approved 1-hour or 1997 ozone NAAQS 15 percent VOC ROP plan.
(i) For each area, the state shall submit a SIP revision consistent with CAA section 182(b)(1). The 6-year period referenced in CAA section 182(b)(1) shall begin January 1 of the year following the year used for the baseline emissions inventory.
(ii) For Moderate areas, the plan must provide for an additional 3 percent per year reduction from the end of the first 6 years up to the beginning of the attainment year if a baseline year from 2008 to 2010 is used.
(iii) For each area classified as Serious or higher, the state shall submit a SIP revision consistent with CAA section 182(c)(2)(B). The final increment of progress must be achieved no later than the attainment date for the area.
(5) Creditability of emission control measures for RFP plans. Except as specifically provided in CAA section 182(b)(1)(C) and (D), section 182(c)(2)(B), and §51.1110(a)(6) below, all emission reductions from SIP-approved or federally promulgated measures that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements in this section, provided the reductions meet the requirements for creditability, including the need to be enforceable, permanent, quantifiable, and surplus.
(6) Creditability of out-of-area emissions reductions. For each area classified as Moderate or higher pursuant to §51.1103, in addition to the restrictions on the creditability of emission control measures listed in §51.1110(a)(5), creditable emission reductions for percentage reduction RFP must be obtained from sources within the nonattainment area.
(7) Calculation of non-creditable emissions reductions.
The following four categories of control measures listed in CAA section 182(b)(1)(D) are no longer required to be calculated for exclusion in RFP analyses because the Administrator has determined that due to the passage of time the effect of these exclusions would be de minimis: (i) measures related to motor vehicle exhaust or evaporative emissions promulgated by January 1, 1990; (ii) regulations concerning Reid vapor pressure promulgated by November 15, 1990; (iii) measures to correct previous RACT requirements; and (iv) measures required to correct previous I/M programs.
(b) Baseline emissions inventory for RFP plans. For the RFP plans required under this section, at the time of designation for the 2008 ozone NAAQS the baseline emissions inventory shall be the emissions inventory for the most recent calendar year for which a complete triennial inventory is required to be submitted to EPA under the provisions of subpart A of this part. States may use an alternative baseline emissions inventory provided the state demonstrates why it is appropriate to use the alternative baseline year, and provided that the year selected is between the years 2008 to 2012. All states associated with a multi-state nonattainment area must consult and agree on a single alternative baseline year. The emissions values included in the inventory required by this section shall be actual ozone season day emissions as defined by 51.1100(cc).

§51.1111  [Reserved]

§51.1112 Requirements for reasonably available control technology (RACT) and reasonably available control measures (RACM).
(a) RACT requirement for areas classified pursuant to §51.1103.
(1) For each nonattainment area classified Moderate or higher, the state shall submit a SIP revision that meets the VOC and NOx RACT requirements in CAA sections 182(b)(2) and 182(f).
(2) The state shall submit the RACT SIP for each area no later than  24 months after the effective date of designation for the 2008 ozone NAAQS.
(3) The state shall provide for implementation of RACT  as expeditiously as practicable but no later than January 1 of the 5th year after the effective date of designation for the 2008 ozone NAAQS.
 (b) Determination of major stationary sources for applicability of RACT provisions.
The amount of VOC and NOx emissions are to be considered separately for purposes of determining whether a source is a major stationary source as defined in CAA section 302.
 (c) Reasonably Available Control Measures (RACM) requirement. For each nonattainment area required to submit an attainment demonstration under §51.1108(a) and (b), the state shall submit with the attainment demonstration a SIP revision demonstrating that it has adopted all RACM necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.

§51.1113 Section 182(f) NOx exemption provisions.
(a) A person or a state may petition the Administrator for an exemption from NOx obligations under section 182(f) for any area designated nonattainment for the 2008 ozone NAAQS and for any area in a section 184 ozone transport region.
(b) The petition must contain adequate documentation that the criteria in section 182(f) are met.
(c) A section 182(f) NOx exemption granted for the 1-hour or 1997 ozone NAAQS does not relieve the area from any NOx obligations under section 182(f) for the 2008 ozone NAAQS.

