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Citation: 77 Fed. Reg. 28424 2012

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

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 50, 51 and 81 [EPA-HQ-OAR-2007-0956; FRL-9668-4]
RIN2060-AO96

Final Rule To Implement the 1997 8-Hour Ozone National Ambient Air QualityStandard: Classification of Areas That Were InitiallyClassified Under Subpart 1; Revision ofthe AntiBacksliding ProvisionsTo Address 1-Hour Contingency Measure Requirements; Deletion of Obsolete 1-Hour Ozone Standard Provision

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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

ozone standard pending the Agency's issuance ofa final rule thatrevises or reinstates its revocation authority and considers and addresses certain other issues. That rule has nowbeen issued.

DATES: This rule is effective on June 13, 2012. ADDRESSES: The EPA has established a docket for this rule, identified by Docket ID No. EPA-HQ-OAR-2007-0956. All documents in the docket are listed in www.regulations.gov.Although listed in the index, some information isnot publicly available, i.e., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only inhard copy form. Publicly available docket materials are available either electronically in www.regulations.govor in hard copy at the Air andRadiation Docket and Information Center,EPA Headquarters Library, Room Number 3334 in the EPAWest 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 (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: For further general information or information on classification offormer subpart 1areas, contact Mr. Butch Stackhouse, Office ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, (C539-01),Research Triangle Park, NC 27711, phone number (919) 541-2363, fax number (919) 541-0824 orby email atstackhouse.butch@epa.gov. For information on the 1-hour contingency

measures associated with the 1-hour

ozone standard contact Mr. H. Lynn Dail, Office ofAir Quality Planning and Standards, (C504-03), U.S. EPA, Research Triangle Park, North Carolina 27711, phone number (919) 541-2363, fax number (919) 541-0824, or by email
at dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does thisactionapplytome?

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

TABLE 1-AFFECTED AREAS INITIALLY CLASSIFIED UNDER SUBPART 

### 1

State Area

Arizona

................................. Phoenix-Mesa. California

.............................. Amador and Calaveras Counties (Central Mountain), Chico, Kern County (Eastern Kern), Mariposa andTuolumne Counties (Southern Mountain), Nevada County, San Diego, Sutter County (Sutter Buttes). Colorado

............................... Denver, Boulder, Greeley, Ft. Collins & Loveland. Nevada

................................. Las Vegas. New York

.............................. Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County (Whiteface Mtn.), Jamestown, Rochester. Pennsylvania

........................ Pittsburgh-Beaver Valley.

Entities potentially affected indirectly by this action include owners and operators of sources ofemissions of volatile organic compounds (VOCs) and nitrogen oxides (NOx), the two pollutants that contribute to groundlevel ozone concentrations.

B. WherecanIgetacopyofthis documentandotherrelated information?

In addition to being available inthe docket, an electronic copy ofthis notice is also available on the World Wide Web. Acopy ofthis notice will be posted at http://www.epa.gov/ttn/naaqsl ozone/o3imp8hr/. C.Howis this documentorganized?

The information presented in this Document is organized as follows:

1.General Information

A. Does this action apply to me? B. Where can Iget a copyof this document

and other related information? C. How is this document organized? II. What is the background for thisrule? 11. This Action

A. Classification of8-Hour Ozone

Nonattainment Areas That theEPA Had Classified Under Subpart 1 1.The Proposal 2. Final Rule 3. Comments and Responses

a. Classification ofFormer Subpart 1Areas b. Timing of SIP Submission Under Subpart 2 Classification

c. Timing ofAttainment Date d. Data Used forClassification

e. Other Comments on Classification of

Former Subpart 1Areas B. Anti-Backsliding Under Revoked 1-Hour

Ozone Standard-In General 1.Proposal 2. Final Rule 3. Comments C. Contingency Measures 1.Proposal 2. Final Rule 3. Comments and Responses D. Section 185 Fee Program for 1-Hour

NAAQS 1.Proposal 2. Final Rule 

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3. Comments and Responses E. Deletion ofObsolete 1-Hour Ozone

Standard Provision 1. Proposal 2. Final Rule 3. Comments and Responses F. Other Comments G. Correction to a Footnote in Proposal

Rule IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review andExecutive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132-Federalism F. Executive Order 13175-Consultation

and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and

Advancement Act J. Executive Order 12898: Federal Actions

To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review L. Determination Under Section 307(d)
V. Statutory Authority
II. What isthe background forthisrule?

On January 16, 2009, the EPA proposed revisions to the Phase 1Rule for implementing the 1997 8-hour ozone NAAQS I (Phase 1Rule) to address several ofthe limited portions ofthe rule vacated by the U.S. Court of Appeals for the District ofColumbia Circuit in South CoastAir Quality ManagementDistrict,eta].,v. EPA,472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifyingthatthe
vacatur was limited to the issues on which the court granted the petitions for review). (South Coast).The proposal addressed the classification systemfor the subset ofinitial 8-hour ozone nonattainment areas thatthe Phase 1 Rule originally covered under CAA title I,part D, subpart 1.The proposal also addressed how contingency measures that are triggered by failure to attain or make reasonable progress toward attainment ofthe 1-hour standard should apply under the anti-backsliding provisions ofthe Phase 1Rule. In addition, the proposal identified the vacated provisions ofthe rule that provided exemptions from the antibacksliding requirements relating to 1-hour nonattainment NSR, the CAA section 185 penalty fees for failure to attain the 1-hour standard, and

174 FR 2936, January 16, 2009. contingency measures as these requirements applied for the 1-hour standard. In the proposal, we planned to

remove these provisions from the regulatory text in 40 CFR 51.905(e). Finally, we proposed to delete a provision that stayed theEPA's authority to revoke the 1-hour ozone standard. A more detailed description of the background for this rule appears in the January 16, 2009, notice ofproposed rulemaking (74 FR 2936).

III. This Action

A. Classificationof8-HourOzone Nonattainment Areas ThattheEPA Had ClassifiedUnderSubpart1

There are a number ofareas currently designated nonattainment for the 1997 8-hour ozone NAAQS (0.08parts per million (ppm)) that originally did not receive a classification under subpart 2. In this action, theEPA isestablishing initial classifications forthese 16 areas and immediately finalizing the proposed reclassifications to Moderate for the areas that wouldbe classified as Marginal but thatfailed to meet the June 15, 2007 attainment date for Marginal

areas for the 1997 ozone NAAQS.

Based on the area classifications, the CAA establishes certain planning and control requirements for the areas, and in this rule, the EPA is specifying the deadlines by which states must submit plans to meet these requirements. Once the ozone air quality in these areas meets the 1997 8-hour standard, certain ofthese requirements maybe suspended by a determination ofattainment (Clean Data Determination, pursuant to 40 CFR 51.918, 70 FR 71702). The obligation to complete and submit those requirements would be suspended as long as the area continues to attain the standard, and would no longer apply

once the area isredesignated to attainment following the requirements ofCAA 107(d)(3). However, other requirements will continue to apply, and appropriate SIP elements mustbe submitted and approved priorto redesignation to attainment.

1.The Proposal

In the January 16, 2009, proposed rule, theEPA proposed that all areas designated nonattainment for the 1997 8-hour ozone standard wouldbe classified under and subject to the nonattainment planning requirements of subpart 2. We proposed tomodify the regulatory text toremove current §51.902(b), which was vacated by the Court and which subjected certain nonattainment areas toregulation only under subpart 1.2 The Court vacated the Phase 1rule to the extent it placed certain areas solely under the implementation provisions ofsubpart 1. Therefore, the proposal addressed which provisions ofthe CAA should apply to those areas. 3

We also noted that the classifications that wouldbe established pursuant to this final rule wouldbe the initial classifications for the affected areas for the 1997 ozone standard. Therefore, we proposed to use the 2003 8-hour ozone designvalues (derived from 2001-2003 air quality data), which were usedto designate these areas nonattainment initially, asthebasis for classification. We also proposed to use the classification table in 40 CFR 51.903 (establishedby the Phase 1Rule) to classify these areas. Wenoted that CAA section 181(a)provides that "at the time" areas are designated for the ozone NAAQS, they will be classified "by operation oflaw" based on the "design value" ofthe areas and in accordance with Table 1ofthat section. We concluded that this language specifies that the area willbe classified based on the design value that existed for the area atthe time ofdesignation. Areas were designated nonattainment in 2004, based ondesign values derived from datafrom 2001-2003.

Since the classifications under this proposal wouldbe the initial classifications for the 1997 8-hour standard for the affected areas, the EPA proposed that the provision ofCAA section 181(a)(4) would apply to these

areas. This provision would allow the Administrator in her discretion to adjust the classification-within 90 days after the initial classification-to a higher or lower classification "* * * ifthe design value were 5percent greater or 5 percent less than the level onwhich such classification was based." The EPA proposed to address requests for such classification adjustments forthe newlyclassified areas in a manner similar to the wayrequests were handled for the original round of subpart 2 classifications in 2004. This process is described at 69 FR 23863 etseq.(April 30, 2004). We indicated inthe proposal, however, thatifa state requests a reclassification from Moderate to

2As the Court made clear inits decision on rehearing, the CAA does notmandate coverage under subpart 2 ofall areas designated nonattainment for an ozone NAAQS. As EPA moves forward to develop an implementation strategy for any future new ozone NAAQS, we may consider whether subpart 1alone might apply for someareas for purposes ofimplementing that NAAQS.

3We note that areas subject to subpart 2 arealso subject to subpart 1to the extent subpart 1 specifies requirements that are not suspended by more specific obligations under subpart 2. 

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Marginal for an area thatis currently violating the standard, the EPA would
not grant the request for the reclassification because the Marginal attainment deadline has already passed.

We noted that the classification table of40 CFR 51.903 provides an outside attainment date based on the number of years after the effective date ofthe nonattainment designation (e.g., 3years for Marginal and 6 years for Moderate). For all nonattainment areas other than Denver, the effective date ofdesignation for the 8-hour standard was June 15, 2004. Thus, Marginal nonattainment

areas (withthe exception ofDenver) had

amaximum statutory attainment date of June 15, 2007. Since theMarginal area attainment date has passed, theEPA proposed that any area that would be classified as Marginal based on its 2003 designvalue and thathad not attained byJune 15, 2007, or that did not meet the criteria for an attainment date extension under CAA section 181(a)(5)(B) and 40 CFR 51.907, would be reclassified immediately as Moderate under the final rule.

In addition,we noted that a number ofareas that were initially placed in subpart 1under the vacated provision of the Phase 1Rule have since been redesignated to attainment for the 1997 8-hour standard. We indicated that since these areas are nowdesignated attainment for the 1997 8-hour standard, the classification provisions ofthe final rule would not apply.

In the proposal, the EPA took the position thattransportation conformity requirements, and current transportation plan and transportation improvement program conformity determinations for the 1997 8-hour

ozone standard remain valid, and would
not be impacted bythis final action. These areas are already required to satisfy the applicable CAA section 176(c) conformity requirements for the 1997 8-hour ozone standard based on their nonattainment designation in June 2004. Thus, no new conformity deadline would be triggered for these areas after the areas are classified under subpart 2. These areas would continue to make future conformity determinations according to the applicable requirements of40 CFR 93.109(d) and (e). The EPA indicated that any areas classified as Moderate that are using the interim emissions tests wouldbe required to meet additional test requirements that do not apply to Marginal areas [40 CFR 93.119(b)(1)]. Moderate ozone nonattainment areas are required to satisfy both interim emissions tests in order to demonstrate conformity. Therefore, any area classified as Moderate would be required to demonstrate thatemissions in the build scenario are less than the no-build scenario and that emissions in the build scenario are less than emissions in the 2002base year. Marginal areas are required to demonstrate conformity using the "no greater than" form ofone ofthe two interim emissions tests [40 CFR 93.119(b)(2)(i) and 40 CFR 93.119(b)(2)(ii)(A)&(B)].

The EPAproposed to require states to submit all required State Implementation Plan (SIP) elements of the areas' Marginal or Moderate classification no later than 1year after the effective date of this final rule. The proposal noted thatthe EPAbelieved this to be an appropriate andreasonable
amount oftime giventhe attainment dates that will apply to these areas, and that these areas should have made significant progress toward developing SIPs, originally due June 15, 2007, based

on the obligations that applied before the subpart 1provision ofthe Phase 1 Rule was vacated in December 2006.

