[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Proposed Rules]
[Pages 8197-8209]
[FR Doc No: 2012-3284]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2010-0885, FRL-9630-6]
RIN 2060-AR32

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The EPA is proposing thresholds for classifying nonattainment
areas for the 2008 ozone National Ambient Air Quality Standards (NAAQS)
(the ``2008 ozone NAAQS'') promulgated by the EPA on March 12, 2008.
This proposal also addresses the timing of attainment dates for each
classification. Finally, we are proposing to revoke the 1997 ozone
NAAQS 1 year after the effective date of designations for the 2008
ozone NAAQS for transportation conformity purposes only.

DATES: Comments must be received on or before March 15, 2012. Please
refer to SUPPLEMENTARY INFORMATION for additional information on the
comment period.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0885, by one of the following methods:

     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Air and Radiation Docket and Information Center,
Attention Docket ID No. EPA-HQ-OAR-2010-0885, Environmental Protection
Agency, 1301 Constitution Ave. NW., Washington, DC 20460. Mail Code:
2822T. Please include two copies if possible. In addition, please mail
a copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington,
DC 20503.
     Hand Delivery: Air and Radiation Docket and Information
Center, Attention Docket ID No. EPA-HQ-OAR-2010-0885, Environmental
Protection Agency in the EPA Headquarters Library, Room Number 3334 in
the EPA West Building, located at 1301 Constitution Ave. NW.,
Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m.
to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, Air
and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0885. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
on-line at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or email. The www.regulations.gov Web site is an ``anonymous access''
system, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to the EPA without going through
www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, the EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not
be able to consider your comment. Electronic files should avoid the use
of special characters, any form of encryption, and be free of any
defects or viruses. For additional information about the EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in
www.regulations.gov. Although listed in the index, some information is
not publicly available, i.e., CBI 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 in the 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 on
this rulemaking, contact Dr. Karl Pepple, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency (C539-01),
Research Triangle Park, NC 27711, phone number<PHONE_NUMBER>, fax
number<PHONE_NUMBER> or by email at<EMAIL_ADDRESS>or Mr. Butch
Stackhouse, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency (C539-01), Research Triangle Park, NC
27711, phone number<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 the proposed rule for
this action include state, local, and tribal governments. Entities
potentially affected indirectly by the proposed rule include owners and
operators of sources of emissions [volatile organic compounds (VOCs)
and nitrogen oxides (NOX)] that contribute to ground-level
ozone concentrations.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to the EPA
through www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-
ROM as CBI and then identify electronically within the disk or CD-ROM
the specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed to be CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

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

    In addition to being available in the docket, an electronic copy of
this notice will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under ``recent actions.''

D. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?

    B. What should I consider as I prepare my comments for EPA?
    C. Where can I get a copy of this document and other related
information?
    D. How is this notice organized?
II. Background for Proposal
    A. Overview
    B. History of Nonattainment Area Classification Systems for the
Ozone NAAQS
    C. Initial Area Designations for the 2008 Ozone NAAQS
    D. Transportation Conformity and the 1997 Ozone NAAQS
III. What are the proposed classification thresholds for
nonattainment areas for the 2008 ozone NAAQS?
    A. Proposed Classification Thresholds
    B. Reclassification of Nonattainment Areas That Have Voluntarily
Requested Higher Classifications
    C. What are we proposing as the attainment deadlines for
nonattainment areas in each classification of the 2008 ozone NAAQS?
IV. What is the EPA proposing regarding revocation of the 1997 ozone
NAAQS at this time?
    A. What is the background for our proposal?
    B. What is the rationale for our proposal?
    C. Why is it necessary to revoke the 1997 ozone NAAQS now for
transportation conformity purposes?
    D. Is the EPA proposing to revoke the 1997 ozone NAAQS for other
purposes as part of this rulemaking?
V. What does this rulemaking not address?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
VII. Statutory Authority

II. Background for Proposal

A. Overview

    On March 12, 2008,\1\ the EPA revised the primary National Ambient
Air Quality Standards (NAAQS) for ozone to a level of 0.075 parts per
million (ppm) (annual fourth-highest daily maximum 8-hour
concentration, averaged over 3 years).2 3 On July 16, 2009,
the EPA announced that it would initiate a rulemaking to reconsider the
standard for various reasons, including the fact the 0.075 ppm level
fell outside of the range recommended by the Clean Air Scientific
Advisory Committee. Pending the outcome of that reconsideration, the
EPA suspended further work on designating areas, including developing a
classification approach for areas that would be designated
nonattainment. In September 2011, the Office of Management and Budget
(OMB) returned for further consideration the EPA's draft rulemaking to
reconsider the 2008 ozone NAAQS.\4\ The current NAAQS for ozone thus
remains at 0.075 ppm, as established in 2008. The 2008 NAAQS retains
the same general form and averaging time as the 0.08 ppm NAAQS set in
1997 but is set at a more stringent level.
---------------------------------------------------------------------------

    \1\ See 73 FR 16436.
    \2\ The secondary ozone standard, designed to protect public
welfare, was set at the same level and with the same averaging time
as the primary standard.
    \3\ For a detailed explanation of the calculation of the 3-year
8-hour average, see 40 CFR part 50, Appendix I.
    \4\ Memorandum from Cass R. Sunstein to Administrator Lisa
Jackson, dated September 2, 2011.
---------------------------------------------------------------------------

    While the 2008 NAAQS was being reconsidered, the EPA deferred
initial designation of areas as attainment or nonattainment with
respect to that standard until March 12, 2011.\5\ (See 75 FR 2936.)
Since this deadline has passed and the EPA's draft rulemaking to
reconsider the 2008 ozone NAAQS has been returned by OMB for further
consideration, the EPA is now proceeding with certain activities to
implement the 2008 ozone NAAQS. In a separate action, the EPA will
propose a rule to address the steps states will take to implement the
NAAQS and the timing of those steps. In this action, we address the
system for classifying nonattainment areas and a limited set of
additional implementation issues.
---------------------------------------------------------------------------

    \5\ The 2008 ozone NAAQS was promulgated on March 12, 2008. By
the 2-year designation requirement found in CAA Sec.  107(d)(1), the
deadline for designating areas was March 12, 2010. The EPA
determined that due to the reconsideration there was insufficient
information to designate areas, and invoked the additional year for
designations as allowed under CAA Sec.  107(d)(1)(B).
---------------------------------------------------------------------------