§51.1114 New source review requirements.
The requirements for nonattainment NSR for the ozone NAAQS are located in §51.165 of this part. For each nonattainment area, the state shall submit a nonattainment NSR plan or plan revision for the 2008 ozone NAAQS no later than 36 months after the effective date of the area's designation for the 2008 ozone NAAQS.

§51.1115 Emissions inventory requirements.
(a) For each nonattainment area, the state shall submit a base year inventory as defined by §51.1100(bb) to meet the emissions inventory requirement of CAA section 182(a)(1). This inventory shall be submitted no later than  24 months after the effective date of designation. The inventory year shall be selected consistent with the baseline year for the RFP plan as required by §51.1110(b).
(b) For each nonattainment area, the state shall submit a periodic emission inventory of emissions sources in the area to meet the requirement in CAA section 182(a)(3)(A). With the exception of the inventory year and timing of submittal, this inventory shall be consistent with the requirements of (a). Each periodic inventory shall be submitted no later than the end of each 3-year period after the required submission of the base year inventory for the nonattainment area. This requirement shall apply until the area is redesignated to attainment.
(c) The emissions values included in the inventories required by (a) and (b) shall be actual ozone season day emissions as defined by §51.1100(cc).
(d) The state shall report emissions from point sources according to the point source emissions thresholds of the Air Emissions Reporting Requirements (AERR), 40 CFR part 51, subpart A.
(e) The data elements in the emissions inventory shall be consistent with the detail required by 40 CFR part 51, subpart A. Since only emissions within the boundaries of the nonattainment area shall be included as defined by §51.1100(cc), this requirement shall apply to the emissions inventories required in this section instead of any total county requirements contained in 40 CFR part 51, subpart A.

§51.1116 Requirements for an Ozone Transport Region.
(a) In general. CAA sections 176A and 184 apply for purposes of the 2008 ozone NAAQS.
(b) RACT requirements for certain portions of an Ozone Transport Region.
(1) The state shall submit a SIP revision that meets the RACT requirements of CAA section 184(b)(2) for all portions of the state located in an ozone transport region.
 (2) The state is required to submit the RACT revision no later than 24 months after designation for the 2008 ozone NAAQS and shall provide for implementation of RACT as expeditiously as practicable but no later than January 1 of the 5th year after designation for the 2008 ozone NAAQS.

§51.1117 Fee programs for Severe and Extreme nonattainment areas that fail to attain.
For each area classified as Severe or Extreme for the 2008 ozone NAAQS, the state shall submit a SIP revision within 10 years of the effective date of designation that meets the requirements of CAA section 185.

§51.1118 Suspension of SIP planning requirements in nonattainment areas that have air quality data that meet an ozone NAAQS.
Upon a determination by EPA that an area designated nonattainment for the 2008 ozone NAAQS, or for any prior ozone NAAQS, has attained the relevant standard, the requirements for such area to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures for failure to attain or make reasonable progress and other planning SIPs related to attainment of the 2008 ozone NAAQS, or for any prior NAAQS for which the determination has been made, shall be suspended until such time as: the area is redesignated to attainment for that NAAQS or a redesignation substitute is approved as appropriate, at which time the requirements no longer apply; or EPA determines that the area has violated that NAAQS, at which time the area is again required to submit such plans.

§51.1119 Applicability.
As of revocation of the 1997 ozone NAAQS on [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], as set forth in §50.10(c), the provisions of Subpart AA shall replace the provisions of subpart X, §§51.900 to 51.918, which cease to apply except for §51.907 for the anti-backsliding purposes of §51.1105(c)(2). See Subpart X §51.919.