2.Final Rule

The final rule generally reflects the approach we proposed. The final rule provides that: * All areas originally placed under subpart 1 andthat remain designated nonattainment for the 1997 8-hour

ozone standard at the time ofthis final rule are now classified under and subject tothe nonattainment planning and emissions control requirements of subpart 2, sections 181-185. There are sixteen such areas. * Initial classifications are based on the 8-hour ozone design values (derived from 2001-2003 airquality data) that

were used to designate these areas nonattainment initially. * The classification table in 40 CFR 51.903 (establishedby the Phase 1Rule) is used for the classifications. The classification table of40 CFR 51.903 provides a maximum attainment date based on a number ofyears after the effective date ofthe nonattainment designation (e.g., 3years for Marginal; 6 years for Moderate). For all areas other than Denver,4 the effective date of nonattainment designation and classification for the 8-hour standard

was June 15, 2004. Thus, other than Denver, Marginal nonattainment areas had a maximum statutory attainment date ofJune 15, 2007. Since the Marginal area attainment date ofJune 15, 2007 haspassed, any area that

4Denver's special circumstancs as a former EAC

area were discussed in the proposal. (74 FR 2939- 2941). The nonattainment designation forthe Denver area became effective November 20, 2007. (72 FR 53952 and 53953, September 21, 2007). would have been initially classified as Marginal, and that did not attain byJune 15, 2007 (based on 2004-6 data), and

was unable to attain pursuant tothe 1- year attainment date extensions allowed under section 181(a)(5)(B) and 40 CFR 51.907, isreclassified from Marginal to Moderate under this rule.

* CAA section 181(a)(4) applies to all

areas affected by this final rule. This provision allows the Administrator in her discretion to adjust the classification-within 90 days afterthe initial classification-to a higher or lower classification "* * * ifthe design value were 5percent greater or 5 percent less than the level on which such classification was based." The
process for making these adjustments is described at 69 FR 23863 etseq.(April 30, 2004). However, the EPA will not grant a request for reclassification to a lower classification if(1)the attainment date for that lower classification has passed, and (2)the area is or has violated the standard such thatit would
not qualify for the first and second 1- year attainment date extensions. Since the Marginal attainment date has passed, no area initially classified Moderate by this notice will be eligible for adownward adjustment toMarginal. Further, since none ofthe initial Moderate areas affected by thisnotice had a classification design value within 5percent ofthe Serious threshold of 0.107 ppm, no areas are eligible for an upward classification adjustment to Serious.

* Areas originally placed under subpart 1that have alreadybeen redesignated to attainment are not affected by these classification provisions, which apply only to areas that remain designated nonattainment for the 1997 ozone standard.

In this rulemaking, the EPA is responding to the Court's vacatur ofthe provision that placed certain nonattainment areas solely under subpart 1and is nowclassifying those

areas under subpart 2.There are sixteen such areas identified inTable 2 that are being initially classified under subpart 2 based onthe area's design value at the time ofdesignation. To determine the area's designvalue, we used 2001-2003 ambient air quality data. We then took the following steps to determine whether any areas classified Marginal shouldbe immediately reclassified to Moderate.

Step 1.Ifthe area wouldbe classified

asMarginal based on its design value at the time ofdesignation, we determined ifthe area attainedby the June 15, 2007 attainment date based on 2004-2006 ambient air quality data. Ifso (andifthe

area has not been formally redesignated 

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to attainment) 5 the area remains classified as Marginal. There are 8 areas classified Marginal as a result ofthis Step. (See Table 2column for "Status in 2007", which identifies 8 Marginal areas
as "Attaining".)

Step 2.Ifthe Marginal area did not attain by the June 15, 2007 attainment date, we determined ifthe area would be eligible for the first 1-year extension under CAA section 181(a)(5) and 40 CFR 51.907.6 Ifthe area would not have been eligible for the first 1-year extension, we are reclassifying Amador and Calaveras Counties (Central Mountain), CAto Moderate as a result ofthis Step.

Step 3.For any Marginal area that was eligible for the first 1-year extension, we reviewed the ambient air quality data from 2005-2007 to determine ifthe area attained the standard by the end ofthe first 1-year extension. Ifso, we are classifying the area as Marginal. No areas are classified Marginal as a result ofthis Step.

Step 4. For any Marginal area thatwas eligible for the first 1-year extension,but did not attainby the end ofthat extension, we then determined ifit would have been eligible for the second 1-year extension.7Ifthe area would not have been eligible for the second 1-year extension, we are reclassifying the area to Moderate. Mariposa and Tuolumne Counties (Southern Mountain), CA are reclassified to Moderate as a result of this Step.

Step 5.For any Marginal area thatwas eligible for the second 1-year extension,

we then reviewed the ambient air quality data from 2006-2008 to determine ifthe area attained the standard. If so, we are classifying the

area as Marginal. Ifthe area did not attain, we are reclassifying the area as Moderate. No areas are classified Marginal or reclassified Moderate as a result ofthis Step. Any Moderate area that did not attain byJune 15, 2010 and would not have been eligible for the first or second 1- year extension, would be subject to the CAA's statutory provisions for reclassification (bump-up) to Serious, the nexthigher classification category. At the time theJanuary 16, 2009 proposed rule was issued, the Moderate

area attainment date ofJune 15, 2010, had not passed. Thus, the proposed rule did not address reclassification from Moderate to Serious. The EPA will address reclassifications from Moderate
to Serious, as necessary, in separate rulemaking action.

Table 2identifies the final subpart 2 classification for each area thatwas originally classified under subpart 1 pursuant to our Phase 1Rule (69FR 23989, April 30, 2004), and thatremains nonattainment for the 1997 ozone standard.

TABLE 2-SUMMARY OF NONATTAINMENT AREAS INITIALLY CLASSIFIED UNDER SUBPART 1 RECEIVING RECLASSIFICATION UNDER SUBPART 

### 2

2004 Initial classification/ Status in 2007 (based on 2004- Current subpart 2

State Area design value 2001-2003 2006 data) classification (ppm) (ppm)

CA

.......... Chico

, CA

....................................... M

arginal (0.089)

............................. Attaining (0.084)

............................. M

arginal CA

.......... Sutter Co. (Sutter Buttes), CA

....... Marginal (0.088)

............................. Attaining (0.081)

............................. Marginal NV

.......... Las Vegas, NV

............................... M

arginal (0.086)

............................. Attaining (0.083)

............................. M

arginal e AZ

.......... Phoenix-Mesa,AZ

......................... M

arginal (0.087)

............................. Attaining (0.083)

............................. M

arginal e CO
......... Denver-Boulder-Greeley-Ft Collins- Marginala (0.087)

........................... Attaininga (0.082)

.......................... Marginal Loveland, CO. NY

.......... Albany-Schenectady-Troy, NY

....... Marginal (0.087)

............................. Attaining (0.078)

............................. Marginal d NY

.......... Rochester, NY

................................ M

arginal (0.088)

............................. Attaining (0.074)

............................. M

arginal d NY

.......... Essex Co. (Whiteface Mtn), NY

..... Marginal (0.091)

............................. Attaining (0.071)

............................. Marginal d
CA
.......... Amador and Calaveras Counties Marginal (0.091)

............................. Not attaining (0.093)b

.................... Moderate (Central Mtn), CA. CA

.......... Mariposa and Tuolumne Counties Marginal (0.091)

............................. Not attaining (0.086)c

.................... Moderate (Southern Mtn), CA. NY

.......... Buffalo-Niagara Falls, NY

.............. M

oderate (0.099)

........................... n/a

.................................................. M

oderate d PA

.......... Pittsburgh-Beaver Valley, PA

........ M

oderate (0.094)

........................... n/a

.................................................. M

oderate d NY

.......... Jamestown, NY

.............................. M

oderate (0.094)

........................... n/a

........................... M oderate d CA

.......... Kern Co. (Eastern Kern), CA

......... M

oderate (0.098)

........................... n/a

.................................................. M

oderate CA

.......... Nevada Co. (Western Part), CA

.... M

oderate (0.098)

........................... n/a

.................................................. M

oderate CA

.......... San D iego

,CA

............................... M

oderate (0.093)

........................... n/a

.................................................. M oderate Notes:

aDenver was identified as an Early Action Compact (EAC) area at the time of designation in 2004 and the effective date of its nonattainment designation was deferred pending the EAC process. The EAC program was later terminated and the nonattainment designation for the area be-
came effective on November 20, 2007, based on a 2001-2003 design value of 0.087 ppm placing it in the Marginal classification. The Denver
area attained the standard by its attainment date of November 20, 2010 (3 years afterthe date the area was designated nonattainment) and continues to attain based on 2008-10 data.

bAmador and Calaveras Counties did not attain by the attainment date and were not eligible for the first 1-year extension based on 2006 4th highest daily 8-hour average of 0.098 ppm. Thus, the area's classification was changed to Moderate. The area now attains the standard based
on 2008-10 data.

cMariposa and Tuolumne Counties did not attain by the attainment date and were eligible for the first 1-year extension based on 2006 4th highest daily 8-hour average of 0.084 ppm. The area was not eligible for the second 1-year extension based on the average of the original attainment year (2006) and first extension year (2007) 4th highest daily 8-hour average of 0.085 ppm. Thus, the area's classification was changed to Moderate. The area now attains the standard based on 2008-10 data.

dAlbany-Schenectady-Troy, Rochester, Essex County, Buffalo, Pittsburgh, Jamestown, and Las Vegas have received Clean Data Determinations.

5Section 107(d)(3) ofthe CAA allows states to request nonattainment areas to beredesignated to attainment provided certain criteria are metthat include an approved SIP,a determination that air quality improvement is due to permanent and enforceable reductions in emissions, an approved maintenance plan, and other section 110 and part D requirements.

6Under 40CFR 51.907, an area would be eligible for the first 1-year extension ofits attainment date for the 1997 ozone standardifthe 4th highest daily maximum 8-hour average in 2006 is equal to or less than 0.084 ppm. 7 Under 40 CFR 50.907, an area is eligible for the second 1-year extension ifthe 2-year average of4th highest daily maximum 8-hour averages for 2006 and 2007 atthe monitor with the highest level is equal to orless than 0.084 ppm. 

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e Las Vegas and Phoenix have requested redesignation to attainment.

Subpart 2contains SIP requirements that differ from subpart 1. These include different attainment deadlines, different RFP requirements, requirements to adopt RACT-based controls for certain categories ofNON and VOC sources, specific major source thresholds and NSR offset ratio requirements for each classification. Table 3lists new subpart 2-related SIP requirements for Marginal andModerate nonattainment areas. The EPA is aware thatmany ofthe subpart 2SIP requirements have already been satisfied through previous SIP submissions or the requirements have been suspended due to a CleanData Determination. Forexample, all ofthe areas that would be affected by the Moderate area vehicle inspection and maintenance (I/M) program requirement

are already implementing approved programs, and the three areas in the Ozone Transport Region (Pittsburgh, PA; Jamestown, NY; and BuffaloNiagara, NY) have already submitted SIPs to address the VOC andNON RACT requirements. Similarly some areas affected by this rulemaking were previously nonattainment under the 1-hour ozone standards, and may have already established an emissions
statement rule and completed RACT determinations. Also, 7ofthe 16 areas affected by this final rule have received Clean Data Determinations that suspend certain planning requirements. 8

As indicated in Table 3, attainment demonstrations and RFP plans are suspended by a Clean Data Determination, while theremaining requirements are not. However, itis longstanding EPA policy thatifan area submits a complete request for redesignation including a maintenance plan before certain nonattainment area requirements become due, those elements do not needto be submitted in order for the area tobe redesignated to attainment. 9

TABLE 3-ADDITIONAL 

### SIP ELEMENTS ASSOCIATED WITH SUBPART 

### 2 FOR PREVIOUS SUBPART 

### 18-HOUR OZONE NONATTAINMENT AREAS [This table is not inclusive of all CAA requirements]

Is requirement Ozone subpart 2 SIP requirement Marginal areas Moderate areas suspended by (CAA section) clean data determination?

Attainment demonstration including RACM (§182(b)(1))

........................... Not Required

................ Required

....................... Yes. Reasonable Further Progress (§ 182(b)(1))

................................................ Not Required

................ Required

....................... Yes. Periodic Emissions Inventory (§182(a)(3)(A))

............................................ Required

....................... Required

....................... No. Emissions Statement Rule (§182(a)(3)(B))

................................................ Required

....................... Required

....................... No. Subpart 2 RACT for VOCs and NOx (§ 182(b)(2)(f))

.................................. Not Required

................ Required

....................... No. Pre-1990 RACT fix-up (§182(a)(2)(A))

....................................................... Required

....................... Not Required

................ No. New Source Review (§182(a)(2)(C), (a)(4), (b)(5))

.................................... Required

....................... Required

....................... No. Vehicle I/M (§ 182(a)(2)(B), (b)(4))

.............................................................. Not Required

................ Required+

.................... N

o.

+Applies only in nonattainment areas with population >200,000 based on 1990 census. (See 74 FR 41818-22, August 19, 2009.)

With respect to transportation conformity, current transportation plan andtransportation improvement program conformity determinations for the 1997 8-hourozone standard remain valid, and are not impacted by this action. Areas formerly classified under subpart 1were already required to satisfy the applicable CAA section 176(c) conformity requirements for the 1997 8-hour ozone standard based on their designation as nonattainment. Thus, no new conformity deadline is triggered in these areas based ontheir classification under subpart 2. These

areas would make future conformity determinations according to the applicable requirements of40 CFR

8The seven areas that havereceived Clean Data
Determinations are Pittsburgh-Beaver Valley, PA, 76 FR 31237-39, May 31, 2011; Buffalo-Niagara Falls, Jamestown, NY and Essex County (Whiteface Mountain), 74 FR 63993, December 7, 2009; Albany-Schenectady-Troy, NY, Rochester, NY, 73 FR 15672, March 25,2008; and Clark County (Las Vegas), NV, 76 FR 17343, March 29, 2011.

