[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28424-28446]
[FR Doc No: 2012-11232]

Vol. 77

Monday,

No. 93

May 14, 2012

Part II

Environmental Protection Agency

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40 CFR Parts 50, 51 and 81

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

Federal Register / Vol. 77 , No. 93 / Monday, May 14, 2012 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51 and 81

[EPA-HQ-OAR-2007-0956; FRL-9668-4]
RIN 2060-AO96

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is revising the rules for implementing the 1997 8-hour
ozone national ambient air quality standards (NAAQS) to address certain
limited portions of the rules vacated by the U.S. Court of Appeals for
the District of Columbia Circuit. This final rule assigns Clean Air Act
(CAA or Act) classifications and associated state planning and control
requirements to selected ozone nonattainment areas. This final rule
also addresses three vacated provisions of the 1997 8-hour NAAQS--Phase
1 Implementation Rule (April 30, 2004) that provided exemptions from
the anti-backsliding requirements relating to nonattainment area New
Source Review (NSR), CAA section 185 penalty fees, and contingency
measures, as these three requirements applied for the 1-hour standard.
This rule also reinstates the 1-hour contingency measures as applicable
requirements that must be retained until the area attains the 1997 8-
hour ozone standard. Finally, this rule deletes an obsolete provision
that stayed the EPA's authority to revoke the 1-hour ozone standard
pending the Agency's issuance of a final rule that revises or
reinstates its revocation authority and considers and addresses certain
other issues. That rule has now been issued.

DATES: This rule is effective on June 13, 2012.

ADDRESSES: The EPA has established a docket for this rule, identified
by Docket ID No. EPA-HQ-OAR-2007-0956. All documents in the docket are
listed in www.regulations.gov. Although listed in the index, some
information is not publicly available, i.e., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the Air and
Radiation Docket and Information Center, EPA Headquarters Library, Room
Number 3334 in the EPA West Building, located at 1301 Constitution Ave.
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For further general information or
information on classification of former subpart 1 areas, contact Mr.
Butch Stackhouse, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, (C539-01), Research Triangle Park, NC
27711, phone number<PHONE_NUMBER>, fax number<PHONE_NUMBER> or by
email at<EMAIL_ADDRESS>For information on the 1-hour
contingency measures associated with the 1-hour ozone standard contact
Mr. H. Lynn Dail, Office of Air Quality Planning and Standards, (C504-
03), U.S. EPA, Research Triangle Park, North Carolina 27711, phone
number<PHONE_NUMBER>, fax number<PHONE_NUMBER>, or by email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include
State, local, and tribal governments and specifically include the areas
identified in Table 1.

      Table 1--Affected Areas Initially Classified Under Subpart 1
------------------------------------------------------------------------
            State                                 Area
------------------------------------------------------------------------
Arizona......................  Phoenix-Mesa.
California...................  Amador and Calaveras Counties (Central
                                Mountain), Chico, Kern County (Eastern
                                Kern), Mariposa and Tuolumne Counties
                                (Southern Mountain), Nevada County, San
                                Diego, Sutter County (Sutter Buttes).
Colorado.....................  Denver, Boulder, Greeley, Ft. Collins &
                                Loveland.
Nevada.......................  Las Vegas.
New York.....................  Albany-Schenectady-Troy, Buffalo-Niagara
                                Falls, Essex County (Whiteface Mtn.),
                                Jamestown, Rochester.
Pennsylvania.................  Pittsburgh-Beaver Valley.
------------------------------------------------------------------------

    Entities potentially affected indirectly by this action include
owners and operators of sources of emissions of volatile organic
compounds (VOCs) and nitrogen oxides (NOX), the two
pollutants that contribute to ground-level ozone concentrations.

B. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this notice is also available on the World Wide Web. A copy of this
notice will be posted at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.

C. How is this document organized?

    The information presented in this Document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related
information?
    C. How is this document organized?
II. What is the background for this rule?
III. This Action
    A. Classification of 8-Hour Ozone Nonattainment Areas That the
EPA Had Classified Under Subpart 1
    1. The Proposal
    2. Final Rule
    3. Comments and Responses
    a. Classification of Former Subpart 1 Areas
    b. Timing of SIP Submission Under Subpart 2 Classification
    c. Timing of Attainment Date
    d. Data Used for Classification
    e. Other Comments on Classification of Former Subpart 1 Areas
    B. Anti-Backsliding Under Revoked 1-Hour Ozone Standard-In
General
    1. Proposal
    2. Final Rule
    3. Comments
    C. Contingency Measures
    1. Proposal
    2. Final Rule
    3. Comments and Responses
    D. Section 185 Fee Program for 1-Hour NAAQS
    1. Proposal
    2. Final Rule

    3. Comments and Responses
    E. Deletion of Obsolete 1-Hour Ozone Standard Provision
    1. Proposal
    2. Final Rule
    3. Comments and Responses
    F. Other Comments
    G. Correction to a Footnote in Proposal Rule
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review
    L. Determination Under Section 307(d)
V. Statutory Authority

II. What is the background for this rule?

    On January 16, 2009, the EPA proposed revisions to the Phase 1 Rule
for implementing the 1997 8-hour ozone NAAQS \1\ (Phase 1 Rule) to
address several of the limited portions of the rule vacated by the U.S.
Court of Appeals for the District of Columbia Circuit in South Coast
Air Quality Management District, et al., v. EPA, 472 F.3d 882 (D.C.
Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was
limited to the issues on which the court granted the petitions for
review). (South Coast). The proposal addressed the classification
system for the subset of initial 8-hour ozone nonattainment areas that
the Phase 1 Rule originally covered under CAA title I, part D, subpart
1. The proposal also addressed how contingency measures that are
triggered by failure to attain or make reasonable progress toward
attainment of the 1-hour standard should apply under the anti-
backsliding provisions of the Phase 1 Rule. In addition, the proposal
identified the vacated provisions of the rule that provided exemptions
from the anti-backsliding requirements relating to 1-hour nonattainment
NSR, the CAA section 185 penalty fees for failure to attain the 1-hour
standard, and contingency measures as these requirements applied for
the 1-hour standard. In the proposal, we planned to remove these
provisions from the regulatory text in 40 CFR 51.905(e). Finally, we
proposed to delete a provision that stayed the EPA's authority to
revoke the 1-hour ozone standard. A more detailed description of the
background for this rule appears in the January 16, 2009, notice of
proposed rulemaking (74 FR 2936).
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    \1\ 74 FR 2936, January 16, 2009.
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III. This Action

A. Classification of 8-Hour Ozone Nonattainment Areas That the EPA Had
Classified Under Subpart 1

    There are a number of areas currently designated nonattainment for
the 1997 8-hour ozone NAAQS (0.08 parts per million (ppm)) that
originally did not receive a classification under subpart 2. In this
action, the EPA is establishing initial classifications for these 16
areas and immediately finalizing the proposed reclassifications to
Moderate for the areas that would be classified as Marginal but that
failed to meet the June 15, 2007 attainment date for Marginal areas for
the 1997 ozone NAAQS.
    Based on the area classifications, the CAA establishes certain
planning and control requirements for the areas, and in this rule, the
EPA is specifying the deadlines by which states must submit plans to
meet these requirements. Once the ozone air quality in these areas
meets the 1997 8-hour standard, certain of these requirements may be
suspended by a determination of attainment (Clean Data Determination,
pursuant to 40 CFR 51.918, 70 FR 71702). The obligation to complete and
submit those requirements would be suspended as long as the area
continues to attain the standard, and would no longer apply once the
area is redesignated to attainment following the requirements of CAA
107(d)(3). However, other requirements will continue to apply, and
appropriate SIP elements must be submitted and approved prior to
redesignation to attainment.
1. The Proposal
    In the January 16, 2009, proposed rule, the EPA proposed that all
areas designated nonattainment for the 1997 8-hour ozone standard would
be classified under and subject to the nonattainment planning
requirements of subpart 2. We proposed to modify the regulatory text to
remove current Sec.  51.902(b), which was vacated by the Court and
which subjected certain nonattainment areas to regulation only under
subpart 1.\2\ The Court vacated the Phase 1 rule to the extent it
placed certain areas solely under the implementation provisions of
subpart 1. Therefore, the proposal addressed which provisions of the
CAA should apply to those areas.\3\
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    \2\ As the Court made clear in its decision on rehearing, the
CAA does not mandate coverage under subpart 2 of all areas
designated nonattainment for an ozone NAAQS. As EPA moves forward to
develop an implementation strategy for any future new ozone NAAQS,
we may consider whether subpart 1 alone might apply for some areas
for purposes of implementing that NAAQS.
    \3\ We note that areas subject to subpart 2 are also subject to
subpart 1 to the extent subpart 1 specifies requirements that are
not suspended by more specific obligations under subpart 2.
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    We also noted that the classifications that would be established
pursuant to this final rule would be the initial classifications for
the affected areas for the 1997 ozone standard. Therefore, we proposed
to use the 2003 8-hour ozone design values (derived from 2001-2003 air
quality data), which were used to designate these areas nonattainment
initially, as the basis for classification. We also proposed to use the
classification table in 40 CFR 51.903 (established by the Phase 1 Rule)
to classify these areas. We noted that CAA section 181(a) provides that
``at the time'' areas are designated for the ozone NAAQS, they will be
classified ``by operation of law'' based on the ``design value'' of the
areas and in accordance with Table 1 of that section. We concluded that
this language specifies that the area will be classified based on the
design value that existed for the area at the time of designation.
Areas were designated nonattainment in 2004, based on design values
derived from data from 2001-2003.
    Since the classifications under this proposal would be the initial
classifications for the 1997 8-hour standard for the affected areas,
the EPA proposed that the provision of CAA section 181(a)(4) would
apply to these areas. This provision would allow the Administrator in
her discretion to adjust the classification--within 90 days after the
initial classification--to a higher or lower classification ``* * * if
the design value were 5 percent greater or 5 percent less than the
level on which such classification was based.'' The EPA proposed to
address requests for such classification adjustments for the newly-
classified areas in a manner similar to the way requests were handled
for the original round of subpart 2 classifications in 2004. This
process is described at 69 FR 23863 et seq. (April 30, 2004). We
indicated in the proposal, however, that if a state requests a
reclassification from Moderate to

