30160 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

PUERTO RICO—2008 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 1

Designation Classification 

Date 2 Type Date 2 Type 

All of Puerto Rico AQCR 244 ........................................ .................... Unclassifiable/Attainment.

1 Includes any Indian country in each county or area, unless otherwise specified. 

2This date is July 20, 2012, unless otherwise noted. 

■ 57. Section 81.356 is amended as 

follows: 

■ a. By revising the table heading for 

‘‘Virgin Islands—Ozone (8-Hour 

Standard)’’ to read ‘‘Virgin Islands— 

1997 8-Hour Ozone NAAQS (Primary 

and Secondary)’’ 

■ b. By adding a new table entitled 

‘‘Virgin Islands—2008 8-Hour Ozone 

NAAQS (Primary and Secondary)’’ 

following the newly designated table 

‘‘Virgin Islands—1997 8-Hour Ozone 

NAAQS (Primary and Secondary)’’ to 

read as follows: 

§ 81.356 Virgin Islands. 

* * * * * 

VIRGIN ISLANDS—2008 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

All of Virgin Islands AQCR 247: 2 .................................. .................... Unclassifiable/Attainment.

1This date is July 20, 2012, unless otherwise noted. 

2 Includes any Indian country in each county or area, unless otherwise specified. 

[FR Doc. 2012–11618 Filed 5–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2010–0885, FRL–9667–9] 

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: Final rule. 

SUMMARY: In this final rule, the EPA is 

establishing the air quality thresholds 

that define the classifications assigned 

to all nonattainment areas for the 2008 

ozone national ambient air quality 

standards (NAAQS) (the ‘‘2008 ozone 

NAAQS’’) which were promulgated on 

March 12, 2008. The EPA is also 

granting reclassification for selected 

nonattainment areas that voluntarily 

reclassified under the 1997 ozone 

NAAQS. This rule also establishes 

December 31 of each relevant calendar 

year as the attainment date for all 

nonattainment area classification 

categories. Finally, this rule provides for 

the revocation of the 1997 ozone 

NAAQS for transportation conformity 

purposes to occur 1 year after the 

effective date of designations for the 

2008 ozone NAAQS. 

DATES: This rule is effective on July 20, 

2012. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2010–0885. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Docket 

and Information Center, EPA/DC, EPA 

West Building, Room 3334, 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 (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

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 

(919) 541–2683, or by email at 

pepple.karl@epa.gov; 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 (919) 541–5208, 

or by email at 

stackhouse.butch@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by this final rule include state, local, 

and tribal governments. Entities 

potentially affected indirectly by the 

final 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. 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.’’ 

C. How is this notice organized? 

The information presented in this 

notice is organized as follows: 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30161 

1See 73 FR 16436. 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. Since the primary and 

secondary standards are identical, we refer to them, 

both individually and together, as the ‘‘2008 ozone 

standard’’ (or, alternatively, the ‘‘2008 ozone 

NAAQS’’) throughout this preamble. For a detailed 

explanation of the calculation of the 3-year 8-hour 

average, see 40 CFR part 50, Appendix I. 

2The 2008 ozone NAAQS were promulgated on 

March 12, 2008. The presumptive 2-year 

designation requirement found in CAA 

§ 107(d)(1)(B) required designations for areas by 

March 12, 2010. The EPA invoked the additional 

year for designations as allowed under CAA 

§ 107(d)(1)(B) because we determined that due to 

the reconsideration there was insufficient 

information to designate areas. 

3http://www.epa.gov/airquality/ozonepollution/ 

pdfs/OzoneMemo9-22-11.pdf. 

4http://www.epa.gov/airquality/ozonepollution/ 

designations/2008standards/state.htm. 

5The air quality design value for the 8-hour 

ozone NAAQS is the 3-year average of the annual 

4th highest daily maximum 8-hour average ozone 

concentration. See 40 CFR Part 50, Appendix I. 

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 notice organized? 

II. Background 

III. What are the final classification 

thresholds for nonattainment areas for 

the 2008 ozone NAAQS? 

A. Summary of Proposed Classification 

Thresholds 

B. Brief Summary of Comments on the 

Proposed Rule 

C. Final Classification Thresholds 

IV. How will areas that were voluntarily 

reclassified under the 1997 ozone 

NAAQS be addressed? 

A. Summary of Proposed Reclassification 

of Selected Areas 

B. Brief Summary of Comments Received 

C. Final Action 

V. What are the attainment deadlines for each 

classification? 

A. Summary of Proposed Attainment 

Deadlines 

B. Brief Summary of Comments Received 

C. Final Action 

VI. When is the EPA revoking the 1997 ozone 

NAAQS for transportation conformity 

purposes? 

A. Summary of Proposal 

B. Final Date for Revoking the 1997 Ozone 

NAAQS for Transportation Conformity 

Purposes 

VII. 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 

K. Congressional Review Act 

VIII. Statutory Authority 

List of Subjects 

II. Background 

On March 27, 2008,1 the EPA 

published revisions to both the primary 

and secondary NAAQS for ozone to a 

level of 0.075 parts per million (ppm) 

(annual fourth-highest daily maximum 

8-hour average concentration, averaged 

over 3 years). On July 16, 2009, the EPA 

announced that it would initiate a 

rulemaking to reconsider the NAAQS 

for various reasons, including the fact 

that the 0.075 ppm level fell outside of 

the range recommended by the Clean 

Air Scientific Advisory Committee. The 

EPA proposed reconsideration of the 

NAAQS on January 6, 2010. However, 

the EPA has not taken final action on 

the proposed reconsideration; thus, the 

current NAAQS for ozone remains at 

0.075 ppm, as established in 2008. The 

2008 ozone NAAQS retains the same 

general form and averaging time as the 

0.08 ppm NAAQS set in 1997 but is set 

at a more protective level. 