9EPA guidance with respect to redesignations to attainment can befound in a memorandum entitled "Procedures for Processing Requests to Redesignate 93.109(d) and (e). Any new Moderate

areas that are using interim emissions
tests will be required tomeet additional
test requirements that do not apply to Marginal areas (40 CFR 93.119(b)(1)).1 Also, areas newly classified under subpart 2that are usingbudget test 40 CFR 93.118 and whose attainment year is within the timeframe ofthe transportation conformity determination and transportation plan must analyze the attainment year as required by 40 CFR 93.118(d)(2).

Areas to Attainment," John Calcagni, Director, Air Quality Management Division, September 4, 1992. See http://www.epa.govlttnloarpg/t5/memorandal redesignmemO9o492.pdf. This memorandum notes, for example, that, forthe purposes ofredesignation,

a statemust meet the applicable requirements of section 110 and PartD that become due prior to the state's submittal ofa complete redesignation request to EPA. For the purposes ofevaluating a redesignation request, the EPA will notneed to consider the required SIP elements that became due after submittal ofthe redesignation request. 3.Comments and Responses

a. Classification ofFormer Subpart 1 Areas
Comment:A number ofcommenters opposed placing all the former subpart 1areas under subpart 2. Most ofthese
commenters expressed concern that the subpart 2requirements for local emission controls wouldbe too burdensome for some ofthe areas, are obsolete, and would not necessarily be effective inbringing down ozone levels. In the case ofCincinnati, two state air agency commenters argued thatthe requirements would produce absurd results because the area had recently dropped the vehicle I/M program in the wake ofmeeting the 1-hour ozone

However, such requirements remain due untilEPA completes final action approving aredesignation request.

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

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standard. Some commenters also argued that certain areas would benefit more from regional controls than from local controls. In addition, some ofthe affected areas have already made significant progress toward attainment since they were originally designated nonattainment. Another commenter statedthat the proposal would take away flexibility that theybelieve the CAA allows and that the Court had preserved in its ruling by allowing areas with design values below 0.09 ppm to be classified under subpart 1.Two
commenters supported placing all the former subpart 1areas under subpart 2.

Response:In South Coast,the Court determined that although the CAA does
not mandate that 8-hour ozone nonattainment areas with a design value below 0.09 ppmbe placed under subpart 2, theEPA had notidentified a reasonable basis for placing any ofthe 1997 standard ozone nonattainment

areas under subpart 1.As noted inthe proposed rule, the EPA was unable to develop a reasonable basis for doing so and, despite soliciting comments on potential rationales, none ofthe commenters on the proposed rule identified any such rationale. Therefore,
atthis time, the EPA is not placing any 1997 standard nonattainment areas solelyunder subpart 1.

We disagree withthe commenters that suggest thatthe subpart 2 requirements associated with the 1997 NAAQS would
not necessarily be effective in bringing down ozone levels. Even ifthe mandated programs under subpart 2are not the mosteffective programs to achieve emission reductions in a specific area, that does notrender the programs "absurd," as the programs will provide benefits by reducing emissions ofVOC and NOx. We also note thatthe

areasbeing placed under subpart 2 through this rulemaking havebeen designated nonattainment for the 1997

ozone standard for over 7years. Some ofthose areas have attained the 1997 standard and have had an opportunity
to seek redesignation to attainment before the mandatory subpart 2 requirements apply. With regard to those thatare still not attaining the 1997 standard, we note that the subpart 1 flexibility that hasbeen available to these areas to date has not resulted in attainment for these areas. Thus, it is difficultto argue for these areas thatthe additional flexibility under subpart 1is

more likely toresult in attainment than the mandated programs under subpart 2. Comment:Some ofthe commenters that opposed placing all the former subpart 1areas under subpart 2believed that theEPA did not provide sufficient

reason for not considering a different threshold for placing areas under subpart 1. They noted that the Courtin South Coasthad setforth the 0.09 ppm 8-hour average as a design value to be used, such thatareas with design values below thatvalue could be placed in subpart 1. One commenter recommended thatthe EPA maximize the use of subpart 1tothe extent it could. However, on this matter, several environmental organizations commented that the Court in South Coastexpressly rejected all of theEPA's previously stated rationales for placing

some areas only under subpart 1.They also commented that theEPA has not identified any alternative rationales to justify such an approach, and allege that

no lawful or non-arbitrary rationales exist.

Response:Although the Court determined that an 8-hour design value of0.09 ppm is the appropriate threshold for determining which areas must be placed under subpart 2and which areas the Agency has discretion to place under subpart 1, the Court rejected the EPA's rationale in the Phase 1Rule for placing areas under subpart 1.Atthe time ofproposal, the EPA noted that it had not developed any rationale for placing areas in subpart 1for the 1997 8-hour ozone standard and expressly solicited comment on potential rationales. However, no commenters presented a rationale that differed from that which the Court rejected in South Coast.

Comment:One state air agency supported theproposal to not place under subpart 2those former subpart 1

areas thathave already been redesignated attainment.

Response:As noted in the proposal, because the classification provisions apply to areas designated nonattainment, the final rule does not classify those former subpart 1areas that havebeen redesignated to attainment for the 1997 ozone NAAQS.
b. Timing ofSIP Submission Under Subpart 2Classification
Comment:A number ofcommenters argued thatthe proposal did not give enough time for states to submit SIPs under the new classification. Some argued thatthe period of 1year after the effective date ofthis rule for classifying

areas was unreasonable and arbitrary, and that more time was needed for analysis and the rule adoption process, including public hearing. Some
commenters argued thatthe EPA should allow the statutory time period in CAA section 181(b)(1) from the date of classification (3years). Several commenters noted that even ifa state had prepared a SIP under subpart 1 requirements, a subpart 2Moderate area SIP requires much more time and effort due to the number ofmandatory

measures that would have tobe adopted.

Response:As noted in theproposal, subpart 1areas originally had an obligation to submit a SIP under section 172(c), including an attainment demonstration, within 3years afterthe June 2004 designations. Although the Court vacated theEPA's placement of

areas under subpart 1,the decision did
not change therequirement that areas designated nonattainment must attain as expeditiously as practicable. Moreover,

we note that areas that wouldhave been subject only to subpart 1ifthe EPA's rule had not been vacated would have had an attainment date ofJune 2009, 1 year earlierthan the attainment date for the Moderate classification. While the Court decision did create some uncertainty regarding the specific classification that might eventually apply to an area, we note that areas have been on notice since the EPA'sJanuary 2009 proposal that itis likelythey would be classified under subpart 2. As noted in the proposal, the EPA had advised states with areas thathad been placed under subpart 1, including all of the areas affected by this final rule, to continue making progress toward attainment for these areas."I Indeed we
are aware that many ofthese states have been working to adopt and implement

measures necessary for the affected

areas to attain the 1997 ozone standard, andthe EPAbelieves 1year is an appropriate amount ofadditional time
to complete that work.

For those areas that are still violating the 1997 8-hourozone standard, it is critical for them to move forward and achieve the emission reductions needed to ensure timely attainment. Comment:One state agency commenter recommended thatthe effective date ofthe new classifications be 1year after the rule is issued; ifthe

area attains before the effective date, the rule would be waived forthat area.

Response:The CAA requires that

areasbe classified "at the time of designation byoperation oflaw." The effective date ofdesignation for the 1997

ozone standard was June 15, 2004. While we do not believe itis appropriate to treat the classifications as

11

Memorandum ofMarch 19, 2007 from William L. Wehrum to EPA Regional Administrators, re: "Impacts ofthe Court Decision on the Phase 1 Ozone Implementation Rule" (responseto Question 2) and memorandum ofJune 15, 2007, from Robert J.Meyers to Regional Administrators, re: "Decision ofthe U.S. Court ofAppeals for the District of Columbia Circuit on ourPetition for Rehearing of the Phase 1 Ruleto Implement the 8-Hour Ozone NAAQS" (Implications for Subpart 1 Areas). 

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"retroactive," such that they would be considered effective over 5years ago,

we also do notbelieve there is a legal basis for deferring the effective date of the classification for 1year. Moreover,

as noted above, ifthe Court had not vacated our placement ofareas only under subpart 1, the areas affected by this rule would have had an attainment date (June 2009) thatis 1year earlier than the attainment date (June 2010) they would receive ifclassified as Moderate under this rule. Thus, even if the EPA had a legal basis and discretion
to delay the effective date ofthe classification, and thus delay the planning and attainment obligations, we do not believe in this instance thatit would be reasonable to do so.

c. Timing ofAttainment Date

Comment:A number ofcommenters argued thatthe proposal did notprovide newly classified Marginal and Moderate

areas sufficient time to attain and that they should have maximum attainment dates of3and 6 years (respectively) from the effective date ofthe new classifications, not the original nonattainment designations in 2004. Several commenters cited the EPA's interpretation ofthe CAA's attainment date in the Phase 1Rule for support by referring to section 181(b)(1) that provides thatwhere an area designated attainment or unclassifiable is subsequently redesignated to nonattainment, the area shall be classified under Table 1ofsection 181 and shall be subject to the same requirements applicable ifit hadbeen classified at the time ofnoticeunder section 107(d)(3), "except that any absolute, fixed date applicable in connection with any such requirement is extended by operation oflawby a period equal tothe length oftime between the date ofenactment ofthe CAA Amendments of 1990 and the date the area is classified under this paragraph." The commenters note that while by itsterms section 181(b)(1) would not expressly apply to reclassification ofa nonattainment area, the section indicatesthat retroactive application oftime requirements is not favored. The commenters note that regarding theproposed rule, the EPA would be classifying areas in 2009, not in 2004, and argue that deadlines should be calculated from 2009, not from 2004. They also argue that even if the EPAbelieves the deadlines need to be adjusted in some way to address this unique situation, the calculation and adjustment shouldbe done from 2009 after an assessment of the situation as it exists in 2009. The commenters also argue that theEPA seems tobe doing exactly what the U.S. Supreme Court warned against in Whitmanwhen the Court rejected the idea ofmechanically applying subpart 2's methodfor calculating attainment dates, which is simply to count forward a certain number ofyears from the effective date ofthe 1990 CAA amendments. They point out thatthe Court observed that simplistically using the subpart 2 scheme "depending on how far out of attainment the area started-seems to make no sense for areas that are first classified under a new standard after November 14, 1990. Iffor example,

areas were classified in the year 2000, many ofthe deadlines would largely have expired at the time of classification."

Response:For thereasons articulated in previous responses, we do notbelieve that itis legally supportable to start the attainment periods from the time of classification pursuant to this rule, nor do we believe that such an approach is reasonable. The primary trigger for planning for attainment ofa NAAQS is the designation as nonattainment for that standard. As noted previously, regardless ofwhether an area is subject only to subpart 1,or is classified as Marginal or higher under subpart 2, the obligation is the same-to attain as expeditiously aspracticable. Thus, there is no legal or policy basis to delinkthe attainment obligation from the time of designation and instead link itto the time ofclassification. We disagree that this situation is analogous to the situation where an area is newly designated nonattainment and for which section 181(b)(1) provides that any submission dates tiedto the date of enactment ofthe CAA Amendments be extended to account for the time of designation. In such a case, the key is that the area isnewly designatedas nonattainment-not thatthe area's classification status has changed or been clarified. All ofthe areas that will receive a subpart 2classification pursuant tothis rule have been designated nonattainment since June 2004 (except for the Denver area, which

was designated nonattainment effective November 20, 2007) and thus should be well on their way toward planning for attainment ofthe 1997 ozone standard

as expeditiously as practicable. To the
extent that those efforts havebeen delayed, we see no legalbasis or justification to provide additional time. Comment:One state air agency commenter argued thatthe 5percent reclassification provision ofthe CAA would be rendered meaningless by the timing in theproposal, because the attainment date for Marginal areas has already passed. Response:We agree as a practical
matter that none ofthe 16 areas affected by this final rule are eligible for a classification adjustment.