Marginal for an area that is currently violating the standard, the EPA
would not grant the request for the reclassification because the
Marginal attainment deadline has already passed.
    We noted that the classification table of 40 CFR 51.903 provides an
outside attainment date based on the number of years after the
effective date of the nonattainment designation (e.g., 3 years for
Marginal and 6 years for Moderate). For all nonattainment areas other
than Denver, the effective date of designation for the 8-hour standard
was June 15, 2004. Thus, Marginal nonattainment areas (with the
exception of Denver) had a maximum statutory attainment date of June
15, 2007. Since the Marginal area attainment date has passed, the EPA
proposed that any area that would be classified as Marginal based on
its 2003 design value and that had not attained by June 15, 2007, or
that did not meet the criteria for an attainment date extension under
CAA section 181(a)(5)(B) and 40 CFR 51.907, would be reclassified
immediately as Moderate under the final rule.
    In addition, we noted that a number of areas that were initially
placed in subpart 1 under the vacated provision of the Phase 1 Rule
have since been redesignated to attainment for the 1997 8-hour
standard. We indicated that since these areas are now designated
attainment for the 1997 8-hour standard, the classification provisions
of the final rule would not apply.
    In the proposal, the EPA took the position that transportation
conformity requirements, and current transportation plan and
transportation improvement program conformity determinations for the
1997 8-hour ozone standard remain valid, and would not be impacted by
this final action. These areas are already required to satisfy the
applicable CAA section 176(c) conformity requirements for the 1997 8-
hour ozone standard based on their nonattainment designation in June
2004. Thus, no new conformity deadline would be triggered for these
areas after the areas are classified under subpart 2. These areas would
continue to make future conformity determinations according to the
applicable requirements of 40 CFR 93.109(d) and (e). The EPA indicated
that any areas classified as Moderate that are using the interim
emissions tests would be required to meet additional test requirements
that do not apply to Marginal areas [40 CFR 93.119(b)(1)]. Moderate
ozone nonattainment areas are required to satisfy both interim
emissions tests in order to demonstrate conformity. Therefore, any area
classified as Moderate would be required to demonstrate that emissions
in the build scenario are less than the no-build scenario and that
emissions in the build scenario are less than emissions in the 2002
base year. Marginal areas are required to demonstrate conformity using
the ``no greater than'' form of one of the two interim emissions tests
[40 CFR 93.119(b)(2)(i) and 40 CFR 93.119(b)(2)(ii)(A)&(B)].
    The EPA proposed to require states to submit all required State
Implementation Plan (SIP) elements of the areas' Marginal or Moderate
classification no later than 1 year after the effective date of this
final rule. The proposal noted that the EPA believed this to be an
appropriate and reasonable amount of time given the attainment dates
that will apply to these areas, and that these areas should have made
significant progress toward developing SIPs, originally due June 15,
2007, based on the obligations that applied before the subpart 1
provision of the Phase 1 Rule was vacated in December 2006.
2. Final Rule
    The final rule generally reflects the approach we proposed. The
final rule provides that:
     All areas originally placed under subpart 1 and that
remain designated nonattainment for the 1997 8-hour ozone standard at
the time of this final rule are now classified under and subject to the
nonattainment planning and emissions control requirements of subpart 2,
sections 181-185. There are sixteen such areas.
     Initial classifications are based on the 8-hour ozone
design values (derived from 2001-2003 air quality data) that were used
to designate these areas nonattainment initially.
     The classification table in 40 CFR 51.903 (established by
the Phase 1 Rule) is used for the classifications. The classification
table of 40 CFR 51.903 provides a maximum attainment date based on a
number of years after the effective date of the nonattainment
designation (e.g., 3 years for Marginal; 6 years for Moderate). For all
areas other than Denver,\4\ the effective date of nonattainment
designation and classification for the 8-hour standard was June 15,
2004. Thus, other than Denver, Marginal nonattainment areas had a
maximum statutory attainment date of June 15, 2007. Since the Marginal
area attainment date of June 15, 2007 has passed, any area that would
have been initially classified as Marginal, and that did not attain by
June 15, 2007 (based on 2004-6 data), and was unable to attain pursuant
to the 1-year attainment date extensions allowed under section
181(a)(5)(B) and 40 CFR 51.907, is reclassified from Marginal to
Moderate under this rule.
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    \4\ Denver's special circumstancs as a former EAC area were
discussed in the proposal. (74 FR 2939-2941). The nonattainment
designation for the Denver area became effective November 20, 2007.
(72 FR 53952 and 53953, September 21, 2007).
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     CAA section 181(a)(4) applies to all areas affected by
this final rule. This provision allows the Administrator in her
discretion to adjust the classification--within 90 days after the
initial classification--to a higher or lower classification ``* * * if
the design value were 5 percent greater or 5 percent less than the
level on which such classification was based.'' The process for making
these adjustments is described at 69 FR 23863 et seq. (April 30, 2004).
However, the EPA will not grant a request for reclassification to a
lower classification if (1) the attainment date for that lower
classification has passed, and (2) the area is or has violated the
standard such that it would not qualify for the first and second 1-year
attainment date extensions. Since the Marginal attainment date has
passed, no area initially classified Moderate by this notice will be
eligible for a downward adjustment to Marginal. Further, since none of
the initial Moderate areas affected by this notice had a classification
design value within 5 percent of the Serious threshold of 0.107 ppm, no
areas are eligible for an upward classification adjustment to Serious.
     Areas originally placed under subpart 1 that have already
been redesignated to attainment are not affected by these
classification provisions, which apply only to areas that remain
designated nonattainment for the 1997 ozone standard.
    In this rulemaking, the EPA is responding to the Court's vacatur of
the provision that placed certain nonattainment areas solely under
subpart 1 and is now classifying those areas under subpart 2. There are
sixteen such areas identified in Table 2 that are being initially
classified under subpart 2 based on the area's design value at the time
of designation. To determine the area's design value, we used 2001-2003
ambient air quality data. We then took the following steps to determine
whether any areas classified Marginal should be immediately
reclassified to Moderate.
    Step 1. If the area would be classified as Marginal based on its
design value at the time of designation, we determined if the area
attained by the June 15, 2007 attainment date based on 2004-2006
ambient air quality data. If so (and if the area has not been formally
redesignated

to attainment) \5\ the area remains classified as Marginal. There are 8
areas classified Marginal as a result of this Step. (See Table 2 column
for ``Status in 2007'', which identifies 8 Marginal areas as
``Attaining''.)
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    \5\ Section 107(d)(3) of the CAA allows states to request
nonattainment areas to be redesignated to attainment provided
certain criteria are met that include an approved SIP, a
determination that air quality improvement is due to permanent and
enforceable reductions in emissions, an approved maintenance plan,
and other section 110 and part D requirements.
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    Step 2. If the Marginal area did not attain by the June 15, 2007
attainment date, we determined if the area would be eligible for the
first 1-year extension under CAA section 181(a)(5) and 40 CFR
51.907.\6\ If the area would not have been eligible for the first 1-
year extension, we are reclassifying Amador and Calaveras Counties
(Central Mountain), CA to Moderate as a result of this Step.
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    \6\ Under 40 CFR 51.907, an area would be eligible for the first
1-year extension of its attainment date for the 1997 ozone standard
if the 4th highest daily maximum 8-hour average in 2006 is equal to
or less than 0.084 ppm.
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    Step 3. For any Marginal area that was eligible for the first 1-
year extension, we reviewed the ambient air quality data from 2005-2007
to determine if the area attained the standard by the end of the first
1-year extension. If so, we are classifying the area as Marginal. No
areas are classified Marginal as a result of this Step.
    Step 4. For any Marginal area that was eligible for the first 1-
year extension, but did not attain by the end of that extension, we
then determined if it would have been eligible for the second 1-year
extension.\7\ If the area would not have been eligible for the second
1-year extension, we are reclassifying the area to Moderate. Mariposa
and Tuolumne Counties (Southern Mountain), CA are reclassified to
Moderate as a result of this Step.
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    \7\ Under 40 CFR 50.907, an area is eligible for the second 1-
year extension if the 2-year average of 4th highest daily maximum 8-
hour averages for 2006 and 2007 at the monitor with the highest
level is equal to or less than 0.084 ppm.
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    Step 5. For any Marginal area that was eligible for the second 1-
year extension, we then reviewed the ambient air quality data from
2006-2008 to determine if the area attained the standard. If so, we are
classifying the area as Marginal. If the area did not attain, we are
reclassifying the area as Moderate. No areas are classified Marginal or
reclassified Moderate as a result of this Step.
    Any Moderate area that did not attain by June 15, 2010 and would
not have been eligible for the first or second 1-year extension, would
be subject to the CAA's statutory provisions for reclassification
(bump-up) to Serious, the next higher classification category. At the
time the January 16, 2009 proposed rule was issued, the Moderate area
attainment date of June 15, 2010, had not passed. Thus, the proposed
rule did not address reclassification from Moderate to Serious. The EPA
will address reclassifications from Moderate to Serious, as necessary,
in separate rulemaking action.
    Table 2 identifies the final subpart 2 classification for each area
that was originally classified under subpart 1 pursuant to our Phase 1
Rule (69 FR 23989, April 30, 2004), and that remains nonattainment for
the 1997 ozone standard.

  Table 2--Summary of Nonattainment Areas Initially Classified Under Subpart 1 Receiving Reclassification Under
                                                    Subpart 2
----------------------------------------------------------------------------------------------------------------
                                             2004 Initial
                                            classification/       Status in 2007          Current subpart 2
      State                Area           design value 2001-   (based on 2004-2006         classification
                                              2003 (ppm)           data) (ppm)
----------------------------------------------------------------------------------------------------------------
CA...............  Chico, CA...........  Marginal (0.089)....  Attaining (0.084)..  Marginal
CA...............  Sutter Co. (Sutter    Marginal (0.088)....  Attaining (0.081)..  Marginal
                    Buttes), CA.
NV...............  Las Vegas, NV.......  Marginal (0.086)....  Attaining (0.083)..  Marginal d e
AZ...............  Phoenix-Mesa, AZ....  Marginal (0.087)....  Attaining (0.083)..  Marginal \e\
CO...............  Denver-Boulder-       Marginal \a\ (0.087)  Attaining \a\        Marginal
                    Greeley-Ft Collins-                         (0.082).
                    Loveland, CO.
NY...............  Albany-Schenectady-   Marginal (0.087)....  Attaining (0.078)..  Marginal \d\
                    Troy, NY.
NY...............  Rochester, NY.......  Marginal (0.088)....  Attaining (0.074)..  Marginal \d\
NY...............  Essex Co. (Whiteface  Marginal (0.091)....  Attaining (0.071)..  Marginal \d\
                    Mtn), NY.
CA...............  Amador and Calaveras  Marginal (0.091)....  Not attaining        Moderate
                    Counties (Central                           (0.093) \b\.
                    Mtn), CA.
CA...............  Mariposa and          Marginal (0.091)....  Not attaining        Moderate
                    Tuolumne Counties                           (0.086) \c\.
                    (Southern Mtn), CA.
NY...............  Buffalo-Niagara       Moderate (0.099)....  n/a................  Moderate \d\
                    Falls, NY.
PA...............  Pittsburgh-Beaver     Moderate (0.094)....  n/a................  Moderate \d\
                    Valley, PA.
NY...............  Jamestown, NY.......  Moderate (0.094)....  n/a................  Moderate \d\
CA...............  Kern Co. (Eastern     Moderate (0.098)....  n/a................  Moderate
                    Kern), CA.
CA...............  Nevada Co. (Western   Moderate (0.098)....  n/a................  Moderate
                    Part), CA.
CA...............  San Diego, CA.......  Moderate (0.093)....  n/a................  Moderate
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Denver was identified as an Early Action Compact (EAC) area at the time of designation in 2004 and the
  effective date of its nonattainment designation was deferred pending the EAC process. The EAC program was
  later terminated and the nonattainment designation for the area became effective on November 20, 2007, based
  on a 2001-2003 design value of 0.087 ppm placing it in the Marginal classification. The Denver area attained
  the standard by its attainment date of November 20, 2010 (3 years after the date the area was designated
  nonattainment) and continues to attain based on 2008-10 data.
\b\ Amador and Calaveras Counties did not attain by the attainment date and were not eligible for the first 1-
  year extension based on 2006 4th highest daily 8-hour average of 0.098 ppm. Thus, the area's classification
  was changed to Moderate. The area now attains the standard based on 2008-10 data.
\c\ Mariposa and Tuolumne Counties did not attain by the attainment date and were eligible for the first 1-year
  extension based on 2006 4th highest daily 8-hour average of 0.084 ppm. The area was not eligible for the
  second 1-year extension based on the average of the original attainment year (2006) and first extension year
  (2007) 4th highest daily 8-hour average of 0.085 ppm. Thus, the area's classification was changed to Moderate.
  The area now attains the standard based on 2008-10 data.
\d\ Albany-Schenectady-Troy, Rochester, Essex County, Buffalo, Pittsburgh, Jamestown, and Las Vegas have
  received Clean Data Determinations.

\e\ Las Vegas and Phoenix have requested redesignation to attainment.

    Subpart 2 contains SIP requirements that differ from subpart 1.
These include different attainment deadlines, different RFP
requirements, requirements to adopt RACT-based controls for certain
categories of NOX and VOC sources, specific major source
thresholds and NSR offset ratio requirements for each classification.
Table 3 lists new subpart 2-related SIP requirements for Marginal and
Moderate nonattainment areas. The EPA is aware that many of the subpart
2 SIP requirements have already been satisfied through previous SIP
submissions or the requirements have been suspended due to a Clean Data
Determination. For example, all of the areas that would be affected by
the Moderate area vehicle inspection and maintenance (I/M) program
requirement are already implementing approved programs, and the three
areas in the Ozone Transport Region (Pittsburgh, PA; Jamestown, NY; and
Buffalo-Niagara, NY) have already submitted SIPs to address the VOC and
NOX RACT requirements. Similarly some areas affected by this
rulemaking were previously nonattainment under the 1-hour ozone
standards, and may have already established an emissions statement rule
and completed RACT determinations. Also, 7 of the 16 areas affected by
this final rule have received Clean Data Determinations that suspend
certain planning requirements.\8\
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    \8\ The seven areas that have received Clean Data Determinations
are Pittsburgh-Beaver Valley, PA, 76 FR 31237-39, May 31, 2011;
Buffalo-Niagara Falls, Jamestown, NY and Essex County (Whiteface
Mountain), 74 FR 63993, December 7, 2009; Albany-Schenectady-Troy,
NY, Rochester, NY, 73 FR 15672, March 25, 2008; and Clark County
(Las Vegas), NV, 76 FR 17343, March 29, 2011.
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    As indicated in Table 3, attainment demonstrations and RFP plans
are suspended by a Clean Data Determination, while the remaining
requirements are not. However, it is longstanding EPA policy that if an
area submits a complete request for redesignation including a
maintenance plan before certain nonattainment area requirements become
due, those elements do not need to be submitted in order for the area
to be redesignated to attainment.\9\
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    \9\ EPA guidance with respect to redesignations to attainment
can be found in a memorandum entitled ``Procedures for Processing
Requests to Redesignate Areas to Attainment,'' John Calcagni,
Director, Air Quality Management Division, September 4, 1992. See
http://www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf.
This memorandum notes, for example, that, for the purposes of
redesignation, a state must meet the applicable requirements of
section 110 and Part D that become due prior to the state's
submittal of a complete redesignation request to EPA. For the
purposes of evaluating a redesignation request, the EPA will not
need to consider the required SIP elements that became due after
submittal of the redesignation request. However, such requirements
remain due until EPA completes final action approving a
redesignation request.