The EPA deferred initial designation 

of areas for the 2008 ozone NAAQS 

until March 12, 2011, pending the 

NAAQS reconsideration.2 See 75 FR 

2936, January 19, 2010. After the March 

12, 2011, designation deadline passed, 

WildEarth Guardians and Elizabeth 

Crowe (WildEarth Guardians) filed a 

lawsuit seeking to compel the EPA to 

take action to designate areas for the 

2008 ozone NAAQS. WildEarth 

Guardians and Elizabeth Crowe v. 

Jackson (D. Ariz. 11–CV–01661). The 

EPA and WildEarth Guardians settled 

the case by entering into a consent 

decree that requires the EPA 

Administrator to sign a final rule 

designating areas for the 2008 ozone 

NAAQS by May 31, 2012. In September 

2011, the EPA reinitiated efforts 3 to 

designate areas for the 2008 ozone 

NAAQS, and notified states of the EPA’s 

preliminary designation decisions on or 

about December 9, 2011.4 On February 

14, 2012, the EPA proposed this 

rulemaking to address the classifications 

and attainment deadlines that apply to 

the areas that are designated as 

nonattainment for the 2008 ozone 

NAAQS. See 77 FR 8197. The public 

comment period for this rule ran to 

March 15, 2012. The EPA received 41 

comments on the Notice of Proposed 

Rulemaking. This document discusses 

the comments received and how they 

were considered by the EPA in general 

terms. The Response to Comments 

document provides more detailed 

responses to the comments received. 

The public comments received on this 

rulemaking and the EPA’s Response to 

Comments document are posted in the 

docket at www.regulations.gov. 

We are taking four actions in this final 

rule: (1) Establishing the air quality 

thresholds that define each of the five 

Clean Air Act (CAA) classifications for 

areas designated nonattainment for the 

2008 ozone NAAQS; (2) establishing the 

attainment deadline associated with 

each classification; (3) granting 

reclassification for selected 

nonattainment areas that voluntarily 

reclassified under the 1997 ozone 

NAAQS; and (4) revoking the 1997 

ozone NAAQS for purposes of 

transportation conformity one year after 

the effective date of the designations for 

the 2008 ozone NAAQS. 

First, we are establishing the air 

quality thresholds for classification 

categories that are assigned to all areas 

designated nonattainment for the 2008 

ozone NAAQS according to the 

‘‘percent-above-the-standard’’ 

methodology. 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. 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. For areas classified 

under subpart 2, 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 air quality in 

the area for the most recent 3 years).5

The possible classifications are 

Marginal, Moderate, Serious, Severe, 

and Extreme. Nonattainment areas with 

a ‘‘lower’’ classification have ozone 

levels that are closer to the standard 

than areas with a ‘‘higher’’ 

classification. 

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30162 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

6When the 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 the EPA takes action to revoke the previous 

1997 standard. 

7The 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). 

8Background Information Document: Additional 

Options Considered for Classification of 

Nonattainment Areas under the Proposed 2008 

Ozone NAAQS. January 2012. 

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, 

among other things, for a Marginal area 

a state is required to adopt an emissions 

statement rule for stationary sources, 

submit a baseline emissions inventory, 

and implement a nonattainment area 

preconstruction permit program; 

however, states are not required to 

prepare an attainment demonstration 

and associated contingency measures 

for Marginal areas. For a Moderate area, 

a state needs to comply with the 

Marginal area requirements plus certain 

other requirements, including the 

requirement to submit a demonstration 

that the area will attain in 6 years, the 

requirement to adopt and implement 

certain emissions controls, such as 

reasonably available control technology, 

a basic vehicle inspection and 

maintenance program if the area meets 

the applicable population threshold, 

and provisions for greater emissions 

offsets for new or modified sources 

under the state’s new source review 

(NSR) program. Each higher 

classification similarly requires 

emissions controls and stricter NSR 

offset requirements in addition to those 

required for the lower classifications. In 

addition, under the higher 

classifications, smaller sources are 

considered ‘‘major sources’’ for 

permitting and other requirements. 

Second, the EPA is setting the 

attainment date as the number of years 

specified in Table 1 in section 181(a) 

from December 31, 2012. Because the 

attainment dates established in Table 1 

have all passed and application of those 

dates would produce an absurd result, 

the EPA must reasonably interpret Table 

1 to establish attainment dates for the 

2008 ozone NAAQS. We believe the 

approach we are adopting is consistent 

with the intent of Congress at the time 

Table 1 was enacted as part of the CAA 

Amendments of 1990. 

Third, the EPA is addressing 

situations where states have voluntarily 

requested reclassifications for areas 

under the 1997 ozone NAAQS. Six areas 

in California and one area in Texas were 

voluntarily reclassified at the request of 

the states for the 1997 ozone NAAQS. 