    A key first step after promulgating a new or revised NAAQS is for
the EPA to issue initial area designations. Area designations establish
which areas are meeting the NAAQS (attainment/unclassifiable) and which
areas are not meeting the NAAQS (nonattainment), and the boundaries for
those areas. Following the schedule provided in Clean Air Act (CAA)
section 107(d), states were required to submit designation
recommendations for every area of each state to the EPA by March 12,
2009, which was 1 year after the promulgation date of the 2008 ozone
NAAQS. The EPA has received these recommendations and has proceeded
with the designations process based on these recommendations.
    In accordance with CAA section 181(a)(1), each area designated as
nonattainment for the 2008 ozone NAAQS will be classified by operation
of law at the same time as the area is designated by the EPA.
Therefore, the EPA intends to finalize classification thresholds on or
before the date that initial area designations are issued by the
Administrator. The planning and emission reduction requirements as well
as the maximum attainment date for each area are based on that area's
classification. Areas classified as marginal are subject to the least
stringent planning and control requirements and shortest attainment
period and those classified as severe are subject to the most stringent
requirements and longest attainment period.
    Under Subpart 2 of part D of title I of the CAA, state planning and
emissions control requirements for ozone are determined, in part, by a
nonattainment area's classification. In 1990, Congress amended part D
of title I of the CAA by adding several new subparts, including subpart
2, which specifies implementation requirements for ozone nonattainment
areas. These requirements apply in addition to the general State
Implementation Plan (SIP) planning requirements applicable to all
nonattainment areas under subpart 1 of part D. Under subpart 2, ozone
nonattainment areas are classified based on the severity of their ozone
levels (as determined based on the area's ``design value,'' which
represents the most recent 3-year average of the air quality in the
area).\6\ Nonattainment areas with a ``lower'' classification have
ozone levels that are closer to the standard than areas with a
``higher'' classification. The subpart 2 classification section
provides an increasing amount of time from the date of designation to
attain the standards for the progressively higher classifications:
Marginal (3 years), Moderate (6 years), Serious (9 years), Severe-15
(15 years), Severe-17 (17 years), and Extreme (20 years).
---------------------------------------------------------------------------

    \6\ The air quality design value for the 8-hour O3
NAAQS is the 3-year average of the annual 4th highest daily maximum
8-hour average ozone concentrations.

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

    Areas in the lower classification levels have fewer and/or less
stringent mandatory air quality planning and control requirements than
those in higher classifications. For instance, Marginal areas are
exempt from the requirement to prepare an attainment demonstration and
associated contingency measures, although such areas are required to
adopt an emissions statement rule for stationary sources, submit a
baseline emissions inventory, and implement a nonattainment area
preconstruction permit program. A Moderate area needs to comply with
the Marginal area requirements; in addition the state must submit a
demonstration that the area will attain within 6 years after
designation, and it must adopt (and submit for EPA approval) certain
emissions control requirements, such as reasonably available control
technology, a basic vehicle inspection and maintenance program if the
area meets the applicable population thresholds, and provisions for
increased offsets for new or modified sources under the state's new
source review (NSR) program. The higher classifications similarly
require additional emissions controls and stricter NSR offset
requirements beyond those required for a Moderate area. In addition,
under the higher classifications, smaller sources are considered
``major sources'' for permitting and other requirements.

B. History of Nonattainment Area Classification Systems for the Ozone
NAAQS

    The CAA was amended in 1990 to add specific provisions that apply
to ozone nonattainment areas. These include timelines for both planning
and implementation, and requirements for specific programs to reduce
emissions that vary based on an area's classification. The ozone
standard that was in effect at the time of the 1990 CAA amendments was
a 1-hour exceedance-based standard of 0.12 ppm.\7\ Accordingly, the
classification provisions in Table 1 in section 181 of subpart 2 of the
CAA (also referred to herein as the ``subpart 2 classification table'')
are specific to that 1-hour standard. In 1997, the EPA revised both the
form and level of the ozone NAAQS to a 3-year average of the 4th
highest daily maximum 8-hour averages.\8\ In a subsequent rulemaking,
the EPA adapted the CAA's 1-hour classification thresholds to the new
8-hour standard \9\ and used the new 8-hour threshold values to
classify certain areas designated nonattainment for the 1997 8-hour
NAAQS. This approach for translating the CAA's 1-hour threshold values
to 8-hour threshold values was challenged in litigation and was upheld
by the court. See South Coast Air Quality Management District v.
Environmental Protection Agency, 472 F.3d at 896-898.
---------------------------------------------------------------------------

    \7\ For additional detail on the 1-hour ozone NAAQS, see 56 FR
56694.
    \8\ See 40 CFR Appendix I.
    \9\ Referred to as the Phase 1 Rule, see 40 CFR part 51, subpart
X at 51.903.
---------------------------------------------------------------------------

C. Initial Area Designations for the 2008 Ozone NAAQS

    Under CAA Sec.  107(d), initial area designations are required when
a NAAQS is revised. The process involves interaction between the EPA
and states, starting with states preparing recommendations and
submitting them to the EPA for review. If the EPA intends to modify a
state's recommendation, the EPA must notify the state of such
modification by letter no later than 120 days (``120 day letters'')
prior to making a final decision.\10\ For the 2008 ozone NAAQS, most
states submitted designation recommendations to the EPA as required
under section 107(d) in March 2009, 1 year after the 2008 NAAQS was
promulgated. States also had the opportunity to update these
recommendations in the fall of 2011, based on ambient air quality
monitoring data for the years 2008-2010, which were (and still are) the
most recent monitoring data available. Areas could elect to early
certify their 2009-2011 data by February 29, 2012 for EPA to consider
in the designation process.
---------------------------------------------------------------------------

    \10\ While CAA section 107, which governs the process for
initial area designations, specifically addresses states, the EPA
intends to follow the same process for tribes to the extent
practicable, pursuant to section 301(d) of the CAA regarding tribal
authority and the Tribal Authority Rule (63 FR 7254; February 12,
1998). The EPA is working with the tribes and tribal organizations
regarding their participation in the designations process.
---------------------------------------------------------------------------

    The EPA plans to consider the state recommendations received in
2009 and any updates provided by the states based on current monitoring
data in deciding whether to modify any recommendations. In the event
that the EPA intends to modify a state's recommendation, the EPA will
notify the state 120 days prior to issuing designations. The EPA's goal
is to finalize designations by mid-2012.

D. Transportation Conformity and the 1997 Ozone NAAQS

    In this rulemaking, the EPA is proposing to revoke the 1997 ozone
NAAQS for transportation conformity purposes only.\11\ The revocation
of the 1997 ozone standard for this limited purpose would occur 1 year
after the effective date of initial area designations for the 2008
ozone NAAQS. We believe this approach is the most logical because it
would result in only one ozone NAAQS--the more protective 2008 ozone
NAAQS--applying for purposes of transportation conformity, after the
end of the 1-year transportation conformity grace period that applies
to newly designated nonattainment areas (see CAA section 176(c)(6)). If
the 1997 ozone NAAQS were to remain in place after conformity applies
for the 2008 ozone NAAQS, areas currently in nonattainment or
maintenance for the 1997 ozone NAAQS that are designated nonattainment
for the 2008 ozone NAAQS would be required to implement the
transportation conformity program for both ozone NAAQS concurrently.
The EPA is proposing to revoke the 1997 ozone NAAQS for purposes of
transportation conformity in an attempt to avoid this overlap of NAAQS
for conformity requirements. The EPA intends to discuss potential
revocation of the 1997 NAAQS for all other purposes in a future,
separate rulemaking.
---------------------------------------------------------------------------

    \11\ When EPA revises a NAAQS, the prior NAAQS is not
automatically revoked. Accordingly, both the 1997 ozone NAAQS and
the more stringent 2008 ozone NAAQS are active standards unless and
until EPA takes action to revoke the previous 1997 standard.
---------------------------------------------------------------------------