Comment:Several commenters argued that the Denver area should have aJune 2007 attainment date for itsMarginal classification and thus shouldbe reclassified to Moderate because itdid
not attain by aJune 2007 attainment date. They claim thatthe Early Action Compact (EAC) concept was unlawful. They argue that even assuming the EAC deferral was legally permissible, Denver

was in fact identified as a nonattainment area in the EPA's original April 30, 2004, designations action. Moreover, theypoint outthat the EPA agrees, "as itmust under the Act," that

areas identified as ofApril 30, 2004, as violating the 1997 ozone NAAAQS (includingDenver) mustbe classified based ontheir design values as ofApril 30, 2004. They claim that under §181 of the Act, such classification occurred by operation oflawno later than April 30, 2004. Furthermore, they claim that assigning a November 2010 Marginal

area attainment date toDenver (a Marginal area) is also unreasonable and arbitrary, given thatthe EPA is assigning

aJune 2007 attainment date to all other

areas classified as Marginal based on 2001-03 design values. They argue that

evenifthe Act could be read as giving the EPA some discretion in setting the outside attainment date, the statute expressly requires the attainment date to be "as expeditiously as practicable." They argue thatthe EPA cites no legal

orrational basis, and none exists, for finding thatNovember 2010 is "as expeditiously as practicable" for Denver, when every other Marginal area had a 2007 attainment date, nor is there any conceivable justification consistent with the Act and its purposes. They point out thatDenver residents are not somehow less deserving ofclean air than residents ofthe other areas, noris there any rational basis for delaying the stronger controls in Denver that would

come from the reclassification to Moderate required for all other Marginal

areas thatfailed to attainby 2007 and

were ineligible for attainment date extensions. They argue thatthe EPA
cannot claim that itwould be harder for Denver to adopt Moderate area controls than the other areas proposed for Moderate classification, as all ofthe other areas will have hadthe same amount oftime to prepare and implement SIP requirements. They argue that neither is there any inequity in requiring Denver to adopt the same controls on the same schedules as required for other areas initially 28430

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classified as Marginal based on 2001-03 designvalues. To the contrary, they argue, allowing Denver more timethan other Marginal areas not only flouts Congressional intentbut isgrossly inequitable to the other Marginal areas required to attain by 2007. The
commenter also argues that the EPA cannot rely on the EAC deferral ofthe effective date ofDenver's attainment designation and classification because that deferral was itselfcontrary to the Act. "Nowhere does the Act allow the EPA to defer the effective dates ofozone nonattainment designations and classifications, or to otherwise delay control requirements triggered by designations. To the contrary, the Act requires nonattainment designations by date-certain deadlines. Section 107(d), 42 U.S.C. 7407(d); Pub. L. 105-178, section 6103, 112 Stat. 465 (June9, 1998), codified at 42 U.S.C. 7407 Note. Promulgating a non-effective nonattainment designation-i.e., a paper designation that sits in the books without being activated-violates this requirement. Further, the Act contains a detailed array ofrequirements, likewise governed by date certain deadlines, applicable to nonattainment areas, including submission of implementation plans providing for attainment, rate-of-progress, andvarious specific programs such as new source review, conformity, and contingency

measures. See, e.g., CAA sections 181, 182, 110, 172, 173, 176. By refusing to implement thesevarious requirements, the EAC scheme violates those provisions. The Act likewise prescribes requirements governing redesignation of nonattainment areas to attainment (settingforth several prerequisites that must be met before such redesignation

canbe granted), CAA section 107(d)(3)(E), and requiring the EPAapproved maintenance plans sufficient
to remedy any relapse into nonattainment that occurs during the 20-year period following redesignation. CAA sections 107(d)(3)(E)(iv), 175A. By shunting these requirements aside, the EPA wouldviolate those provisions as well.'"

Response:The EPA acknowledges the commenters' concerns with theEAC program. However, the EPA's rules regarding EAC areas under the 1997

ozone NAAQS were promulgated in 2004, andthe proper time for challenging the legality ofthe EAC program andthe deferral ofthe effective date ofthe nonattainment designation for Denver (andother EAC areas) was within 60 days ofpublication in the Federal Register ofthose final actions (40 CFR Part 81, September 21, 2007 (72 FR 53952) and April 30, 2004 (69 FR 23857)). To the extent the commenters

are raising concerns about the effective date ofdesignation for the Denver nonattainment area and the attainment date for that area, those were established in afinal rule published September 21, 2007 (72 FR 53952). Thus, these
comments are not timely. We note that contrary to the claims ofthe commenters, the Denver area's classification in this rulemaking is based on the design value that existed
at the time theEPA initially published (anddeferred the effective date of)the nonattainment designation [April 30, 2004 (69 FR 23858)] and was based on 2001 to 2003 data. With regard to the claims concerning the timeperiods for SIP submissions, we note thatthe time periods for attainment and SIP submissions for the Denver area are linked to the effective date ofthe designation and/or classification ofthe
area, asthey are for all areas. With respect to the attainment date, the Denver area, which isclassified as Marginal under this rule, had an attainment date ofNovember 2010_3 years following the effective date of designation. Comment:One state agency commenter argued thatfor Moderate
areas, the requirement toprovide reasonable further progress toward attainment is rendered meaningless by the timing ofthe proposal, since there would be no time to provide progress prior to the attainment date.

Response:Given the timing ofthe maximum statutory attainment date (June 15, 2010) and SIP submission date (1year after the effective date ofthis rulemaking) for Moderate areas, any RFP plan not already in effect willnot have an effect on attainment by the attainment date since the attainment date for Moderate areas has already passed. However, under the CAA, an RFP plan (to obtain 15 percent VOC emissions reductions from baseline emissions within the first 6 years after the applicable base year) would stillbe

a required SIP element, even though the 6-year period mightend after the Moderate area attainment date, depending on the base year for the state's RFP calculation. Wenote that under the Clean Data Policy, codified at 40 CFR 51.918 (70 FR 71702, November 29, 2005), ifthe area attains the standard, aClean Data Determination under the Clean Data Policyprovision would suspend the obligation to submit the RFP SIP. The suspension would remain in place until such time as the EPA redesignates the area to attainment, at which time therequirement would no longer apply, or until EPA determines the area has violated the 1997 standard,
atwhich time the obligation would apply once again.

d. Data Used for Classification

A number ofthe commenters argued that theEPA should use more recent datafor the classification ofthe former subpart 1areas. There were several arguments made in these comments, and we address them separately here:

Comment:Commenters claim that using the 2001-2003 data for the initial designations ignores the improvements in emissions reductions (e.g., through the NOx SIP call) and ambient ozone reductions thathave occurred since designations were made in 2004. Some
commenters note thatseveral ofthe

areas are close to attaining the standard and would be subjected to mandatory controls that would notbe necessary to attain the standard. Another commenter notes thatAppendix A oftheJanuary 16, 2009 proposal shows that, with one exception, the current subpart 1areas for which a 2005-2007 design value is available had a lower design value in those years than they did for 2001-2003, and the one exception (Las Vegas) had the same design value in both periods; thus using the earlier data would more likely subject areas to a higher classification. Another commenter notes that section 181(a) directed the EPA in 1990 to classify areas using the most recent data (i.e., data from 1990, or actually, afuture timewhen designations wouldbe made), not data from 6 years earlier. The commenter also notes that section 181(a) does not state thatthe dataused to classify areas must be the data that existed at the time ofdesignation. They argue that section 181(a)instead specifies only that the classification occur at the time of designation. They point out that classification is precisely the thing that did not lawfully occur at the time of designation in 2004, through no faultof the states. They argue that the temporal connection between classification and designation has been irretrievably broken. They argue that a second temporal connection in section 181(a), namely the connection between classification ofareas and data used to classify areas, has not been broken and should be preserved by usingthe most recent data. They claim that doing so allows theEPA to better assess where
states are now and where mandatory requirements ofa higher classification

are really needed to address ozone nonattainment. Itavoids creating artificial deadlines based on retroactive application oftime periods and classification based on a backwardlooking review ofdata. It avoids 

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depriving states ofthe opportunity to develop strategies to attain the revised standard based upon where the state's air quality is, not was. They argue this is particularly true for areas like Columbus and Cincinnati in Ohio that have attained the 1-hour standard that

was addressed by subpart 2, and already have or are close to attaining the 1997 standard. They claim that these areas do
not need to be abruptly classified at the tougher Moderate classification with its mandatory emission control measures.

Response:As we noted in the proposal, the classifications would be the initial classifications for these areas for the 1997 ozone standard. We noted that CAA section 181(a)provides that "at the time" areas are designated for a NAAQS, they will be classified "by operation oflaw" based on the "design value" ofthe areas and in accordance with Table 1ofthat section. We believe this language requires thatthe area be classifiedbased on the design value that existed for the area "at the time" of designation. Areas were designated nonattainment in 2004, based on design values derived from data from 2001- 2003.

We also note that arguments that areas shouldbe able to develop plans to attain based onwhat the air quality "is," not what it "was," would only serve to further delay the progress that should already have been made. As noted previously, ifthe area had remained solely subject to subpart 1,the area would have been required to attain the 1997 standard byJune 2009. Those areas that have attained and havebeen redesignated as ofthe effective date of this final rule will notbe classified under subpart 2. The EPA has previously reminded states thatthey shouldremain on track with planning for attainment despite the Court's remand ofthe subpart 1classification.

We also note thatit wouldbe inequitable to mostareas previously classified under subpart 2to classify a former subpart 1area with similar air quality using current air quality data. Most ofthe areas classified under subpart 2in 2004 nowhave cleaner air than they did in 2004 and thus,ifthey

were being classified nowbased on

more recent air quality data, they too would receive a lower classification. Comment:One commenter alleged that using the 2001-2003 data for Allegan County, MI, produces an absurd result, requiring mandatory local emission controls when the problemis clearly transport from outside the state. The commenter cites the study, "Western Michigan Ozone Study-Draft Report" ofNovember 2008, prepared by the Lake Michigan Air Directors Consortium (LADCO) for the EPA, to comply with a provision within the Energy Policy Act of2005. That
commenter notes thatin NRDCv. EPA, 22 F.3d 1125 (D.C. Cir. 1994), the D.C. Circuit Court addressed theEPA's failure to meet a November 15, 1991 deadline in the CAA for publication of guidance for states' preparation ofSIPs for "enhanced" vehicle inspection and maintenance. Those SIPs were dueby November 15, 1992. Because the EPA failed to publish the necessary guidance until nearly a year after the statutory deadline for thatguidance, states could not be held to theirdeadline, andthe states' SIP submissions deadline was "properly extended to further the CAA's purposes." The commenter concludes that for purposes ofthe proposed rule, the EPA's failure in 2004 to meet its statutory obligation to classify ozone nonattainment areas lawfully, is no

cause for theEPA to now use the data it would have used atthat time in classifying areas, where those data would disadvantage the areas. They
comment that the effect ofthe EPA's proposed approach on this issue is to penalize states, areas, and sources unfairly for the EPA's legally deficient action.

Response:We disagree with the commenter's suggestion thatit wouldbe

an "absurd result" to use designationera data for classification. As we noted previously in relation to the concept of allowing exemptions from requirements under subpart 2, thejudicial precedents in which courts have allowed exceptions from the strict language of a law are fairly narrow. For instance, in the final Phase 2Rule, we said: "In general, we note that to demonstrate an absurd result, a State would need to demonstrate that application ofthe requirement would result in more harm than benefit. For example, the programs mandated under subpart 2are generally effective in reducing emissions ofthe
two ozone precursors-NOx andVOCand because reductions ofthose precursors generally lead toimproved air quality, we believe that such a demonstration couldbe made, ifat all, only in rare instances." See 70 FR at 71620; November 29, 2005. We do not find thatthe situation atissue here
meets the criteria implied byjudicial precedents.

We also disagree with the commenter's statement where the
commenter relies upon NRDCv. EPAto argue against using the data from the time ofdesignation. In NRDC,the Court faced an impossibility argument. Under the CAA, States were required to develop I/M SIPs consistent with the EPA guidance. Because the EPA was late in issuing that guidance (whichit determined needed to be issued through rulemaking), States were unable to submittimely SIPs thatwere consistent with the guidance. There is no impossibility argument here. The data from 2001-2003 exist and canbe used
to classify areas. To the extent that SIP submission dates for these areas have passed, the EPA is providing additional time for submission ofthose plans. To the extent thata Marginal area affected by this rule did not attain the standard by theJune 15, 2007, attainment date (or the extended deadline), the EPA is reclassifying the area to Moderate.12 Furthermore, we note that the subpart 2 classifications based on 2001-2003 data

are not "punishment" for the EPA's failure to classify areas correctly in the initial Phase 1Rule. Using the 2001- 2003 data places the areas in the position theywould have been in ifthe EPA had initially classified all areas under subpart 2in the initial Phase 1 Rule. Comment:Another commenter notes that 40 CFR Part 50, Appendix I states: "the 3-year average annual fourthhighest maximum 8-hour average ozone concentration is also the air quality designvalue for the site." The appendix states in section 2.2 that "The 3-year average shall be computed using the threemostrecent,consecutive calendar years ofmonitoring data meeting the data completeness requirements described in this appendix." The
commenter notes thatthe definition of "design value" in the CFR requires that the three most recentyears be used to calculate it.