These areas have initial classifications 

for the 2008 ozone NAAQS under the 

percent-above-the-standard approach 

we are promulgating that are higher 

than their classifications under the 1997 

NAAQS. In some cases, this would 

result in these areas being required to 

attain the more stringent 2008 ozone 

NAAQS prior to the deadline associated 

with the area’s classification for the 

1997 ozone NAAQS. The EPA proposed 

to interpret the voluntary 

reclassification requests for the 1997 

ozone NAAQS for such areas to also 

apply for the more stringent 2008 ozone 

NAAQS unless the state were to 

expressly request otherwise. Texas 

requested that the voluntary 

reclassification for the 1997 NAAQS for 

the Houston area not apply for the 2008 

NAAQS. California commented that it 

supports the approach of applying its 

requests for voluntary reclassification 

for the six areas for the 1997 NAAQS to 

the 2008 ozone NAAQS. The EPA is 

finalizing the voluntary reclassifications 

for the six California areas for the 2008 

ozone NAAQS. 

Fourth, in this rulemaking, the EPA is 

revoking the 1997 primary and 

secondary ozone NAAQS for 

transportation conformity purposes 

only.6 The revocation of the 1997 ozone 

NAAQS for this limited purpose will 

occur 1 year after the effective date of 

the initial area designation for each area 

for the 2008 ozone NAAQS. This 

approach results 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). In the 

absence of this final action, 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 the 1997 and 2008 ozone NAAQS 

concurrently. The EPA intends to 

address potential revocation of the 1997 

ozone NAAQS for all other purposes in 

a future, separate rulemaking. 

III. What are the final classification 

thresholds for nonattainment areas for 

the 2008 ozone NAAQS? 

A. Summary of Proposed Classification 

Thresholds 

The subpart 2 classification table in 

CAA section 181(a)(1) 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, the EPA recognized that it did 

not make sense to apply the thresholds 

listed in the table for implementing an 

8-hour form of the ozone standard, first 

established in 1997. See 69 FR at 23998. 

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. 40 CFR 

51.903(a). 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.7 See 69 FR at 

23957. We refer to this method as the 

‘‘percent-above-the-standard’’ method. 

We proposed to take the same approach 

for the 2008 ozone NAAQS. After 

analyzing various alternative options, 

we proposed to use the same ‘‘percentabove-the-standard’’ methodology as 

was used for the 1997 ozone NAAQS 8

modified 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. See 77 FR at 8201–02. 

The proposed percent-above-thestandard 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 the 

EPA exercising discretion for individual 

situations (prior to any application of 

the 5 percent adjustment provision 

under section 181(a)(4) which may 

occur in the 90-day period following 

initial designations and classifications). 

See section III.C of this rule for 

additional details on how the EPA 

intends to address previous requests for 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30163 

9The EPA is also intending to designate as 

nonattainment a 46th area based on a monitor in 

the Chicago, IL area that is violating the 2008 

NAAQS based on final 2009–2011 data. The EPA 

intends to complete that action by May 31, 2012. 

We anticipate that the Chicago nonattainment area 

will be classified Marginal. 

voluntary reclassification for the 1997 

ozone NAAQS. 

• Classification thresholds are 

derived using the same percentages 

above the standard that Congress used 

when promulgating Table 1 in section 

181(a) for purposes of the 1-hour ozone 

standard, and reflect reasonable 

attainment periods for most areas that 

fall into the various classifications. 

B. Brief Summary of Comments on the 

Proposed Rule 

The EPA received several comments 

on the percent-above-the-standard 

methodology. Most of the commenters 

supported the adoption of this 

approach, stating that it was consistent 

with the CAA as well as the 

methodology used in the 

implementation of the 1997 ozone 

NAAQS. Those opposing this option did 

so for a number of reasons, including 

concerns that: It puts too many areas in 

the ‘‘Marginal’’ category; the outcome of 

the approach does not properly address 

the role of transport in the ability of 

downwind nonattainment areas to attain 

by the Marginal or Moderate attainment 

date; and a delay in progress will result 

from Marginal areas not attaining by the 

specified date in 2015. 

Other commenters that did not 

directly support or oppose the use of the 

percent-above-the-standard 

methodology suggested that the EPA 

should have considered other options 

such as the use of subpart 1 for 

classifying areas. These comments, and 

the EPA’s responses, are discussed in 

more detail in the Response to 

Comments document in the docket. 

C. Final Classification Thresholds 

In this section, we describe the EPA’s 

methodology for establishing final 

classification thresholds for purposes of 

classifying ozone nonattainment areas 

with respect to the 2008 ozone NAAQS 

as well as the basis for the decision. 

After considering the comments, the 

EPA is finalizing the percent-above-thestandard methodology as proposed. 

Using this approach for the 2008 ozone 

NAAQS, the classification thresholds 

listed for the 1-hour NAAQS in the 

subpart 2 classification table are 

translated into a corresponding set of 

thresholds for the 2008 8-hour NAAQS 

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 is 0.075 ppm plus 15 percent, 

or 0.086 ppm. Table 1, below, depicts 

this translation for all classifications as 

they 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 

Area classification 1-hour design value 

(ppm) 

Percent above 1- 

hour ozone NAAQS 

8-hr ozone design 

value (ppm) 

Marginal .............................................. From ................................................... 0.121 0.833 0.076 

up to 1 ................................................. 0.138 15.000 0.086 

Moderate ............................................. From ................................................... 0.138 15.000 0.086 

up to 1 ................................................. 0.160 33.333 0.100 

Serious ................................................ From ................................................... 0.160 33.333 0.100 

up to 1 ................................................. 0.180 50.000 0.113 

Severe-15 ........................................... From ................................................... 0.180 50.000 0.113 

up to1 .................................................. 0.190 58.333 0.119 

Severe-17 ........................................... From ................................................... 0.190 58.333 0.119 

up to1 .................................................. 0.280 133.333 0.175 

Extreme ............................................... equal to or above ............................... 0.280 133.333 0.175 

Note 1: But not including. 