  Table 3--Additional SIP Elements Associated With Subpart 2 for Previous Subpart 1 8-Hour Ozone Nonattainment
                                                      Areas
                              [This table is not inclusive of all CAA requirements]
----------------------------------------------------------------------------------------------------------------
                                                                                Is requirement suspended
 Ozone subpart 2 SIP requirement (CAA      Marginal areas          Moderate areas            by clean data
               section)                                                                     determination?
----------------------------------------------------------------------------------------------------------------
Attainment demonstration including     Not Required..........  Required.............  Yes.
 RACM (Sec.   182(b)(1)).
Reasonable Further Progress (Sec.      Not Required..........  Required.............  Yes.
 182(b)(1)).
Periodic Emissions Inventory (Sec.     Required..............  Required.............  No.
 182(a)(3)(A)).
Emissions Statement Rule (Sec.         Required..............  Required.............  No.
 182(a)(3)(B)).
Subpart 2 RACT for VOCs and NOX (Sec.  Not Required..........  Required.............  No.
   182(b)(2)(f)).
Pre-1990 RACT fix-up (Sec.             Required..............  Not Required.........  No.
 182(a)(2)(A)).
New Source Review (Sec.                Required..............  Required.............  No.
 182(a)(2)(C), (a)(4), (b)(5)).
Vehicle I/M (Sec.   182(a)(2)(B),      Not Required..........  Required+............  No.
 (b)(4)).
----------------------------------------------------------------------------------------------------------------
+ Applies only in nonattainment areas with population >200,000 based on 1990 census. (See 74 FR 41818-22, August
  19, 2009.)

    With respect to transportation conformity, current transportation
plan and transportation improvement program conformity determinations
for the 1997 8-hour ozone standard remain valid, and are not impacted
by this action. Areas formerly classified under subpart 1 were already
required to satisfy the applicable CAA section 176(c) conformity
requirements for the 1997 8-hour ozone standard based on their
designation as nonattainment. Thus, no new conformity deadline is
triggered in these areas based on their classification under subpart 2.
These areas would make future conformity determinations according to
the applicable requirements of 40 CFR 93.109(d) and (e). Any new
Moderate areas that are using interim emissions tests will be required
to meet additional test requirements that do not apply to Marginal
areas (40 CFR 93.119(b)(1)).\10\ Also, areas newly classified under
subpart 2 that are using budget test 40 CFR 93.118 and whose attainment
year is within the timeframe of the transportation conformity
determination and transportation plan must analyze the attainment year
as required by 40 CFR 93.118(d)(2).
---------------------------------------------------------------------------

    \10\ Moderate ozone nonattainment areas are required to satisfy
both interim emissions tests in order to demonstrate conformity.
Therefore, they must demonstrate that emissions in the build
scenario are less than the no-build scenario and that emissions in
the build scenario are less than emissions in the 2002 base year.
(40 CFR 93.119(b)(1)).
---------------------------------------------------------------------------

3. Comments and Responses
a. Classification of Former Subpart 1 Areas
    Comment: A number of commenters opposed placing all the former
subpart 1 areas under subpart 2. Most of these commenters expressed
concern that the subpart 2 requirements for local emission controls
would be too burdensome for some of the areas, are obsolete, and would
not necessarily be effective in bringing down ozone levels. In the case
of Cincinnati, two state air agency commenters argued that the
requirements would produce absurd results because the area had recently
dropped the vehicle I/M program in the wake of meeting the 1-hour ozone

standard. Some commenters also argued that certain areas would benefit
more from regional controls than from local controls. In addition, some
of the affected areas have already made significant progress toward
attainment since they were originally designated nonattainment. Another
commenter stated that the proposal would take away flexibility that
they believe the CAA allows and that the Court had preserved in its
ruling by allowing areas with design values below 0.09 ppm to be
classified under subpart 1. Two commenters supported placing all the
former subpart 1 areas under subpart 2.
    Response: In South Coast, the Court determined that although the
CAA does not mandate that 8-hour ozone nonattainment areas with a
design value below 0.09 ppm be placed under subpart 2, the EPA had not
identified a reasonable basis for placing any of the 1997 standard
ozone nonattainment areas under subpart 1. As noted in the proposed
rule, the EPA was unable to develop a reasonable basis for doing so
and, despite soliciting comments on potential rationales, none of the
commenters on the proposed rule identified any such rationale.
Therefore, at this time, the EPA is not placing any 1997 standard
nonattainment areas solely under subpart 1.
    We disagree with the commenters that suggest that the subpart 2
requirements associated with the 1997 NAAQS would not necessarily be
effective in bringing down ozone levels. Even if the mandated programs
under subpart 2 are not the most effective programs to achieve emission
reductions in a specific area, that does not render the programs
``absurd,'' as the programs will provide benefits by reducing emissions
of VOC and NOX. We also note that the areas being placed
under subpart 2 through this rulemaking have been designated
nonattainment for the 1997 ozone standard for over 7 years. Some of
those areas have attained the 1997 standard and have had an opportunity
to seek redesignation to attainment before the mandatory subpart 2
requirements apply. With regard to those that are still not attaining
the 1997 standard, we note that the subpart 1 flexibility that has been
available to these areas to date has not resulted in attainment for
these areas. Thus, it is difficult to argue for these areas that the
additional flexibility under subpart 1 is more likely to result in
attainment than the mandated programs under subpart 2.
    Comment: Some of the commenters that opposed placing all the former
subpart 1 areas under subpart 2 believed that the EPA did not provide
sufficient reason for not considering a different threshold for placing
areas under subpart 1. They noted that the Court in South Coast had set
forth the 0.09 ppm 8-hour average as a design value to be used, such
that areas with design values below that value could be placed in
subpart 1. One commenter recommended that the EPA maximize the use of
subpart 1 to the extent it could. However, on this matter, several
environmental organizations commented that the Court in South Coast
expressly rejected all of the EPA's previously stated rationales for
placing some areas only under subpart 1. They also commented that the
EPA has not identified any alternative rationales to justify such an
approach, and allege that no lawful or non-arbitrary rationales exist.
    Response: Although the Court determined that an 8-hour design value
of 0.09 ppm is the appropriate threshold for determining which areas
must be placed under subpart 2 and which areas the Agency has
discretion to place under subpart 1, the Court rejected the EPA's
rationale in the Phase 1 Rule for placing areas under subpart 1. At the
time of proposal, the EPA noted that it had not developed any rationale
for placing areas in subpart 1 for the 1997 8-hour ozone standard and
expressly solicited comment on potential rationales. However, no
commenters presented a rationale that differed from that which the
Court rejected in South Coast.
    Comment: One state air agency supported the proposal to not place
under subpart 2 those former subpart 1 areas that have already been
redesignated attainment.
    Response: As noted in the proposal, because the classification
provisions apply to areas designated nonattainment, the final rule does
not classify those former subpart 1 areas that have been redesignated
to attainment for the 1997 ozone NAAQS.
b. Timing of SIP Submission Under Subpart 2 Classification
    Comment: A number of commenters argued that the proposal did not
give enough time for states to submit SIPs under the new
classification. Some argued that the period of 1 year after the
effective date of this rule for classifying areas was unreasonable and
arbitrary, and that more time was needed for analysis and the rule
adoption process, including public hearing. Some commenters argued that
the EPA should allow the statutory time period in CAA section 181(b)(1)
from the date of classification (3 years). Several commenters noted
that even if a state had prepared a SIP under subpart 1 requirements, a
subpart 2 Moderate area SIP requires much more time and effort due to
the number of mandatory measures that would have to be adopted.
    Response: As noted in the proposal, subpart 1 areas originally had
an obligation to submit a SIP under section 172(c), including an
attainment demonstration, within 3 years after the June 2004
designations. Although the Court vacated the EPA's placement of areas
under subpart 1, the decision did not change the requirement that areas
designated nonattainment must attain as expeditiously as practicable.
Moreover, we note that areas that would have been subject only to
subpart 1 if the EPA's rule had not been vacated would have had an
attainment date of June 2009, 1 year earlier than the attainment date
for the Moderate classification. While the Court decision did create
some uncertainty regarding the specific classification that might
eventually apply to an area, we note that areas have been on notice
since the EPA's January 2009 proposal that it is likely they would be
classified under subpart 2. As noted in the proposal, the EPA had
advised states with areas that had been placed under subpart 1,
including all of the areas affected by this final rule, to continue
making progress toward attainment for these areas.\11\ Indeed we are
aware that many of these states have been working to adopt and
implement measures necessary for the affected areas to attain the 1997
ozone standard, and the EPA believes 1 year is an appropriate amount of
additional time to complete that work.
---------------------------------------------------------------------------

    \11\ Memorandum of March 19, 2007 from William L. Wehrum to EPA
Regional Administrators, re: ``Impacts of the Court Decision on the
Phase 1 Ozone Implementation Rule'' (response to Question 2) and
memorandum of June 15, 2007, from Robert J. Meyers to Regional
Administrators, re: ``Decision of the U.S. Court of Appeals for the
District of Columbia Circuit on our Petition for Rehearing of the
Phase 1 Rule to Implement the 8-Hour Ozone NAAQS'' (Implications for
Subpart 1 Areas).
---------------------------------------------------------------------------

    For those areas that are still violating the 1997 8-hour ozone
standard, it is critical for them to move forward and achieve the
emission reductions needed to ensure timely attainment.
    Comment: One state agency commenter recommended that the effective
date of the new classifications be 1 year after the rule is issued; if
the area attains before the effective date, the rule would be waived
for that area.
    Response: The CAA requires that areas be classified ``at the time
of designation by operation of law.'' The effective date of designation
for the 1997 ozone standard was June 15, 2004. While we do not believe
it is appropriate to treat the classifications as