III. What are the proposed classification thresholds for nonattainment
areas for the 2008 ozone NAAQS?

A. Proposed Classification Thresholds

1. Background
    The subpart 2 classification table includes the classification
thresholds for areas designated as nonattainment for the 1-hour ozone
NAAQS. The subpart 2 classification table is based on 1-hour ozone
nonattainment area design values (DVs) (i.e., beginning at a level of
0.121 ppm) because it was designed for implementation of the 0.12 ppm
1-hour standard, which was the effective ozone standard when Congress
added the table to the CAA in 1990. Because the table is based on DVs
for a 0.12 ppm 1-hour standard, we recognized in the rulemaking to
implement the 1997 NAAQS that it did not make sense to apply the
thresholds listed in the table for implementing the 1997 0.08 ppm 8-
hour standard. The EPA believed that using 8-hour DVs to classify areas
for the 8-hour standard would reflect the magnitude of the 8-hour ozone
problem more accurately than would using the 1-hour DVs in the subpart
2 classification table. In addition, many of the areas that

were nonattainment for the 1997 8-hour NAAQS had 1-hour DVs less than
0.121 ppm and would not have been covered by the subpart 2
classification table at all.
    We adopted by regulation a modified version of the subpart 2
classification table for the 1997 8-hour ozone standard which contains
8-hour DV thresholds for each classification, rather than the statutory
1-hour DV thresholds. We translated the classification thresholds in
the subpart 2 classification table from 1-hour DVs to 8-hour DVs based
on the percentage by which each classification threshold in the table
exceeds the 1-hour ozone NAAQS. We noted that these percentages, as
established by Congress in 1990, set the classification thresholds at
certain percentages or fractions above the level of the standard.\12\
We refer to this method as the ``percent-above-the-standard'' method.
We are proposing to take the same approach for the 2008 ozone NAAQS. As
we did for the 1997 8-hour NAAQS, we are proposing to establish by
regulation a modified version of this classification table to account
for the new level of 0.075 ppm as compared to the level of 0.08 ppm
used to establish the classification table for the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \12\ The upper thresholds of the Marginal, Moderate, Serious,
and Severe classifications are precise percentages or fractions
above the level of the standard, namely 15 percent (3/20ths more
than the standard), 33.33 percent (one-third more than the
standard), 50 percent (one-half more than the standard), and 133.3
percent (one and one-third more than the standard).
---------------------------------------------------------------------------

    As we did for the 1997 NAAQS, the EPA analyzed various alternative
options for establishing thresholds for classifications for the 2008
ozone NAAQS. However, we are proposing to use the same ``percent-above-
the-standard'' methodology as was used for the 1997 ozone standard.\13\
Options that were evaluated other than the one we are proposing are
discussed in more detail in a background information document \14\ in
the docket to this rulemaking. While the EPA believes the ``percent-
above-the-standard'' method is appropriate for designating areas for
the 2008 NAAQS, alternative methods may be appropriate to consider in
developing classification thresholds for any future revisions to the
ozone standards.
---------------------------------------------------------------------------

    \13\ Background Information Document: Development of
Hypothetical Nonattainment Areas for Illustrating Proposed
Classification Thresholds for Areas Designated Nonattainment for the
2008 0.075 PPM 8-Hour Ozone National Ambient Air Quality Standard.
January 2012.
    \14\ Background Information Document: Additional Options
Considered for Classification of Nonattainment Areas under the 2008
Ozone NAAQS. January 2012.
---------------------------------------------------------------------------

    The percent-above-the-standard method is a simple and
straightforward method for establishing classification thresholds that
is based on principles inherent in the subpart 2 classification table
itself. The principles include the following:
     Areas are grouped by the severity of their air quality
problem as characterized by the degree of nonattainment based on their
DV.
     Classification would occur ``by operation of law'' without
relying on EPA exercising discretion for individual situations (prior
to any application of the 5 percent adjustment provision under section
181(a)(4)). See section III.B of this rule for additional details on
how EPA intends to address previous requests for voluntary bump-ups for
the 1997 ozone NAAQS.
     Classification thresholds are derived from the structure
or logic of the CAA's nonattainment area planning and control
requirements, including the subpart 2 classification table, and
consistent with the overall goal of subpart 2 of attaining the
standards as expeditiously as practicable.
2. Proposed Classification Threshold Method--Percent-Above-the-Standard
Method
    In this section, we describe the EPA's proposed methodology for
establishing classification thresholds for purposes of classifying
ozone nonattainment areas with respect to the 2008 ozone NAAQS. Using
this approach for the 2008 NAAQS, the classification thresholds in the
subpart 2 classification table would be translated into a corresponding
set of 8-hour DVs by setting threshold DVs in the new table at the same
percentages above the 2008 ozone NAAQS as the DV levels in the subpart
2 classification table are above the 1-hour ozone NAAQS. For example,
the threshold separating the Marginal and Moderate classifications in
the subpart 2 classification table (0.138 ppm) is 15 percent above the
1-hour ozone NAAQS (0.12 ppm). Thus, under this approach, the threshold
separating the Marginal and Moderate classifications for the 2008 ozone
NAAQS would be 0.075 ppm plus 15 percent, or 0.086 ppm. Table 1, below,
depicts this proposed translation for classifications as it would apply
for the 2008 ozone NAAQS.

  Table 1--Subpart 2 1-Hour Ozone Design Value Classification Table Translation to 8-Hour Design Values for the
                                          2008 Ozone NAAQS of 0.075 PPM
----------------------------------------------------------------------------------------------------------------
                                                           1-hour design     Percent above 1-  8-hr ozone design
            Area class                                      value (ppm)      hour ozone NAAQS     value (ppm)
----------------------------------------------------------------------------------------------------------------
Marginal.........................  From................              0.121              0.833              0.076
                                   up to \1\...........              0.138                 15              0.086
Moderate.........................  From................              0.138                 15              0.086
                                   up to \1\...........              0.160             33.333              0.100
Serious..........................  From................              0.160             33.333              0.100
                                   up to \1\...........              0.180                 50              0.113
Severe-15........................  From................              0.180                 50              0.113
                                   up to \1\...........              0.190             58.333              0.119
Severe-17........................  From................              0.190             58.333              0.119
                                   up to \1\...........              0.280            133.333              0.175
Extreme..........................  equal to or above...              0.280            133.333              0.175
----------------------------------------------------------------------------------------------------------------
Note 1: But not including.

    Based on our analysis of air quality information from 2008-2010, we
estimate that approximately 52 areas had ambient ozone concentrations
exceeding the 2008 ozone NAAQS. We use these 52 ``hypothetical
nonattainment areas'' for purposes of the following discussion.\15\
These

hypothetical areas are intended to illustrate the distribution of areas
into the proposed classifications. The actual number of total
nonattainment areas and the classification of each area will depend on
decisions made in the separate designations process under section
107(d). If we were to use the proposed thresholds in Table 1, above, as
the basis for classifying nonattainment areas with respect to the 2008
ozone NAAQS, the 52 hypothetical nonattainment areas based on 2008-2010
air quality data would be distributed in each classification as shown
in Table 2.
---------------------------------------------------------------------------

    \15\ Background Information Document: Development of
Hypothetical Nonattainment Areas for Illustrating Proposed
Classification Thresholds for Areas Designated Nonattainment for the
2008 0.075 PPM 8-Hour Ozone National Ambient Air Quality Standard.
January 2012. Most hypothetical nonattainment areas include multiple
counties, based on the existing 1997 8-hour ozone nonattainment
areas, Combined Statistical Area, or Core Based Statistical Area
boundary associated with a violating monitor. Note that these areas
are used for analytical purposes only. Actual nonattainment areas
and boundaries will be determined through the designations process.