In conjunction with this final rule, the 

EPA is also finalizing initial 

nonattainment area designations for 45 

areas with ambient ozone 

concentrations exceeding the 2008 

ozone NAAQS.9 The 45 nonattainment 

areas are distributed in each 

classification category as shown in 

Table 2. As described further in section 

IV.A of this rule, six areas are being 

voluntarily reclassified to a higher 

classification as part of this rule. 

Specifically, the areas listed in Table 3 

will receive higher classifications based 

on their voluntary reclassification 

requests for the 1997 ozone NAAQS. 

These higher classifications are reflected 

in Table 2. 

TABLE 2—NUMBER OF NONATTAINMENT AREAS IN EACH CLASSIFICATION CATEGORY UNDER THE 2008 OZONE NAAQS 1

Classification 

Number of 

hypothetical areas 

estimated in the 

proposal 

Actual number of 

areas 

Marginal ................................................................................................................................................... 43 36 

Moderate .................................................................................................................................................. 6 3 

Serious ..................................................................................................................................................... 3 2 

Severe ...................................................................................................................................................... 0 3 

Extreme .................................................................................................................................................... 0 2 

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30164 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

10Technical note to docket # EPA–HQ–OAR– 

2010–0885, February 2012. ‘‘The Hypothetical 

Nonattainment Area Projections of 2008–2010 

Design Values to 2015.’’ 

11Federal Implementation Plans: Interstate 

Transport of Fine Particulate Matter and Ozone and 

Correction of SIP Approvals. August 8, 2011; 76 FR 

48208. 

12 Ventura County, CA was reclassified from 

Moderate to Serious (Approved 05/20/2008, 73 FR 

Page 29073, Effective: 06/19/2008). HoustonGalveston-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 EPA is in the 

process of approving the requested voluntary 

reclassification of West Mojave Desert, CA from 

Moderate to Severe. 

TABLE 2—NUMBER OF NONATTAINMENT AREAS IN EACH CLASSIFICATION CATEGORY UNDER THE 2008 OZONE

NAAQS 1—Continued 

Classification 

Number of 

hypothetical areas 

estimated in the 

proposal 

Actual number of 

areas 

Total .................................................................................................................................................. 52 46 

Note 1: The EPA relied on air quality data from 2008–2010 to develop the hypothetical nonattainment areas for purposes of the proposed rule. 

Several areas, including the Chicago area, certified their 2011 air quality data early, which allowed the EPA to consider that data for purposes of 

final designations. This table includes the Chicago nonattainment area in the total number of areas. 

The EPA is finalizing this approach 

because the percent-above-the-standard 

methodology reflects the same approach 

codified in the CAA, as amended in 

1990. It also results in the majority of 

areas receiving a classification with an 

attainment date that we believe the 

areas can meet. The EPA performed an 

analysis that indicates that the majority 

of areas classified as Marginal will be 

able to attain the 2008 ozone NAAQS 

within 3 years of designation (i.e., in 

2015) due to reductions of ozone 

precursors resulting from a number of 

federal and state emission reduction 

programs that have already been 

adopted.10 Such programs include more 

stringent emission standards for onroad 

and nonroad vehicles and equipment 

(with associated fleet turnover), and 

regional reductions in power plant 

emissions to address interstate 

transport.11 For areas classified 

Moderate and above that are required to 

develop attainment demonstrations and 

adopt reasonably available control 

measures, it is unlikely that already 

adopted federal and existing state 

measures will be sufficient to bring the 

areas into attainment. The EPA did not 

attempt to forecast additional federal, 

regional, state or local control measures 

that may be implemented prior to the 

relevant attainment dates in 2018 that 

might help these areas attain the 

NAAQS. However, we note that the 

federal and regional programs already in 

place, in conjunction with others that 

may be adopted in the next several 

years, such as maximum achievable 

control technology standards for boilers, 

will help these areas make progress 

toward attainment. In addition, the CAA 

requires these areas to meet reasonable 

progress goals out to their attainment 

date and also requires these areas to 

evaluate what reasonably available 

control measures are available in order 

to attain as expeditiously as practicable. 

For these reasons, we anticipate that 

these areas will be able to attain the 

2008 ozone NAAQS by the attainment 

date for their classification. We note, as 

provided further below, several areas 

with the most persistent ozone problems 

are most likely not to attain by the 

attainment date associated with their 

classification by operation of law, and 

are being voluntarily reclassified to a 

higher classification in this final rule. 

IV. How will areas that were 

voluntarily reclassified under the 1997 

ozone NAAQS be addressed? 

A. Summary of Proposed 

Reclassification of Selected Areas 

CAA section 181(b)(3) provides that a 

state may voluntarily request that the 

EPA reclassify a nonattainment area 

within the state 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 ozone NAAQS. 