``retroactive,'' such that they would be considered effective over 5
years ago, we also do not believe there is a legal basis for deferring
the effective date of the classification for 1 year. Moreover, as noted
above, if the Court had not vacated our placement of areas only under
subpart 1, the areas affected by this rule would have had an attainment
date (June 2009) that is 1 year earlier than the attainment date (June
2010) they would receive if classified as Moderate under this rule.
Thus, even if the EPA had a legal basis and discretion to delay the
effective date of the classification, and thus delay the planning and
attainment obligations, we do not believe in this instance that it
would be reasonable to do so.
c. Timing of Attainment Date
    Comment: A number of commenters argued that the proposal did not
provide newly classified Marginal and Moderate areas sufficient time to
attain and that they should have maximum attainment dates of 3 and 6
years (respectively) from the effective date of the new
classifications, not the original nonattainment designations in 2004.
Several commenters cited the EPA's interpretation of the CAA's
attainment date in the Phase 1 Rule for support by referring to section
181(b)(1) that provides that where an area designated attainment or
unclassifiable is subsequently redesignated to nonattainment, the area
shall be classified under Table 1 of section 181 and shall be subject
to the same requirements applicable if it had been classified at the
time of notice under section 107(d)(3), ``except that any absolute,
fixed date applicable in connection with any such requirement is
extended by operation of law by a period equal to the length of time
between the date of enactment of the CAA Amendments of 1990 and the
date the area is classified under this paragraph.'' The commenters note
that while by its terms section 181(b)(1) would not expressly apply to
reclassification of a nonattainment area, the section indicates that
retroactive application of time requirements is not favored. The
commenters note that regarding the proposed rule, the EPA would be
classifying areas in 2009, not in 2004, and argue that deadlines should
be calculated from 2009, not from 2004. They also argue that even if
the EPA believes the deadlines need to be adjusted in some way to
address this unique situation, the calculation and adjustment should be
done from 2009 after an assessment of the situation as it exists in
2009. The commenters also argue that the EPA seems to be doing exactly
what the U.S. Supreme Court warned against in Whitman when the Court
rejected the idea of mechanically applying subpart 2's method for
calculating attainment dates, which is simply to count forward a
certain number of years from the effective date of the 1990 CAA
amendments. They point out that the Court observed that simplistically
using the subpart 2 scheme ``depending on how far out of attainment the
area started--seems to make no sense for areas that are first
classified under a new standard after November 14, 1990. If for
example, areas were classified in the year 2000, many of the deadlines
would largely have expired at the time of classification.''
    Response: For the reasons articulated in previous responses, we do
not believe that it is legally supportable to start the attainment
periods from the time of classification pursuant to this rule, nor do
we believe that such an approach is reasonable. The primary trigger for
planning for attainment of a NAAQS is the designation as nonattainment
for that standard. As noted previously, regardless of whether an area
is subject only to subpart 1, or is classified as Marginal or higher
under subpart 2, the obligation is the same--to attain as expeditiously
as practicable. Thus, there is no legal or policy basis to delink the
attainment obligation from the time of designation and instead link it
to the time of classification. We disagree that this situation is
analogous to the situation where an area is newly designated
nonattainment and for which section 181(b)(1) provides that any
submission dates tied to the date of enactment of the CAA Amendments be
extended to account for the time of designation. In such a case, the
key is that the area is newly designated as nonattainment--not that the
area's classification status has changed or been clarified. All of the
areas that will receive a subpart 2 classification pursuant to this
rule have been designated nonattainment since June 2004 (except for the
Denver area, which was designated nonattainment effective November 20,
2007) and thus should be well on their way toward planning for
attainment of the 1997 ozone standard as expeditiously as practicable.
To the extent that those efforts have been delayed, we see no legal
basis or justification to provide additional time.
    Comment: One state air agency commenter argued that the 5 percent
reclassification provision of the CAA would be rendered meaningless by
the timing in the proposal, because the attainment date for Marginal
areas has already passed.
    Response: We agree as a practical matter that none of the 16 areas
affected by this final rule are eligible for a classification
adjustment.
    Comment: Several commenters argued that the Denver area should have
a June 2007 attainment date for its Marginal classification and thus
should be reclassified to Moderate because it did not attain by a June
2007 attainment date. They claim that the Early Action Compact (EAC)
concept was unlawful. They argue that even assuming the EAC deferral
was legally permissible, Denver was in fact identified as a
nonattainment area in the EPA's original April 30, 2004, designations
action. Moreover, they point out that the EPA agrees, ``as it must
under the Act,'' that areas identified as of April 30, 2004, as
violating the 1997 ozone NAAAQS (including Denver) must be classified
based on their design values as of April 30, 2004. They claim that
under Sec.  181 of the Act, such classification occurred by operation
of law no later than April 30, 2004. Furthermore, they claim that
assigning a November 2010 Marginal area attainment date to Denver (a
Marginal area) is also unreasonable and arbitrary, given that the EPA
is assigning a June 2007 attainment date to all other areas classified
as Marginal based on 2001-03 design values. They argue that even if the
Act could be read as giving the EPA some discretion in setting the
outside attainment date, the statute expressly requires the attainment
date to be ``as expeditiously as practicable.'' They argue that the EPA
cites no legal or rational basis, and none exists, for finding that
November 2010 is ``as expeditiously as practicable'' for Denver, when
every other Marginal area had a 2007 attainment date, nor is there any
conceivable justification consistent with the Act and its purposes.
They point out that Denver residents are not somehow less deserving of
clean air than residents of the other areas, nor is there any rational
basis for delaying the stronger controls in Denver that would come from
the reclassification to Moderate required for all other Marginal areas
that failed to attain by 2007 and were ineligible for attainment date
extensions. They argue that the EPA cannot claim that it would be
harder for Denver to adopt Moderate area controls than the other areas
proposed for Moderate classification, as all of the other areas will
have had the same amount of time to prepare and implement SIP
requirements. They argue that neither is there any inequity in
requiring Denver to adopt the same controls on the same schedules as
required for other areas initially

classified as Marginal based on 2001-03 design values. To the contrary,
they argue, allowing Denver more time than other Marginal areas not
only flouts Congressional intent but is grossly inequitable to the
other Marginal areas required to attain by 2007. The commenter also
argues that the EPA cannot rely on the EAC deferral of the effective
date of Denver's attainment designation and classification because that
deferral was itself contrary to the Act. ``Nowhere does the Act allow
the EPA to defer the effective dates of ozone nonattainment
designations and classifications, or to otherwise delay control
requirements triggered by designations. To the contrary, the Act
requires nonattainment designations by date-certain deadlines. Section
107(d), 42 U.S.C. 7407(d); Pub. L. 105-178, section 6103, 112 Stat. 465
(June 9, 1998), codified at 42 U.S.C. 7407 Note. Promulgating a non-
effective nonattainment designation--i.e., a paper designation that
sits in the books without being activated--violates this requirement.
Further, the Act contains a detailed array of requirements, likewise
governed by date certain deadlines, applicable to nonattainment areas,
including submission of implementation plans providing for attainment,
rate-of-progress, and various specific programs such as new source
review, conformity, and contingency measures. See, e.g., CAA sections
181, 182, 110, 172, 173, 176. By refusing to implement these various
requirements, the EAC scheme violates those provisions. The Act
likewise prescribes requirements governing redesignation of
nonattainment areas to attainment (setting forth several prerequisites
that must be met before such redesignation can be granted), CAA section
107(d)(3)(E), and requiring the EPA-approved maintenance plans
sufficient to remedy any relapse into nonattainment that occurs during
the 20-year period following redesignation. CAA sections
107(d)(3)(E)(iv), 175A. By shunting these requirements aside, the EPA
would violate those provisions as well.''
    Response: The EPA acknowledges the commenters' concerns with the
EAC program. However, the EPA's rules regarding EAC areas under the
1997 ozone NAAQS were promulgated in 2004, and the proper time for
challenging the legality of the EAC program and the deferral of the
effective date of the nonattainment designation for Denver (and other
EAC areas) was within 60 days of publication in the Federal Register of
those final actions (40 CFR Part 81, September 21, 2007 (72 FR 53952)
and April 30, 2004 (69 FR 23857)). To the extent the commenters are
raising concerns about the effective date of designation for the Denver
nonattainment area and the attainment date for that area, those were
established in a final rule published September 21, 2007 (72 FR 53952).
Thus, these comments are not timely. We note that contrary to the
claims of the commenters, the Denver area's classification in this
rulemaking is based on the design value that existed at the time the
EPA initially published (and deferred the effective date of) the
nonattainment designation [April 30, 2004 (69 FR 23858)] and was based
on 2001 to 2003 data. With regard to the claims concerning the time
periods for SIP submissions, we note that the time periods for
attainment and SIP submissions for the Denver area are linked to the
effective date of the designation and/or classification of the area, as
they are for all areas. With respect to the attainment date, the Denver
area, which is classified as Marginal under this rule, had an
attainment date of November 2010--3 years following the effective date
of designation.
    Comment: One state agency commenter argued that for Moderate areas,
the requirement to provide reasonable further progress toward
attainment is rendered meaningless by the timing of the proposal, since
there would be no time to provide progress prior to the attainment
date.
    Response: Given the timing of the maximum statutory attainment date
(June 15, 2010) and SIP submission date (1 year after the effective
date of this rulemaking) for Moderate areas, any RFP plan not already
in effect will not have an effect on attainment by the attainment date
since the attainment date for Moderate areas has already passed.
However, under the CAA, an RFP plan (to obtain 15 percent VOC emissions
reductions from baseline emissions within the first 6 years after the
applicable base year) would still be a required SIP element, even
though the 6-year period might end after the Moderate area attainment
date, depending on the base year for the state's RFP calculation. We
note that under the Clean Data Policy, codified at 40 CFR 51.918 (70 FR
71702, November 29, 2005), if the area attains the standard, a Clean
Data Determination under the Clean Data Policy provision would suspend
the obligation to submit the RFP SIP. The suspension would remain in
place until such time as the EPA redesignates the area to attainment,
at which time the requirement would no longer apply, or until EPA
determines the area has violated the 1997 standard, at which time the
obligation would apply once again.
d. Data Used for Classification
    A number of the commenters argued that the EPA should use more
recent data for the classification of the former subpart 1 areas. There
were several arguments made in these comments, and we address them
separately here:
    Comment: Commenters claim that using the 2001-2003 data for the
initial designations ignores the improvements in emissions reductions
(e.g., through the NOX SIP call) and ambient ozone
reductions that have occurred since designations were made in 2004.
Some commenters note that several of the areas are close to attaining
the standard and would be subjected to mandatory controls that would
not be necessary to attain the standard. Another commenter notes that
Appendix A of the January 16, 2009 proposal shows that, with one
exception, the current subpart 1 areas for which a 2005-2007 design
value is available had a lower design value in those years than they
did for 2001-2003, and the one exception (Las Vegas) had the same
design value in both periods; thus using the earlier data would more
likely subject areas to a higher classification. Another commenter
notes that section 181(a) directed the EPA in 1990 to classify areas
using the most recent data (i.e., data from 1990, or actually, a future
time when designations would be made), not data from 6 years earlier.
The commenter also notes that section 181(a) does not state that the
data used to classify areas must be the data that existed at the time
of designation. They argue that section 181(a) instead specifies only
that the classification occur at the time of designation. They point
out that classification is precisely the thing that did not lawfully
occur at the time of designation in 2004, through no fault of the
states. They argue that the temporal connection between classification
and designation has been irretrievably broken. They argue that a second
temporal connection in section 181(a), namely the connection between
classification of areas and data used to classify areas, has not been
broken and should be preserved by using the most recent data. They
claim that doing so allows the EPA to better assess where states are
now and where mandatory requirements of a higher classification are
really needed to address ozone nonattainment. It avoids creating
artificial deadlines based on retroactive application of time periods
and classification based on a backward-looking review of data. It
avoids