       Table 2--Number of Hypothetical Nonattainment Areas in Each
  Classification Under the 2008 Ozone NAAQS: Percent-Above-the-Standard
                                 Method
------------------------------------------------------------------------
                                                          2008 O3 NAAQS
                    Classification                        (hypothetical
                                                             areas)
------------------------------------------------------------------------
Marginal..............................................                43
Moderate..............................................                 6
Serious...............................................                 3
Severe................................................                 0
Extreme...............................................                 0
                                                       -----------------
    Total.............................................                52
------------------------------------------------------------------------

    The proposed classification method would result in the vast
majority of nonattainment areas being classified as Marginal. It is
possible that a few areas would have a later maximum statutory
attainment date for their existing classification under the 1997 ozone
NAAQS than they would have for their new classification under the 2008
NAAQS. For example, an area that would be classified Marginal for the
more stringent 2008 ozone NAAQS (with an anticipated maximum statutory
attainment date in 2015), may have been classified as Severe for the
less-stringent 1997 ozone NAAQS (with a later maximum statutory
attainment date in 2019).\16\ This issue did not arise when we
promulgated the classification structure for the 1997 NAAQS. (See
section III.B of this rule for additional details on how EPA intends to
address previous requests for voluntary bump-ups for the 1997 ozone
NAAQS.)
---------------------------------------------------------------------------

    \16\ As indicated elsewhere in this preamble, the EPA intends to
designate areas for the 2008 standard by mid-2012. Thus, a 3-year
attainment deadline would be in 2015.
---------------------------------------------------------------------------

    Many Marginal areas are expected to attain the 2008 NAAQS within 3
years of designation (e.g., in 2015) due to reductions of ozone
precursors resulting from a number of federal and state emission
reduction programs that have already been adopted. Such programs
include more stringent emission standards for onroad and nonroad
vehicles and equipment (with associated fleet turnover), regional
reductions in power plant emissions to address interstate
transport,\17\ and potential future programs such as the boiler maximum
achievable control technology standards. The EPA estimates that in
about half of the Marginal areas, these reductions in conjunction with
other ongoing state and federal controls should be sufficient to bring
about attainment.\18\ In other areas, additional control measures may
be needed for timely attainment.
---------------------------------------------------------------------------

    \17\ Federal Implementation Plans: Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals. August
8, 2011; 76 FR 48208.
    \18\ Technical note to docket  EPA-HQ-OAR-2010-0885,
February 2012. ``The Hypothetical Nonattainment Area Projections of
2008-2010 Design Values to 2015.''
---------------------------------------------------------------------------

3. Other Classification Methods Considered
    A number of interested parties have recommended to the EPA other
options for classification of ozone nonattainment areas. The EPA
evaluated many other methods but we are not proposing them or
soliciting comment on them because we did not find them as compelling
for application to the 2008 ozone NAAQS as the option discussed in this
proposal. We have included in the docket all written recommendations we
have received in recent years regarding classification approaches.
Other options that we considered but are not proposing are also
summarized in the docket.\19\
---------------------------------------------------------------------------

    \19\ Background Information Document: Additional Options
Considered for Classification of Nonattainment Areas under the
Proposed 2008 Ozone NAAQS. January 2012.
---------------------------------------------------------------------------

B. Reclassification of Nonattainment Areas that Have Voluntarily
Requested Higher Classifications

    The CAA provides three mechanisms for addressing nonattainment
areas that may not be able to attain by the attainment date provided
for their classification. First, section 181(a)(4) provides that within
90 days of designation and classification, the Administrator may
exercise discretion to reclassify an area to a higher (or lower)
classification if its DV is within 5 percent of the DV range of the
higher (or lower) classification.\20\ Any state interested in taking
advantage of this flexibility should submit a request to the EPA in
sufficient time for the Administrator to make a determination within
the 90 days provided.
---------------------------------------------------------------------------

    \20\ This CAA provision also provides the same authority for
reclassifying areas to a lower classification, an approach that may
not be relevant where the area in question is unlikely to attain by
the attainment date for the classification it receives at the time
of designation.
---------------------------------------------------------------------------

    The second mechanism, provided in section 181(b)(2), requires that
an area be reclassified to the next higher classification (i.e.,
``bumped-up'') if EPA determines that the area has failed to attain the
standard by the attainment date and does not qualify for the first of
two possible 1-year attainment date extensions allowed under the CAA
(excluding Severe to Extreme reclassification).
    The third mechanism, provided in section 181(b)(3), allows a state
to voluntarily request that the EPA reclassify the area to a higher
classification. The EPA has no discretion to deny such requests. Once
an area is reclassified to a higher classification, it becomes subject
to the associated additional planning and control requirements for that
higher classification as well and must attain the standard no later
than the later maximum attainment date for that classification.
    There are seven areas for which states requested a voluntary
reclassification with respect to the 1997 NAAQS. If these areas were
classified based on 2008-2010 air quality data and pursuant to the
classification structure proposed here, it is likely that they would
have a lower classification and an earlier maximum attainment date for
the 2008 NAAQS than such areas have for the 1997 ozone NAAQS. EPA has
granted voluntary reclassification requests for six of these areas; the
request for one area is still pending.\21\
---------------------------------------------------------------------------

    \21\ Ventura County, CA was reclassified from Moderate to
Serious (Approved 05/20/2008, 73 FR Page 29073, Effective: 06/19/
2008). Houston-Galveston-Brazoria, TX was reclassified from Moderate
to Severe-15 (Approved 10/01/2008, 73 FR Page 56983, Effective: 10/
31/2008). Reclassification of the Los Angeles-South Coast, San
Joaquin Valley, Riverside County, and Sacramento Metro areas (May 5,
2010, 75 FR 24409) became effective June 4, 2010. The requested
voluntary reclassification of West Mojave Desert, CA from Moderate
to Severe-17 is still pending with the EPA.

         Table 3--Areas for Which the State Requested a Voluntary Reclassification Under the 1997 NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                                Potential
                                                    Original 1997 NAAQS       Voluntary         classification
       Nonattainment Area               State          classification      reclassification    under 2008 NAAQS
                                                                                \1\
----------------------------------------------------------------------------------------------------------------
Los Angeles-South Coast Air       CA..............  Severe.............  Extreme............  Serious.
 Basin.
San Joaquin Valley..............  CA..............  Serious............  Extreme............  Serious.
Riverside County (Coachella       CA..............  Serious............  Severe.............  Moderate.
 Valley).
Sacramento Metro................  CA..............  Serious............  Severe.............  Serious.
Ventura County..................  CA..............  Moderate...........  Serious............  Moderate.
Western Mojave \2\..............  CA..............  Moderate...........  Severe.............  Moderate.
----------------------------------------------------------------------------------------------------------------
Note 1: Based on thresholds proposed in this notice and 2008-2010 design values.
Note 2: This request for a reclassification is still pending.