The EPA has granted voluntary 

reclassification requests for six of these 

areas, and is in the process of 

completing the request for one area.12

These areas are initially classified for 

the 2008 ozone NAAQS with a lower 

classification than the areas have for the 

1997 ozone NAAQS. Moreover, the 

maximum attainment date for the 2008 

ozone NAAQS based on that lower 

classification would be before the 

maximum attainment date for the area 

for the less stringent 1997 ozone 

NAAQS. The EPA proposed to interpret 

the voluntary reclassification requests 

for the 1997 ozone NAAQS for such 

areas also to apply for the more 

stringent 2008 ozone NAAQS unless the 

state were to expressly request 

otherwise. Based on discussions with 

affected areas, we believed it was 

reasonable to expect that in most 

instances, where a state requested a 

voluntary reclassification under the less 

stringent 1997 ozone NAAQS, it would 

make the same request for the 2008 

ozone NAAQS. The EPA proposed this 

approach in order to minimize burden 

on states and to address the concern that 

some areas might have an earlier 

attainment date for the more stringent 

2008 ozone standard. Moreover, this 

approach would obviate the need to 

process separate voluntary 

reclassification requests for the 2008 

NAAQS which might have the effect of 

delaying certain actions while an area’s 

classification was being modified. 

B. Brief Summary of Comments 

Received 

The EPA received several comments 

on the application of the voluntary 

reclassification requests for the 1997 

ozone NAAQS to the more stringent 

2008 ozone NAAQS. Supporters of the 

proposal included the affected state and 

local air quality management agencies 

in California. Almost all of the 

commenters supporting this approach 

indicated that an area that needed to 

request more time to attain the 1997 

ozone NAAQS would likely need 

additional time to meet the more 

stringent 2008 ozone NAAQS. The State 

of Texas indicated that it did not want 

the voluntary reclassification request for 

the Houston area for the 1997 ozone 

NAAQS to be interpreted to also apply 

for the 2008 ozone NAAQS. One 

commenter questioned the authority of 

the EPA to apply the reclassification 

request for an area under the 1997 ozone 

NAAQS to the area’s classification 

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13This CAA provision also provides the same 

authority for reclassifying areas to a lower 

classification. Since the vast majority of 

nonattainment areas for the 2008 NAAQS are 

classified Marginal, very few areas are eligible to 

request a reclassification to a lower classification. 

We anticipate that no states will request a 

reclassification to a lower classification because our 

analyses indicate that these areas will need longer 

than 3 years to attain the NAAQS and additional 

controls will be necessary for attainment. 14We note that for purposes of the 1997 ozone 

NAAQS, we promulgated a regulation interpreting 

CAA section 181(b)(4) for purposes of an 8-hour 

ozone NAAQS. 40 CFR 51.907. We anticipate that 

we will propose a similar regulation for the 2008 

ozone standard as part of the proposed 

implementation rule. 

15Except in the case of a leap year, where the year 

would be a rolling 366-day period. 

under the 2008 ozone NAAQS. These 

comments, and the EPA’s responses, are 

discussed in more detail in the 

Response to Comments document in the 

docket. 

C. Final Action 

Once the initial area designations and 

classifications for the 2008 ozone 

NAAQS are completed, the CAA 

provides three mechanisms for 

addressing nonattainment areas that 

may not be attaining or are not able to 

attain by the attainment date provided 

for their classification. First, section 

181(a)(4) provides that within 90 days of 

the effective date of designation and 

classification, the Administrator may 

exercise discretion to reclassify an area 

to a higher classification if its DV is 

within 5 percent of the DV range of the 

higher classification.13 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. 

The second mechanism, as provided 

in section 181(b)(3), allows a state to 

voluntarily request at any time 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 and must attain the 

standard no later than the later 

maximum attainment date for that 

classification. Any state may request a 

voluntary reclassification under the 

2008 ozone NAAQS at any time prior to 

the area’s attainment deadline. 

The third mechanism, as provided in 

section 181(b)(2), requires that an area 

be reclassified to the next higher 

classification (i.e., ‘‘bumped-up’’) if the 

EPA determines that the area has failed 

to attain the standard by the area’s 

attainment date and does not qualify for 

a 1-year attainment date extension as 

allowed under CAA section 181(b)(2).14

Areas classified as Severe are not 

reclassified to Extreme, as provided 

under CAA section 181(b)(2)(A), but 

instead are subject to other requirements 

as provided in section 181(b)(4). 

The areas for which states requested 

a voluntary reclassification would 

initially have been classified with a 

lower classification with an earlier 

maximum attainment date for the more 

stringent 2008 NAAQS than the area 

had for the 1997 NAAQS. At the time 

the EPA issued the proposed rule, we 

believed it likely that these areas would 

as a result have requested a similar 

reclassification for the 2008 NAAQS. 

The EPA is obligated to approve such 

voluntary reclassification requests if 

made. During the comment period, the 

State of California confirmed that it 

wished for the EPA to interpret its 

voluntary reclassification requests for 

areas within the state for the 1997 ozone 

NAAQS to also apply for the 2008 ozone 

NAAQS. The State of Texas indicated 

that it did not wish for the EPA to 

interpret its reclassification request for 

the 1997 ozone NAAQS for the Houston 

area as applying to the 2008 NAAQS. 

Therefore, we are treating the prior 

requests made for the nonattainment 

areas in California listed in Table 3 as 

requests that also apply to the 2008 

ozone NAAQS. This final rule reduces 

the burden on the State of California 

and the affected air management 

districts by obviating the need to go 

through a separate process to request 

bump-up for the 2008 NAAQS. 

TABLE 3—AREAS RECEIVING VOLUNTARY RECLASSIFICATION UNDER THE 2008 OZONE NAAQS 

Nonattainment area State Initial 2008 ozone 

NAAQS classification 

Voluntary reclassification 

under 2008 ozone 

NAAQS 

Los Angeles-South Coast Air Basin ..................................................................... CA ........ Serious ........................... Extreme. 