depriving states of the opportunity to develop strategies to attain the
revised standard based upon where the state's air quality is, not was.
They argue this is particularly true for areas like Columbus and
Cincinnati in Ohio that have attained the 1-hour standard that was
addressed by subpart 2, and already have or are close to attaining the
1997 standard. They claim that these areas do not need to be abruptly
classified at the tougher Moderate classification with its mandatory
emission control measures.
    Response: As we noted in the proposal, the classifications would be
the initial classifications for these areas for the 1997 ozone
standard. We noted that CAA section 181(a) provides that ``at the
time'' areas are designated for a NAAQS, they will be classified ``by
operation of law'' based on the ``design value'' of the areas and in
accordance with Table 1 of that section. We believe this language
requires that the area be classified based on the design value that
existed for the area ``at the time'' of designation. Areas were
designated nonattainment in 2004, based on design values derived from
data from 2001-2003.
    We also note that arguments that areas should be able to develop
plans to attain based on what the air quality ``is,'' not what it
``was,'' would only serve to further delay the progress that should
already have been made. As noted previously, if the area had remained
solely subject to subpart 1, the area would have been required to
attain the 1997 standard by June 2009. Those areas that have attained
and have been redesignated as of the effective date of this final rule
will not be classified under subpart 2. The EPA has previously reminded
states that they should remain on track with planning for attainment
despite the Court's remand of the subpart 1 classification.
    We also note that it would be inequitable to most areas previously
classified under subpart 2 to classify a former subpart 1 area with
similar air quality using current air quality data. Most of the areas
classified under subpart 2 in 2004 now have cleaner air than they did
in 2004 and thus, if they were being classified now based on more
recent air quality data, they too would receive a lower classification.
    Comment: One commenter alleged that using the 2001-2003 data for
Allegan County, MI, produces an absurd result, requiring mandatory
local emission controls when the problem is clearly transport from
outside the state. The commenter cites the study, ``Western Michigan
Ozone Study--Draft Report'' of November 2008, prepared by the Lake
Michigan Air Directors Consortium (LADCO) for the EPA, to comply with a
provision within the Energy Policy Act of 2005. That commenter notes
that in NRDC v. EPA, 22 F.3d 1125 (D.C. Cir. 1994), the D.C. Circuit
Court addressed the EPA's failure to meet a November 15, 1991 deadline
in the CAA for publication of guidance for states' preparation of SIPs
for ``enhanced'' vehicle inspection and maintenance. Those SIPs were
due by November 15, 1992. Because the EPA failed to publish the
necessary guidance until nearly a year after the statutory deadline for
that guidance, states could not be held to their deadline, and the
states' SIP submissions deadline was ``properly extended to further the
CAA's purposes.'' The commenter concludes that for purposes of the
proposed rule, the EPA's failure in 2004 to meet its statutory
obligation to classify ozone nonattainment areas lawfully, is no cause
for the EPA to now use the data it would have used at that time in
classifying areas, where those data would disadvantage the areas. They
comment that the effect of the EPA's proposed approach on this issue is
to penalize states, areas, and sources unfairly for the EPA's legally
deficient action.
    Response: We disagree with the commenter's suggestion that it would
be an ``absurd result'' to use designation-era data for classification.
As we noted previously in relation to the concept of allowing
exemptions from requirements under subpart 2, the judicial precedents
in which courts have allowed exceptions from the strict language of a
law are fairly narrow. For instance, in the final Phase 2 Rule, we
said: ``In general, we note that to demonstrate an absurd result, a
State would need to demonstrate that application of the requirement
would result in more harm than benefit. For example, the programs
mandated under subpart 2 are generally effective in reducing emissions
of the two ozone precursors--NOX and VOC--and because
reductions of those precursors generally lead to improved air quality,
we believe that such a demonstration could be made, if at all, only in
rare instances.'' See 70 FR at 71620; November 29, 2005. We do not find
that the situation at issue here meets the criteria implied by judicial
precedents.
    We also disagree with the commenter's statement where the commenter
relies upon NRDC v. EPA to argue against using the data from the time
of designation. In NRDC, the Court faced an impossibility argument.
Under the CAA, States were required to develop I/M SIPs consistent with
the EPA guidance. Because the EPA was late in issuing that guidance
(which it determined needed to be issued through rulemaking), States
were unable to submit timely SIPs that were consistent with the
guidance. There is no impossibility argument here. The data from 2001-
2003 exist and can be used to classify areas. To the extent that SIP
submission dates for these areas have passed, the EPA is providing
additional time for submission of those plans. To the extent that a
Marginal area affected by this rule did not attain the standard by the
June 15, 2007, attainment date (or the extended deadline), the EPA is
reclassifying the area to Moderate.\12\ Furthermore, we note that the
subpart 2 classifications based on 2001-2003 data are not
``punishment'' for the EPA's failure to classify areas correctly in the
initial Phase 1 Rule. Using the 2001-2003 data places the areas in the
position they would have been in if the EPA had initially classified
all areas under subpart 2 in the initial Phase 1 Rule.
---------------------------------------------------------------------------

    \12\ We do not agree with arguments that we should allow for a
Marginal area classification with an attainment date in the future.
As noted in several places, Marginal areas are presumed capable of
attaining quickly without the adoption of additional local controls.
For that reason, there are virtually no mandated local control
requirements for Marginal areas under section 182(a), nor is there a
requirement to develop an attainment demonstration. Thus, to the
extent an area would have been classified as Marginal based on its
2001-2003 design value yet failed to attain by June 2007, we see no
argument that such areas would have attained if EPA had
``correctly'' classified them as Marginal in 2004. (We note that
many of the areas originally identified as subpart 1 have indeed
attained and been redesignated as attainment.)
---------------------------------------------------------------------------

    Comment: Another commenter notes that 40 CFR Part 50, Appendix I
states: ``the 3-year average annual fourth-highest maximum 8-hour
average ozone concentration is also the air quality design value for
the site.'' The appendix states in section 2.2 that ``The 3-year
average shall be computed using the three most recent, consecutive
calendar years of monitoring data meeting the data completeness
requirements described in this appendix.'' The commenter notes that the
definition of ``design value'' in the CFR requires that the three most
recent years be used to calculate it.
    Response: We disagree with commenters that rely on 40 CFR Appendix
I to argue that there is only one ``design value'' for an area and that
it is based on the most recent 3 years of data. We agree that the
current design value for an area is based on the most recent 3 years of
data, but that does not mean design values for previous 3-year periods
of time are no longer relevant. As explained previously, we believe
that the language in section 181(a) of the

Act provides that classifications be based on the design value used for
designation.
    Comment: Another commenter claims that ignoring current air quality
data is out of step with the EPA's new emphasis on science-based
decisions.
    Response: The EPA is not ignoring current air quality data, but
must classify areas based on the law as described above.
    Comment: Environmental organization commenters argue that the EPA
should use the air quality data available at the time of designation
for initial classification.
    Response: The EPA agrees for the reasons stated in the proposed
rule and above in response to comments.
e. Other Comments on Classification of Former Subpart 1 Areas
    Comment: One state air agency commented that the proposed rule does
not adequately address situations like Allegan County, MI, which is
largely affected by transport but yet is not provided any relief under
the CAA such as coverage under the rural transport area provision of
section 182(h).
    Response: We agree that the CAA does not provide relief in the form
of being identified as a ``rural transport area'' for areas such as
Allegan County, MI, whose nonattainment area boundary is adjacent to a
metropolitan statistical area. Part of the EPA's rationale in the Phase
1 Rule for using subpart 1 was to address situations such as that with
Allegan County. However, the court in South Coast found that Congress
intended to constrain such discretion. The commenter has not suggested
any specific relief available under the CAA that the EPA could have
applied in this final rule.

B. Anti-Backsliding Under Revoked 1-Hour Ozone Standard--In General

1. Proposal
    The EPA codified anti-backsliding provisions governing the
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone
NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained
most of the 1-hour ozone requirements as ``applicable requirements''
[defined in 40 CFR 51.900(f)]. A requirement listed as an ``applicable
requirement'' is retained for an area if the requirement applied in the
area based on the area's 1-hour ozone designation and classification as
of the effective date of its 8-hour designation (for most areas, June
15, 2004). 40 CFR 51.900(f).
    Section 51.905(b) provides that an area remains subject to the 1-
hour standard obligations defined as ``applicable requirements'' until
the area attains the 8-hour NAAQS. Furthermore, Sec.  51.905(b)
provides that such obligations cannot be removed from a SIP, even if
the area is redesignated to attainment for the 8-hour NAAQS, but must
remain in the SIP as applicable requirements or as contingency
measures, as appropriate.
    Section 51.905(e), as promulgated in 2004, indicated that certain
1-hour standard requirements would no longer apply after revocation of
the 1-hour standard. Among other things, these included 1-hour NSR,
section 185 penalty fees for the 1-hour NAAQS, and 1-hour contingency
measures for failure to attain or make reasonable progress toward
attainment of the 1-hour NAAQS.\13\ The Court vacated these exemption
provisions, and in the January 16, 2009, proposed rule, the EPA
proposed to delete these three vacated provisions from the Code of
Federal Regulations.\14\
---------------------------------------------------------------------------

    \13\ Note that if the area is nonattainment for the 1997 8-hour
standard, for purposes of the 1997 standard, it is subject to
nonattainment NSR, contingency measures and (if classified as Severe
or Extreme for the 1997 ozone NAAQS) the section 185 penalty fee
provision.
    \14\ We noted in the proposal that the Court's June 2007
clarification, South Coast, 489 F3d 1245, confirms that the December
2006 decision was not intended to establish a requirement that areas
continue to demonstrate conformity under the 1-hour ozone standard
for anti-backsliding purposes. Therefore, no revisions were proposed
to 40 CFR 51.905(e)(3). Section 40 CFR 51.905(e)(3) establishes that
conformity determinations for the 1-hour standard are not required
beginning 1 year after the effective date of the revocation of the
1-hour standard and any state conformity provisions in an applicable
SIP that require 1-hour ozone conformity determinations are no
longer federally enforceable. This provision does not require
revision in light of the Court's decision and clarification, because
the Court did not require conformity determinations for the 1-hour
standard, and existing regulations already implement the Court's
holding that 8-hour ozone nonattainment and maintenance areas must
use 1-hour ozone budgets to determine conformity to the 1997 8-hour
standard until such time as 8-hour ozone budgets are approved or
found adequate for the area. Therefore, current transportation
conformity-related regulations set forth in 40 CFR part 93 and 40
CFR 51.905(e)(3), and the general conformity regulations in 40 CFR
part 93 are consistent with the Court's decision and clarification
on the Phase 1 Rule and do not require revision.
---------------------------------------------------------------------------

2. Final Rule
    This final rule addresses how anti-backsliding principles will
ensure continued progress toward attainment of the 8-hour ozone NAAQS.
The final rule removes three vacated provisions of the Phase 1 Rule
that provided exemptions from the anti-backsliding requirements
relating to nonattainment NSR, CAA section 185 penalty fees, and
contingency measures as these requirements applied for the 1-hour
standard. This rule also reinstates 1-hour contingency measures as
applicable requirements that must be retained until the area attains
the 1997 ozone standard. The EPA has issued separate guidance \15\ and
a separate proposed rule addressing the now-applicable 1-hour
requirements for NSR (75 FR 51960, August 24, 2010). The EPA will also
address reinstatement of the section 185 fee program obligations in
separate action.
---------------------------------------------------------------------------

    \15\ Robert J. Meyers Memorandum, October 3, 2007, New Source
Review (NSR) Aspects of the Decision of the U.S. Court of Appeals
for the District of Columbia Circuit on the Phase 1 Rule to
Implement the 8-Hour Ozone National Ambient Air Quality Standards
(NAAQS).
---------------------------------------------------------------------------

3. Comments and Responses
    Comment: One group of environmental organizations supported the
proposal to remove the three exemptions from the regulations, but
stated that NSR and the section 185 fee requirement must be added to
the list of ``applicable requirements'' at 40 CFR 51,900(f). Several
commenters expressed other concerns about the implications of removing
the 1-hour NSR and section 185 fee program exemptions.
    Response: In this final rule, the EPA is only removing the
regulatory language at 40 CFR 50.9(c) that provided for the exemptions
from 1-hour NAAQS requirements in accordance with the court vacatur.
The EPA has addressed in a separate proposed rulemaking exactly how the
regulatory provisions should address the now-applicable 1-hour NSR
requirements (75 FR 51960, August 24, 2010), and plans to address
application of section 185 fee program requirements for the 1-hour
standard in separate actions.
    Comment: A state agency commented that the Court never addressed
the requirements that should still apply to prevent backsliding in
areas that had already achieved timely attainment of the 1-hour ozone
standard and only focused on whether NSR was a required control for the
purposes of CAA section 172(e) anti-backsliding provisions for areas
not attaining the 1-hour standard (such as South Coast Air Basin).
    The commenter stated that section 51.905(e)(4), which states that
upon revocation of the 1-hour ozone NAAQS, a 1-hour nonattainment
area's implementation plans must meet requirements contained in
paragraphs (e)(4)(ii) through (e)(4)(iv) of this section, should not be
deleted. Instead, this section should be retained and supplemented with
further language to appropriately address the circumstances of 1-hour
standard nonattainment areas