    The EPA is proposing that the approved prior voluntary
reclassification requests for the 1997 ozone NAAQS would also apply for
the more stringent 2008 ozone NAAQS unless the state explicitly
requests otherwise. The areas to which this would apply are listed in
Table 3.\22\ We believe this is an appropriate mechanism to address the
limited situation where an area that was voluntarily reclassified for
the 1997 ozone NAAQS would have an attainment date for the more
stringent 2008 ozone NAAQS that is earlier than the area's attainment
date for the less stringent 1997 NAAQS. Based on discussions with
affected areas, we also believe it is reasonable to expect that the
areas listed in Table 3 that requested a voluntary reclassification
under the less stringent 1997 NAAQS would make the same request for the
2008 NAAQS. The EPA is proposing this approach in order to minimize
burden on states and obviate the need to go through the voluntary
reclassification process again.
---------------------------------------------------------------------------

    \22\ Texas also requested voluntary reclassification for the
Houston-Galveston-Brazoria nonattainment area for the 1997 ozone
NAAQS. Texas has already indicated that they do not wish for that
request to apply to the 2008 ozone NAAQS.
---------------------------------------------------------------------------

C. What are we proposing as the attainment deadlines for nonattainment
areas in each classification of the 2008 ozone NAAQS?

1. Background
    The CAA provides that the primary NAAQS attainment dates for areas
subject to subpart 2 must be as expeditious as practicable but no later
than the deadlines provided in the subpart 2 classification table. The
deadlines for attainment in the subpart 2 classification table are
specified in terms of a certain number of years from the date of
enactment of the 1990 Amendments to the CAA (i.e., November 15, 1990).
For instance, the attainment date for Moderate areas is expressed as
``6 years after November 15, 1990.'' Because these time periods are
clearly inappropriate for a new standard promulgated in 2008, we must
interpret the attainment deadlines in the subpart 2 classification
table as they would apply to the 2008 NAAQS.
    In the Phase 1 rule for implementation of the 1997 ozone NAAQS,\23\
we interpreted these timeframes to run from the date that area
designations and nonattainment classifications (by operation of law)
became effective. We explained in the proposed and final rules for
implementation of the 1997 ozone NAAQS that it was reasonable for these
dates to run from the date of designation because other provisions of
the CAA established the attainment date as a set period of time after
designation. See 69 FR 23966-67; 68 FR 32817. As discussed below, we
are proposing this same approach for the 2008 NAAQS and also proposing
an alternate approach where the attainment dates would be at the end of
the calendar year. We are proposing an alternate approach because we
anticipate that designations for the 2008 NAAQS will be effective some
time after the start of the 2012 ozone season \24\ for most areas and
possibly well into the summer. As explained in more detail below, the
alternative approach would allow Marginal areas 3 full years to attain,
Moderate areas 6 full years to attain, etc.
---------------------------------------------------------------------------

    \23\ 69 FR 23951.
    \24\ The ozone season for each state is defined in 40 CFR part
58, Appendix D, and, for most areas, runs from April to October. See
also the July 16, 2009, Proposed Monitoring Rule (74 FR 34525).
---------------------------------------------------------------------------

2. Proposal
    The EPA is proposing two options for establishing the maximum
attainment dates for areas in each nonattainment classification. Under
the first option, the attainment dates would be the precise number of
years specified in Table 1 with such time period running from the
effective date of designation. Under the second option, the attainment
dates would be December 31 of the year that is the specified number of
years in Table 1 after designation. In order to fully evaluate the two
options, we note that the EPA intends to complete initial area
designations for the 2008 ozone NAAQS no later than May 31, 2012. We
anticipate the designations will be effective 60 days following
publication in the Federal Register and that it will take approximately
2 weeks for the designations notice to be published. Under this
scenario, designations would be effective by approximately mid-August
2012.
    For the first option, we are proposing that the deadlines in the
subpart 2 classification table would be specified in terms of a certain
number of years from the effective date of designation for the 2008
standard. This is the same approach we took for the 1997 NAAQS. In this
case, we would interpret ``year'' in the subpart 2 classification table
to mean consecutive 365-day periods,\25\ and we would substitute
``after the effective date of designation'' for the CAA's ``after
November 15, 1990'' language in the subpart 2 classification table.
Under this approach the attainment deadline would fall a precise number
of years after the effective date of designation. As an example, if the
Administrator issued designations for the 2008 NAAQS on May 31, 2012,
and the designations became effective on August 15, 2012, the
attainment dates would run from August 15, 2012, such that a Marginal
area would be required to attain the 2008 ozone standard by August 15,
2015.
---------------------------------------------------------------------------

    \25\ Except in the case of a leap year, where the year would be
a rolling 366 day period.
---------------------------------------------------------------------------

    For the second and the EPA's preferred option, the attainment date
would be specified as a certain number of years from the end of the
calendar year in which an area's nonattainment designation is
effective. In other words, if the effective date of designations for
the 2008 ozone NAAQS is August 15, 2012, the 3-year attainment deadline
for Marginal areas would be December 31, 2015.
    We are proposing this option as our preferred option for the 2008
ozone NAAQS because, as explained above, we believe it is likely that
designations

will be effective in August 2012, which is late in the ozone season.
Where the designation is effective late in the ozone season, under the
first option a Marginal area effectively would have only two ozone
seasons following designation to improve its air quality in order to
attain by its attainment date. This is because compliance with the
standard is based on air quality during the most recent three full
consecutive ozone seasons, and the most recent 3 full ozone seasons
preceding the attainment deadline in this case would run through the
end of the previous year's ozone season. Because attainment is based on
three full ozone seasons of air quality data, in order to attain ``by''
its attainment date, the area could not consider air quality for an
ozone season during which the attainment date falls. For example, in
the case of the 1997 ozone NAAQS, designations became effective on June
15, 2004, and areas had an attainment date of June 15 of the year
falling 3, 6, etc. years after designation. Thus, in order for a
Marginal area to attain by June 15, 2007, it could not consider air
quality data from the 2007 ozone season, but instead was required to
demonstrate attainment based on the 3 years of air quality data from
2004-2006. In this situation, the area's attainment date effectively
was December 31, 2006.
    Because we anticipate designations will be effective late in the
ozone season for the 2008 NAAQS, we are concerned that if a Marginal
area is required to attain in August 2015, the area would effectively
have only two ozone seasons (the 2013 and 2014 ozone seasons) from the
date of designation to improve its air quality for the purpose of
showing attainment. Accordingly, the state would need to both plan for
and achieve all emission reductions necessary for the area to attain by
the beginning of the 2014 ozone season, so that those reductions would
be reflected in the air quality data considered for determining whether
the area attained by its attainment date (i.e., attainment would be
based on air quality data from 2012-2014). Similarly, a Moderate area
would need to implement measures to attain by the beginning of the 2017
ozone season in order for those reductions to be reflected in the air
quality data considered for purposes of determining whether the area
attained (data from 2015-2017) by August 2018.
    We believe this second option is consistent with the time periods
provided for attainment of the 1-hour ozone NAAQS at the time the CAA
was amended. The CAA Amendments were enacted on November 15, 1990,
after the end of the ozone season for virtually all areas, and for the
few areas that had year-round ozone seasons, EPA interpreted the Act to
allow consideration of air quality in the attainment year even though
the attainment date fell on November 15. Thus, when the CAA was amended
in mid-November 1990, 1-hour Marginal areas had three full ozone
seasons to achieve any reductions necessary for attainment, and
Moderate areas had six full ozone seasons, because the attainment
deadline was the anniversary of the enactment of the 1990 CAA (November
15). Table 4 summarizes for each proposed option how we would interpret
the maximum attainment dates for areas in each classification under the
2008 NAAQS, using an example where the effective date of designations
is August 15, 2012.