San Joaquin Valley .............................................................................................. CA ........ Serious ........................... Extreme. 

Riverside County (Coachella Valley) .................................................................... CA ........ Moderate ........................ Severe. 

Sacramento Metro ................................................................................................ CA ........ Serious ........................... Severe. 

Ventura County .................................................................................................... CA ........ Moderate ........................ Serious. 

Western Mojave ................................................................................................... CA ........ Moderate ........................ Severe. 

V. What are the attainment deadlines 

for each classification? 

A. Summary of Proposed Attainment 

Deadlines 

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 in CAA 

section 181(a)(1). 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 

ozone standard promulgated in 2008, 

we proposed to interpret the attainment 

deadlines in the subpart 2 classification 

table as they would apply to the 2008 

ozone NAAQS. 

The EPA proposed 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 the effective date of designation. 

The first option, which was the same 

approach we took for the 1997 ozone 

NAAQS, would interpret ‘‘year’’ in the 

subpart 2 classification table to mean 

consecutive 365-day periods,15 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. 

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16A few of the most southern areas in the country 

do have a year-round ozone season. For purposes 

of the 1-hour NAAQS, the EPA effectively 

interpreted the November 15 attainment date as the 

end of the calendar year (i.e., the end of calendar 

years 1993, 1996, 1999, 2005, 2007 and 2010). 

17The ozone season for all areas of California, 

Nevada, Arizona, Southern Texas and Southern 

Louisiana starts in January, which would provide 

18 months for areas classified as Marginal in such 

states to adopt and implement any additional 

measures needed for attainment. The ozone season 

for all areas of Colorado, Northern Texas, Northern 

Louisiana, Alabama, Mississippi, Georgia, Florida, 

Tennessee and Kentucky starts in March, which 

would provide 20 months for areas classified as 

Marginal in such states to adopt and implement any 

additional measures needed for attainment. The 

ozone season for all other areas designated 

nonattainment for the 2008 NAAQS begins in April, 

which would provide 21 months for areas classified 

as Marginal in such states to adopt and implement 

any additional measures needed for attainment. 

18The same is true for the higher classifications 

if the attainment date falls in the middle of the year. 

For example, under Option 1, Moderate areas 

would have approximately 41⁄2 years to adopt and 

implement measures necessary to attain the 2008 

ozone NAAQS (i.e., no later than the beginning of 

the 2016 ozone season, which would be the final 

ozone season relied on for attainment), whereas at 

the time of the CAA Amendments of 1990, 

Moderate areas had approximately 5 years to adopt 

and implement measures prior to the beginning of 

the 1996 ozone season, which was the final ozone 

season considered for determining whether an area 

attained by the November 1996 Moderate area 

attainment date. 

For the second 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 

(i.e., from December 31, 2012). The EPA 

explained in its proposal that where the 

designation is effective late in the ozone 

season, as we expected to be the case for 

the 2008 ozone NAAQS, the first option 

had the effect of providing one less 

complete ozone season for areas to 

improve their air quality than was 

accorded areas under the CAA as 

amended in 1990. We described that 

under the first option, a Marginal area 

effectively would have only two full 

ozone seasons following the effective 

date of designation to improve its air 

quality in order to attain by its 

attainment date. This is because 

attainment is based on three full ozone 

seasons of air quality data; thus 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. 

We explained our belief that the 

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, the 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). 

B. Brief Summary of Comments 

Received 

The EPA received numerous 

comments on the attainment deadlines 

proposal. A few commenters supported 

the first option based on what they 

believed to be a plain reading of the 

CAA. A number of commenters opposed 

the first option, because it would not 

allow air quality data from the 

attainment year to be used in 

determining if the area attained the 

NAAQS by the deadline. Most of the 

commenters supported the adoption of 

the second option believing that it was 

most consistent with the 1990 CAA 

Amendments and that it would ensure 

that at least three full ozone seasons of 

data following designation (2013–2015) 

would be used for Marginal areas (and 

six (2013–2018) for Moderate areas, etc.) 

to determine attainment with the 2008 

ozone NAAQS. Those opposing the 

second option indicated it would result 

in further delays in implementing 

controls in areas required to attain the 

2008 ozone NAAQS, and that it 

arbitrarily endangers human health. 

These comments, and the EPA’s 

responses, are discussed in more detail 

in the Response to Comments document 

in the docket. 

C. Final Action 

The EPA is finalizing the second 

proposed option. Attainment deadlines 

for the 2008 ozone NAAQS 

nonattainment areas will be December 

31 of the calendar year that is the 

number of years specified for each 

classification in Table 1 with the 

number of years running from 2012. The 

EPA believes that this approach is 

appropriate for several reasons. First, we 

believe it is consistent with the intent of 

Congress at the time the CAA 

Amendments of 1990 were enacted. 

Since ozone seasons for most areas run 

during the spring, summer and fall,16

the CAA, as amended in 1990, allowed 

Marginal areas three full ozone seasons 

to attain and maintain the NAAQS (and 

six full ozone seasons for Moderate 

areas, etc.) after the time that areas were 

designated and classified by operation 

of law at the time of enactment of the 

CAA Amendments. If the attainment 

date runs from the effective date of 

designation (i.e., mid-2012), to the 

extent measures beyond federal 

measures or state measures that are 

already in place would be needed for 

attainment of the 2008 ozone NAAQS 

by Marginal areas, states would have 18 

to 21 months 17 to adopt and implement 

such measures no later than the 

beginning of the 2014 ozone season. 