7. In Appendix S to part 51:
a. Revise section IV.G.5.
b. Add section VII.
The revision and addition read as follows:
Appendix S to Part 51 - Emission Offset Interpretative Ruling
* * * * *
G. Offset Ratios.
* * * * *
5. Interpollutant offsetting. In meeting the emissions offset requirements of paragraph IV.A, Condition 3 of this Ruling, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interpollutant offsetting is permitted for a particular pollutant as specified in this paragraph IV.G.5.
(i) The offset requirements of paragraph IV.A, Condition 3 of this Ruling for emissions of the ozone precursors NOx and VOC may be satisfied by offsetting reductions of emissions of either of those precursors, if all other requirements for such offsets are also satisfied.
(ii) The offset requirements of paragraph IV.A, Condition 3 of this Ruling for direct PM2.5 emissions or emissions of precursors of PM2.5 may be satisfied by offsetting reductions of direct PM2.5 emissions or emissions of any PM2.5 precursor identified under paragraph II.A.31 (iii) of this Ruling if such offsets comply with an interprecursor trading hierarchy and ratio approved by the Administrator.
* * * * *
VII. ANTI-BACKSLIDING MEASURES FOR REVOKED OZONE NAAQS
Nonattainment area new source review obligations for prior ozone NAAQS.
(a) Except as provided in paragraph (b) of this section, an area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] remains subject to the obligation to adopt and implement the major source threshold and offset ratio requirements for nonattainment new source review that apply or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182 based on the highest of: (i) the area's classification under CAA section 181(a)(1) for the 1-hour ozone NAAQS as of the effective date of revocation of that NAAQS; (ii) the area's classification under 40 CFR 51.903 for the 1997 ozone NAAQS as of the date a permit is issued or as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER], whichever is earlier; and (iii) the area's classification under 40 CFR 51.1103 for the 2008 ozone NAAQS.
(b)(1) An area remains subject to the obligations for a revoked NAAQS under paragraph (a) until either (1) the area is redesignated to attainment for the 2008 ozone NAAQS; or (2) EPA approves a state's showing for the area in a redesignation substitute procedure for a revoked NAAQS per the provisions of §51.1105(b). Under this redesignation substitute procedure for a revoked NAAQS, and for this limited anti-backsliding purpose, the area must show that it has attained that revoked NAAQS due to permanent and enforceable emission reductions, and it must demonstrate that it will maintain that NAAQS for 10 years from the date of EPA's approval of this showing.
(2) Effect of redesignation to attainment for 2008 ozone NAAQS or approval of a redesignation substitute for a revoked ozone NAAQS. After redesignation to attainment for the 2008 ozone NAAQS, the state may request that provisions for nonattainment NSR be removed from the SIP. After EPA approval of a redesignation substitute for a revoked NAAQS under the provisions of §51.1105(b), the state may request that provisions for nonattainment NSR for the revoked NAAQS be removed from the SIP. Upon removal of nonattainment new source review obligations for a revoked NAAQS, the state remains subject to the obligation to adopt and implement the major source threshold and offset ratio requirements for nonattainment new source review that apply or applied to the area for the remaining applicable NAAQS consistent with paragraph (a).