 Table 4--Example of Proposed Attainment Dates for the 2008 Standard if Nonattainment Designations Are Effective
                                                 August 15, 2012
----------------------------------------------------------------------------------------------------------------
            Classification                     Option 1                             Option 2
----------------------------------------------------------------------------------------------------------------
Marginal.............................  August 15, 2015........  December 31, 2015.
Moderate.............................  August 15, 2018........  December 31, 2018.
Serious..............................  August 15, 2021........  December 31, 2021.
Severe...............................  August 15, 2027 or 2029  December 31, 2027 or 2029.
Extreme..............................  August 15, 2032........  December 31, 2032.
----------------------------------------------------------------------------------------------------------------

IV. What is the EPA proposing regarding revocation of the 1997 ozone
NAAQS at this time?

    At this time, the EPA is proposing to revoke the 1997 ozone NAAQS 1
year after the effective date of designations for the 2008 ozone NAAQS
for transportation conformity purposes only.\26\ Revoking the 1997
ozone NAAQS for transportation conformity purposes, as described below,
will bring certainty to the transportation planning process in ozone
nonattainment and maintenance areas. It will also ensure that
backsliding does not occur for purposes of transportation conformity as
areas designated nonattainment for the 2008 ozone NAAQS will be
required to use adequate or approved SIP motor vehicle emissions
budgets for the 1997 ozone NAAQS or 1-hour ozone NAAQS, if the area has
such SIP budgets for one of these ozone NAAQS, until SIP budgets are
found adequate or are approved for the 2008 ozone NAAQS as required by
recent court decisions discussed below and as required by CAA
176(c)(1).\27\ Specifically, CAA section 176(c)(1) states, in part,
``No metropolitan planning organization designated under section 134 of
Title 23 shall give its approval to any project, program, or plan which
does not conform to an implementation plan approved or promulgated
under section 7410 of this title.'' In other words, adequate or
approved motor vehicle emissions budgets for a prior NAAQS must be used
in transportation conformity determinations for a revised NAAQS until
such time that budgets for the revised NAAQS are either found adequate
or are approved. The EPA is proposing this limited revocation of the
1997 ozone NAAQS at this time to provide certainty to the
transportation planning process. In a subsequent rulemaking, the EPA
will consider whether to also revoke the 1997 NAAQS for other purposes.
---------------------------------------------------------------------------

    \26\ Transportation conformity is required under CAA section
176(c) to ensure that transportation plans, transportation
improvement programs (TIPs) and federally supported highway and
transit projects are consistent with (``conform to'') the purpose of
the SIP. Conformity to the purpose of the SIP means that
transportation activities will not cause new air quality violations,
worsen existing violations, or delay timely attainment of the
relevant NAAQS or interim reductions and milestones. The EPA's
Transportation Conformity Rule (40 CFR 51.390 and Part 93, subpart
A) establishes the criteria and procedures for determining whether
transportation activities conform to the SIP.
    \27\ A motor vehicle emissions budget is that portion of the
total allowable emissions defined in the submitted or approved
control strategy implementation plan revision or maintenance plan
for a certain date for the purpose of meeting reasonable further
progress milestones or demonstrating attainment or maintenance of
the NAAQS, for any criteria pollutant or its precursors, allocated
to highway and transit vehicle use and emissions.
---------------------------------------------------------------------------

A. What is the background for our proposal?

    At the time the EPA promulgated the 2008 NAAQS, the Administrator

determined that the 1997 ozone NAAQS was no longer sufficient to
protect public health and the environment with an adequate margin of
safety and that it was therefore necessary to establish a more
stringent standard. 73 FR 16436 (Mar. 27, 2008). In determining how to
transition from the 1997 NAAQS to the more stringent 2008 NAAQS, the
EPA is now presented with the same situation that we faced with the
transition from the 1-hour ozone NAAQS to the more stringent 1997 ozone
NAAQS. For that transition, our Phase 1 implementation rule for the
1997 ozone NAAQS revoked the 1-hour ozone NAAQS for all purposes 1 year
after the effective date of the initial area designations for the 1997
ozone NAAQS. (See 69 FR 23954). The Phase 1 rule also established
comprehensive anti-backsliding provisions to ensure that requirements
for the 1-hour ozone NAAQS would continue in place as areas
transitioned to implementing the more stringent 1997 ozone standard.
    The revocation of the 1-hour standard and the associated anti-
backsliding provisions were the subject of litigation. In its December
2006 decision on that challenge, as modified following rehearing, the
Court held with respect to the anti-backsliding approach for
transportation conformity that 1-hour motor vehicle emissions budgets
must be used where such budgets have been found adequate or approved,
as part of 8-hour conformity determinations until 8-hour motor vehicle
emissions budgets are available. (South Coast Air Quality Management
District v.  EPA, 472 F.3d at 882). In addition, the Court affirmed
more broadly that in order for transportation conformity determinations
to fulfill the requirements of CAA section 176(c)(1), motor vehicle
emissions budgets for a prior NAAQS must be used in transportation
conformity determinations under a revised NAAQS until emissions budgets
for the revised NAAQS are either found adequate or are approved.
Therefore, areas designated nonattainment for the 2008 ozone NAAQS that
have adequate or approved SIP budgets for either the 1997 ozone NAAQS
or the 1-hour ozone NAAQS must continue to use such budgets in
transportation conformity determinations until budgets for the 2008
ozone NAAQS are found adequate or are approved.\28\
---------------------------------------------------------------------------

    \28\ Areas without adequate or approved SIP budgets for either
the 1997 ozone NAAQS or the 1-hour ozone NAAQS are required to
demonstrate conformity using one or both of the interim emissions
tests depending on their classification as required by 40 CFR
93.119.
---------------------------------------------------------------------------

B. What is the rationale for our proposal?

    At this time, we are proposing to revoke the 1997 ozone NAAQS for
transportation conformity purposes only. The revocation of the 1997
ozone NAAQS for this limited purpose would occur 1 year after the
effective date of initial area designations for the 2008 ozone NAAQS.
Similar to our rationale in the Phase 1 rule for implementation of the
1997 ozone NAAQS, we believe this approach makes the most sense because
it would result in only one ozone NAAQS--the 2008 ozone NAAQS--applying
for purposes of transportation conformity, after the end of the one-
year transportation conformity grace period that applies to newly
designated nonattainment areas. (CAA section 176(c)(6)). If the 1997
ozone NAAQS were to remain in place after conformity applies for the
2008 ozone NAAQS, metropolitan planning organizations and other state,
local, and federal transportation and air quality agencies in areas
that are currently nonattainment or maintenance for the 1997 ozone
NAAQS and will be designated nonattainment for the 2008 ozone NAAQS
would be required to implement the transportation conformity program
for both ozone NAAQS concurrently. This could lead to unnecessary
complexity for conformity determinations, especially if an area's
boundaries for the two ozone NAAQS differ from one another and the same
test of conformity cannot be used for both ozone NAAQS. Even where an
area's boundaries are unchanged, different analysis years under the
conformity rules may be required for each ozone NAAQS. Furthermore, we
believe that it is more important to determine conformity for the new
2008 ozone NAAQS that is more protective of health and welfare.
    For transportation conformity purposes, this proposal would provide
a seamless transition from demonstrating conformity for the 1997 ozone
NAAQS to demonstrating conformity for the 2008 ozone NAAQS. Revoking
the 1997 ozone NAAQS 1 year after the effective date of designations
for the limited purpose of transportation conformity would leave no gap
in conformity's application in any 2008 ozone nonattainment areas.

