30592 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

1The petitions for reconsideration of the Phase 1 

Rule were filed by: (1) Earthjustice on behalf of the 

American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy; (2) the National Petrochemical and Refiners 

Association and the National Association of 

Manufacturers; and (3) the American Petroleum 

Institute, American Chemistry Council, American 

Iron and Steel Institute, National Association of 

Manufacturers and the U.S. Chamber of Commerce.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51

[OAR 2003–0079, FRL–7918–6] 

RIN 2060–AJ99

Implementation of the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 1: Reconsideration

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is taking final action 

on two issues raised in a petition for 

reconsideration of EPA’s rule to 

implement the 8-hour ozone national 

ambient air quality standard (NAAQS or 

standard). In addition, EPA is taking 

final action to clarify two aspects of that 

implementation rule. On April 30, 2004, 

EPA issued a final rule addressing key 

elements of the program to implement 

the 8-hour ozone NAAQS (Phase 1 

Rule). Subsequently, on June 29, 2004, 

and September 24, 2004, three different 

parties each filed a petition for 

reconsideration of certain specified 

aspects of the final rule. By letter dated 

September 23, 2004, EPA granted 

reconsideration of three issues raised in 

the petition for reconsideration filed by 

Earthjustice on behalf of several 

environmental organizations. On 

February 3, 2005, we proposed action 

on two of the issues and today we are 

taking final action on these two issues: 

The applicability of the section 185 fee 

provisions once the 1-hour NAAQS is 

revoked, and the timing for determining 

what is an ‘‘applicable requirement’’ for 

purposes of anti-backsliding once the 1-

hour NAAQS is revoked. On April 4, 

2005, we issued a separate proposed 

rule on new source review (NSR) antibacksliding, the third issue on which we 

granted reconsideration, and we plan to 

issue a final rule by June 30, 2005. 

In the February 3, 2005 proposal, we 

also proposed to revise the Phase 1 Rule 

in two respects. Today, we are taking 

final action on these two issues. First, 

we have determined that contingency 

measures for failure to make reasonable 

further progress (RFP) or attain by the 

applicable attainment date for the 1-

hour ozone standard are no longer 

required as part of the State 

implementation plan (SIP) for as part of 

the SIP for an area after revocation of 

that standard. Second, we are adding 

the requirement to submit attainment 

demonstrations to the definition of 

‘‘applicable requirements’’ in § 51.900.

DATES: This final action will be effective 

on June 27, 2005.

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2003–0079. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other materials, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the EPA 

Docket Center, EPA West (Air Docket), 

Attention E-Docket No. OAR–2003–

0079, Environmental Protection Agency, 

1301 Constitution Avenue, NW., Room 

B102, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744 and the fax number is 

(202) 566–1749.

FOR FURTHER INFORMATION CONTACT: Ms. 

Denise M. Gerth, Office of Air Quality 

Planning and Standards, Environmental 

Protection Agency, Mail Code C539–02, 

Research Triangle Park, NC 27711, 

phone number (919) 541-5550 or by email at gerth.denise@epa.gov or Mr. 

John J. Silvasi, Office of Air Quality 

Planning and Standards, Environmental 

Protection Agency, Mail Code C539–02, 

Research Triangle Park, NC 27711, 

phone number (919) 541-5666 or by email at silvasi.john@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information 

This action does not directly regulate 

emissions sources. Instead it addresses 

how States should continue to plan to 

meet the ozone standard as we 

transition from the 1-hour to the 8-hour 

ozone NAAQS.

Outline 

I. General Information 

II. Background 

III. Today’s Action 

A. Reconsideration of the Portion of the 

Phase 1 Rule Addressing the Continued 

Applicability of the Section 185 Fee 

Provision for Areas that Fail to Attain the 

1-Hour NAAQS 

B. Reconsideration of the Portion of the 

Phase 1 Rule Establishing the Time for 

Determining Which 1-Hour Obligations 

Remain Applicable Requirements 

C. Contingency Measures in SIPs for the 1-

Hour Ozone Standard 

D. Adding Attainment Demonstration to 

the List of ‘‘Applicable Requirements’’ in 

§ 51.900(f) 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and 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 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 

M. Determination Under Section 307(d)

II. Background 

On June 2, 2003 (68 FR 32802) we 

proposed a rule to govern the transition 

from the 1-hour to the 8-hour NAAQS 

and implementation of the 8-hour ozone 

NAAQS. On April 30, 2004 (69 FR 

23951), we issued a final rule (Phase 1 

Rule), which covered some, but not all, 

of the program elements in the proposed 

rule. The Phase 1 Rule covered the 

following key implementation issues: 

Classifications for the 8-hour NAAQS; 

revocation of the 1-hour NAAQS (i.e., 

when the 1-hour NAAQS will no longer 

apply); how anti-backsliding principles 

will ensure continued progress in 

achieving ozone reductions as areas 

transition to implementation of the 8-

hour ozone NAAQS; attainment dates 

for the 8-hour ozone NAAQS; and the 

timing of emissions reductions needed 

for attainment of the 8-hour ozone 

NAAQS. The EPA plans to issue a final 

rule this summer addressing the 

remaining issues from the June 2003 

proposal (Phase 2 Rule). 

Following publication of the Phase 1 

Rule, the Administrator received three 

petitions, pursuant to section 

307(d)(7)(B) of the Clean Air Act (CAA) 

requesting reconsideration of a number 

of aspects of the final rule.1 On 

September 23, 2004, we granted 

reconsideration of three issues raised in 

the Earthjustice Petition. On February 3, 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30593

2005 (70 FR 5593), we issued a 

proposed rule seeking comment on two 

of the three issues raised in the Petition 

and proposed two other revisions to the 

Phase 1 Rule. The purpose of today’s 

action is to take final action on the four 

issues which were addressed in the 

February 3, 2005 proposal. First, we are 

determining that section 185 fees are no 

longer required in SIPs for a failure to 

attain the 1-hour NAAQS once the 1-

hour NAAQS is revoked. Second, we are 

determining that the timing for the 

determination of what is an ‘‘applicable 

requirement’’ once the 1-hour NAAQS 

is revoked is June 15, 2004. Third, we 

are finding that contingency measures 

are no longer required in SIPs for a 

failure to make RFP toward the 1-hour 

standard or attain that standard by the 

applicable attainment date for the 1-

hour standard. Fourth, we are adding 

the requirement to submit an 

‘‘attainment demonstration’’ to the list 

of applicable requirements. On April 4, 

2005 (63 FR 17018), we proposed action 

on a third issue on which we granted 

reconsideration concerning the 

continued applicability of the 1-hour 

NSR program. We intend to take final 

action on that issue no later than June 

30, 2005.

On January 10, 2005, we granted 

reconsideration of one other issue raised 

by Earthjustice in their Petition—the 

overwhelming transport classification 

for certain areas subject only to subpart 

1 of Part D of the CAA. We plan to issue 

a proposal on this issue this summer. At 

the same time, we denied 

reconsideration of the remaining two 

issues they raised in their Petition 

concerning the applicability of 

reformulated gasoline when the 1-hour 

NAAQS is revoked and whether EPA 

had removed authority for future 

redesignations to nonattainment for the 

8-hour ozone NAAQS. 

We are continuing to review the 

issues raised in the National 

Petrochemical and Refiners Association, 

et al., and American Petroleum 

Institute, et al., Petitions. Copies of the 

Petitions for Reconsideration and 

actions EPA has taken regarding the 

Petitions may be found at: 

www.epa.gov/ttn/naaqs/ozone/

o3imp8hr and in Air Docket, ID No. 

OAR–2003–0079. For more detailed 

background information, the reader 

should refer to the Phase 1 Rule (April 

30, 2004; 69 FR 23956) and the 

reconsideration proposal (February 3, 

2005; 70 FR 5593). 

III. Today’s Action 

A. Reconsideration of the Portion of the 

Phase 1 Rule Addressing the Continued 

Applicability of the Section 185 Fee 

Provision for Areas That Fail To Attain 

the 1-Hour NAAQS 

1. Background. In the Phase 1 Rule we 

stated that upon revocation of the 1-

hour NAAQS: (1) EPA will no longer 

make findings of failure to attain the 1-

hour NAAQS; (2) EPA will no longer 

reclassify areas to a higher classification 

for the 1-hour NAAQS based on a 

finding of failure to attain; and (3) States 

are no longer obligated to impose fees 

under sections 181(b)(4) and 185 of the 

CAA (‘‘Fee Provisions’’) in severe or 

extreme ozone nonattainment areas that 

fail to attain the 1-hour standard by the 

area’s 1-hour attainment date (69 FR 

23984). In the reconsideration proposal 

(70 FR 5596), we stated that we 

continued to believe that there is no 

basis for determining whether an area 

has met the 1-hour NAAQS once the 1-

hour NAAQS has been revoked. 