This is less time than such areas had for 

purposes of the 1-hour ozone standard 

under the CAA as amended in 1990. At 

that time, states with Marginal areas had 

over two years to adopt and implement 

such measures prior to the final ozone 

season used for purposes of determining 

attainment.18 In addition, this approach 

is consistent with the regulatory 

provisions specifying how to determine 

whether an area has attained the 2008 

ozone NAAQS, which require an 

evaluation of monitoring data from 3 

consecutive calendar years running 

from January 1 to December 31 of each 

year. 

Accordingly, areas initially classified 

as Marginal are required to attain the 

2008 ozone NAAQS no later than 

December 31, 2015, and the EPA will 

evaluate whether the area attained the 

NAAQS based on monitored ozone data 

from 2013–2015. Areas initially 

classified as Moderate are required to 

attain the 2008 ozone NAAQS no later 

than December 31, 2018, and the EPA 

will evaluate whether the area attained 

the NAAQS based on monitored ozone 

data from 2016–2018. Serious, Severe, 

and Extreme areas are required to attain 

the 2008 ozone NAAQS by December 

31, 2021, 2027 and 2032, respectively. 

Table 4 summarizes the final attainment 

deadlines for all classification 

categories. 

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19A 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. 

20On March 14, 2012, the EPA finalized a 

revision to the transportation conformity rule, 

which among other things revised the rule to 

specifically require that a nonattainment area that 

has approved or adequate motor vehicle emissions 

budgets in an applicable implementation plan or 

implementation plan submission for another 

NAAQS for the same pollutant must use those 

budgets in transportation conformity 

determinations until motor vehicle emissions 

budgets for the current NAAQS are submitted by 

the state and found adequate or are approved by the 

EPA. This revision to the conformity rule was 

effective on April 13, 2012. (77 FR 14979.) 

21Areas 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. 

TABLE 4—ATTAINMENT DATES FOR THE 2008 PRIMARY OZONE NAAQS 

Classification Attainment date 

Attainment dates for 

areas designated in 

2012 

Marginal ................................................ December 31 of the calendar year 3 years from the date of designation .......... December 31, 2015. 

Moderate ............................................... December 31 of the calendar year 6 years from the date of designation .......... December 31, 2018. 

Serious .................................................. December 31 of the calendar year 9 years from the date of designation .......... December 31, 2021. 

Severe ................................................... December 31 of the calendar year 15 years from the date of designation ........ December 31, 2027. 

Extreme ................................................. December 31 of the calendar year 20 years from the date of designation ........ December 31, 2032. 

VI. When is the EPA revoking the 1997 

ozone NAAQS for transportation 

conformity purposes? 

A. Summary of Proposal 

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. 

The EPA proposed to revoke the 1997 

ozone NAAQS one year after the 

effective date of designations for the 

2008 ozone NAAQS for transportation 

conformity purposes only. As the EPA 

described in the proposal, revoking the 

1997 ozone NAAQS for transportation 

conformity purposes would bring 

certainty to the transportation planning 

process in ozone nonattainment and 

maintenance areas. It would 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) and by the transportation 

conformity rule (40 CFR 

93.109(c)(2)).19,20 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.’’ Under the EPA’s 

regulations (40 CFR 93.109(c)(2)), 

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 

finalizing 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 ozone 

NAAQS on the same timeline for all 

other purposes. 

This approach was the same approach 

the EPA used to 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 one 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 NAAQS. 

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, but that conformity 

determinations need not be made for a 

revoked standard. 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.21

Similar to our rationale in the Phase 

1 rule for implementation of the 1997 

ozone NAAQS, we explained at 

proposal that 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 1-year transportation 

conformity grace period that applies to 

newly designated nonattainment areas 

(CAA section 176(c)(6)). If the 1997 

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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. Therefore, for 

transportation conformity purposes, this 

final rule provides a seamless transition 

from demonstrating conformity for the 

1997 ozone NAAQS to demonstrating 

conformity for the 2008 ozone NAAQS. 

Revoking the 1997 ozone NAAQS one 

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 area. 

B. Final Date for Revoking the 1997 

Ozone NAAQS for Transportation 

Conformity Purposes 

The EPA received many comments 

regarding the revocation of the 1997 

ozone NAAQS for purposes of 

transportation conformity. Most of the 

commenters supported revoking the 

1997 ozone NAAQS for transportation 

conformity purposes one year after the 

effective date of designations for the 

2008 ozone NAAQS, as proposed, 

because this would minimize the 

burden on states, and focus efforts on 

the more stringent 2008 ozone NAAQS. 

Those opposing this option did so as a 

result of concerns about backsliding and 

the legality of revoking the 1997 ozone 

NAAQS at all. Several other comments 

were received that were directed at 

topics such as general conformity and 

revocation of the 1997 ozone NAAQS 

for other purposes that will be 

addressed in a subsequent rule 

addressing SIP requirements for the 

2008 ozone NAAQS. These comments, 

and the EPA’s responses, are discussed 

in more detail in the Response to 

Comments document in the docket. 

After considering the comments and for 

the reasons described above, the EPA is 

finalizing the proposed revocation. 