C. Why is it necessary to revoke the 1997 ozone NAAQS now for
transportation conformity purposes?

    The EPA has determined that it is necessary to establish the date
for the revocation of the 1997 ozone NAAQS as it applies for
transportation conformity purposes now in order to provide state and
local transportation and air quality agencies with certainty as to what
conformity requirements will apply after designations are finalized for
the 2008 ozone NAAQS. Areas designated nonattainment for the 2008 ozone
NAAQS will have 1 year after the effective date of the designation to
complete a conformity determination for the 2008 ozone NAAQS. If an
area does not complete the required conformity determination by the end
of the 1-year grace period, the area will enter a conformity lapse
until the required determination is completed.\29\ Based on 2008-2010
air quality monitoring data, and as discussed elsewhere in today's
notice, we anticipate that 52 areas would be designated as
nonattainment areas and 44 of these areas are either nonattainment or
maintenance for the 1997 ozone NAAQS. Areas designated nonattainment
for the 2008 NAAQS will likely need the full 1-year grace period
provided in CAA section 176(c)(6) to complete the required initial
conformity determination. Those areas that are designated as either
nonattainment or maintenance for the 1997 ozone NAAQS at the time they
are designated as nonattainment for the 2008 ozone NAAQS will need
certainty as to the specific requirements for that conformity
determination. For example, they need to know what analysis years must
be addressed and, if the boundaries for the two ozone NAAQS are
different, they need to know whether to address conformity for both
areas and which test or tests would apply.
---------------------------------------------------------------------------

    \29\ During a lapse, an area can proceed with only a limited
amount of transportation projects including projects that are exempt
from conformity, projects and project phases that had previously
been approved and transportation control measures included in an
approved SIP.
---------------------------------------------------------------------------

    By determining conformity for the 2008 standard, which is the more
health and welfare protective standard, the EPA is both:
     Fulfilling the CAA's requirements for transportation
conformity which include preventing new air quality violations, not
making existing violations worse and not delaying any interim
milestones; and
     Making the most efficient use of state and local resources
in fulfilling those requirements.
    In addition, a large number of areas that are currently required to
determine conformity for the 1997 ozone NAAQS are attaining the 2008
ozone NAAQS based on 2008-2010 air quality data. If these areas are
designated as attainment areas for the 2008 ozone NAAQS, they would not
be required to demonstrate

conformity for the 1997 ozone NAAQS, as of the effective date of the
revocation of the 1997 ozone NAAQS. These areas would no longer have to
expend resources to make conformity determinations for the 1997 ozone
NAAQS.

D. Is the EPA proposing to revoke the 1997 ozone NAAQS for other
purposes as part of this rulemaking?

    As part of this rule, the EPA is not proposing to revoke the 1997
ozone NAAQS for purposes other than transportation conformity. Because
of the necessity to quickly finalize a rule addressing nonattainment
area classifications, we are not including a broad proposal here
regarding revocation of the 1997 NAAQS and how anti-backsliding
requirements might apply if the 1997 standard is revoked for purposes
other than transportation conformity. We are developing a separate
proposed rule that will address those issues and we expect to issue
that proposed rule in the spring of 2012. We plan to address any
comments on the issue of revocation and anti-backsliding for all
requirements other than transportation conformity in the context of
that future, separate rulemaking.

V. What does this rulemaking not address?

    This proposed rulemaking does not propose to establish attainment
or nonattainment designations for specific areas nor does it address
the principles that will be considered in the designation process.
Because the designations are not the subject of this proposed rule, we
do not intend to respond to comments concerning designations in the
context of this rulemaking.
    In addition, this proposed rule does not address any specific SIP
requirements associated with different classification categories. This
proposed rule also does not address revocation of the 1997 ozone NAAQS
for purposes other than transportation conformity. Similarly, anti-
backsliding issues are not addressed in this rule. The remaining
implementation requirements for the 2008 NAAQS will be addressed in a
separate rulemaking. We do not intend to respond in the context of this
rulemaking to comments pertaining to implementation issues that will be
addressed by a future rulemaking.

VI. 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, EPA
submitted this action to 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 an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
    The EPA is proposing this Classifications Rule for the 2008 ozone
NAAQS so that areas may be classified by operation of law at the time
of designation as provided in section 181(a) of the CAA. This proposed
rule would also revoke the 1997 ozone NAAQS for transportation
conformity purposes only. The EPA is proposing this limited revocation
in order to bring certainty to the transportation conformity process
consistent with prior court decisions and CAA section 176(c). This
rule, in conjunction with another implementation rule we plan to
propose in the future, will help states identify planning requirements
that apply for purposes of attaining and maintaining the 2008 ozone
NAAQS. No new information needs to be collected from the states as a
result of this proposed rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any regulation subject
to notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of these proposed regulations
on small entities, small entity is defined as: (1) A small business as
defined in the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    The CAA requires the EPA to designate areas and provides for
nonattainment areas to be classified by operation of law at the time of
designation. This rule provides a method for establishing these
classifications and interpreting the associated attainment deadlines.
The CAA also requires that nonattainment and maintenance areas make
transportation conformity determinations. This rule proposes to revoke
the 1997 ozone NAAQS 1 year after the effective date of designations so
that areas designated nonattainment for the 2008 ozone NAAQS are
required to address conformity requirements for only the more
protective 2008 ozone NAAQS.
    After considering the economic impacts of this proposed rule on
small entities, the EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
This proposed rule will not impose any requirements on small entities.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, and tribal governments, in the aggregate,
or the private sector. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector. Therefore,
this action is not subject to the requirements of section 202 and 205
of the UMRA.
    This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The