Consequently, we stated that since there 

will no longer be an applicable 

classification or attainment date, there 

cannot be a failure to meet such a date, 

i.e., the Fee Provisions could not be 

triggered for 1-hour nonattainment 

areas. 

2. Summary of Final Rule. For the 

reasons stated in the proposal and in the 

response to comments, we are adopting 

the approach we included in the 

proposal which is that once the 1-hour 

standard is revoked for an area, the fee 

provisions in SIPs will not be triggered 

for a failure of an area to attain the 1-

hour NAAQS by its 1-hour attainment 

date and States will not be required to 

adopt fee provisions for the 1-hour 

standard. 

3. Comments and Responses. 

Comment: Several commenters 

questioned EPA’s authority to waive the 

section 185 fee requirements. Some 

commenters claimed that such action is 

contrary to the anti-backsliding 

provisions of section 172(e) of the CAA 

which provides that if EPA relaxes a 

NAAQS, it must provide for controls 

which are not less stringent than the 

controls required before such relaxation. 

One commenter noted that EPA 

interprets this provision to apply with 

equal force when a NAAQS is 

strengthened. Several commenters 

stated that the proposed waiver is also 

inconsistent with other rationales 

offered by EPA for anti-backsliding, i.e., 

that ozone nonattainment areas are 

designated and classified by operation 

of law; that allowing relaxation of 

controls mandated by subpart 2 would 

render those controls ‘‘prematurely 

obsolete’’ in contravention of the 

Supreme Court’s decision regarding the 

implementation of the 8-hour NAAQS; 

and that section 175A(d) of the CAA 

provides that areas redesignated to 

attainment can, at most, move mandated 

measures to be contingency measures, 

and that this rationale precludes 

relaxation of the fee provisions after 

revocation. Another commenter stated 

that the CAA does not explicitly 

delegate to EPA the authority to remove 

provisions enacted by Congress nor does 

it impliedly authorize it to remove 

them; consequently the section 185 fee 

provisions should remain in effect. The 

commenter stated that EPA’s proposal 

would render ‘‘textually explicit’’

provisions of part D ‘‘utterly 

inoperative,’’ which was prohibited 

under American Trucking. Another 

commenter contended the language of 

the CAA is explicit and does not give 

EPA discretion to choose to enforce or 

not enforce a program and EPA thus has 

no authority to promulgate a rule stating 

that section 185 is not applicable.

Response: As an initial matter, section 

172(e) addresses the situation where 

EPA has promulgated a less stringent 

NAAQS and does not directly apply 

here, where EPA has promulgated a 

more stringent NAAQS. However, since 

the statute is silent about what 

requirements must remain when EPA 

promulgates a more stringent NAAQS, 

EPA looked to section 172(e) (as well as 

other provisions of the CAA) to discern 

what Congress might have intended in 

this situation. After reviewing section 

172(e) and other provisions of the 

statute, EPA concluded that Congress 

would have intended that control 

obligations that applied for purposes of 

the 1-hour NAAQS should remain in 

place. As EPA explains in response to 

a similar comment regarding the date for 

determining ‘‘applicable requirements,’’

the commenters misconstrue what 

section 172(e) requires. Section 172(e) 

requires EPA to provide for controls not 

less stringent than those that applied 

‘‘before such relaxation [of the 

NAAQS].’’ Thus, it does not mandate 

that controls be as stringent as those that 

could not be required to be imposed 

until a date after the previous NAAQS 

no longer exists. 

Similarly, our anti-backsliding rule 

establishes a ‘‘cut-off’’ date for 

determining which control obligations 

will continue to apply. We looked at 

three options for when this ‘‘cut-off’’

date should be—the date of signature of 

designation rule, i.e., April 15, 2004; the 

effective date of 8-hour designations, 

i.e., for most areas June 15, 2004; and 

the date the 1-hour standard is revoked, 

i.e., for most areas June 15, 2005. In this 

30594 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

final rule, we adopt the effective date of 

designation for the 8-hour standard as 

the relevant cut-off date. The 

requirement to impose section 185 fees 

cannot exist any earlier than 2006 

because the earliest 1-hour attainment 

date for a severe or extreme ozone 

nonattainment is November 15, 2005. 

Thus, we do not believe that even 

applying 172(e) directly (which is not 

the case here) would result in the fee 

obligation remaining in place after 

revision of the NAAQS because the 

requirement to implement the fees does 

not exist as of the effective date of 

designation for the 8-hour NAAQS. 

Additionally, upon revocation of the 1-

hour NAAQS, a State may remove from 

their SIP the provisions for complying 

with the section 185 fee provision as it 

applies to the 1-hour NAAQS. 

We disagree that this approach is 

inconsistent with other provisions in 

the statute that we looked to for 

purposes of establishing our antibacksliding approach. We recognized 

that Congress did not directly speak to 

the issue of what occurs if a more 

stringent NAAQS is promulgated, but 

looked to a variety of statutory 

provisions to discern Congressional 

intent. While we did look at the fact that 

Congress designated and classified areas 

as a matter of law in 1990, we have not 

taken the position that such action 

‘‘codified’’ the 1-hour standard and left 

it in place indefinitely. Rather, we 

believe that under this provision 

Congress intended the areas classified in 

1990 to implement the required controls 

until such areas attained the ozone 

standard necessary to protect public 

health. The 8-hour standard has 

replaced the 1-hour standard as the 

ozone standard necessary to protect 

public health. We believe that Congress 

intended these areas to continue to 

implement mandated control measures 

but not that they provide for programs 

keyed to a finding of failure to attain the 

old standard after that standard no 

longer applies. 

As to the U.S. Supreme Court 

decision, we first note that in making 

the quoted statement, the Supreme 

Court was addressing EPA’s 

determination that no areas would be 

classified under subpart 2 for purposes 

of the 8-hour NAAQS and thus that the 

subpart 2 control requirements would 

not apply at all for purposes of 

implementing the 8-hour NAAQS. 

While the classification scheme we 

established in our Phase 1 rule for the 

8-hour NAAQS is the primary method 

for addressing the concern that no areas 

would be subject to subpart 2 for 

purposes of implementing the 8-hour 

NAAQS, we agree that the statement 

carries some weight for purposes of antibacksliding, particularly where the 

classification scheme for the 8-hour 

standard results in many areas being 

placed in lower classifications than 

their classifications for purposes of the 

1-hour standard. As we stated in the 

preamble to the Phase 1 Rule, we 

believe that Congress intended areas 

with significant pollution problems to 

retain Congressionally-mandated 

pollution programs until such time as 

they attain the ozone NAAQS necessary 

to protect public health, which is now 

the 8-hour standard.

Our Phase 1 Rule does not render the 

subpart 2 provisions ‘‘prematurely 

obsolete’’ or ‘‘utterly inoperative.’’

Rather, they continue to have meaning 

in two ways. First, the applicable 

subpart 2 control requirements that 

were required to be imposed for 

purposes of the 1-hour standard at the 

time an area was designated 

nonattainment for the 8-hour standard 

continue to apply until the area attains 

the 8-hour NAAQS. Second, many areas 

will be classified under subpart 2 for 

purposes of the 8-hour standard and 

will be subject to the subpart 2 

requirements for purposes of 

implementing the 8-hour standard. We 

do not read the Supreme Court decision 

(or any of the provisions of the CAA that 

we examined) to mean that Congress 

intended areas designated 

nonattainment for the 1-hour standard 

to remain fully subject to that preexisting NAAQS, including future 

requirements whose implementation is 

dependent on a future determination 

that the area had not met a revoked 

standard, even after they begin programs 

to comply with the revised NAAQS, 

which is the NAAQS now determined to 

be necessary to protect public health. 

Similarly, we don’t think that section 

175A(d) indicates any Congressional 

intent to retain the section 185 fee 

obligation for a failure to attain the 1-

hour NAAQS after that standard has 

been revoked. Because this provision is 

linked to whether an area attains by its 

severe or extreme area attainment date, 

it would have no meaning for an area 

redesignated to attainment and thus 

would not need to be retained as a 

contingency measure for purposes of a 

1-hour ozone maintenance plan under 

section 175A(d). Because this obligation 

would not need to be retained as part of 

a section 175A(d) maintenance plan, we 

don’t believe this provision indicates 

Congressional intent that the fee 

obligation be retained once the 1-hour 

standard is revoked. 

Comment: One commenter questioned 

EPA’s statement that because section 

185 fees ‘‘operate in lieu of 

reclassification’’ they should no longer 

apply since reclassifications will no 

longer be required. The commenter 

contended this statement is incorrect 

because the CAA does not require SIPs 

to contain provisions for imposition of 

the section 185 fees in lieu of 

reclassification for severe and extreme 

ozone nonattainment areas. 