Response:We disagree with
commenters that rely on 40 CFR Appendix I to argue that there is only

one "design value" for an area and that it isbased on the mostrecent 3years of data. We agree thatthe current design value for an area isbased onthe most recent 3years ofdata, but that does not

mean designvalues for previous 3-year periods oftime are no longer relevant. As explained previously, we believe that the language in section 181(a) ofthe

12We do notagree with arguments that we should
allow for a Marginal area classification with an attainment date in the future. As noted inseveral places, Marginal areas are presumed capable of attaining quickly without the adoption ofadditional local controls. Forthat reason, there arevirtually no mandated local control requirements for Marginal

areas undersection 182(a), nor is there a requirement to develop an attainment demonstration. Thus, to the extent an area would have been classified as Marginal based on its 2001- 2003 design value yet failed to attain by June 2007,

we see no argument that such areas would have attained ifEPA had "correctly" classified them as Marginal in 2004. (We note that many ofthe areas originally identified as subpart 1 have indeed attained and been redesignated as attainment.) 

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Act provides thatclassifications be based onthe design value used for designation.

Comment:Another commenter claims that ignoring current air quality data is
out of step with the EPA's new emphasis on science-based decisions.

Response:The EPA is notignoring
current air quality data, but must classify areas based on the law as described above. Comment:Environmental organization commenters argue that the EPA should use the air quality data available at the time ofdesignation for initial classification.

Response:The EPA agrees for the

reasons stated in the proposed rule and above in response to comments.

e. Other Comments on Classification of Former Subpart 1Areas
Comment:One state air agency commented that the proposed rule does
not adequately address situations like Allegan County, MI, which is largely affected by transportbut yet is not provided any reliefunder the CAA such

as coverage under the rural transport

area provision ofsection 182(h).

Response:We agree thatthe CAA does not provide reliefin the form of being identified as a "rural transport area" for areas such as Allegan County, MI, whose nonattainment area boundary is adjacent to a metropolitan statistical

area. Part ofthe EPA's rationale in the Phase 1Rule forusing subpart 1was to address situations such as that with Allegan County. However, the court in South Coastfound that Congress intended to constrain such discretion. The commenter has not suggested any specific reliefavailable under the CAA that theEPA could have applied in this final rule.
B.Anti-BackslidingUnderRevoked
1-HourOzone Standard-InGeneral

1.Proposal

The EPA codified anti-backsliding provisions governing the transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained most ofthe 1- hour ozone requirements as "applicable requirements" [defined in 40 CFR 51.900(f)]. A requirement listed as an "applicable requirement" isretained for

an area ifthe requirement applied in the

area based on the area's 1-hour ozone designation and classification as ofthe effective date ofits 8-hour designation (formost areas, June 15, 2004). 40 CFR 51.900(f).

Section 51.905(b) provides that an

area remains subject tothe 1-hour standard obligations defined as "applicable requirements" until the area attains the 8-hour NAAQS. Furthermore, §51.905(b) provides that such obligations cannot be removed from a SIP, even ifthe area is redesignated to attainment forthe 8- hour NAAQS, but must remain in the SIP as applicable requirements or as contingency measures, as appropriate. Section 51.905(e), as promulgated in 2004, indicated that certain 1-hour standard requirements would no longer apply after revocation ofthe 1-hour standard. Among other things, these included 1-hour NSR, section 185 penalty fees for the 1-hour NAAQS, and 1-hour contingency measures for failure
to attain or make reasonable progress toward attainment ofthe 1-hour NAAQS. 13 The Court vacated these exemption provisions, and in the January 16, 2009, proposed rule, the EPA proposed to delete these three vacated provisions from the Code of FederalRegulations.14

2.Final Rule

This final rule addresses how antibacksliding principles will ensure continued progress toward attainment of the 8-hour ozone NAAQS. The final rule

removes three vacated provisions ofthe Phase 1Rule thatprovided exemptions from the anti-backsliding requirements relating to nonattainment NSR, CAA section 185 penalty fees, and contingency measures as these requirements applied for the 1-hour

13Note that ifthe area is nonattainment for the 1997 8-hour standard, for purposes ofthe 1997 standard, it is subject to nonattainment NSR, contingency measures and (ifclassified as Severe or Extreme for the 1997 ozone NAAQS) the section 185 penalty fee provision.

14We noted in the proposalthat the Court's June 2007 clarification, South Coast,489 F3d 1245, confirms that the December 2006 decision was not intended to establish a requirement that areas continue to demonstrate conformity underthe 1- hour ozone standard for anti-backsliding purposes. Therefore, no revisions were proposed to 40 CFR 51.905(e)(3). Section 40 CFR 51.905(e)(3) establishes that conformity determinations for the 1-hour standard arenotrequired beginning 1year after the effective date ofthe revocation ofthe 1- hour standard and any stateconformity provisions in an applicable SIP that require 1-hour ozone conformity determinations are no longer federally enforceable. This provision does notrequire revision in light ofthe Court's decision and clarification, because the Court did notrequire conformity determinations for the 1-hour standard, and existing regulations already implement the Court's holding that 8-hour ozone nonattainment and maintenance areas mustuse 1-hour ozone budgets to determine conformity to the 1997 8-hour standard until such time as 8-hour ozone budgets

are approved or found adequate for the area. Therefore, current transportation conformity-related regulations set forth in 40CFR part 93 and40 CFR 51.905(e)(3), and the general conformity regulations in 40CFR part 93 areconsistent withthe Court's decision and clarification on the Phase 1 Rule and do not requirerevision. standard. This rule also reinstates 1- hour contingency measures as applicable requirements thatmust be retained until the area attains the 1997

ozone standard. The EPAhas issued separate guidance 15 and a separate proposed rule addressing the nowapplicable 1-hour requirements for NSR (75 FR 51960, August 24, 2010). The EPA will also address reinstatement of the section 185 fee program obligations in separate action.

3.Comments and Responses

Comment:One group of environmental organizations supported the proposal to remove the three exemptions from theregulations, but stated that NSR and the section 185 fee requirement must be added to the list of "applicable requirements" at 40 CFR 51,900(f). Several commenters expressed other concerns about the implications ofremoving the 1-hour NSR and section 185 fee program exemptions.

Response:In this final rule, the EPA is only removing the regulatory language at 40 CFR 50.9(c) thatprovided for the exemptions from 1-hour NAAQS requirements in accordance with the
court vacatur. The EPA has addressed in

a separate proposed rulemaking exactly how the regulatory provisions should address the now-applicable 1-hour NSR requirements (75 FR 51960, August 24, 2010), and plans to address application of section 185 fee programrequirements for the 1-hour standard in separate actions. Comment:A state agency commented that the Court never addressed the requirements that should still apply to prevent backsliding in areas thathad already achieved timely attainment of the 1-hour ozone standard and only focused on whether NSR was arequired control for the purposes ofCAA section 172(e) anti-backsliding provisions for

areas not attaining the 1-hour standard (suchas South Coast Air Basin).

The commenter stated that section 51.905(e)(4), which states that upon revocation ofthe 1-hour ozone NAAQS,

a 1-hour nonattainment area's implementation plans must meet requirements contained inparagraphs (e)(4)(ii) through (e)(4)(iv) ofthis section, should notbe deleted. Instead, this section should be retained and supplemented with further language to appropriately address the circumstances of 1-hour standard nonattainment areas

15RobertJ. Meyers Memorandum, October 3, 2007, New SourceReview (NSR) Aspects ofthe Decision ofthe U.S. Court ofAppeals for the District ofColumbia Circuit on the Phase 1 Ruleto Implement the 8-Hour Ozone National Ambient Air Quality Standards (NAAQS). 28433

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that attained the 1-hour standard. For example, the further language could specifythat section 51.905(e)(4) isnot applicable in the circumstances that

were present withthe South Coast Air Basin. Alternatively, the further language could specify that section 51.905(e)(4) is applicable only in certain circumstances, including those that

were present for the Greater Chicago Ozone Nonattainment Area, which attained the 1-hour standard prior tothe November 2007 Severe area deadline.

Response:In South Coast,the Court vacated the regulatory provision that did not retain the obligation for States
to have 1-hour major NSR requirements

aspart oftheir approved SIPs. The Court held thatremoving such provisions from aSIP "would constitute impermissible backsliding." 472 F.3d 882 (2006), clarified, 489 F.3d 1245 (DC Cir. 2007), cert. denied, 76 U.S.L.W. 3095 (U.S.Jan. 14, 2008).

In this final rule, we are removing the vacated provision that did not retain 1- hour NSR obligations from the regulations at 40 CFR part 51 in order
to ensure the published regulatory text is consistent with the Court's vacatur. The South Coastdecision means that
states remain obligated to have in their SIPs the 1-hour major NSR thresholds and offsets in those 8-hour nonattainment areas thathad not been redesignated to attainment for the 1- hour ozone NAAQS as ofthe date of designation for the 1997 8-hour ozone NAAQS. The Phase 1Rule (69 FR 23972) established the date ofthe designation for the 1997 8-hour ozone NAAQS (June 15, 2004 formost areas)

asthe relevant date for determining what anti-backsliding requirements would apply to areas (i.e., the requirements that applied based onthe area's 1-hour designation and classification as ofthe effective date of designation for the 8-hour standard). In

a separate rulemaking, we plan to address the circumstances in which 1- hour NSR requirements might be removed from a SIP, specifically addressing areas that currently attain the 1-hour standard such as Chicago.

We disagree withthe commenter that the Court's decision only addressed the specific circumstances applicable to the South Coast Air Quality Management District (SCAQMD). While SCAQMD, as the "lead petitioner," lent itsname to the case, the challenges to the rule were broad and concerned the antibacksliding requirements as they applied to all types ofareas. Furthermore, we note that the antibacksliding rules applied in the same
manner in the Chicago area as they did in SCAQMD. Under the rules, the requirements that were retained for an

area were those that applied as ofthe effective date ofdesignation forthe 1997 8-hour NAAQS. Both the Chicago area and the SCAQMD were designated nonattainment for the 1-hour standard
at the time ofdesignation forthe 8-hour standard and were designated nonattainment for the 8-hour standard. Thus, both areas were subject to the anti-backsliding provisions in 40 CFR 51.905(a)(1) that address requirements for "8-Hour NAAQS Nonattainment/1- Hour NAAQS Nonattainment." Furthermore, the provisions in 40 CFR 51.905(e) that did not retain certain 1- hour requirements applied in the same

manner to both areas. Thus, to the
extent the South Coastdecision addresses these regulatory provisions, it applies in the same manner to both

areas. Comment:One commenter maintained thatwe should ensure and confirm that the proposed rules do not have retroactive effect. Speaking in
terms ofNSR, the commenter said any changes to the 8-hour ozone implementation rule thatimpose additional or new requirements on designated areas should notbe effective until after the implementation rule is adopted and any necessary SIP revision is adopted and approved on a timely basis. To support their comment, they referenced SierraClubv. Whitman, 285 F.3d 63 (DC Cir. 2002). They also commented that the Administrative Procedure Act severely restricts retroactive rulemaking and Congress did
not take the unusual step ofgiving U.S. EPA the ability to implement rules retroactively. The requirement that 1- hour NSR continues to apply to 8-hour nonattainment areas that attain the 1- hour NAAQS will not be officially adopted until mid-2009, at the earliest. Hence, for all units that commence construction (e.g., contract commitments are in place orbuilding has begun)between 2004 and 2009, in

areas re-designated as attaining the 1- hour NAAQS, 1-hour NSR has not applied. They asserted the South Coast
court could not have intended the retroactive application ofthe requirement. Further the commenter maintained thatretroactive application ofthis rule to sources that have already committed contracts is contrary to fairness and predictability in regulatory environments.

Response:In this final rule, we are removing from theregulations at 40 CFR part 51 the provision that did not retain 1-hour NSR obligations in order to

ensure the published regulatory text is consistent with the Court'svacatur. We view the portions ofthe Court's decision onthe anti-backsliding provisions as self-implementing; thus, at a minimum,

as ofthe date ofthe Court's mandate (August 29, 2007), areas thatwere designated nonattainment for the 1-hour standard as ofthe effective date of designation as nonattainment for the 1997 8-hour standard, havebeen obligated to adopt and implement an NSR program consistent with their 1- hour classification as ofthe effective date ofdesignation for the 1997 ozone standard. We note thatwe have urged
states to take steps to comply with the decision without waiting for further EPA rulemaking. See e.g., Memorandum from Robert Meyers to Regional Administrators (October 3, 2007). The necessary actions to achieve such compliance mayvary depending on the specific situation.

Because this rule merely removes the vacated regulatory text,it has no "retroactive effect" as suggested bythe
commenter. As noted above, at a minimum, as ofthe date the mandate issued, areas designated nonattainment for the 1997 8-hour standard havebeen obligated to ensure thattheir SIP includes a 1-hour NSR program consistent with their classification for the 1-hour standard as ofthe effective date ofdesignation for the 1997 ozone standard and to implement such program. Thus, for any permitting actions that have occurred since the issuance ofthe Court's mandate, we do
not believe there is any argument that the requirement to meet 1-hour NSR obligations is "retroactive."