that attained the 1-hour standard. For example, the further language
could specify that section 51.905(e)(4) is not applicable in the
circumstances that were present with the South Coast Air Basin.
Alternatively, the further language could specify that section
51.905(e)(4) is applicable only in certain circumstances, including
those that were present for the Greater Chicago Ozone Nonattainment
Area, which attained the 1-hour standard prior to the November 2007
Severe area deadline.
    Response: In South Coast, the Court vacated the regulatory
provision that did not retain the obligation for States to have 1-hour
major NSR requirements as part of their approved SIPs. The Court held
that removing such provisions from a SIP ``would constitute
impermissible backsliding.'' 472 F.3d 882 (2006), clarified, 489 F.3d
1245 (DC Cir. 2007), cert. denied, 76 U.S.L.W. 3095 (U.S. Jan. 14,
2008).
    In this final rule, we are removing the vacated provision that did
not retain 1-hour NSR obligations from the regulations at 40 CFR part
51 in order to ensure the published regulatory text is consistent with
the Court's vacatur. The South Coast decision means that states remain
obligated to have in their SIPs the 1-hour major NSR thresholds and
offsets in those 8-hour nonattainment areas that had not been
redesignated to attainment for the 1-hour ozone NAAQS as of the date of
designation for the 1997 8-hour ozone NAAQS. The Phase 1 Rule (69 FR
23972) established the date of the designation for the 1997 8-hour
ozone NAAQS (June 15, 2004 for most areas) as the relevant date for
determining what anti-backsliding requirements would apply to areas
(i.e., the requirements that applied based on the area's 1-hour
designation and classification as of the effective date of designation
for the 8-hour standard). In a separate rulemaking, we plan to address
the circumstances in which 1-hour NSR requirements might be removed
from a SIP, specifically addressing areas that currently attain the 1-
hour standard such as Chicago.
    We disagree with the commenter that the Court's decision only
addressed the specific circumstances applicable to the South Coast Air
Quality Management District (SCAQMD). While SCAQMD, as the ``lead
petitioner,'' lent its name to the case, the challenges to the rule
were broad and concerned the anti-backsliding requirements as they
applied to all types of areas. Furthermore, we note that the anti-
backsliding rules applied in the same manner in the Chicago area as
they did in SCAQMD. Under the rules, the requirements that were
retained for an area were those that applied as of the effective date
of designation for the 1997 8-hour NAAQS. Both the Chicago area and the
SCAQMD were designated nonattainment for the 1-hour standard at the
time of designation for the 8-hour standard and were designated
nonattainment for the 8-hour standard. Thus, both areas were subject to
the anti-backsliding provisions in 40 CFR 51.905(a)(1) that address
requirements for ``8-Hour NAAQS Nonattainment/1-Hour NAAQS
Nonattainment.'' Furthermore, the provisions in 40 CFR 51.905(e) that
did not retain certain 1-hour requirements applied in the same manner
to both areas. Thus, to the extent the South Coast decision addresses
these regulatory provisions, it applies in the same manner to both
areas.
    Comment: One commenter maintained that we should ensure and confirm
that the proposed rules do not have retroactive effect. Speaking in
terms of NSR, the commenter said any changes to the 8-hour ozone
implementation rule that impose additional or new requirements on
designated areas should not be effective until after the implementation
rule is adopted and any necessary SIP revision is adopted and approved
on a timely basis. To support their comment, they referenced Sierra
Club v. Whitman, 285 F.3d 63 (DC Cir. 2002). They also commented that
the Administrative Procedure Act severely restricts retroactive
rulemaking and Congress did not take the unusual step of giving U.S.
EPA the ability to implement rules retroactively. The requirement that
1-hour NSR continues to apply to 8-hour nonattainment areas that attain
the 1-hour NAAQS will not be officially adopted until mid-2009, at the
earliest. Hence, for all units that commence construction (e.g.,
contract commitments are in place or building has begun) between 2004
and 2009, in areas re-designated as attaining the 1-hour NAAQS, 1-hour
NSR has not applied. They asserted the South Coast court could not have
intended the retroactive application of the requirement. Further the
commenter maintained that retroactive application of this rule to
sources that have already committed contracts is contrary to fairness
and predictability in regulatory environments.
    Response: In this final rule, we are removing from the regulations
at 40 CFR part 51 the provision that did not retain 1-hour NSR
obligations in order to ensure the published regulatory text is
consistent with the Court's vacatur. We view the portions of the
Court's decision on the anti-backsliding provisions as self-
implementing; thus, at a minimum, as of the date of the Court's mandate
(August 29, 2007), areas that were designated nonattainment for the 1-
hour standard as of the effective date of designation as nonattainment
for the 1997 8-hour standard, have been obligated to adopt and
implement an NSR program consistent with their 1-hour classification as
of the effective date of designation for the 1997 ozone standard. We
note that we have urged states to take steps to comply with the
decision without waiting for further EPA rulemaking. See e.g.,
Memorandum from Robert Meyers to Regional Administrators (October 3,
2007). The necessary actions to achieve such compliance may vary
depending on the specific situation.
    Because this rule merely removes the vacated regulatory text, it
has no ``retroactive effect'' as suggested by the commenter. As noted
above, at a minimum, as of the date the mandate issued, areas
designated nonattainment for the 1997 8-hour standard have been
obligated to ensure that their SIP includes a 1-hour NSR program
consistent with their classification for the 1-hour standard as of the
effective date of designation for the 1997 ozone standard and to
implement such program. Thus, for any permitting actions that have
occurred since the issuance of the Court's mandate, we do not believe
there is any argument that the requirement to meet 1-hour NSR
obligations is ``retroactive.''
    To the extent the commenter raises the issue of retroactivity, the
issue is relevant only to the extent to which the Court's vacatur has
retroactive effect. In some instances, a vacated regulation has been
held to be ``void ab initio''; in other words, the regulation is
treated as if it had never existed. See, e.g., United States v. Goodner
Bros. Aircraft, Inc., 966 F.2d 380 (8th Cir. 1992). In addition, the
D.C. Circuit has held that there is a presumption of retroactivity for
adjudications when such adjudications clarify existing law, and that
the presumption is departed from only when to do otherwise would lead
to manifest injustice. Qwest Services Corp. v. F.C.C., 509 F.3d 531
(D.C. Cir. 2007). The D.C. Circuit has stated that vacatur has ``the
effect of restoring the status quo ante.'' Air Transport Association of
Canada v. FAA, 254 F.3d 271, 277 (D.C. Cir. 2001). The EPA will work
with states and sources to resolve any issues arising from permitting
actions taken between June 15, 2004 and

August 29, 2007,\16\ based on a permit program that was consistent with
the waiver in 40 CFR 51.905(e)(4).
---------------------------------------------------------------------------

    \16\ That is, between the effective date of the initial area
designations for the 1997 8-hour standard and the date of the final
D.C. Circuit Court ruling on rehearing of the South Coast case.
---------------------------------------------------------------------------

C. Contingency Measures

1. Proposed Rule
    The Court in South Coast Air Quality Management District, et al.,
v. EPA, 472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245,
vacated 40 CFR 51.905(e)(2)(iii), which did not retain the anti-
backsliding requirement concerning contingency measures, on the basis
that they were control measures that must continue to apply. Therefore,
the EPA proposed that states be required to retain 1-hour contingency
measures in their SIPs that apply based on a failure to meet 1-hour RFP
milestones or upon a failure to attain the 1-hour standard by the
area's attainment date. Furthermore, consistent with the EPA's proposal
to retain these 1-hour contingency measure requirements as anti-
backsliding measures, we also proposed to add ``contingency measures
under sections 172(c)(9) and 182(c)(9) of the CAA'' to the list of
applicable requirements under Sec.  51.900(f). The proposal noted that
in situations where an area attains the 1-hour NAAQS by the applicable
attainment date for that standard, the area is not subject to the
requirement to implement contingency measures for failure to attain the
standard by its attainment date. As a result, any area that has met its
attainment deadline for the 1-hour standard (or meets its deadline if
it has not yet passed), would not be required to implement the
contingency measures for failure to attain the standard by its
attainment date for purposes of anti-backsliding even if the area
subsequently lapses into nonattainment. Additionally, the contingency
measures for failure to meet RFP milestones would not be triggered if
the area has met those milestones.
    The proposal also noted that in situations where a 1-hour ozone
nonattainment area is in attainment of that standard based on current
air quality, the EPA can make a finding of attainment. See Memorandum
from John S. Seitz, Director, Office of Air Quality Planning and
Standards, entitled, ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone Ambient Air Quality Standard,'' dated May 10, 1995.
Under this policy, which is referred to as the ``Clean Data Policy,''
if the EPA determines through rulemaking that the area is meeting the
1-hour ozone standard, the requirements for the state to submit an
attainment demonstration and related components such as contingency
measures for failure to attain or make reasonable further progress are
suspended as long as the area continues to attain the 1-hour ozone
NAAQS. (We note that such a determination does not relieve an area of
the requirement to comply with a contingency measure provision in an
approved SIP, but merely suspends any outstanding submission
requirement.) If the area subsequently violates the ozone NAAQS for
which the determination was made (in this example, the 1-hour ozone
NAAQS), the EPA would initiate notice-and-comment rulemaking to
withdraw the determination of attainment, which would reinstate the
requirement for the state to submit such plans.
    The proposal noted that three federal courts of appeal have upheld
the EPA rulemakings applying the Clean Data Policy. See Sierra Club v.
EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537
(7th Cir. 2004) and Our Children's Earth Foundation v. EPA, No. 04-
73032 (9th Cir. June 28, 2005) memorandum opinion. Since the proposal,
the U.S. Court of Appeals for the District of Columbia Circuit has also
upheld the Clean Data Policy, which was codified in 40 CFR 51.918 for
purposes of implementing the 1997 ozone NAAQS, in NRDC v. EPA, 571 F.3d
1245 (DC Cir. 2009).
    Thus if the EPA makes a determination of attainment of the 1-hour
ozone standard as provided by the Clean Data Policy, the EPA would find
that the requirement under the anti-backsliding provisions (40 CFR
51.905) to submit any outstanding section 172 and 182 contingency
measures under the 1-hour standard would be suspended for so long as
the area continues to attain the 1-hour standard.
2. Final Rule
    The final rule takes the same approach as proposed, namely, that
areas designated nonattainment for the 1997 8-hour ozone NAAQS must
adopt, if not already adopted, and retain in their SIPs, contingency
measures for failure to meet 1-hour RFP milestones and for failure to
attain the 1-hour standard by the area's attainment date. This
requirement applies where an area remained designated nonattainment for
the 1-hour standard at the time of the area's designation to
nonattainment for the 1997 8-hour ozone standard. To clarify that this
requirement continues to apply, we are including ``contingency measures
under sections 172(c)(9) and 182(c)(9) of the CAA'' in the section
51.900(f) list of ``applicable requirements.'' Consistent with 40 CFR
51.905(b), areas remain obligated to adopt and retain these
requirements in their SIPs until they attain and are redesignated for
the 1997 8-hour ozone NAAQS. The rule at Sec.  51.905(b) provides that
an 8-hour nonattainment area will remain subject to the applicable
requirements listed in Sec.  51.900(f) until it attains the 8-hour
standard and that after an area attains the 8-hour standard, the state
may request that the 1-hour obligations be shifted to contingency
measures, but may not remove them completely from the SIP.\17\ In
addition, if prior to attaining the 1997 8-hour ozone standard, the
area attains the 1-hour standard, the EPA may make a determination of
attainment for the 1-hour standard which would suspend the obligation
to submit such contingency measures if the state has not already done
so.
---------------------------------------------------------------------------

    \17\ The preamble to the Phase 1 Rule clarified that, ``it is
appropriate to maintain these mandated controls to remain as part of
the implemented SIP until an area attains the 8-hour NAAQS and is
redesignated to attainment.'' (69 FR 23983). This accompanying
preamble text clarifies that an area must not only attain, but also
must be redesignated to attainment prior to shifting any
``applicable requirements'' to contingency measures. (69 FR 23982-
83). This is further supported by the portion of Sec.  51.905(b)
that provides for the shifting of the 1-hour anti-backsliding
measures to contingency measures. Such a shift can occur only in the
context of an approved section 175A maintenance plan.
---------------------------------------------------------------------------

3. Comments and Responses
    Comment: One environmental organization commenter recommended that
contingency measures for the 8-hour standard should be at least as
stringent as those for the 1-hour standard.
    Response: The proposal addresses the contingency measure
requirement as it relates to anti-backsliding for the 1-hour standard,
which was vacated by the Court. It does not interpret the contingency
measure obligations for the 8-hour standard. Because states have
discretion in selecting the measures to adopt as contingency measures,
concerns regarding the adequacy of contingency measures are best
addressed in the context of a specific SIP rulemaking.
    Comment: Several commenters noted that the preamble to the proposed
rule describes two situations in which states would no longer need to
retain or implement 1-hour contingency measures: (1) Where a
nonattainment area meets or has met its 1-hour attainment date, even if
the area

subsequently lapses into nonattainment; and (2) where--whether before
or after its 1-hour attainment date--a nonattainment area has 1-hour
attainment air quality and the EPA makes a finding of 1-hour attainment
pursuant to the Clean Data Policy that has been in effect since 1995.
They recommended that the EPA reaffirm these principles in its final
action in this rulemaking.
    Response: The EPA reaffirms the position stated in the proposal
that contingency measures for failure to attain would not be triggered
where an area attains the 1-hour standard by its attainment date, even
if the area subsequently lapses into nonattainment. However, the
commenter misinterprets the scope of the Clean Data Policy. Clean Data
Determinations under the Clean Data Policy only suspend the requirement
to submit certain outstanding planning requirements (such as
contingency measures that would be triggered by a failure to attain by
the applicable attainment date). In addition, the obligation to submit
such a SIP is suspended only for so long as the area remains in
attainment. If the area is redesignated to attainment, the obligation
to make such submission would no longer apply. Furthermore, when an
area is redesignated to attainment, it may also move adopted
contingency measures linked to a failure to attain to the contingency
measure portion of the maintenance plan. To the extent contingency
measures have been adopted and approved into the SIP, a Clean Data
Determination under the Clean Data Policy does not authorize the state
to remove them from the SIP. Nor does a Clean Data Determination affect
the requirement that areas comply with SIP-approved measures, such as
contingency measures. Thus, if an area fails to attain by its
attainment date and contingency measures approved into the SIP are
triggered by that failure, a Clean Data Determination that is issued
subsequently would not suspend the obligation to implement the
contingency measures consistent with terms of the approved SIP.
    Comment: One state agency commenter supported removing the vacated
provision of the regulations that provided that states need not retain
1-hour standard contingency measures for failure to attain or make
reasonable further progress toward attaining the 1-hour standard.
    Response: The EPA has removed the vacated provision from the
regulatory text.
    Comment: One state agency commenter supported use of the Clean Data
Policy for the 1-hour standard but does not agree with the portion of
the policy that would require states to meet any planning requirements
stayed pursuant to the policy if there is a subsequent violation of a
revoked standard.
    Response: We note first that the proposed rule did not set forth
any proposal concerning the Clean Data Policy, but merely described a
situation in which the Clean Data Policy might be applied. As noted in
the Clean Data Policy and the regulation codifying that policy for
purposes of the 1997 8-hour ozone standard, a determination of
attainment suspends the obligation to submit certain planning
requirements for only so long as the area continues to attain the
standard. We note that redesignation of the area to attainment for the
1997 8-hour standard would relieve the area permanently of the
obligation to submit such planning SIPs.