Response: While we disagree with the 

commenter regarding whether the fees 

are imposed ‘‘in lieu’’ of reclassification, 

we need not resolve that issue here. For 

the same reasons we concluded that 

areas are not subject to reclassification 

for the 1-hour standard once it is 

revoked, we believe that areas should no 

longer be subject to the section 185 fees 

provision for failure to meet that 

standard once it is revoked. Like 

reclassification, the section 185 fees are 

triggered by a failure to attain the 

standard. Once the 1-hour standard no 

longer applies (i.e., is no longer the 

health-based NAAQS), areas are not 

obligated to meet it and neither the 

States nor EPA are obligated to conclude 

whether the area has met it by the 

attainment date that also no longer 

applies. Therefore, findings of 

nonattainment of the 1-hour standard 

will no longer be made and the 185 fee 

program would no longer be required. 

Comment: One commenter disagreed 

with EPA’s assertion that the fee 

provisions are linked to whether or not 

an area has met the 1-hour NAAQS 

which EPA has determined is no longer 

needed to protect public health. The 

commenter stated that regardless of 

whether the 1-hour NAAQS is still 

needed to protect public health, the 

CAA requires that controls required for 

the 1-hour NAAQS must not be relaxed. 

Response: As discussed above, we do 

not believe the timing provision of 

section 172(e) would mandate retention 

of the section 185 fee obligation where 

EPA has promulgated a less stringent 

NAAQS. 

Comment: Several commenters 

disagreed with EPA’s assertion that 

section 185 fees are no longer needed 

because States should focus their 

resources on the 8-hour NAAQS and it 

would be counterproductive to continue 

efforts linked to the 1-hour NAAQS.

Response: We believe that imposition 

of the section 185 fees would be 

counterproductive because instead of 

focusing limited resources on 

attainment of the 8-hour NAAQS as 

expeditiously as practicable, States 

would need to divert some of those 

resources to monitoring compliance 

with a standard that is no longer needed 

to protect public health. If fees were to 

be triggered, States would have to 

devote resources to the further 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30595

development of plans focused on 

meeting the 1-hour standard based on a 

determination that an area had failed to 

achieve a non-existent NAAQS. We 

believe this is an unwise use of 

resources when the 1-hour standard no 

longer applies. 

A determination of failure to attain in 

the future, accompanied by additional 

planning obligations focused on 

attaining a standard that no longer 

applies, would detract from efforts to 

plan for and implement the new healthbased standard. Once controls are 

adopted for the 8-hour NAAQS, 

additional 1-hour planning would be 

redundant, at a minimum, and could 

result in efforts beyond those necessary 

to meet the applicable health-based 

standard. 

Comment: Several commenters 

disagreed with EPA’s assertion that the 

CAA requires a finding of failure to 

attain before the fee provisions are 

triggered. The commenters stated that 

the fees are based on whether an area 

has attained, which can be determined 

by comparing monitored air quality data 

with the standard for the relevant time 

period. One commenter noted that for 

areas that will be submitting an 

outstanding 1-hour attainment 

demonstration, EPA can and must 

determine whether the demonstration 

shows attainment with the 1-hour 

NAAQS. 

Response: Whether or not the fees 

provision is triggered by a finding of 

failure to attain or simply through an 

examination of monitoring data, is not 

a decisive factor for determining 

whether the fee obligation should be 

retained under the anti-backsliding 

provisions. As provided above, we do 

not believe there is any Congressional 

intent that this obligation remain in 

place. 

While we retained the obligation to 

submit outstanding 1-hour attainment 

demonstrations, we did so primarily for 

the purpose of ensuring that as areas 

began the transition to implementation 

of the 8-hour NAAQS, the areas 

achieved the emissions reductions that 

Congress contemplated they would 

make on a specific near-term schedule. 

A determination that a specific mix of 

control measures demonstrates 

attainment at a future date is not the 

same as a reviewing monitoring data 

after the attainment date to determine 

whether an area in fact attained. The 

purpose of retaining the outstanding 1-

hour attainment demonstration 

obligation is to ensure that in the shortterm, prior to submission of 8-hour SIPs, 

areas continue to make progress in 

cleaning their air. 

Comment: Several commenters urged 

EPA to retain the section 185 fee 

provisions to provide incentives for 

businesses in the worst nonattainment 

areas to reduce emissions in order to 

attain or make RFP toward the NAAQS. 

One commenter disagreed with EPA’s 

argument that it would be 

counterproductive to continue efforts 

linked to whether or not an area met the 

1-hour NAAQS. Further, the commenter 

stated that the fee provisions provide an 

economic incentive for major sources to 

achieve 20 percent reductions in 

emissions in areas that are violating the 

NAAQS. Another commenter stated that 

the section 185 fees should be retained 

because they create a strong incentive 

for major sources to reduce emissions 

and ensure that local areas and States 

take actions to reduce emissions and 

improve air quality. The commenter 

stated the section 185 fees create 

tremendous benefits at the SIP 

development stage since major sources 

can and have become forceful advocates 

for emissions reductions from other 

sources based on an economic interest 

in avoiding this charge to pollute. One 

commenter disagreed with EPA’s 

assertion that areas should focus their 

resources on the 8-hour NAAQS rather 

than the 1-hour NAAQS because they 

believe that Congress’ intent was to 

impose fees as incentives while still 

requiring emissions reductions 

regardless of whether the reductions are 

to achieve the 8-hour or 1-hour NAAQS. 

Some commenters noted that the fees 

would generate additional resources for 

planning and control efforts and would 

discourage emissions of ozone 

precursors. Finally, one commenter 

stated that the section 185 fees would 

provide substantial resources to States 

with difficult air pollution problems. 

Response: As stated above, EPA does 

not believe that Congress directly spoke 

to which obligations must remain where 

EPA promulgates a more stringent 

standard. Furthermore, we do not 

believe that Congress intended the fee 

obligation to continue for a failure to 

meet a standard once that standard has 

been replaced. Because the section 185 

fees that would apply for failure to 

attain the 1-hour NAAQS are linked to 

whether an area has attained the 1-hour 

standard, any efforts to eliminate fees 

imposed for a failure to attain the 1-hour 

standard would be focused on 

attainment of the 1-hour standard not 

the 8-hour standard, which is the 

standard necessary to protect public 

health. Thus, if we retained the fee 

provisions for purposes of failure to 

attain the 1-hour standard, States would 

divert resources from planning for the 8-

hour standard to planning efforts for the 

1-hour standard based on a future 

determination that the area had not met 

a revoked standard. 

The incentives for major sources to 

reduce emissions remain. The section 

185 fee provisions remain in place for 

purposes of the 8-hour standard, and 

thus sources will have an incentive to 

reduce emissions to ensure areas meet 

the 8-hour standard. We note that it is 

speculative to assume that States would 

use fees generated under this provision 

for purposes of planning and control 

efforts beyond those already funded by 

the State. In any event, we see no 

Congressional intent to impose these 

fees for that purpose. That reason, 

absent a compelling reason related to 

attaining the 8-hour NAAQS, is not a 

sufficient basis to retain the 

requirement. 

Comment: One commenter also stated 

that EPA did not provide support in the 

record for its decisions on how to 

implement the 8-hour standard, 

rendering its decision arbitrary and 

capricious. In particular, the commenter 

claimed EPA provided no support for its 

decision to eliminate the fee provisions 

nor showed that it would be 

counterproductive to retain the fee 

obligation for severe and extreme 1-hour 

nonattainment areas that fail to attain 

the 1-hour standard by their attainment 

date.

Response: This commenter, as well as 

others, contend that retention of the fee 

provisions for failure to attain the 1-

hour standard would be beneficial 

because their existence would spur 

stationary sources to advocate tighter 

controls in order to avoid the 

repercussions of a failure to attain. It is 

logical to assume that these same fee 

provisions, if triggered, would spur 

stationary sources to pressure areas to 

focus on attainment of the 1-hour 

standard (to relieve the sources of the 

fee obligation). Planning activities for 

attaining a standard take a commitment 

of time and money. While reductions for 

purposes of the 8-hour standard may 

result in benefits for the pre-existing 1-

hour standard (and vice versa), other 

activities, such as modeling for 

attainment, will not. Time and resources 

spent modeling and planning for 

attainment of the 1-hour standard will 

detract from planning efforts for the 8-

hour standard. 

B. Reconsideration of the Portion of the 

Phase 1 Rule Establishing the Time for 

Determining Which 1-Hour Obligations 

Remain Applicable Requirements 

1. Background. The Phase 1 Rule 

provided that the ‘‘applicable 

requirements’’ would be those 1-hour 

30596 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

2The Phase 1 Rule provides in § 51.900(f) that: 

‘‘Applicable requirements means for an area the 

following requirements to the extent such 

requirements apply or applied to the area for the 

area’s classification under section 181(a)(1) of the 

CAA for the 1-hour NAAQS at the time the 

Administrator signs a final rule designating the area 

for the 8-hour standard as nonattainment, 

attainment or unclassifiable * * *’’ (69 FR 23997). 