To the extent the commenter raises the issue ofretroactivity, the issue is relevant only to the extent to which the Court's vacatur has retroactive effect. In

some instances, avacated regulation has been held tobe "void ab initio"; in otherwords, theregulation is treated as ifithad never existed. See, e.g., United Statesv. GoodnerBros.Aircraft,Inc., 966 F.2d 380 (8thCir. 1992). In addition,the D.C. Circuit has held that there is a presumption ofretroactivity for adjudications when such adjudications clarify existing law, and that the presumption is departed from onlywhen to do otherwise would lead
to manifest injustice. QwestServices Corp.v. F.C.C.,509 F.3d 531 (D.C. Cir. 2007). The D.C. Circuit has stated that
vacatur has "the effect ofrestoring the
status quo ante." AirTransport AssociationofCanadav. FAA, 254F.3d 271, 277 (D.C. Cir. 2001). The EPA will work with states and sources to resolve any issues arising from permitting actions taken between Tune 15, 2004 and 

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

C. Contingency Measures

1.Proposed Rule

The Court in South Coast Air Quality ManagementDistrict,eta].,v. EPA,472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245, vacated 40 CFR 51.905(e)(2)(iii), which did not retain the anti-backsliding requirement concerning contingency measures, on the basis thatthey were control

measures that must continue to apply. Therefore, the EPAproposed that states be required toretain 1-hour contingency

measures in their SIPs that apply based

on afailure tomeet 1-hour RFP milestones or upon a failure to attain the 1-hour standard bythe area's attainment date. Furthermore, consistent with the EPA's proposal toretain these 1-hour contingency measure requirements as anti-backsliding measures, we also proposed to add "contingency measures under sections 172(c)(9) and 182(c)(9) of the CAA" to the list ofapplicable requirements under §51.900(f). The proposal noted thatin situations where

an area attains the 1-hour NAAQS by the applicable attainment date for that standard, the area is not subject to the requirement to implement contingency

measures for failure to attain the standard byits attainment date. As a result, any area thathas met its attainment deadline for the 1-hour standard (or meets its deadline ifit has
not yetpassed), would not be required
to implement the contingency measures for failure to attain the standard by its attainment date for purposes ofantibacksliding evenifthe area subsequently lapses into nonattainment. Additionally, the contingency measures for failure tomeet RFP milestones would not be triggered ifthe area has
met those milestones.

The proposal also noted thatin situations where a 1-hour ozone nonattainment area is in attainment of that standard based on current air quality, the EPA can make afinding of attainment. See Memorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled, "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality Standard," dated May 10, 1995. Under this policy, which is referred to

asthe "Clean Data Policy," ifthe EPA

16

Thatis, between the effective date ofthe initial

area designations for the 1997 8-hour standard and the date ofthe finalD.C. Circuit Court ruling on rehearing ofthe South Coastcase. determines through rulemaking that the

area ismeeting the 1-hour ozone standard, the requirements for the state to submit an attainment demonstration and related components such as contingency measures for failure to attain or make reasonable further progress are suspended as long as the

area continues to attain the 1-hour

ozone NAAQS. (We note that such a determination does not relieve an area ofthe requirement to comply with a contingency measure provision in an approved SIP, but merely suspends any outstanding submission requirement.) If the area subsequently violates the ozone NAAQS for which the determination

was made (inthis example, the 1-hour

ozone NAAQS), theEPA wouldinitiate notice-and-comment rulemaking to withdraw the determination of attainment, which would reinstate the requirement for the state to submit such plans.

The proposal noted that three federal
courts ofappeal haveupheld the EPA rulemakings applying the Clean Data Policy. See SierraClubv. EPA,99 F.3d 1551 (10th Cir. 1996); SierraClubv. EPA, 375 F.3d 537 (7th Cir. 2004) and OurChildren'sEarthFoundation v. EPA,No. 04-73032 (9th Cir.June 28, 2005) memorandum opinion. Since the proposal, the U.S. Court ofAppeals for the District ofColumbia Circuithas also upheld the Clean Data Policy, which

was codified in 40 CFR 51.918 for purposes ofimplementing the 1997

ozone NAAQS, in NRDCv. EPA, 571 F.3d 1245 (DC Cir. 2009).

Thus ifthe EPA makes a determination ofattainment ofthe 1- hour ozone standard as providedby the Clean Data Policy, the EPA would find that the requirement under the antibacksliding provisions (40 CFR 51.905)
to submit any outstanding section 172 and 182 contingency measures under the 1-hour standard would be suspended for so long as the area continues to attain the 1-hour standard.

2.Final Rule

The final rule takes the same approach asproposed, namely, that

areas designated nonattainment for the 1997 8-hour ozone NAAQS must adopt, ifnot already adopted, and retain in their SIPs, contingency measures for failure to meet 1-hour RFP milestones and for failure to attain the 1-hour standard by the area's attainment date. This requirement applies where an area remained designated nonattainment for the 1-hour standard at the time ofthe area's designation tononattainment for the 1997 8-hour ozone standard. To clarify that this requirement continues
to apply, we are including "contingency measures under sections 172(c)(9) and 182(c)(9) ofthe CAA" in the section 51.900(f)list of"applicable requirements." Consistent with 40 CFR 51.905(b), areas remain obligated to adopt andretain these requirements in their SIPs until they attain and are redesignated for the 1997 8-hour ozone NAAQS. The rule at §51.905(b) provides that an 8-hournonattainment

area will remain subject to the applicable requirements listed in §51.900(f) until it attains the 8-hour standard and that after an area attains the 8-hour standard, the state may request thatthe 1-hour obligations be shifted to contingency measures, but may not remove them completely from the SIP. 17In addition,ifprior to attaining the 1997 8-hour ozone standard, the area attains the 1-hour standard, the EPA may make a determination of attainment for the 1- hour standard which would suspend the obligation to submit such contingency

measures ifthe state has not already done so.
3.Comments and Responses

Comment:One environmental organization commenter recommended that contingency measures for the 8- hour standard shouldbe at least as stringent as those forthe 1-hour standard.

Response:The proposal addresses the contingency measure requirement as it relates to anti-backsliding for the 1-hour standard, which was vacated by the Court. It does not interpret the contingency measure obligations for the 8-hour standard. Because states have discretion in selecting the measures to adopt as contingency measures,

concerns regarding the adequacy of contingency measures are best addressed in the context ofa specific SIP rulemaking.

Comment:Several commenters noted that thepreamble to the proposed rule describes two situations in which states would no longer need to retain or implement 1-hour contingency

measures: (1)Where anonattainment

area meets or has met its 1-hour attainment date, even ifthe area

17Thepreamble to the Phase 1Rule clarified that, "it is appropriate to maintain these mandated controls to remain aspart ofthe implemented SIP until anarea attains the 8-hour NAAQS and is redesignated to attainment." (69FR 23983). This accompanying preamble text clarifies that an area must not only attain, butalso must beredesignated
to attainment prior to shifting any "applicable requirements" to contingency measures. (69 FR 23982-83). This is further supported by the portion of § 51.905(b)that provides forthe shifting ofthe 1-hour anti-backsliding measures to contingency

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subsequently lapses into nonattainment; and (2)where-whether before or after its 1-hour attainment date-a nonattainment area has 1-hour attainment air quality and the EPA makes a finding of 1-hour attainment pursuant to the Clean DataPolicy that has been in effect since 1995. They recommended thatthe EPAreaffirm these principles in its final actionin this rulemaking.

Response:The EPAreaffirms the position stated in theproposal that contingency measures for failure to attain would not be triggered where an
area attains the 1-hour standard by its attainment date, even ifthe area subsequently lapses into nonattainment. However, the commenter misinterprets the scope ofthe CleanData Policy. Clean Data Determinations under the Clean Data Policy only suspend the requirement to submit certain outstanding planning requirements (suchas contingency measures that would be triggered by afailure to attain by the applicable attainment date). In addition, the obligation to submit such

a SIP is suspended only for so long as the area remains in attainment. Ifthe

area isredesignated to attainment, the obligation to make such submission would no longer apply. Furthermore, when an area isredesignated to attainment, itmay also move adopted contingency measures linked to a failure
to attain tothe contingency measure portion ofthe maintenance plan. To the
extent contingency measures have been adopted and approved into the SIP, a Clean Data Determination under the Clean Data Policy does not authorize the
state to remove them from the SIP. Nor does aClean Data Determination affect the requirement that areas comply with SIP-approved measures, such as contingency measures. Thus, ifan area fails to attainby its attainment date and contingency measures approved into the SIP are triggeredby that failure, a Clean Data Determination that is issued subsequently would not suspend the obligation to implement the contingency

measures consistent withterms ofthe approved SIP.

Comment:One state agency commenter supported removing the vacated provision oftheregulations that provided that states need not retain 1- hour standard contingency measures for failure to attain or make reasonable further progress toward attaining the 1- hour standard.

Response:The EPA has removed the vacated provision from the regulatory
text. Comment:One state agency commenter supported use ofthe Clean Data Policy for the 1-hour standard but does not agree with the portion ofthe policy that would require states to meet any planning requirements stayed pursuant tothe policy ifthere is a subsequent violation ofa revoked standard.

Response:We note firstthat the proposed rule did not set forth any proposal concerning the Clean Data Policy, but merely described a situation in which the Clean Data Policy might be applied. As noted in the Clean Data Policy and theregulation codifying that policy for purposes ofthe 1997 8-hour

ozone standard, a determination of attainment suspends the obligation to submit certain planning requirements for only so longas the area continues to attain the standard. We note that redesignation ofthe area to attainment for the 1997 8-hour standard would relieve the area permanently ofthe obligation to submit such planning SIPs.
D.Section 185FeeProgram for 1-Hour NAAQS
1.Proposal

The EPAproposed to remove the language relating to the vacated provisions ofthe Phase 1Rule that did
not retain the requirement for areas that

were classified as Severe or Extreme for the 1-hour standard at the time of designation for the 1997 8-hour standard toinclude in their SIP aCAA section 185 penalty fee program for the 1-hour standard (i.e., 40 CFR 51.905(e)(2)(ii)). In South Coast,the Court vacated this exemption provision.

2.Final Rule

We are removing the language in 40 CFR 51.905(e)(2)(ii) that did not retain the requirement for areas that were classified as Severe or Extreme for the 1-hour standard at the time of designation for the 1997 8-hour standard toinclude a CAA section 185 penalty fee program for the 1-hour standard in their SIP.

3.Comments and Responses

Comment:Several commenters expressed support for not defining the 1-hour section 185 fee provision as an "applicable requirement", as promulgated in §51.905(e), and indicated thatthe fees should only apply until an area attains the 1-hour standard.

Response:The EPA believes that not defining the section 185 fee provision as

an "applicable requirement" is in conflict with the ruling ofthe Court. Nevertheless, in this rulemaking, the only issue the EPA is addressing regarding the applicability of section 185 requirements isthe removal ofthe regulatory provision thatwas vacated by the Court in South Coast.Exactly how the EPAplans to address this applicable anti-backsliding requirement for section 185 fee programs will be addressed in separate action.

Comment:Several commenters oppose the requirement to have 3years ofattaining airquality data underthe Clean Data Policy in order to suspend section 185 fees temporarily. They believe fees shouldbe suspended for anyyear with data indicating compliance with the 1-hour standard. They believe requiring a 3-year period ofattainment is a more appropriate criterion for permanent cessation ofthe 1-hour section 185 fees.

Response:In this rulemaking, the only issue theEPA is addressing regarding the section 185 requirements is the removal ofthe regulatory provision that

was vacated by the Courtin South Coast.The EPAplans to address antibacksliding requirements for section 185 fee programs in separate action.
E.DeletionofObsolete1-HourOzone Standard Provision
1.Proposal

The EPAproposed to delete 40 CFR 50.9(c)because itis obsolete. In the proposal the EPA explained thatwhen

we promulgated the 8-hour ozone standard onJuly 18, 1997 (62FR 38856),

we also revised 40 CFR 50.9 to provide that the 1-hour ozone standard would be revoked for an area once the EPA determined that the area had air quality meeting the 1-hour standard. Subsequently, because the pending litigation over the 1997 8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and associated implementation requirements, we revised 40 CFR 50.9 to place two limitations on our authority to apply the revocation rule: (1)The 1997 8-hourNAAQS must no longer be subject to legal challenge, and (2)it
must be fully enforceable. 18 (65 FR 45182, July 20, 2000). These limitations

were codified as §50.9(c). In the final Phase 1Rule, we again revised §50.9, this time to revise §50.9(b) to provide for revocation ofthe 1-hour standard 1 year after designation ofareas for the 1997 8-hour ozone standard. However, according to ourproposal, in promulgating the Phase 1rule, we neglected to remove paragraph (c) which was no longer necessary since the

18In addition, inJune 2003, we stayed our authority to apply the revocation rule pending our reconsideration in the implementation rule for the 1997 NAAQS ofthe basis forrevocation. (68 FR 38160, June 26, 2003). We completed that reconsideration in the Phase 1Rule, which was published in the Federal Register ofApril 30, 2004. (69 FR 23951). 28436

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8-hour standard is no longer subject to legal challenge and the standard has been upheld and is enforceable. American TruckingAssoc.v. EPA, 283 F.3d 355. (D.C. Cir. 2002) (resolving all remaining legal challenges to the 8-hour

ozone standard and upholding the EPA's rule establishing that standard.)