requirement to designate and classify nonattainment areas is imposed by
the CAA as are the requirements for nonattainment and maintenance areas
to make transportation conformity determinations. This proposed rule,
if made final, would interpret how the classification provisions in
section 181(a) will apply for purposes of the 2008 8-hour ozone NAAQS
that was finalized on March 27, 2008. (See 73 FR 16436). It also
proposes to revoke the 1997 ozone NAAQS 1 year after the effective date
of designations for the 2008 ozone NAAQS for transportation conformity
purposes only. Thus, Executive Order 13132 does not apply to these
proposed regulations.
    Although this action does not have federalism implications as
defined in Executive Order 13132, the EPA recognizes that the adoption
in 2008 of the more health-protective ozone standards will result in
additional effort by state agencies responsible for managing air
quality programs. Under the CAA, achieving these health benefits
requires the combined efforts of the federal, state, and local
governments, each accomplishing the tasks for which they are best
suited. In the spirit of Executive Order 13121 and consistent with EPA
policy to promote communications between the EPA and state and local
governments, the EPA is soliciting comments on this proposal from state
and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The proposed
rules do not have a substantial direct effect on one or more Indian
tribes, since no tribe has to develop classification recommendations
under these proposed regulatory revisions. This proposal revokes the
1997 ozone NAAQS for transportation and does not significantly or
uniquely affect the communities of Indian tribal governments, as the
CAA requires transportation conformity to apply in any area that is
designated nonattainment or maintenance by the EPA. Furthermore, these
proposed regulation revisions do not affect the relationship or
distribution of power and responsibilities between the federal
government and Indian tribes. The CAA and the Tribal Air Rule establish
the relationship of the federal government and tribes in developing
plans to attain the NAAQS, and these revisions to the regulations do
nothing to modify that relationship. These proposed regulations
revisions do not have tribal implications. Thus, Executive Order 13175
does not apply to this action.
    The EPA specifically solicits additional comment on this proposed
action from tribal officials.

G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action would establish
classifications for areas that do not attain the 2008 ozone standard.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. The voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the agency decides not to use
available and applicable voluntary consensus standards.
    These proposed revisions to the regulations do not involve
technical standards. Therefore, the EPA is not considering the use of
any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed regulations would, if promulgated, establish
classification thresholds for designated nonattainment areas for the
2008 ozone NAAQS, which are designed to protect all segments of the
general populations. As such, they do not adversely affect the health
or safety of minority or low-income populations and are designed to
protect and enhance the health and safety of these and other
populations. Today's action also proposes to revoke the 1997 ozone
NAAQS for transportation conformity purposes only. Such a revocation
would not lead to disproportionately high and adverse human health or
environmental effects on minority or low-income populations as the CAA
requires transportation conformity to apply in any area that is
designated nonattainment or maintenance by the EPA. This proposed rule
ensures that transportation conformity is demonstrated in all areas
that are designated nonattainment for the more protective 2008 ozone
NAAQS.

VII. Statutory Authority

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

List of Subjects

40 CFR Part 50

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

40 CFR Part 51

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

    Dated: February 7, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, Title 40, Chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

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

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

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

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

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

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

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

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

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
    4. Part 51 is amended by adding a new subpart AA to read as
follows:
Subpart AA--Provisions for Implementation of the 2008 Ozone National
Ambient Air Quality Standards
Sec.
51.1100 Definitions.
51.1101 Applicability of Part 51.
51.1102 Classification and nonattainment area planning provisions.
51.1103 Application of classification and attainment date provisions
in section 181 of subpart 2 of the CAA to areas subject to Sec.
51.1102(a).

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

Sec.  51.1100  Definitions.

    The following definitions apply for purposes of this subpart. Any
term not defined herein shall have the meaning as defined in 40 CFR
51.100.
    (a) 1-hour NAAQS means the 1-hour primary and secondary ozone
national ambient air quality standards codified at 40 CFR 50.9.
    (b) 1997 NAAQS means the 8-hour primary and secondary ozone
national ambient air quality standards codified at 40 CFR 50.10.
    (c) 2008 NAAQS means the 2008 primary and secondary ozone NAAQS
codified at 40 CFR 50.15.
    (d) 1-hour ozone design value is the 1-hour ozone concentration
calculated according to 40 CFR part 50, Appendix H and the
interpretation methodology issued by the Administrator most recently
before the date of the enactment of the CAA Amendments of 1990.
    (e) 8-hour ozone design value is the 8-hour ozone concentration
calculated according to 40 CFR part 50, Appendix P.
    (f) CAA means the Clean Air Act as codified at 42 U.S.C. 7401-7671q
(2010).
    (g) Attainment area means, unless otherwise indicated, an area
designated as either attainment, unclassifiable, or attainment/
unclassifiable.
    (h) Attainment year ozone season shall mean the ozone season
immediately preceding a nonattainment area's maximum attainment date.
    (i) Designation for the 2008 NAAQS shall mean the effective date of
the designation for an area for the 2008 NAAQS.
    (j) Higher classification/lower classification. For purposes of
determining whether a classification is higher or lower,
classifications under subpart 2 are ranked from lowest to highest as
follows: Marginal; Moderate; Serious; Severe; and Extreme.
    (k) Initially designated means the first designation that becomes
effective for an area for the 2008 NAAQS and does not include a
redesignation to attainment or nonattainment for the 2008 NAAQS.
    (l) Maintenance area means an area that was designated
nonattainment for a specific NAAQS and was redesignated to attainment
for that NAAQS subject to a maintenance plan as required by CAA section
175A.
    (m) Nitrogen Oxides (NOX) means the sum of nitric oxide
and nitrogen dioxide in the flue gas or emission point, collectively
expressed as nitrogen dioxide.
    (n) Ozone season means for each state, the ozone monitoring season
as defined in 40 CFR Part 58, Appendix D, section 2.5 for that state.

Sec.  51.1101  Applicability of Part 51.

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

Sec.  51.1102  Classification and nonattainment area planning
provisions.

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

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

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

     Table 1--Classification for 2008 8-Hour Ozone NAAQS (0.075 ppm) for Areas Subject to Section 51.1102(a)
----------------------------------------------------------------------------------------------------------------
                                                                                Primary standard
                                                                                attainment date
               Area class                                              8-Hour design value      (years after
                                                                           (ppm ozone)      designation for 2008
                                                                                primary NAAQS) **
----------------------------------------------------------------------------------------------------------------
Marginal................................  from......................                 0.076                     3

                                          up to *...................                 0.086
Moderate................................  from......................                 0.086                     6
                                          up to *...................                 0.100
Serious.................................  from......................                 0.100                     9
                                          up to *...................                 0.113
Severe-15...............................  from......................                 0.113                    15
                                          up to *...................                 0.119
Severe-17...............................  from......................                 0.119                    17
                                          up to *...................                 0.175
Extreme.................................  equal to or above.........                 0.175                    20
----------------------------------------------------------------------------------------------------------------
* But not including.
** The attainment date is [Option 1: The date that is the specified number of years after the effective date of
  designations for the primary NAAQS. Option 2: December 31 of the calendar year].

    (b) A state may request, and the Administrator must approve, a
higher classification for any reason in accordance with CAA section
181(b)(3).
    (c) A state may request, and the Administrator may in the
Administrator's discretion approve, a higher or lower classification in
accordance with CAA section 181(a)(4).
    (d) Any area designated nonattainment that includes in whole or in
part the following areas will be classified by operation of law for the
2008 ozone NAAQS in accordance with the voluntary classification
request submitted and approved for each area for the 1997 ozone NAAQS:
(For reference: Ventura Co, CA; Los Angeles-South Coast, CA; San
Joaquin Valley, CA; Riverside County, CA; and Sacramento Metro, CA.)

[FR Doc. 2012-3284 Filed 2-13-12; 8:45 am]
BILLING CODE 6560-50-P