Phase 1 of the final rule to implement the 8-hour 

ozone NAAQS was signed by the Administrator on 

April 15, 2004.

control measures that applied in an area 

as of the date of signature of the Phase 

1 Rule (i.e., April 15, 2004).2 In the June 

2003 proposal (68 FR 32821), EPA had 

proposed that the applicable 

requirements would be those that 

applied as of the effective date of the 8-

hour designations (i.e., for almost all 

areas, June 15, 2004). The draft 

regulatory text released for public 

comment in August 2003 defined the 

applicable requirements as those 1-hour 

requirements that applied as of the date 

of revocation of the 1-hour NAAQS (i.e., 

for almost all areas, June 15, 2005). (See 

e.g., 51.905(a) of Draft Regulatory Text.) 

In the reconsideration proposal, we 

proposed June 15, 2004 as the date for 

determining which 1-hour control 

measures continue to apply in an area 

once the 1-hour standard is revoked, 

which was consistent with our June 2, 

2003 proposal.

2. Summary of Final Rule. We are 

adopting the approach that we 

proposed, which is that the effective 

date of the 8-hour designations (i.e., for 

almost all areas, June 15, 2004) is the 

date for determining which 1-hour 

control measures continue to apply in 

an area once the 1-hour standard is 

revoked. An area’s 1-hour designation 

and classification as of June 15, 2004 

would dictate what 1-hour obligations 

remain ‘‘applicable requirements’’

under the anti-backsliding provisions of 

the Phase 1 Rule. We believe this date 

is consistent with the trigger date for 

other obligations for implementation of 

the 8-hour ozone NAAQS, such as the 

attainment date provisions of the Phase 

1 Rule and the date for submission of 

planning SIPs as proposed in the June 

2003 proposal. 

The final introductory regulatory text 

for § 51.900(f) has been revised from the 

proposal to use the defined term 

‘‘designation for the 8-hour NAAQS’’

(see § 51.900(h)) to refer to the effective 

date of designation for an area. 

3. Comments and Responses. 

Comment: One commenter stated that 

the proposed revocation of the 1-hour 

NAAQS violates the CAA and will be 

invalidated on remand. The commenter 

further stated that the entire ‘‘applicable 

requirements’’ rubric stands with no 

legal basis. 

Response: We are not reconsidering in 

this action our revocation of the 1-hour 

standard or the applicable requirements 

‘‘rubric.’’ Therefore, we do not respond 

to comments on these issues. 

Comment: One commenter noted that 

any cutoff date for anti-backsliding 

protection violates section 172(e) of the 

CAA that provides that EPA’s rules 

must provide for controls which are not 

less stringent than the controls 

applicable to such areas designated 

nonattainment before relaxing (or 

strengthening) a NAAQS. The 

commenter stated that section 172(e) 

requires that any area designated 

nonattainment for the 1-hour NAAQS 

before relaxation (or here, revocation) of 

that standard must be subject to controls 

at least as stringent as those that would 

apply to the area under the 1-hour 

NAAQS. Thus, the commenter stated 

that such areas must continue to adopt 

and implement the level of controls 

mandated by the CAA for 1-hour 

nonattainment areas as they would in 

the absence of revocation. The 

commenter stated that this means that 

areas are subject to additional 

requirements in the case of a bump up 

to a higher classification, whether the 

bump up occurred before or after the 

revocation. The commenter stated that 

the proposal is also inconsistent with 

other rationales offered by EPA for antibacksliding, i.e., that ozone 

nonattainment areas are designated and 

classified by operation of law, and that 

allowing relaxation of controls 

mandated by subpart 2 would render 

those controls ‘‘prematurely obsolete’’

in contravention of the Supreme Court’s 

decision inWhitman v. American 

Trucking Assoc. 531 U.S. 427 (2001).

Response: Initially, section 172(e) 

does not apply by its own terms where, 

as here, EPA has adopted a new, more 

stringent NAAQS. Congress did not 

directly address how areas should 

transition to a more stringent NAAQS. 

However, as we stated in the preamble 

to the Phase 1 Rule, we looked to 

section 172(e) of the CAA, as well as 

other statutory provisions and the 

Supreme Court decision in Whitman v. 

American Trucking Assoc., 531 U.S. 427 

(2001) to determine how we thought 

Congress intended such a transition 

should occur. We concluded that, where 

we have adopted a more stringent 

NAAQS, Congress would not have 

intended areas to be able to loosen 

applicable control requirements as they 

transition to implementation of that 

more stringent NAAQS. This conclusion 

was the basis for our anti-backsliding 

approach. 

We note that contrary to the 

statements of the commenter, section 

172(e) does provide a cut-off date. It 

provides that control requirements 

should not be less stringent than the 

controls that applied ‘‘before such 

relaxation.’’ This timing provision 

places a limit on which controls should 

be considered. This phrase could 

possibly be interpreted in several 

ways—e.g., the time the relaxed 

standard is promulgated, the time areas 

must begin to implement the revised 

standard, or the time the more stringent 

standard no longer applies. However, 

we do not believe that it means that all 

requirements that could ever be 

triggered for such a standard remain 

permanently in place. That position is 

tantamount to saying that by this 

provision Congress intended to retain 

the standard itself. We do not be believe 

that Congress would have done so in 

such an oblique manner. In this case, we 

took comment in the June 2, 2003 

proposal and the draft regulatory text 

that we made available on August 6, 

2003 on several options for what the 

timing for determining applicable 

requirements should be. We have 

concluded that the control obligations 

that should remain in place are those 

that applied as of the effective date of 

the 8-hour designation for an area. 

Furthermore, for the same reasons we 

stated in response to comments on the 

section 185 fee issues, we do not believe 

our interpretation is inconsistent with 

our analysis of the other statutory 

provisions that we looked to for 

guidance on what Congress may have 

intended. 

Comment: A few commenters stated 

that the date for determining 

‘‘applicable requirements’’ should be 

June 15, 2005. One commenter stated 

that June 15, 2005 would contain the 

most recent control measures and 

reduce the extent of backsliding that 

will occur due to revocation of the 1-

hour standard. The commenter further 

stated that the measures that should 

apply for purposes of anti-backsliding 

should include all measures that were 

submitted to EPA for review as of June 

15, 2005. Another commenter who 

voiced support for June 15, 2005 as the 

most appropriate date for determining 

applicable requirements noted that 

choosing an earlier date would provide 

a ‘‘benefit’’ to those communities that 

have gamed the SIP process to the 

detriment of those communities who 

took their responsibilities earnestly. 

Further, the commenter stated that the 

earlier date provides a potential future 

incentive for States to delay the SIP 

process as long as possible with hopes 

for future loopholes that would make 

such actions unnecessary. 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30597

3See memorandum dated May 12, 2004, entitled 

‘‘1-Hour Ozone Maintenance Plans Containing 

Basic I/M Programs’’ from Tom Helms and Leila H. 

Cook.

4Texas SIP revision that was submitted on 

November 16, 2004, see pages 2–5.

5Texas SIP revision that was submitted on 

November 16, 2004, see pages 4–5.

Response: We disagree with the 

commenter that adopting June 15, 2005 

as the date for determining ‘‘applicable 

requirements’’ would ensure that the 

most recent control measures would 

apply. In fact, we believe that there will 

be no substantive difference between 

the selection of June 15, 2004 and June 

15, 2005 because no areas have been 

reclassified in that 1-year period. Under 

our anti-backsliding rule, States remain 

obligated to adopt and implement any 

control obligations that applied for the 

area’s 1-hour classification as of the 

effective date of designations for the 8-

hour NAAQS. Thus, each area’s control 

requirements are dependent on the 

area’s 1-hour classification as of the date 

for determining the area’s applicable 

requirements. Areas must retain control 

obligations applicable on that date 

whether or not the area had satisfied the 

obligation by that date. It appears that 

the commenter misinterprets the Phase 

1 Rule to allow areas that have not yet 

adopted control obligations to be 

relieved of the obligation to adopt such 

controls, which is not the case (69 FR 

23972).

We note that an area’s applicable 

requirements are also related to the 

area’s 1-hour designation as of the date 

for determining applicable 

requirements. And, while EPA has 

proposed to redesignate several areas 

(Atlanta, Cincinnati, Phoenix) from 

nonattainment to attainment for 

purposes of the 1-hour standard, there is 

only one substantive difference between 

the ‘‘applicable requirements’’ that 

would apply to an area designated 

nonattainment for the 1-hour standard 

and 1-hour attainment areas subject to a 

section 175A maintenance plan. That 

difference is that a maintenance area 

that has moved an ‘‘applicable 

requirement’’ to its contingency plan 

prior to the date for determining the 

‘‘applicable requirements’’ may leave 

that obligation in its contingency plan 

and need not begin to implement the 

program if the program is not required 

based on the area’s 8-hour 

classification.3 For such an area, the 

selection of June 15, 2005 would 

provide additional time for areas to 

move measures that are currently being 

implemented to the area’s contingency 

plan. Thus, if any argument could be 

made, it would be that the selection of 

June 15, 2005 would provide 1-hour 

ozone nonattainment areas that achieve 

the 1-hour standard more time to be 

eligible for redesignation to attainment. 