8. In §51.165:
a. Revise paragraph (a)(11).
b. Add paragraph (a)(12).
The revision and addition read as follows:
§51.165 Permit requirements.
(a) * * *
(11) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant as specified in this paragraph.
(i) The plan may allow the offset requirement in paragraph (a)(3) of this section for emissions of the ozone precursors NOx and VOC to be satisfied by offsetting reductions in emissions of either of those precursors, if all other requirements for such offsets are also satisfied.
(ii) The plan may allow the offset requirements in paragraph (a)(3) of this section for direct PM2.5 emissions or emissions of precursors of PM2.5 to be satisfied by offsetting reductions in direct PM2.5 emissions or emissions of any PM2.5 precursor identified under paragraph (a)(1)(xxxvii)(C) of this section if such offsets comply with the interprecursor trading hierarchy and ratio established in the approved plan for a particular nonattainment area.
(12) The plan shall require that in any area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] the requirements of this section applicable to major stationary sources and major modifications of ozone shall include the anti-backsliding requirements contained at §51.1105(f) of this chapter.
* * * * *
9. In §51.166, revise paragraph (i)(2) to read as follows:
§51.166 Prevention of significant deterioration of air quality.
* * * * *
   (i) Exemptions. * * *
 (2) The plan may provide that requirements equivalent to those contained in paragraphs (j) through (r) of this section do not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment under section 107 of the Act. Nonattainment designations for revoked NAAQS, as contained in 40 CFR part 81, shall not be viewed as current designations under section 107 of the Act for purposes of determining the applicability of requirements equivalent to those contained in paragraphs (j) through (r) of this section to a major stationary source or major modification after the revocation of that NAAQS is effective.
* * * * *
10. In §51.372, revise paragraph (b)(2) to read as follows:
§51.372 State Implementation Plan submissions.
*     *     *     *     *
(b) * * *
 (2) A SIP revision required as a result of an area being newly designated and classified under a NAAQS for ozone, including all necessary legal authority and the items specified in paragraphs (a)(1) through (a)(8) of this section, shall be submitted no later than the deadline for submitting the area's attainment SIP for the NAAQS in question.
* * * * *
PART 52 -- APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
11. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
12. In §52.21, revise paragraph (i)(2) to read as follows:
* * * * *
 (i) Exemptions. * * *
 (2) The requirements of paragraphs (j) through (r) of this section shall not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment under section 107 of the Act. Nonattainment designations for revoked NAAQS, as contained in 40 CFR part 81, shall not be viewed as current designations under section 107 of the Act for purposes of determining the applicability of paragraphs (j) through (r) of this section to a major stationary source or major modification after the revocation of that NAAQS is effective.
* * * * *

PART 70 -- STATE OPERATING PERMIT PROGRAMS
13. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
14. In §70.2, under the definition entitled "Major source," revise paragraphs (3)(i), (3)(iii)(A), and (3)(iv) to read as follows:
§ 70.2 Definitions.
*     *     *     *     *
(3) * * *
(i) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides of nitrogen in areas classified or treated as classified as "Marginal" or "Moderate," 50 tpy or more in areas classified or treated as classified as "Serious," 25 tpy or more in areas classified or treated as classified as "Severe," and 10 tpy or more in areas classified or treated as classified as "Extreme"; except that the references in this paragraph to 100, 50, 25 and 10 tpy of nitrogen oxides shall not apply with respect to any source for which the Administrator has made a finding, under section 182(f) (1) or (2) of the Act, that requirements under section 182(f) of the Act do not apply;
* * * * *
(iii) * * *
   (A) That are classified or treated as classified as "Serious," and
   * * * * *
(iv) For particulate matter (PM-10) nonattainment areas classified or treated as classified as "Serious," sources with the potential to emit 70 tpy or more of PM-10.
   * * * * *
PART 71 -- FEDERAL OPERATING PERMIT PROGRAMS
15. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
16. In §71.2, under the definition entitled "Major source," revise paragraphs (3)(i), (3)(iii)(A), and (3)(iv) to read as follows:
§ 71.2 Definitions.
*     *     *     *     *
(3) * * *
(i) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides of nitrogen in areas classified or treated as classified as "Marginal" or "Moderate," 50 tpy or more in areas classified or treated as classified as "Serious," 25 tpy or more in areas classified or treated as classified as "Severe," and 10 tpy or more in areas classified or treated as classified as "Extreme"; except that the references in this paragraph to 100, 50, 25 and 10 tpy of nitrogen oxides shall not apply with respect to any source for which the Administrator has made a finding, under section 182(f) (1) or (2) of the Act, that requirements under section 182(f) of the Act do not apply;
 * * * * *
(iii) * * *
   (A) That are classified or treated as classified as "Serious," and
   * * * * *
(iv) For particulate matter (PM-10) nonattainment areas classified or treated as classified as "Serious," sources with the potential to emit 70 tpy or more of PM-10.
   * * * * *