2.Final Rule

In reviewing the regulatory text in light ofone ofthe comments received

on the proposal, we realized thatwe incorrectly described the obsolete regulatory text in 50.9(c). The language described in the proposal, which stayed the EPA's authority to revoke the 1-hour

ozone standard while the 8-hour standard remained subject to legal challenge, was language that was actually removed in the Phase 1Rule (69 FR 23951, Apr. 30, 2004). That language was added tothe second
sentence of50.9(b) at the time thatthe
status ofthe 1997 8-hour standard remained uncertainbecause ofthe ongoing litigation challenging that standard and our ability to enforce it. (65 FR 45200,July 20, 2000.) Because the litigation challenging the 1997 standard and our ability to enforce that standard was fully resolved, we deleted that regulatory language in the Phase 1 Rule.

However, in June 2003, consistent with a settlement agreement in a lawsuit challenging the revocation provision we had promulgated simultaneous with the 1997 ozone standard, we separately stayed our authority to revoke the 1- hour ozone standard. (68FR 38163, June 26, 2003). Specifically, we added 40 CFR 50.9(c), which provides that our authority torevoke the 1-hour ozone standard is stayed until "EPA issues a final rule revising or reinstating" the revocation authority and considers and addresses certain issues in that rulemaking process. We considered and addressed those issues in the rulemaking for implementing the 1997

ozone standard and as part ofthe final Phase 1Rule. We revised andreinstated

our authority to revoke the 1-hour standard. (68 FR 32818-19, June 2, 2003; 69 FR 23969-71, April 30, 2004). However, we neglected at thattime to

remove 40 CFR 50.9(c), whichbecame obsolete upon the issuance ofthe Phase 1Rule.

Despite the confusion created by our incorrect description in the proposed rule, we are deleting 40 CFR 50.9(c). As provided above, the provision is obsolete because the future rulemaking it refers to isthe Phase 1 Rule, which

was promulgated in April 2004. Although we incorrectly described the provision in the proposal, we correctly indicated thatthe provision was obsolete and thus we are deleting it in this final action asproposed.

3.Comments and Responses

Comment:One commenter expressed

concern about the background
statements and explanation regarding the removal of40 CFR 50.9(c). The
commenter claims there is an incorrect citation in the preamble. In the Background discussion at 74 FR 2938, col 2,paragraph B, the proposal said, referring to the two limitations we placed on our authority to apply the revocation rule, that "These limitations

were codified as 

### §50.9(c)."

Response:As provided above, we recognize that the explanation inthe proposal was confusing because we described regulatory text that was removed from 40 CFR 50.9(b) at the time

we promulgated the Phase 1Rule, rather than describing the regulatory text we planned to delete, which isprovided in 40 CFR 50.9(c). However, as explained above, the regulatory text in 50.9(c) is obsolete as noted inthe proposal and thus we are moving forward to remove it from the CFR as proposed. Comment:One environmental
commenter expressed concern about confusing language in 40 CFR 50.9(b) and recommended thatthe second
sentence ofthat provisionbe removed.

Response:Paragraph (b) of

### §50.9 states thatthe 1-hour standards set forth in the section will remain applicable to all areas notwithstanding the promulgation of8-hour ozone standards under 

### §50.10. The 1-hour NAAQS set forth in paragraph (a) ofthe sectionwill

no longer apply to an area one year after the effective date of the designation of that area for the 8-hour ozone NAAQS pursuant to section 107 ofthe CleanAir Act. Area designations and classifications with respectto the 1-hour standards are codified in 40 CFR part 81.

The commenter does not specify why the sentence is confusing and we disagree thatit is. Rather, that sentence is the operative sentence for revoking the 1-hour standard. Pursuant to this
sentence ofthe regulation, the 1-hour standard was revoked for mostareas on June 15, 2005, the date 1year after their effective date ofdesignation forthe 1997 8-hour standard. For 13 EAC 19 areas with a deferred effective date of

19Early Action Compacts (EAC) allowed states to pledge to meet the 1997 8-hour ozone standard earlier than required. State seeking an EAC must meet a number ofcriteria and must agree to meet certain milestones. The most significantmilestone

was that the EAC areas had tobe inattainment by December 31, 2007, based on air quality data from 2005, 2006, and 2007. designation, the 1-hour standard was revoked April 15, 2009, the date 1year following their effective date of designation as attainment for the 1997 NAAQS. Forthe Denver EAC area, which was designated nonattainment for the 1997 NAAQS effective November 20, 2007, the 1-hour standard was revoked November 20, 2008. Webelieve that itis important to retain this
sentence because itspecifies the time at which the 1-hour standard, identified in 40 CFR 51.9(a), no longer applied to

areas.
F. OtherComments
Comment:Several commenters advised thatthis rulemaking addressing the 1997 ozone standard shouldbe integrated with planning to address the 2008 ozone NAAQS. Several
commenters recommended that addressing the 1997 standard shouldnot result in additional paperwork beyond what is needed for the 2008 standard. One commenter recommended that the EPA rulemaking focus on implementation ofthe 2008 ozone NAAQS and deal with implementation deficiencies ofthe 1997 standard within the context ofimplementing the 2008 NAAQS. One local air agency commenter argued thatreclassification of subpart 1 areas should not be a priority concern when viewed against other more important priorities, such as implementation ofthe 2008 ozone NAAQS.

Response:The Court in South Coast vacated portions ofthe Phase 1Rule that addressed certain anti-backsliding provisions for the 1-hour standard and the portion ofthe rulethat classified certain 1997 8-hour standard nonattainment areas under subpart 1. We plan to address the transition from the 1997 standard to the 2008 standard in separate rulemaking. Comment:One commenter noted that there are several provisions of subpart X that continue to refer to subpart 1even though the EPA has now proposed to classify all nonattainment areas for the 1997 ozone standard under subpart 2. These include 

### §§ 51.908(b), 51.910(b), 51.912(c) and the portions of

### §51.915 that are subject to 

### §51.902(b). The
commenter suggests thatthese provisions may be extraneous ifthere

are no areas covered under subpart 1.

Response:As an initial matter, we note thatthe general implementation requirements in subpart 1also apply to

areas classified under subpart 2; thus,

we cannot automatically conclude that the provisions referred toby the
commenter are extraneous. We choose to err on the side ofretaining provisions that may not apply to any areas rather 

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than to remove them in this final rule without notice and an opportunity for
comment.

Comment:One environmental organization commenter indicated support for theproposal onlyiftherule could be interpreted as requiring Marginal areas to meetthe CAA reasonably available control measures (RACM) requirement. The commenter noted that the Denver area was a former EAC area thatfailed to attain and was subsequently designated nonattainment. Under the proposed rule, Denver would be classified as Marginal. The
commenter pointed out thatthe table in the proposal that summarized CAA requirements applicable underboth subparts 1and 2 indicates thatRACM (undersubpart 1)applies to subpart 2

areas also and thus should apply to Marginal areas.

Response:It istrue that the RACM requirement, which is contained in subpart 1, applies to areas classified under subpart 2. However, the EPA has interpreted the RACM requirement for many years in the context ofthe requirement to demonstrate attainment

as expeditiously as practicable and subpart 2 specifically exempts Marginal

areas from the requirement to submit an attainment demonstration. In light of that exemption, theEPA hashistorically
not required Marginal areas tomeetthe RACM test required ofModerate and higher classified areas. However, we note thatunder our EAC regulations, we required EAC areas that were subsequently designated nonattainment (likeDenver) to submit an attainment demonstration within 1year ofthe effective date ofdesignation. 40 CFR 81.300(e)(3)(ii)(D). Therefore, the RACM requirements currently apply to the Denver nonattainment area. Comment:One state air agency commenter recommended thatthe EPA should approve requests for redesignation to attainment for the 1-hour ozone standard.

Response:Because the EPArevoked the 1-hour ozone standard, the EPA indicated in the Phase 1Rule that we
were no longer obligated toredesignate

areas to attainment or nonattainment for the 1-hour standard because once that standard was revoked itwas no longer effective in an area. See40 CFR 51.905(e). We are not reconsidering that issue as a part ofthis rulemaking. Comment:Several environmental commenters alleged that there were incorrect statements in the discussion of conformity in the anti-backsliding portion oftheproposal. In one comment, the commenter says:

Onpage 2940, column 1ofthe proposal, the EPA states: "Areas that would be reclassified under subpart 2 are already satisfying the applicable CAA section 176(c) conformity requirements forthe 1997 8-hour

ozone standard." The EPA offers no evidence and analysis to support this claim, which
goes far beyond the scope ofthe rulemaking proposal. Itis neither necessary nor appropriate for the EPA to make ablanket
statement that areas that would be reclassified are already infact satisfying applicable conformity requirements. What the EPA can sayis that areas that would be reclassified under subpart 2 are already required to satisfy applicable section 176(c) conformity requirements forthe 8-hour standard.

In another comment they say:

The EPA is also incorrect in stating (at 2941 n.18)that 40 C.F.R.§51.905(e)(3) does
notrequire revision. That rule includes language stating that "any state conformity provisions in an applicable SIP that require 1-hour ozone conformity determinations are

no longer federally enforceable." The DC Circuit has ruled that the EPA cannot declare conformity provisions ofan approved SIP to be unenforceable. Environmental Defensev. EPA,467 F.3d 1329, 1337 (D.C. 2 Cir. 2006). The approved provisions ofa SIP remain enforceable until the state submits andthe EPA approves theirrevocation. Id. Accordingly, 40 CFR §51.905(e)(3) mustbe revised to delete the above-quoted clause.

Response:We agree with the first
comment that the quoted sentence was worded poorly. We did notintend by that statement to make a determination that any specific area is satisfying the conformity requirements. We agree with the commenter's suggestion as to how the statement could have been better phrased.

Regarding the second statement, we disagree that40 CFR 51.905(e)(3) requires revision. Thatregulatory provision states that "[u]pon revocation ofthe 1-hour NAAQS for an area, conformity determinations pursuant to section 176(c) of the CAA are no longer required for the 1-hour NAAQS. Atthat time, any provisions ofapplicable SIPs that require conformity determinations in such areas for the 1-hour NAAQS will no longer be enforceable pursuant to section 176(c)(5) ofthe CAA." Since there is no 1-hour NAAQS, there is no ongoing conformity requirement forthat NAAQS under section 176(c). The regulation also specifically refers to section 176(c)(5), which states that conformity determinations apply only in nonattainment and maintenance

areas. Therefore, the intent ofthe regulations is to clarify that SIP provisions requiring conformity demonstrations for the revoked 1-hour NAAQS are essentially meaningless in light ofsection 176(c)(5). Ofcourse, 1-hour ozone budgets in approved SIPs
must be used to demonstrate conformity to the 8-hourozone NAAQS ifno 8-hour

ozone budget exists.

Comment:Several environmental
commenters allege thatthe Clean Data Policy isunlawful. One commenter states thatfor reasons explained in briefs filed in NRDCv. EPA,No. 06- 1045 (D.C. Cir.) (whichwere incorporated byreference, and attached
to the comment), the EPA is completely without authority to suspend the Act's mandates for submission and implementation ofthese SIP components merely because an area is meeting standards at a given point in time. They note thatthe Actprovides no exception orwaiver for submission of these SIP elements on grounds of temporary attainment. To the contrary, they note that section 175A(c) ofthe Act makes crystal clear that allrequirements for nonattainment areas mustremain in full force and effect unless and until the

area isredesignated to attainment and has an approved maintenance plan. For allofthese same reasons, they claim the EPA cannot suspend any Part D requirements retained pursuant to the Act's anti-backsliding provisions merely because an area is temporarily meeting either the 1-hour or 8-hour standards. They assert thatthe EPA's "clean data" policy isnothing more than an illegal attempt to circumvent the Act's redesignation provisions, section 107(d)(3)(E) and 175A(c).

Another environmental organization commenter also alleged that the EPA lacks authority to suspend controls from

a SIPby finding the area is meeting the 1-hour standard. That commenter alleged that the CAA's redesignation procedures ofsection 107 provide a specific method that a nonattainment

area must follow in order toremove controls from a SIP. They note that the CAA is silent on any alternative manner for anonattainment area toremove controls from its SIP, besides being redesignated to a different classification. They thus claim itis clear that Congress intended the extensive redesignation process described in section 107to be the only manner inwhich an area was to be permitted to remove controls from its SIP. The commenter also notes that the proposed rule ignores the statutorily-required redesignation procedures provided in section 107. The
commenter further claims that even assuming the Clean Data Policy is valid

as written, it cannot be used towaive fees required under section 185 ofthe CAA. They point out that the 1995 Seitz memorandum has never even applied to waive the section 185 fees controls, only otherplanning requirements. Thus, the EPA would take the Seitz memorandum reasoning beyond the situations to 28438

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which itpurported to apply, yet the EPA does not even acknowledge this extension, much less explain why the Seitz memo rationale can be extended to section 185 fees. The commenter further
notes thatthe 1-hour standard is no longer the standard thatthe EPA deems requisite to protect public health with

an adequate margin ofsafety. Therefore, they argue, attaining the 1-hour standard should have nobearing on whether a state may remove contingency measures from its SIP.