This could result in less stringent 

controls being implemented because 

areas redesignated to attainment are able 

to stop implementation of one or more 

control measures and move those 

measures to the contingency plan.

Comment: A number of commenters 

disagreed with making June 15, 2004, 

rather than April 15, 2004, the date for 

determining which ‘‘applicable 

requirements’’ apply to an area. One 

commenter stated that April 15, 2004 

represents the point in time when States 

were on notice that they needed to shift 

their efforts and adopt measures to 

attain the 8-hour not the 1-hour 

NAAQS. The commenter further stated 

that the responsibility and timelines for 

implementing 8-hour nonattainment 

measures were triggered for purposes of 

the new standard on April 15, 2004, in 

accordance with settlement agreements 

with environmental groups in the 

American Lung Association litigation 

over the issue (American Lung 

Association v. EPA (D.D.C. No. 

1:02CV02239). 

Response: States have been aware 

since July 1997, when the 8-hour 

NAAQS was promulgated, that they 

needed to begin to consider programs to 

meet that standard. While April 15, 

2004 is the date that the final Phase 1 

and designation rules were signed, we 

do not believe that the date of signature 

is more meaningful than the effective 

date of the rulemaking action. For the 

reasons provided in the reconsideration 

proposal, we believe that the effective 

date of designation is more consistent 

with other obligations under the Phase 

1 Rule and is, therefore, more consistent 

and appropriate. We note that the 

settlement referenced by the commenter 

only established an obligation for EPA 

to sign no later than April 15, 2004, a 

final rule designating areas for the 8-

hour standard. That settlement did not 

address the timelines and 

responsibilities for implementing the 8-

hour ozone NAAQS. 

Comment: One commenter stated that 

although the date change from April 15, 

2004 to June 15, 2004 represents only a 

couple of months, the implications are 

significant for two areas that were 

placed in a more stringent classification 

during that time frame. The commenter 

stated that subpart 2’s planning and 

implementation burdens fall 

disproportionately on stationary sources 

whether or not stationary sources are 

the primary contributor to 

nonattainment, without moving either 

of the two areas impacted by the date 

change (i.e., Beaumont/Port Arthur and 

the San Joaquin Valley) any closer to 

attaining either the 1-hour or 8-hour 

NAAQS. The commenter further stated 

that Beaumont/Port Arthur’s 

nonattainment issues stem from ozone 

transport from the Houston/Galveston 

nonattainment area, and that mobile 

sources comprise as much as 60 percent 

of the emissions inventory in the San 

Joaquin Valley. 

Response: We agree that shifting the 

date from April 15, 2004 to June 15, 

2004 has implications for both the 

Beaumont/Port Arthur and the San 

Joaquin Valley nonattainment areas 

which were classified between those 

two dates. For the Beaumont/Port 

Arthur area, the reclassification has 

resulted in a number of new 

requirements. Only the new reasonably 

available control technology (RACT) 

requirements, which must now apply to 

smaller sources with a potential to emit 

50 tons/year or more down from 100 

tons/year, directly impact industrial 

sources. Other new requirements, such 

as the clean fuel fleets requirement, 

instead impact emissions from mobile 

sources. Thus, we do not believe the 

requirements that were triggered by 

reclassification disproportionately apply 

to stationary sources.

We note, however, that approximately 

59 percent of the Beaumont/Port Arthur 

area’s NOX emissions and 55 percent of 

the area’s VOC emissions come from 

local stationary sources.4 Consequently, 

any attainment plan for the Beaumont/

Port Arthur area would have to include 

stationary source controls.

While we agree that the Beaumont/

Port Arthur area is sometimes affected 

by emissions transported from Houston, 

at other times the Beaumont/Port Arthur 

area ozone problem is primarily the 

result of locally-generated emissions. In 

Texas’ latest proposed revision to the 

SIP for the Beaumont/Port Arthur area, 

Texas estimated that more than half of 

the 1-hour exceedence days were 

influenced significantly by local 

emissions.5 This is not surprising since 

Beaumont/Port Arthur is home to a large 

number of petrochemical 

manufacturers. Thus, we do not agree 

that the additional local control 

obligations that would apply based on a 

serious vs. moderate classification 

would not result in reductions that will 

improve air quality in the Beaumont/

Port Arthur area.

In the San Joaquin Valley, shifting the 

date means that ‘‘applicable 

requirements’’ for the San Joaquin 

Valley ozone nonattainment area are the 

‘‘extreme’’ 1-hour ozone nonattainment 

requirements as opposed to the 

30598 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

6Calculated from typical summertime day mobile 

source NOX and VOC emissions inventory for 2000 

as a percent of the total 2000 NOX and VOC 

emissions. Extreme Ozone Attainment 

Demonstration Plan, San Joaquin Valley Air Basin 

(October 2004), Section 3. Available at http://

www.valleyair.org/.

7 Id. at p. 3–11, Table 3–1.

8 Id. at p. 3–9, Table 3–1.

9See California Air Resources Board’s 8–Hour 

Ozone Trends Summary for the San Joaquin Valley 

Air Basin at: http://www.arb.ca.gov/adam/cgi-bin/

db2www/polltrendsb.d2w/Branch.

requirements that applied based on a 

‘‘severe’’ 1-hour classification. Although 

EPA generally agrees with the comment 

that mobile sources contribute 

approximately 60 percent towards the 

ozone problem in the Valley,6 we do not 

agree that requiring San Joaquin to 

adopt and implement the 1-hour 

extreme control requirements places a 

new disproportionate burden on 

stationary sources located in the Valley. 

While the contribution of emissions 

from stationary sources to the overall 

emissions in the San Joaquin Valley is 

less than that for mobile sources,7

stationary sources remain a critical part 

of the overall air pollution control 

strategy needed by the State and the San 

Joaquin Valley Unified Air Pollution 

Control District to achieve attainment.

Section 182(e)(4) of the CAA allows 

SIPs for areas classified extreme to 

adopt traffic controls during heavy 

traffic hours to reduce the use of high 

polluting vehicles or heavy-duty 

vehicles, notwithstanding any other 

provisions of the CAA. Furthermore, onroad mobile source emission standards 

continue to improve through EPA and 

State regulations, and will result in 

emissions reductions over time as newer 

vehicles replace older vehicles. 

Additionally, new fuel and emission 

standard requirements for nonroad 

diesel engines were finalized by EPA 

last year and will achieve substantial 

reductions through time from the nonroad diesel engine sector. Reducing 

VOC emissions from the large number of 

area sources is also an important part of 

the overall ozone control strategy for the 

San Joaquin Valley.8

Comment: One commenter stated that 

EPA should apply anti-backsliding 

measures only where they will assist an 

area in attaining or maintaining the 8-

hour NAAQS. 

Response: The EPA established its 

general anti-backsliding approach in the 

Phase 1 Rule and is not reconsidering 

here and therefore not responding to 

comments on the general issues raised 

by the commenter. 

Comment: One commenter stated that 

since San Joaquin’s attainment date 

under the 8-hour NAAQS is now 2013, 

there is no longer any reason to require 

imposition of the control measures 

required for the extreme classification 

contained in the approved bump up SIP 

for the 1-hour NAAQS by 2010. The 

commenter stated that retaining these 

requirements will unnecessarily restrict 

business operations in the area without 

providing commensurate environmental 

benefit. Several commenters asserted 

that retaining the April 15, 2004 date 

would be consistent with the unique 

circumstances in the San Joaquin 

Valley. They claimed that San Joaquin’s 

2005 emissions inventories for NOX and 

reactive organic gases are mainly 

comprised of mobile source emissions 

and that these emissions were a key 

reason the area was unable to 

demonstrate attainment of the 1-hour 

ozone NAAQS by the 2005 deadline. 

The commenters believe that continued 

implementation of the 1-hour severe 

area requirements in addition to various 

mobile source emission control 

measures which San Joaquin has 

adopted will satisfy EPA’s objective that 

they make expeditious progress toward 

attainment of the 8-hour NAAQS.

Response: At the State’s request, EPA 

recently reclassified the San Joaquin 

area to extreme. The EPA disagrees with 

the commenter that because San Joaquin 

now has a later attainment date (2013 

for the 8-hour standard compared with 

a 1-hour extreme area attainment date of 

2010), there is no longer a need to 

require the extreme area requirements. 