D. Section 185 Fee Program for 1-Hour NAAQS

1. Proposal
    The EPA proposed to remove the language relating to the vacated
provisions of the Phase 1 Rule that did not retain the requirement for
areas that were classified as Severe or Extreme for the 1-hour standard
at the time of designation for the 1997 8-hour standard to include in
their SIP a CAA section 185 penalty fee program for the 1-hour standard
(i.e., 40 CFR 51.905(e)(2)(ii)). In South Coast, the Court vacated this
exemption provision.
2. Final Rule
    We are removing the language in 40 CFR 51.905(e)(2)(ii) that did
not retain the requirement for areas that were classified as Severe or
Extreme for the 1-hour standard at the time of designation for the 1997
8-hour standard to include a CAA section 185 penalty fee program for
the 1-hour standard in their SIP.
3. Comments and Responses
    Comment: Several commenters expressed support for not defining the
1-hour section 185 fee provision as an ``applicable requirement'', as
promulgated in Sec.  51.905(e), and indicated that the fees should only
apply until an area attains the 1-hour standard.
    Response: The EPA believes that not defining the section 185 fee
provision as an ``applicable requirement'' is in conflict with the
ruling of the Court. Nevertheless, in this rulemaking, the only issue
the EPA is addressing regarding the applicability of section 185
requirements is the removal of the regulatory provision that was
vacated by the Court in South Coast. Exactly how the EPA plans to
address this applicable anti-backsliding requirement for section 185
fee programs will be addressed in separate action.
    Comment: Several commenters oppose the requirement to have 3 years
of attaining air quality data under the Clean Data Policy in order to
suspend section 185 fees temporarily. They believe fees should be
suspended for any year with data indicating compliance with the 1-hour
standard. They believe requiring a 3-year period of attainment is a
more appropriate criterion for permanent cessation of the 1-hour
section 185 fees.
    Response: In this rulemaking, the only issue the EPA is addressing
regarding the section 185 requirements is the removal of the regulatory
provision that was vacated by the Court in South Coast. The EPA plans
to address anti-backsliding requirements for section 185 fee programs
in separate action.

E. Deletion of Obsolete 1-Hour Ozone Standard Provision

1. Proposal
    The EPA proposed to delete 40 CFR 50.9(c) because it is obsolete.
In the proposal the EPA explained that when we promulgated the 8-hour
ozone standard on July 18, 1997 (62 FR 38856), we also revised 40 CFR
50.9 to provide that the 1-hour ozone standard would be revoked for an
area once the EPA determined that the area had air quality meeting the
1-hour standard. Subsequently, because the pending litigation over the
1997 8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and
associated implementation requirements, we revised 40 CFR 50.9 to place
two limitations on our authority to apply the revocation rule: (1) The
1997 8-hour NAAQS must no longer be subject to legal challenge, and (2)
it must be fully enforceable.\18\ (65 FR 45182, July 20, 2000). These
limitations were codified as Sec.  50.9(c). In the final Phase 1 Rule,
we again revised Sec.  50.9, this time to revise Sec.  50.9(b) to
provide for revocation of the 1-hour standard 1 year after designation
of areas for the 1997 8-hour ozone standard. However, according to our
proposal, in promulgating the Phase 1 rule, we neglected to remove
paragraph (c) which was no longer necessary since the

8-hour standard is no longer subject to legal challenge and the
standard has been upheld and is enforceable. American Trucking Assoc.
v. EPA, 283 F.3d 355. (D.C. Cir. 2002) (resolving all remaining legal
challenges to the 8-hour ozone standard and upholding the EPA's rule
establishing that standard.)
---------------------------------------------------------------------------

    \18\ In addition, in June 2003, we stayed our authority to apply
the revocation rule pending our reconsideration in the
implementation rule for the 1997 NAAQS of the basis for revocation.
(68 FR 38160, June 26, 2003). We completed that reconsideration in
the Phase 1 Rule, which was published in the Federal Register of
April 30, 2004. (69 FR 23951).
---------------------------------------------------------------------------

2. Final Rule
    In reviewing the regulatory text in light of one of the comments
received on the proposal, we realized that we incorrectly described the
obsolete regulatory text in 50.9(c). The language described in the
proposal, which stayed the EPA's authority to revoke the 1-hour ozone
standard while the 8-hour standard remained subject to legal challenge,
was language that was actually removed in the Phase 1 Rule (69 FR
23951, Apr. 30, 2004). That language was added to the second sentence
of 50.9(b) at the time that the status of the 1997 8-hour standard
remained uncertain because of the ongoing litigation challenging that
standard and our ability to enforce it. (65 FR 45200, July 20, 2000.)
Because the litigation challenging the 1997 standard and our ability to
enforce that standard was fully resolved, we deleted that regulatory
language in the Phase 1 Rule.
    However, in June 2003, consistent with a settlement agreement in a
lawsuit challenging the revocation provision we had promulgated
simultaneous with the 1997 ozone standard, we separately stayed our
authority to revoke the 1-hour ozone standard. (68 FR 38163, June 26,
2003). Specifically, we added 40 CFR 50.9(c), which provides that our
authority to revoke the 1-hour ozone standard is stayed until ``EPA
issues a final rule revising or reinstating'' the revocation authority
and considers and addresses certain issues in that rulemaking process.
We considered and addressed those issues in the rulemaking for
implementing the 1997 ozone standard and as part of the final Phase 1
Rule. We revised and reinstated our authority to revoke the 1-hour
standard. (68 FR 32818-19, June 2, 2003; 69 FR 23969-71, April 30,
2004). However, we neglected at that time to remove 40 CFR 50.9(c),
which became obsolete upon the issuance of the Phase 1 Rule.
    Despite the confusion created by our incorrect description in the
proposed rule, we are deleting 40 CFR 50.9(c). As provided above, the
provision is obsolete because the future rulemaking it refers to is the
Phase 1 Rule, which was promulgated in April 2004. Although we
incorrectly described the provision in the proposal, we correctly
indicated that the provision was obsolete and thus we are deleting it
in this final action as proposed.
3. Comments and Responses
    Comment: One commenter expressed concern about the background
statements and explanation regarding the removal of 40 CFR 50.9(c). The
commenter claims there is an incorrect citation in the preamble. In the
Background discussion at 74 FR 2938, col 2, paragraph B, the proposal
said, referring to the two limitations we placed on our authority to
apply the revocation rule, that ``These limitations were codified as
Sec.  50.9(c).''
    Response: As provided above, we recognize that the explanation in
the proposal was confusing because we described regulatory text that
was removed from 40 CFR 50.9(b) at the time we promulgated the Phase 1
Rule, rather than describing the regulatory text we planned to delete,
which is provided in 40 CFR 50.9(c). However, as explained above, the
regulatory text in 50.9(c) is obsolete as noted in the proposal and
thus we are moving forward to remove it from the CFR as proposed.
    Comment: One environmental commenter expressed concern about
confusing language in 40 CFR 50.9(b) and recommended that the second
sentence of that provision be removed.
    Response: Paragraph (b) of Sec.  50.9 states that the 1-hour
standards set forth in the section will remain applicable to all areas
notwithstanding the promulgation of 8-hour ozone standards under Sec.
50.10. The 1-hour NAAQS set forth in paragraph (a) of the section will
no longer apply to an area one year after the effective date of the
designation of that area for the 8-hour ozone NAAQS pursuant to section
107 of the Clean Air Act. Area designations and classifications with
respect to the 1-hour standards are codified in 40 CFR part 81.
    The commenter does not specify why the sentence is confusing and we
disagree that it is. Rather, that sentence is the operative sentence
for revoking the 1-hour standard. Pursuant to this sentence of the
regulation, the 1-hour standard was revoked for most areas on June 15,
2005, the date 1 year after their effective date of designation for the
1997 8-hour standard. For 13 EAC \19\ areas with a deferred effective
date of designation, the 1-hour standard was revoked April 15, 2009,
the date 1 year following their effective date of designation as
attainment for the 1997 NAAQS. For the Denver EAC area, which was
designated nonattainment for the 1997 NAAQS effective November 20,
2007, the 1-hour standard was revoked November 20, 2008. We believe
that it is important to retain this sentence because it specifies the
time at which the 1-hour standard, identified in 40 CFR 51.9(a), no
longer applied to areas.
---------------------------------------------------------------------------

    \19\ Early Action Compacts (EAC) allowed states to pledge to
meet the 1997 8-hour ozone standard earlier than required. State
seeking an EAC must meet a number of criteria and must agree to meet
certain milestones. The most significant milestone was that the EAC
areas had to be in attainment by December 31, 2007, based on air
quality data from 2005, 2006, and 2007.
---------------------------------------------------------------------------

F. Other Comments

    Comment: Several commenters advised that this rulemaking addressing
the 1997 ozone standard should be integrated with planning to address
the 2008 ozone NAAQS. Several commenters recommended that addressing
the 1997 standard should not result in additional paperwork beyond what
is needed for the 2008 standard. One commenter recommended that the EPA
rulemaking focus on implementation of the 2008 ozone NAAQS and deal
with implementation deficiencies of the 1997 standard within the
context of implementing the 2008 NAAQS. One local air agency commenter
argued that reclassification of subpart 1 areas should not be a
priority concern when viewed against other more important priorities,
such as implementation of the 2008 ozone NAAQS.
    Response: The Court in South Coast vacated portions of the Phase 1
Rule that addressed certain anti-backsliding provisions for the 1-hour
standard and the portion of the rule that classified certain 1997 8-
hour standard nonattainment areas under subpart 1. We plan to address
the transition from the 1997 standard to the 2008 standard in separate
rulemaking.
    Comment: One commenter noted that there are several provisions of
subpart X that continue to refer to subpart 1 even though the EPA has
now proposed to classify all nonattainment areas for the 1997 ozone
standard under subpart 2. These include Sec. Sec.  51.908(b),
51.910(b), 51.912(c) and the portions of Sec.  51.915 that are subject
to Sec.  51.902(b). The commenter suggests that these provisions may be
extraneous if there are no areas covered under subpart 1.
    Response: As an initial matter, we note that the general
implementation requirements in subpart 1 also apply to areas classified
under subpart 2; thus, we cannot automatically conclude that the
provisions referred to by the commenter are extraneous. We choose to
err on the side of retaining provisions that may not apply to any areas
rather

than to remove them in this final rule without notice and an
opportunity for comment.
    Comment: One environmental organization commenter indicated support
for the proposal only if the rule could be interpreted as requiring
Marginal areas to meet the CAA reasonably available control measures
(RACM) requirement. The commenter noted that the Denver area was a
former EAC area that failed to attain and was subsequently designated
nonattainment. Under the proposed rule, Denver would be classified as
Marginal. The commenter pointed out that the table in the proposal that
summarized CAA requirements applicable under both subparts 1 and 2
indicates that RACM (under subpart 1) applies to subpart 2 areas also
and thus should apply to Marginal areas.
    Response: It is true that the RACM requirement, which is contained
in subpart 1, applies to areas classified under subpart 2. However, the
EPA has interpreted the RACM requirement for many years in the context
of the requirement to demonstrate attainment as expeditiously as
practicable and subpart 2 specifically exempts Marginal areas from the
requirement to submit an attainment demonstration. In light of that
exemption, the EPA has historically not required Marginal areas to meet
the RACM test required of Moderate and higher classified areas.
However, we note that under our EAC regulations, we required EAC areas
that were subsequently designated nonattainment (like Denver) to submit
an attainment demonstration within 1 year of the effective date of
designation. 40 CFR 81.300(e)(3)(ii)(D). Therefore, the RACM
requirements currently apply to the Denver nonattainment area.
    Comment: One state air agency commenter recommended that the EPA
should approve requests for redesignation to attainment for the 1-hour
ozone standard.
    Response: Because the EPA revoked the 1-hour ozone standard, the
EPA indicated in the Phase 1 Rule that we were no longer obligated to
redesignate areas to attainment or nonattainment for the 1-hour
standard because once that standard was revoked it was no longer
effective in an area. See 40 CFR 51.905(e). We are not reconsidering
that issue as a part of this rulemaking.
    Comment: Several environmental commenters alleged that there were
incorrect statements in the discussion of conformity in the anti-
backsliding portion of the proposal. In one comment, the commenter
says:

    On page 2940, column 1 of the proposal, the EPA states: ``Areas
that would be reclassified under subpart 2 are already satisfying
the applicable CAA section 176(c) conformity requirements for the
1997 8-hour ozone standard.'' The EPA offers no evidence and
analysis to support this claim, which goes far beyond the scope of
the rulemaking proposal. It is neither necessary nor appropriate for
the EPA to make a blanket statement that areas that would be
reclassified are already in fact satisfying applicable conformity
requirements. What the EPA can say is that areas that would be
reclassified under subpart 2 are already required to satisfy
applicable section 176(c) conformity requirements for the 8-hour
standard.

In another comment they say:

    The EPA is also incorrect in stating (at 2941 n.18) that 40
C.F.R. Sec.  51.905(e)(3) does not require revision. That rule
includes language stating that ``any state conformity provisions in
an applicable SIP that require 1-hour ozone conformity
determinations are no longer federally enforceable.'' The DC Circuit
has ruled that the EPA cannot declare conformity provisions of an
approved SIP to be unenforceable. Environmental Defense v. EPA, 467
F.3d 1329, 1337 (D.C. 2 Cir. 2006). The approved provisions of a SIP
remain enforceable until the state submits and the EPA approves
their revocation. Id. Accordingly, 40 CFR Sec.  51.905(e)(3) must be
revised to delete the above-quoted clause.

    Response: We agree with the first comment that the quoted sentence
was worded poorly. We did not intend by that statement to make a
determination that any specific area is satisfying the conformity
requirements. We agree with the commenter's suggestion as to how the
statement could have been better phrased.
    Regarding the second statement, we disagree that 40 CFR
51.905(e)(3) requires revision. That regulatory provision states that
``[u]pon revocation of the 1-hour NAAQS for an area, conformity
determinations pursuant to section 176(c) of the CAA are no longer
required for the 1-hour NAAQS. At that time, any provisions of
applicable SIPs that require conformity determinations in such areas
for the 1-hour NAAQS will no longer be enforceable pursuant to section
176(c)(5) of the CAA.'' Since there is no 1-hour NAAQS, there is no
ongoing conformity requirement for that NAAQS under section 176(c). The
regulation also specifically refers to section 176(c)(5), which states
that conformity determinations apply only in nonattainment and
maintenance areas. Therefore, the intent of the regulations is to
clarify that SIP provisions requiring conformity demonstrations for the
revoked 1-hour NAAQS are essentially meaningless in light of section
176(c)(5). Of course, 1-hour ozone budgets in approved SIPs must be
used to demonstrate conformity to the 8-hour ozone NAAQS if no 8-hour
ozone budget exists.
    Comment: Several environmental commenters allege that the Clean
Data Policy is unlawful. One commenter states that for reasons
explained in briefs filed in NRDC v. EPA, No. 06-1045 (D.C. Cir.)
(which were incorporated by reference, and attached to the comment),
the EPA is completely without authority to suspend the Act's mandates
for submission and implementation of these SIP components merely
because an area is meeting standards at a given point in time. They
note that the Act provides no exception or waiver for submission of
these SIP elements on grounds of temporary attainment. To the contrary,
they note that section 175A(c) of the Act makes crystal clear that all
requirements for nonattainment areas must remain in full force and
effect unless and until the area is redesignated to attainment and has
an approved maintenance plan. For all of these same reasons, they claim
the EPA cannot suspend any Part D requirements retained pursuant to the
Act's anti-backsliding provisions merely because an area is temporarily
meeting either the 1-hour or 8-hour standards. They assert that the
EPA's ``clean data'' policy is nothing more than an illegal attempt to
circumvent the Act's redesignation provisions, section 107(d)(3)(E) and
175A(c).
    Another environmental organization commenter also alleged that the
EPA lacks authority to suspend controls from a SIP by finding the area
is meeting the 1-hour standard. That commenter alleged that the CAA's
redesignation procedures of section 107 provide a specific method that
a nonattainment area must follow in order to remove controls from a
SIP. They note that the CAA is silent on any alternative manner for a
nonattainment area to remove controls from its SIP, besides being
redesignated to a different classification. They thus claim it is clear
that Congress intended the extensive redesignation process described in
section 107 to be the only manner in which an area was to be permitted
to remove controls from its SIP. The commenter also notes that the
proposed rule ignores the statutorily-required redesignation procedures
provided in section 107. The commenter further claims that even
assuming the Clean Data Policy is valid as written, it cannot be used
to waive fees required under section 185 of the CAA. They point out
that the 1995 Seitz memorandum has never even applied to waive the
section 185 fees controls, only other planning requirements. Thus, the
EPA would take the Seitz memorandum reasoning beyond the situations to

which it purported to apply, yet the EPA does not even acknowledge this
extension, much less explain why the Seitz memo rationale can be
extended to section 185 fees. The commenter further notes that the 1-
hour standard is no longer the standard that the EPA deems requisite to
protect public health with an adequate margin of safety. Therefore,
they argue, attaining the 1-hour standard should have no bearing on
whether a state may remove contingency measures from its SIP.
    Response: The Clean Data Policy, first articulated by the EPA in
1995 with regard to the 1-hour ozone standard, and subsequently upheld
by several Courts of Appeals, is not unlawful. The EPA's interpretation
of the Clean Data Policy for the 1-hour ozone standard is the basis for
its Clean Data Policy regulation for the 8-hour ozone standard, which
was codified at 40 CFR 51.918 and upheld by the D.C. Circuit in NRDC v.
EPA 571 F.3d 1245 (D.C. Cir. 2009).
    A commenter objects to the Clean Data Policy because it is not ``a
valid manner of removing controls from a SIP,'' and that it ``permits
EPA to remove applicable controls from an area's SIP by merely making a
`factual finding' of attainment.'' This comment misconstrues the Clean
Data Policy--it is not applied to remove any controls from the SIP.
Rather, it is the EPA's interpretation that the obligation to submit
certain requirements, including those for RFP and contingency measures,
is suspended for so long as an area attains the standard. Once SIP
provisions have been approved into the SIP, the Clean Data Policy does
not operate to remove them. The same commenter contends that attainment
of the 1-hour standard should have no significance because it has been
``discarded.'' Although the 1-hour standard has been revoked, the 1-
hour designation and classification status of an area at the time of
designation for the 8-hour standard remains the basis for determining
the 1-hour ozone anti-backsliding requirements for that area.
Independent of and in addition to the 1-hour standard, the EPA
continues to separately implement the 8-hour ozone standard and all
requirements applicable under that NAAQS. As the EPA noted in its
proposal, attainment of and redesignation for the 8-hour standard also
affects the anti-backsliding requirements under the 1-hour standard. 40
CFR 51.905(b) Proposal at 74 FR 2942.
    The EPA's Clean Data Policy does not expressly address the
suspension of the requirement that affected emissions sources submit
section 185 fees. Substantive issues concerning when and how section
185 fees apply for purposes of the 1-hour standard are not addressed as
part of this rulemaking action and thus we are not addressing
substantive comments on such issues here.

G. A Correction to a Footnote in Proposed Rule

    The January 16, 2009, proposed rule, in the discussion of
contingency measures, stated, ``In situations where a 1-hour ozone
nonattainment area is in attainment based on current air quality (e.g.,
after the area's attainment date), EPA can propose to make a finding of
attainment.'' Footnote 16 followed that sentence and read as follows:
``This applies even if the area did not attain by the attainment date;
however, the CAA requires EPA in these cases to make a finding of
failure to attain by the attainment date and either reclassify the area
or apply other requirements (such as section 185) as specified for the
area's classification.'' (74 FR at 2941, 2942; January 16, 2009.) The
text ``however, the CAA requires EPA in these cases to make a finding
of failure to attain by the attainment date and either reclassify the
area or apply other requirements (such as section 185) as specified for
the area's classification'' was in error and should have been deleted.
The wording would have been appropriate had the situation applied to an
existing ozone standard, such as the 1997 8-hour standard. However, for
the revoked 1-hour standard, EPA has adopted a regulation, that was not
challenged, providing that upon revocation of the NAAQS, the EPA would
no longer be obligated to make findings of failure to attain the 1-hour
standard or to reclassify areas for failure to attain the 1-hour
standard by the area's attainment date under the 1-hour standard. (See
40 CFR 51.905(e)(2)(i).) Thus, the EPA is clarifying that the portion
of footnote 16 stating that the EPA remains obligated to make a finding
of failure to attain the 1-hour ozone standard by an area's attainment
date (under section 181(b)(2) or section 179(c)) and to reclassify the
area was erroneous and in conflict with Sec.  51.905(e)(2)(i).

IV. Statutory and Executive Order Reviews

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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a significant regulatory action because it raises novel legal
or policy issues arising out of legal mandates. Accordingly, the EPA
submitted this action to the Office of Management and Budget (OMB) for
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21,
2011) and any changes made in response to OMB recommendations have been
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
This action sets forth the EPA's rule for addressing portions of the
partial vacatur of the EPA's Phase 1 Rule for implementation of the
1997 8-hour ozone NAAQS. However, OMB has previously approved the
information collection requirements contained in the existing Phase 1
Rule (April 30, 2004; 69 FR 23951) and the Phase 2 Rule (November 29,
2005; 70 FR 71612) regulations and has been assigned OMB Control Number
2060-0594. The OMB control numbers for the EPA's regulations in 40 CFR
are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any regulation subject
to notice-and-comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of these regulation revisions
on small entities, small entity is defined as: (1) A small business
that is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (See 13 CFR 121.); (2) A
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) A small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    After considering the economic impact of these revisions to the
regulations on small entities, I certify that this action will not have
a significant economic impact on a substantial number of small
entities. This rule will not impose any requirements on small entities.
The EPA is aware that the two small entities listed in Table 2, Essex
County and Jamestown, NY, have either satisfied the requirements
through previous SIP

revisions or certain requirements have been suspended due to receiving
a Clean Data Determination.

D. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This rule restores provisions that existed under the 1-hour
ozone standard and that would have continued under the 1-hour standard
had not the EPA issued a revised ozone standard. Those provisions were
revoked when the EPA revoked the 1-hour standard itself. Although a
court upheld the EPA's right to revoke the 1-hour standard, the court
ruled that the EPA erroneously revoked several 1-hour NAAQS provisions
and vacated those portion of the EPA's rule. Thus, the court's own
ruling restored the former 1-hour NAAQS provisions. This rule merely
sets forth a corrective regulatory mechanism for restoring the 1-hour
provisions that the court had already restored. Therefore, this action
is not subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The EPA has
determined that these regulation revisions contain no regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have Federalism implications.''
Policies that have ``Federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule restores provisions that
existed under the 1-hour ozone standard and that would have continued
under the 1-hour standard had not the EPA issued a revised ozone
standard. Those provisions were revoked when the EPA revoked the 1-hour
standard itself. Although a court upheld the EPA's right to revoke the