Response:The Clean Data Policy, first articulated by the EPA in 1995 with regard tothe 1-hour ozone standard, and subsequently upheld by several Courts ofAppeals, isnot unlawful. The EPA's interpretation ofthe CleanData Policy for the 1-hour ozone standard is the basis for its CleanData Policy regulation for the 8-hour ozone standard, which

was codified at 40 CFR 51.918 and upheld by the D.C. Circuit inNRDCv. EPA 571 F.3d 1245 (D.C. Cir. 2009).

A commenter objects tothe Clean Data Policy because itis not "a valid

manner ofremoving controls from a SIP," and that it "permits EPA to

remove applicable controls from an area's SIPby merely making a 'factual finding' ofattainment." This comment misconstrues the Clean Data Policy-it is not applied to remove any controls from the SIP. Rather, itis the EPA's interpretation thatthe obligation to submit certain requirements, including those for RFP and contingency
measures, is suspended for so long as an

area attains the standard. Once SIP provisions have been approved into the SIP, the Clean DataPolicy does not operate to remove them. The same commenter contends that attainment of the 1-hour standard should have no significance because it has been "discarded." Although the 1-hour standard has been revoked, the 1-hour designation and classification status of

an area atthe time ofdesignation for the 8-hour standard remains thebasis for determining the 1-hour ozone antibacksliding requirements for that area. Independent ofand in addition to the 1-hour standard, the EPA continues to separately implement the 8-hour ozone standard and all requirements applicable under thatNAAQS. As the EPA noted in itsproposal, attainment of and redesignation for the 8-hour standard also affects the antibacksliding requirements under the 1-hour standard. 40 CFR 51.905(b) Proposal at 74 FR 2942.

The EPA's Clean Data Policy does not expressly address the suspension ofthe requirement that affected emissions

sources submit section 185 fees. Substantive issues concerning when and how section 185 fees apply for purposes ofthe 1-hour standard are not addressed

as part ofthis rulemaking action and thus we are not addressing substantive
comments on such issues here.

G. A Correctionto aFootnotein Proposed Rule
The January 16, 2009, proposed rule, in the discussion of contingency
measures, stated, "In situations where a 1-hour ozone nonattainment area is in attainment based on current air quality (e.g., afterthe area's attainment date), EPA can propose to make a finding of attainment." Footnote 16 followed that
sentence and read as follows: "This applies even ifthe area did not attain by the attainment date; however, the CAA requires EPA in these cases to make a finding offailure to attain bythe attainment date and either reclassify the

area or apply other requirements (such

as section 185) as specified for the area's classification." (74 FR at 2941, 2942; January 16, 2009.) The text "however, the CAArequires EPA in these cases to make a finding offailure to attainby the attainment date and either reclassify the

area or apply other requirements (such

as section 185) as specified for the area's classification" was in error and should have been deleted. The wording would have been appropriate had the situation applied to an existing ozone standard, such as the 1997 8-hour standard. However, for the revoked 1-hour standard, EPA has adopted a regulation, that was not challenged, providing that upon revocation ofthe NAAQS, the EPA would no longer be obligated to make findings offailure to attain the 1-hour standard or to reclassify areas for failure
to attain the 1-hour standard by the area's attainment date under the 1-hour standard. (See40 CFR 51.905(e)(2)(i).) Thus, the EPA is clarifying thatthe portion offootnote 16 stating thatthe EPA remains obligated to make a finding offailure to attain the 1-hour

ozone standard by an area's attainment date (undersection 181(b)(2) or section 179(c)) and to reclassify the area was

erroneous and in conflict with §51.905(e)(2)(i).

IV. Statutory andExecutive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview andExecutive Order13563:ImprovingRegulationand RegulatoryReview

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

B. PaperworkReductionAct

This action does not impose any new information collection burden. This action sets forth theEPA's rule for addressing portions ofthe partial
vacatur oftheEPA's Phase 1Rule for implementation ofthe 1997 8-hour

ozone NAAQS. However, OMB has previously approved the information collection requirements contained in the existing Phase 1Rule (April 30, 2004; 69 FR 23951) and the Phase 2Rule (November 29, 2005; 70 FR 71612) regulations and hasbeen assigned OMB Control Number 2060-0594. The OMB control numbers for theEPA's regulations in 40 CFR are listed in40 CFR part 9.

C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency toprepare

aregulatory flexibility analysis ofany regulation subject to notice-andcomment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will nothave

a significant economic impact on a substantial number of small entities. Small entities include smallbusinesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts ofthese regulation revisions on small entities, small entity is defined as: (1)A smallbusiness thatis a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards (See 13 CFR 121.); (2)A governmental jurisdiction thatis a government ofacity, county, town, school district or special district with a population ofless than 50,000; and (3) A small organization thatis any not-forprofit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impact ofthese revisions to the regulations on small entities, I certify that this action will nothave a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities. The EPA is aware thatthe two small entities listed in Table 2,Essex County and Jamestown, NY, have either satisfied the requirements through previous SIP 

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

D. UnfundedMandatesReformAct

This action contains no federal mandate under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of1995 (UMRA), 2U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. This rule restores provisions that existed underthe 1-hour

ozone standard and that would have continued under the 1-hour standard had not the EPA issued a revised ozone standard. Those provisions were revoked when the EPArevoked the 1- hour standard itself.Although a court upheld the EPA's right to revoke the 1- hour standard, the court ruled that the EPA erroneously revoked several 1-hour NAAQS provisions and vacated those portion oftheEPA's rule. Thus, the court's own ruling restored the former 1- hour NAAQS provisions. This rule merely sets forth a corrective regulatory mechanism for restoring the 1-hour provisions that the court had already restored. Therefore, this action is not subject to the requirements ofsection 202 and 205 ofthe UMRA.

This action is also not subject to the requirements of section 203 ofUMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The EPA has determined thatthese regulation revisions contain no regulatory requirements thatmay significantly or uniquely affect small governments, including tribal governments.

E.Executive Order13132-Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure "meaningful and timely inputby state andlocal officials in the development of regulatory policies thathave Federalism implications." Policies that have "Federalism implications" are defined in the Executive Order to include regulations thathave "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 ofgovernment."

This action does not haveFederalism implications. It will nothave substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. This rule restores provisions that existed under the 1-hour ozone standard and that would have continued under the 1-hour standard had not the EPA issued a revised ozone standard. Those provisions were revoked when the EPA revoked the 1-hour standard itself. Although a court upheld the EPA's right
to revoke the 1-hour standard, the court ruled thatthe EPA erroneously revoked several 1-hour NAAQS provisions and vacated those portion ofthe EPA'srule. Thus, the court's own ruling restored the former 1-hour NAAQS provisions. This rule merely sets forth a corrective regulatory mechanism for restoring the 1-hour provisions that the court had already restored. Thus, Executive Order 13132 does not apply to these regulation revisions.

In the spirit ofExecutive Order 13121 and consistent with the EPApolicy to promote communications between EPA and state and local governments, the EPA solicited comments on the proposal from state and local officials.

F.Executive Order13175-Consultation andCoordinationWithIndian Tribal Governments

This action does not have tribal implications as specified in Executive Order 13175. Itdoes nothave a substantial direct effect on one ormore Indian tribes, since no tribe has to develop a SIP under these regulatory revisions. Furthermore, these regulation revisions do not affect the relationship

or distribution ofpower and responsibilities between the Federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship ofthe Federal government and Tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modifythat relationship. Thus, Executive Order 13175 does not apply.

The EPA specifically solicited additional comment on the proposed revisions to the regulations from tribal officials.

G. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

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 thatthe analysis required under section 5-501 ofthe EOhas the potential toinfluence the regulation. This action is not subject to Executive Order 13045 because these rule revisions address NAAQS-related SIP obligations ofthe CAA. The NAAQS are promulgated to protect the health and welfare of sensitive populations, including children. However, the EPA solicited comments on whether the proposed action would result in an adverse environmental effect that would have a disproportionate effect on children. No comments were received

onthis specific topic.

H. Executive Order13211:Actions That Significantly Affect EnergySupply, 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 isnot likely to have

a significant adverse effect on the supply, distribution, or use ofenergy.
L NationalTechnology Transferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 ("NTTAA"),Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs theEPA touse voluntary

consensus standards in itsregulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., materials specifications,
test methods, sampling procedures, and business practices) thatare developed or adopted byvoluntary consensus standardsbodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore, the EPA did not consider the use ofany voluntary consensus standards.

J.Executive Order12898: Federal Actions ToAddressEnvironmental JusticeinMinorityPopulations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, tothe greatest extent practicable and permitted by law,to make environmental justice part oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined thatthis rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because itdoes
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environment. The revisions tothe regulations revise SIP obligations related to the ozone NAAQS, which are designed to protect all segments ofthe general populations. As such, they do not adversely affect the health or safety ofminority or low income populations and are designed toprotect and enhance the health and safety ofthese and other populations.

K. Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. The EPA will submita report containing this rule and otherrequired information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General ofthe United Statesprior to publication oftherule in the Federal Register. A major rule cannot take effect until 60 days after itispublished in the Federal Register. This action isnot a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective June 13, 2012.

L. DeterminationUnderSection307(d)

Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) ofthe CAA, the Administrator determines thatthis action is subject to the provisions of section 307(d). Section 307(d)(1)(V) provides thatthe provisions ofsection 307(d) apply to "such other actions as the Administrator may determine."

V. Statutory Authority

The statutory authority for this action is provided 42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7511-7511f; 42 U.S.C. 7601(a)(1).

List ofSubjects

40 CFRPart 50
Environmental protection, Air pollution control, Ozone.
40 CFRPart 51

Air pollution control, Intergovernmental relations, Ozone, Transportation, Nitrogen oxides, Volatile organic compounds.

40 CFRPart81

Air pollution control.

Dated: April 27, 2012. Lisa P.Jackson, Administrator.

For the reasons stated in the preamble, title 40, chapter I ofthe Code ofFederal Regulations is amended as follows:

PART 50-NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY
STANDARDS

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

Authority: 42 U.S.C. 7401, etseq. §50.9 [Amended]
* 2.Section 50.9 is amended by removing paragraph (c).

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

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

Authority: 23 U.S.C. 101;42 U.S.C. 7401- 7671q. Subpart X-[Amended]

* 4. Section 51.900 is amendedby adding paragraph (f)(14) to read as follows:
§51.900 Definitions.

* * * * *



### (f) * * * (14) Contingency measures required under CAA sections 172(c)(9) and 182(c)(9) that wouldbe triggered based

on a failure to attain the 1-hour NAAQS by the applicable attainment date orto make reasonable further progress toward attainment ofthe 1-hour NAAQS.

* * * * *
* 5.Section 51.902 isrevised to read as follows:
§51.902 Which classificationand nonattainment area planning provisionsof the CAAshallapplytoareas designated nonattainment forthe 1997 8-hour NAAQS?

(a)An area designated nonattainment for the 1997 8-hour NAAQS will be classified in accordance with section 181 ofthe CAA, as interpreted in §51.903(a), for purposes ofthe 1997 8-hourNAAQS, and willbe subject to the requirements ofsubpart 2that apply for that classification. (b) [Reserved].
* 6. Section 51.905 is amended by:

ma.Revising the sectionheading. * b. Adding asentence tothe end of paragraph (b).

mc.Removing andreserving paragraphs (e)(2)(ii) and (e)(2)(iii). * d. Removing paragraph (e)(4).

The revisions and addition read as follows:
§51.905 Howdo areas transitionfrom the 1-hour NAAQS tothe 19978-hour NAAQS and what are theanti-backsliding provisions?

* * * * *

(b) * * * Once an area attains the 1-hour NAAQS, the section 172 and 182 contingency measures under the 1-hour NAAQS can be shifted to contingency

measures for the 1997 8-hour ozone NAAQS and must remain in the SIP until the area isredesignated to attainment for the 1997 8-hour NAAQS.

* * * * *

(e) * * * (2) * * * (ii)[Reserved] (iii)[Reserved]

* * * * *

PART81-DESIGNATION OF AREAS FOR AIR QUALITY PLANNING
PURPOSES

* 7.The authority citationfor part81 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq. Subpart C-Section 107 Attainment Status Designations

* 8. In §81.303, the table entitled "Arizona-Ozone (8-Hour Standard)" is amendedby revising the entries for Phoenix-Mesa, AZ: Maricopa County (part)and Pinal County (part)to read as follows: 

### §81.303 Arizona.

ARIZONA-OZONE [8-HOUR STANDARD]

Designationa Category/classification Designated area Date 1 Type Date 1 Type

Phoenix-Mesa, AZ: 

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Maricopa County (part)

.......................................................................... 6/13/12 Subpart 2/Marginal.

.................... Nonattainment

.....................

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