We do not view the longer attainment 

period for the 8-hour standard as a basis 

for delaying emission reductions that 

were required for purposes of the 1-hour 

standard. The State’s request for a 

voluntary bump up to extreme was 

based on the area’s inability to 

demonstrate attainment of the 1-hour 

standard by 2007. Ozone is a persistent 

problem in the San Joaquin Valley 

where, over the past 30 years, monitors 

in the San Joaquin Valley have 

measured exceedences of the 8-hour 

standard level between approximately 

90 and 140 days per year.9 This serious 

and persistent ozone problem in the 

area supports continuing to require the 

area to implement the more stringent 

obligations that apply under the area’s 

extreme classification for the 1-hour 

standard. In another response to 

comment, we provide more detail 

regarding the extreme areas 

requirements and the ‘‘circumstances’’

of the San Joaquin area, specifically 

responding to the commenters’

allegations relating to mobile source 

emissions. As stated in our proposed 

reconsideration notice, EPA believes 

that implementing the additional 1-hour 

requirements of the higher (extreme) 

classification serves to ensure continued 

progress toward reducing ambient ozone 

levels and meeting the 8-hour ozone 

standard.

Comment: One commenter disagreed 

with EPA’s statement that June 15, 2004 

is more consistent with the other 

aspects of the Phase 1 Rule that are 

keyed to the effective date of the 

designations rule rather than the 

signature date. The commenter stated 

that nothing about EPA’s use of the 

phrase ‘‘time of designation’’ suggests 

that it was intended to mean the 

effective date of designations. The 

commenter agreed with EPA’s statement 

that it is important for areas to know 

‘‘early in the process’’ which 1-hour 

requirements will remain in place for 

implementation of the 8-hour NAAQS, 

and claimed that changing the cutoff 

date now will impede the San Joaquin 

Valley Air Pollution Control District’s 

progress toward developing an 

attainment plan. Another commenter 

stated that EPA’s use of the date of 

signing of designations is consistent 

with dates used elsewhere in the Phase 

1 Rule and should be retained. 

Response: The phrase ‘‘designation 

for the 8-hour NAAQS’’ is defined in 

§ 51.900(h) of the Phase 1 Rule to mean 

‘‘the effective date of the 8-hour 

designation for an area.’’ We are aware 

of only one purpose for which the date 

of signature of the designation rule is 

used in the Phase 1 Rule. Section 51.902 

indicates that an area’s 1-hour design 

value as of the date of signature of the 

designation rule will govern whether 

the area is subject to the classification 

provisions of subpart 2 of part D of title 

I of the CAA, or whether it is subject 

only to the obligations under subpart 1. 

Since an area’s classification occurs ‘‘by 

operation of law’’ at the time of 

designation and because such 

classification is included in the tables 

promulgated in the designation rule, we 

could not use a date later than the date 

of signature of the designation rule as 

the date for determining whether an 

area would be classified under subpart 

2. The ‘‘effective date of designation’’ is 

used (i.e., the phrase ‘‘designation for 

the 8-hour standard’’) for purposes of 

determining an area’s attainment date. 

In addition, our proposed rule 

concerning planning obligations for the 

8-hour standard (the regulatory text 

which was released for comment at the 

same as the regulatory text for the Phase 

1 Rule), linked SIP submission 

obligations to the effective date of 

designation for the 8-hour NAAQS. 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30599

C. Contingency Measures in SIPs for the 

1-Hour Ozone Standard

1. Background. Sections 172(c)(9) and 

182(c)(9) of the CAA require that 

nonattainment area SIPs contain 

contingency measures that would be 

implemented if an area fails to attain the 

NAAQS or fails to make RFP toward 

attainment. In the reconsideration 

proposal, EPA recognized that it had not 

addressed the continued application of 

1-hour section 172(c)(9) contingency 

measures in the Phase 1 Rule. We 

proposed that once the 1-hour standard 

is revoked contingency measures for the 

1-hour standard will no longer be 

required (e.g., if the State had not yet 

submitted them) and contingency 

measures for the 1-hour standard that 

had been approved in the SIP may be 

removed. 

2. Summary of Final Rule. We are 

adopting the approach that we 

proposed, which is that contingency 

measures under sections 172(c)(9) and 

182(c)(9), which are triggered upon a 

failure to attain the 1-hour standard or 

to meet reasonable progress milestones 

for the 1-hour standard, will no longer 

be required as part of the SIP once the 

1-hour NAAQS is revoked. This means 

that after revocation of the 1-hour 

standard, an area that has not yet 

submitted a 1-hour attainment 

demonstration or a specific 1-hour RFP 

SIP would no longer be required to 

submit contingency measures in 

conjunction with those SIPs. Also, areas 

with approved section 172 and 182 

contingency measures could remove 

them from their SIP. 

3. Comments and Responses. 

Comment: Several commenters claimed 

that dropping the requirement for 

contingency measures for failure to 

attain or make progress toward 

attainment of the 1-hour ozone NAAQS 

is unlawful, arbitrary and capricious 

and violates the anti-backsliding 

provisions of section 172(e) by relaxing 

explicit control requirements for preexisting 1-hour nonattainment areas. 

Additionally, several commenters 

claimed the proposal illegally abrogates 

subpart 2’s contingency measure 

requirements imposed on such areas ‘‘as 

a matter of law’’ and renders those 

requirements ‘‘prematurely obsolete’’ in 

opposition to the Supreme Court ruling 

in Whitman v. American Trucking 

Assoc., 531 U.S. 427 (2001). 

Response: As noted in response to 

other comments, section 172(e) does not 

explicitly apply where EPA has 

promulgated a more stringent NAAQS. 

Furthermore, section 172(e) 

contemplates that there is a cut-off 

regarding which control obligations 

should continue after revision of a 

NAAQS. Where contingency measures 

have not yet been triggered, we believe 

it is consistent with Congressional 

intent to allow areas to remove those 

measures (or to modify the trigger for 

such measures to reflect the 8-hour 

standard). Furthermore, since EPA will 

no longer make findings of failure to 

attain or make progress with respect to 

the 1-hour NAAQS, the obligation to 

trigger future contingency measures for 

such 1-hour failures would never occur. 

With respect to the ‘‘as a matter of law’’

argument and the commenters’’ reliance 

on the Supreme Court’s ruling in 

Whitman, we refer to our response to 

comments on this similar issue 

regarding the section 185 fees. 

Comment: Several commenters 

claimed the proposal violates section 

110(l) by interfering with applicable 

requirements for attainment and RFP 

and without a showing that such 

measures are not needed for timely 

attainment and progress toward 

attainment. 

Response: As we have clarified in the 

regulatory text, States will need to 

submit SIP revisions to remove the 

contingency measures from their SIPs or 

to revise a trigger that is linked to a 

violation of the 1-hour NAAQS. In 

doing so, the State would need to 

demonstrate that the modification 

would not interfere with attainment, 

reasonable progress or any other 

applicable requirement for purposes of 

the 8-hour NAAQS. However, since any 

future contingency measures will never 

be triggered, EPA does not believe such 

SIP revisions would interfere with any 

applicable requirements. 

Comment: One commenter contended 

that because the proposal allows the 

dropping of 1-hour contingency 

measures, this may imply that 

contingency measures that have been 

implemented could be dropped. 

Response: If a State has already 

implemented a contingency measure, 

and such measure was considered a 

‘‘discretionary control measure’’ after 

implementation under the Phase 1 Rule 

(i.e., is not an ‘‘applicable 

requirement’’), the State could modify 

its SIP to remove such measure (as it 

could for any ‘‘discretionary control 

measure’’), but would need to make a 

demonstration under 110(l) that the 

modification would not interfere with 

attainment, reasonable progress or any 

other applicable requirement for 

purposes of the 8-hour NAAQS. EPA 

intends to issue guidance for States to 

follow to ensure that SIP revisions are 

consistent with section 110(l). 

Comment: Several commenters argued 

that the proposal is inconsistent with 

EPA’s decision to retain requirements 

for the 1-hour attainment and rate of 

progress (ROP) plans and the rationale 

for that decision (‘‘because the ROP 

obligation results in control obligations, 

we believe areas should remain 

obligated to adopt outstanding ROP 

obligations to ensure that the ROP 

milestones are met’’). One commenter 

contended that contingency measures 

are an integral part of the attainment 

demonstration and the ROP plan and, 

therefore, if the States must meet the 

attainment demonstration and ROP plan 

obligations, they must also satisfy 

contingency measure requirements.

Response: As we stated in the 

preamble to the final Phase 1 Rule, we 

felt that Congress intended that areas 

continue to implement mandatory 

control measures but that Congress’

intent with regard to planning SIPs was 

not as clear (69 FR 23874–75). As a 

policy matter, we concluded that it 

made sense to require areas to continue 

to meet 1-hour ROP obligations because 

we believed the obligation did not 

create a significant burden on areas and 

it made sense that areas that had not 

met this obligation were not relieved 

from achieving ROP reductions and thus 

were treated the same as areas that had 

fulfilled their statutory obligation. We 

reached a slightly different result for 

purposes of outstanding 1-hour 

attainment demonstrations—providing 

States with flexibility to adopt 

alternatives—but relied on the same 

rationale for retaining the obligation. 