This final rule does not revoke the 

1997 ozone NAAQS for purposes other 

than transportation conformity. A 

subsequent proposal addressing SIP 

requirements for the 2008 ozone 

NAAQS will cover the broader antibacksliding requirements that might 

apply if the 1997 standard is revoked for 

purposes other than transportation 

conformity. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

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 final Classifications Rule for the 

2008 ozone NAAQS establishes the air 

quality thresholds associated with each 

classification, which is assigned by 

operation of law at the time of 

designation as provided in section 

181(a) of the CAA. It also reclassifies six 

areas in California to a higher 

classification, consistent with the State 

of California’s previous request to 

reclassify such areas for the 1997 ozone 

NAAQS. This rule establishes the 

attainment date as December 31st of the 

year that is the number of years 

specified in Table 1 in CAA section 

182(a) running from the year of 

designation (i.e., 2012). This rule also 

revokes the 1997 ozone NAAQS for 

transportation conformity purposes 

only. This limited revocation will 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 final 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 final rules 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 notfor-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, and allows areas to request 

reclassification to a higher 

classification. This rule establishes the 

thresholds that define these initial 

classifications and reclassifies some 

areas, and also establishes the 

attainment deadline for each 

classification. The CAA also requires 

that nonattainment and maintenance 

areas make transportation conformity 

determinations. This rule revokes the 

1997 ozone NAAQS one 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 final 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 final rule 

will not impose any requirements on 

small entities. 

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. 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30169 

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 

requirements to designate 

nonattainment areas, which are then 

classified by operation of law, as well as 

the requirement to grant reclassification 

requests are imposed by the CAA. Thus, 

Executive Order 13132 does not apply 

to these final 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 

standard has triggered CAA 

requirements for 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 13132 and consistent with the 

EPA policy to promote communications 

between the EPA and state and local 

governments, the EPA solicited 

comments on the proposal to this final 

rule 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 final rules do not have a 

substantial direct effect on one or more 

Indian tribes under these regulatory 

revisions, and does not significantly or 

uniquely affect the communities of 

Indian tribal governments. Furthermore, 

these final regulatory 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 regulatory revisions do not 

have tribal implications. Thus, 

Executive Order 13175 does not apply 

to this action. 

The EPA solicited comment on the 

proposal for this final 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 subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

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 the 

EPA to provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

These final revisions to the 

regulations do not involve technical 

standards. Therefore, the EPA did not 

consider 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 

final 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 final regulations 

establish classification thresholds and 

attainment deadlines 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 lowincome populations and are designed to 

protect and enhance the health and 

safety of these and other populations. 

Today’s action also revokes 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 final rule 

ensures that transportation conformity 

is demonstrated in all areas that are 

designated nonattainment for the more 

protective 2008 ozone NAAQS. 

K. Congressional Review Act 

The Congressional Review Act, 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A Major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective 60 day 

s after publication in the Federal 

Register. 

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30170 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

VIII. 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: April 30, 2012 . 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, Chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 50—NATIONAL PRIMARY AND 

SECONDARY AMBIENT AIR QUALITY 

STANDARDS 

■ 1. The authority citation for Part 50 

continues to read as follows: 

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

■ 2. Section 50.10 is amended by adding 

a paragraph (c) to read as follows: 

§ 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 § 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 

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 CAA 

section 181 of subpart 2 to areas subject 

to § 51.1102(a). 

Subpart AA—Provisions for 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards 

§ 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 1997 

8-hour primary and secondary ozone 

national ambient air quality standards 

codified at 40 CFR 50.10. 

(c) 2008 NAAQS means the 2008 

8-hour 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 of part D of title I of the CAA 

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 4.1(i) for that state. 

§ 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. 

§ 51.1102 Classification and 

nonattainment area planning provisions. 

An area designated nonattainment for 

the 2008 ozone NAAQS will be 

classified in accordance with CAA 

section 181, as interpreted in 

§ 51.1103(a), and will be subject to the 

requirements of subpart 2 of part D of 

title I of the CAA that apply for that 

classification. 

§ 51.1103 Application of classification and 

attainment date provisions in CAA section 

181 of subpart 2 to areas subject to 

§ 51.1102. 

(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 below. 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: 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30171 

TABLE 1—CLASSIFICATION FOR 2008 8-HOUR OZONE NAAQS (0.075 PPM) FOR AREAS SUBJECT TO SECTION

51.1102(A) 

Area class 8-hour design value 

(ppm ozone) 

Primary standard attainment date 

(years after designation for 2008 primary NAAQS) 

Marginal .................................. from ....................................... 0.076 3 years after December 31, 2012. 

up to * .................................... 0.086 

Moderate ................................ from ....................................... 0.086 6 years after December 31, 2012. 

up to * .................................... 0.100 

Serious ................................... from ....................................... 0.100 9 years after December 31, 2012. 

up to * .................................... 0.113 

Severe-15 ............................... from ....................................... 0.113 15 years after December 31, 2012. 

up to * .................................... 0.119 

Severe-17 ............................... from ....................................... 0.119 17 years after December 31, 2012. 

up to * .................................... 0.175 

Extreme .................................. equal to or above ................. 0.175 20 years after December 31, 2012. 

* But not including. 

(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) The following nonattainment areas 

are reclassified for the 2008 ozone 

NAAQS as follows: Serious—Ventura 

County, CA; Severe—Los Angeles-San 

Bernardino Counties (West Mojave 

Desert), Riverside County (Coachella 

Valley), and Sacramento Metro, CA; 

Extreme—Los Angeles-South Coast Air 

Basin, and San Joaquin Valley, CA. 

[FR Doc. 2012–11605 Filed 5–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

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