Additionally, we noted that one of the 

primary focuses of the anti-backsliding 

provisions is to keep areas on track for 

making reductions as they develop SIPs 

to meet the 8-hour standard. For all of 

these reasons, we don’t believe that 

areas are obligated to retain the 

contingency measure obligation. The 

adoption and implementation of the 1-

hour ROP and attainment 

demonstrations (or an alternative under 

51.905(a)(1)(ii)) will ensure that 

progress is made while areas transition. 

Once plans are adopted and approved 

for purposes of the 8-hour standard, 

including 8-hour contingency measures, 

those plans by definition will be what 

is necessary to protect public health and 

the environment and 1-hour 

contingency measures that kick in at 

some future date for the 1-hour standard 

will not be necessary to achieve that 

goal (however, contingency measures 

are required for purposes of the 8-hour 

standard). Furthermore, this approach is 

consistent with our goal of shifting our 

focus to the 8-hour standard and not 

continuing efforts to monitor 

30600 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

compliance with the pre-existing 1-hour 

standard. 

Comment: One commenter argued 

that under section 172(e), EPA must 

enforce controls no less stringent than 

the 1-hour ozone standard for areas that 

have never achieved the standard, 

including section 182(c)(9) contingency 

measures. The commenter contends that 

EPA’s implementation of the 8-hour 

standard constitutes a relaxation of the 

standard because (a) certain areas had 

higher classifications under the 1-hour 

standard than they have under the 8-

hour standard; and (b) EPA policy 

allows relaxation of offset ratios, major 

source definitions and removal of 

contingency fees. Thus, they contend 

that EPA must promulgate a set of 

control measures ‘‘no less restrictive 

than under the old standard.’’

Response: The commenter raises an 

issue that is not being reconsidered in 

this rulemaking. At the time of 

promulgation of the 8-hour NAAQS and 

consistently since that time, EPA has 

taken the position that the 8-hour 

NAAQS is a more stringent standard. 

Thus, although not at issue in this 

rulemaking, we note that the 

fundamental premise of the comment is 

inaccurate. The stringency of a standard 

is determined by looking at the standard 

itself, which has three components: (1) 

The averaging time (i.e., 8 hours); (2) 

level (.08 ppm); and (3) form (the 3-year 

average of the fourth-high annual 

reading at a specific monitor). Once a 

standard is established, areas are 

required to meet that standard and a 

determination of whether the standard 

has been met is based on air quality 

monitoring data. How a standard is 

implemented, does not alter the 

standard in any way although it could 

have implications for whether areas 

meet their mandated attainment dates. 

The EPA’s current rulemaking efforts 

(based on the June 2003 proposal) 

address how the standard is 

implemented, and in no way alter the 

requirement that an area monitor 

attainment of the standard (as 

expeditiously as practicable but no later 

than specific mandated dates) in 

accordance with the requirements 

established in the NAAQS rulemaking 

and thus do not affect the stringency of 

the standard. 

Comment: One commenter 

recommended that all requirements 

relating to the 1-hour standard should 

be retained, including those relating to 

contingency measures. They point out 

that section 172(c)(9) requires such 

measures.

Response: For the reasons provided 

above, we have concluded that 

contingency measures related to 

attainment of the 1-hour NAAQS or 

achievement of ROP milestones for the 

1-hour NAAQS need not be retained. 

Elsewhere in this rule, we address our 

decision to no longer require SIPs to 

contain provisions for the imposition of 

fees under section 185 for purposes of 

a failure to attain the 1-hour NAAQS. 

This rulemaking did not re-open the 

issue of whether other 1-hour 

requirements should be retained. 

Comment: One commenter urged that 

the 1-hour standard should not be 

revoked. They noted that the 1-hour 

standard is in some cases more 

protective of public health than the 8-

hour standard. 

Response: As we noted in the final 

Phase 1 Rule, we determined in the 

1997 NAAQS rulemaking that we did 

not need to retain the 1-hour standard 

to protect public health and that the 

only issue before us in the Phase 1 Rule 

was the timing for determining when 

the 1-hour standard should no longer 

apply (69 FR 23969). Neither issue is 

being reconsidered in this rulemaking; 

thus, we will not address this comment 

here. 

Comment: One commenter suggested 

that we include in proposed 

§ 51.905(e)(2)(iii)—after the reference to 

section 172(c)(9) of the CAA—a 

reference also to section 182(c)(9), as we 

did in the preamble to the proposed 

rule. 

Response: We agree with the 

commenter and have included that 

reference in the final regulatory text. 

Comment: One commenter noted that 

an inconsistency exists between 

§ 51.905(e)(1) and proposed 

§ 51.905(e)(2)(iii). Section 51.905(e)(1) 

requires that the 1-hour contingency 

measures approved into a SIP remain in 

force after the 1-hour standard is 

revoked until the State removes them 

from the SIP; the commenter believes 

that the 1-hour contingency measures 

won’t be triggered since the 1-hour 

standard is revoked. The commenter 

recommended either to revise 

§ 51.905(e)(1) to conform it with 

proposed § 51.905(e)(2)(iii) by removing 

the former provision’s preconditions to 

removal of 1-hour contingency 

measures; or to clarify the apparent 

inconsistency between § 51.905(e)(1) 

and proposed § 51.905(e)(2)(iii). 

Response: We agree that the language 

is inconsistent and that the proposed 

§ 51.905(e)(2)(iii) was poorly drafted. 

States are required to implement 

provisions in the approved SIP until 

such time as the SIP is revised. We are 

revising § 51.905(e)(2)(iii) to provide 

that a State is not required to include in 

its SIP contingency measures that are 

triggered upon a failure to attain the 1-

hour ozone standard. We note that since 

EPA will no longer be making 

determinations of whether areas attain 

the 1-hour standard, contingency 

measures that have such a trigger would 

never be triggered, even if they 

remained in the SIP. Therefore, we have 

revised § 51.905(e)(2)(iii) to be 

consistent with § 51.905(e)(ii). Areas 

must submit SIP revisions to remove 

contingency measures from their SIPs 

under this provision. 

Comment: One commenter noted that 

§ 51.905(a)(2), addressing 8-hour 

nonattainment/1-hour maintenance 

areas, provides that the State may not 

remove certain 1-hour contingency 

measures from the maintenance SIP and 

that this is inconsistent with our 

proposal that States no longer need 

contingency measures that are triggered 

by a finding of failure to attain the 1-

hour standard. 

Response: We do not believe this 

language is inconsistent. Section 

51.905(a)(2) addresses contingency 

measures that were part of a 1-hour 

maintenance plan and here we are 

addressing contingency measures 

related to a finding of failure to attain 

the 1-hour standard or make reasonable 

further progress toward attainment of 

the 1-hour standard. As § 51.905(a)(2) 

recognizes, an area that was 

maintenance for the 1-hour standard 

may have moved certain ‘‘applicable 

requirements’’ to the contingency 

measures portion of the SIP. This 

section makes clear that the state is no 

longer obligated to retain the 1-hour 

trigger for such measures, but that these 

requirements must remain a part of the 

SIP because they are ‘‘applicable 

requirements.’’ Because contingency 

measures related to failure to attain and 

failure to make RFP are typically 

beyond the reductions achieved through 

applicable requirements, such measures 

could be removed from the SIP. We 

note, however, that to the extent a 

contingency measure is also an 

‘‘applicable requirement,’’ it cannot be 

removed from the SIP and we have 

added a sentence to § 51.905(e)(2)(iii) to 

clarify that point.

Comment: Sections 51.905(a)(3)(i) and 

51.905(a)(4)(i) (addressing 8-hour 

attainment areas) both provide that the 

State may not remove obligations from 

the SIP but may relegate them to 

contingency measures. Also, § 51.905(b) 

requires that the § 51.900(f) applicable 

requirements may be shifted to 

contingency measures after the 8-hour 

NAAQS is attained but may not be 

removed from the SIP. This should be 

clarified to say that these contingency 

measures are triggered upon a violation 

of the 8-hour standard. 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30601

Response: The commenter is raising 

issues outside the context of this 

proposed rulemaking. We believe that 

while the regulatory text could perhaps 

be more explicit, when read in the 

context of the entire Phase 1 Rule, it is 

clear that the contingency measures will 

be linked to the 8-hour standard. We 

note, however, that areas have flexibility 

to identify appropriate triggers. Thus, 

while they may choose a violation of the 

8-hour NAAQS as a trigger, a different 

trigger, such as a certain number of 

exceedences of the 8-hour NAAQS, may 

also be appropriate as the trigger and 

areas are free to choose such triggers. 

Comment: One commenter suggested 

that § 51.905(e)(2)(iii) should be revised 

to read (with new language in italics): 

‘‘Upon revocation of the 1-hour NAAQS 

for an area, the State is no longer 

required to implement contingency 

measures under section 172(c)(9) or 

section 182(c)(9) of the CAA based on a 

failure to attain the 1-hour NAAQS or to 

make reasonable further progress toward 

attainment of the 1-hour NAAQS.’’

Response: As provided above, we 

agree with some of the 

recommendations made by the 

commenter and disagree with others. 

We are revising the language to include 

the reference to section 182(c)(9). We 

are also modifying the language to make 

clear that areas are no longer required to 

include in their SIP, contingency 

measures that are triggered by a failure 

to attain the 1-hour standard or a failure 

to make RFP and to indicate that control 

measures that are also applicable 

requirements may not be removed. 

These modifications make clear that we 

are not suggesting that States are not 

required to implement approved SIPs, 

but rather that they may revise their 

SIPs to remove discretionary 

contingency measures linked to these 

triggers, if they so choose. 

D. Adding Attainment Demonstration to 

the List of ‘‘Applicable Requirements’’ 

in § 51.900(f) 

1. Background. In the Phase 1 Rule, 

we provided three options for areas that 

had not met their obligation to have a 

fully approved 1-hour ozone attainment 

demonstration SIP. Such areas could 

submit: (1) A 1-hour attainment 

demonstration, (2) an early 8-hour 

attainment demonstration, or (3) a RFP 

plan providing a 5 percent increment of 

progress towards the 8-hour NAAQS. 

While our intent was that an attainment 

demonstration was an ‘‘applicable 

requirement’’ for purposes of antibacksliding in § 51.905, we neglected to 

specifically include the term 

‘‘attainment demonstration’’ when we 

defined ‘‘applicable requirements’’ in 

§ 51.900(f). Our intent in this rule is to 

clarify that an attainment demonstration 

is an ‘‘applicable requirement.’’

2. Summary of Final Rule. We are 

adopting the approach we proposed, 

which is to add the term ‘‘attainment 

demonstration’’ to § 51.900(f). The term 

‘‘attainment demonstration’’ will be 

included in § 51.900(f) as ‘‘(13) 

Attainment demonstration or an 

alternative as provided under 

§ 51.905(a)(ii).’’

3. Comments and Responses. 

Comment: Two commenters opposed 

EPA’s including the attainment 

demonstration in the list of applicable 

requirements. One commenter stated 

that adding attainment demonstration to 

the list of applicable requirements is 

redundant because the final rule already 

requires nonattainment areas to submit 

attainment demonstrations in 

§ 51.905(a)(1)(ii). The other commenter 

cross-referenced their comments on the 

issue of the date for determining which 

requirements remain applicable 

requirements once the 1-hour standard 

is revoked, but did not provide any 

further explanation. 

Response: We agree with the one 

commenter that it is somewhat 

redundant to identify ‘‘attainment 

demonstration’’ in the list of applicable 

requirements. However, because our 

rule provides that the obligation to 

submit an attainment demonstration 

continues to apply (i.e., remains 

applicable), we think it is clearer (and 

removes any possible ambiguity) to 

include it with the other obligations that 

continue to apply. In addition, we 

believe that the change is needed to 

ensure that the definition of applicable 

requirement is consistent with the 

provisions of § 51.905(a) that retain the 

obligation for the 1-hour attainment 

demonstration for certain 1-hour ozone 

nonattainment areas. Regarding the 

other commenter’s opposition based on 

the same reasons as they described with 

regard to the date for determining what 

requirements are applicable 

requirements, we did not find this 

argument clear enough for a response. 

However, to the extent that the 

commenter’s arguments regarding the 

date for determining what requirements 

are applicable requirements are relevant 

to their opposition of listing the 

attainment demonstration as an 

applicable requirement, we incorporate 

our responses to those arguments for 

responding to this comment. 

Comment: Two commenters opposed 

EPA’s including the attainment 

demonstration in the list of applicable 

requirements. One commenter stated 

that adding attainment demonstration to 

the list of applicable requirements is 

redundant because the final rule already 

requires nonattainment areas to submit 

attainment demonstrations in 

§ 51.905(a)(1)(ii). In opposing the 

inclusion of the attainment 

demonstration in the list of applicable 

requirements, the other commenter 

referred to reasons they provided 

regarding the date for determining what 

requirements are applicable 

requirements. 

Response: We agree with the one 

commenter that it is somewhat 

redundant to identify ‘‘attainment 

demonstration’’ in the list of applicable 

requirements. However, because our 

rule provides that the obligation to 

submit an attainment demonstration 

continues to apply (i.e., remains 

applicable), we think it is clearer (and 

removes any possible ambiguity) to 

include it with the other obligations that 

continue to apply. In addition, we 

believe that the change is needed to 

ensure that the definition of applicable 

requirement is consistent with the 

provisions of § 51.905(a) that retain the 

obligation for the 1-hour attainment 

demonstration for certain 1-hour ozone 

nonattainment areas. Regarding the 

other commenter’s opposition based on 

the same reasons as they described with 

regard to the date for determining what 

requirements are applicable 

requirements, we did not find this 

argument clear enough for a response. 

However, to the extent that the 

commenter’s arguments regarding the 

date for determining what requirements 

are applicable requirements are relevant 

to their opposition of listing the 

attainment demonstration as an 

applicable requirement, our responses 

to those arguments above also apply 

here. 

Comment: One commenter indicated 

that, while the proposal to add 

attainment demonstration to the list of 

applicable requirements would be more 

consistent with the remainder of the 

anti-backsliding rule, the commenter 

recommended that the control strategy 

that is used to demonstrate attainment 

of the 1-hour standard also be listed as 

an applicable requirement.

Response: EPA disagrees. A control 

strategy is part of the attainment 

demonstration that EPA would approve 

into a SIP and therefore does not need 

to be listed separately in addition to the 

attainment demonstration. Furthermore, 

the Phase 1 Rule also provided 

alternative means of satisfying the 

attainment demonstration requirement 

(i.e., an advance increment of progress 

of 5 percent emission reduction or an 

early 8-hour ozone attainment 

demonstration). Thus, EPA believes 

areas should have the option under the 

30602 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

regulation of submitting these 

alternatives rather than a control 

strategy for the 1-hour NAAQS as an 

applicable requirement. Finally, if we 

did as the commenter suggested, the 

effect would be to convert many 

‘‘discretionary’’ control measures to 

applicable requirements. We have never 

suggested (and do not believe it is 

required) that State discretion to 

substitute for non-mandatory control 

measures should be restricted. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this final rule is not a ‘‘significant 

regulatory action.’’ The reconsideration 

put forth today does not substantially 

change the Phase 1 Rule. With respect 

to one issue, we are retaining the 

position we adopted in the Phase 1 

Rule. As to the second issue, we are 

modifying the date in this rule so that 

it is consistent with our original 

proposal. Finally, we are promulgating 

regulatory text to make two 

clarifications to the final rule. We 

believe that these provisions do not 

substantially modify the intent of the 

final rule but rather merely clarify two 

issues. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden 

means the total time, effort, or financial 

resources expended by persons to 

generate, maintain, retain, or disclose or 

provide information to or for a Federal 

agency. This includes the time needed 

to review instructions; develop, acquire, 

install, and utilize technology and 

systems for the purposes of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the Agency certifies 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) A small 

business that is a small industrial entity 

as defined in the U.S. Small Business 

Administration (SBA) size standards. 

(See 13 CFR part 121.); (2) a 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. The 

Phase 1 Rule interpreted the obligations 

required of 1-hour ozone nonattainment 

areas for purposes of anti-backsliding 

once the 1-hour NAAQS is revoked. 

This final reconsideration addresses two 

aspects of the Phase 1 Rule that the 

Agency was requested to reconsider and 

clarifies two other aspects of the Phase 

1 Rule. Since as noted that final rule, 

the Phase 1 Rule does not impose 

requirements on small entities our 

further action on aspects of that rule 

also does not impose requirements on 

small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year.

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA has determined that this 

final rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 1 

year. In promulgating the Phase 1 Rule, 

Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 30603

we concluded that it was not subject to 

the requirements of sections 202 and 

205 of the UMRA. For those same 

reasons, our reconsideration and 

clarification of several aspects of that 

rule is not subject to the UMRA. 

The EPA has determined that this 

final rule contains no regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including Tribal governments. 

Nonetheless, EPA carried out 

consultations with governmental 

entities affected by this rule. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final 

reconsideration addresses two aspects of 

the Phase 1 Rule that the Agency was 

requested to reconsider and clarifies two 

other aspects of the Phase 1 Rule. For 

the same reasons stated in the Phase 1 

Rule, Executive Order 13132 does not 

apply to this proposed rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ This final rule does not 

have ‘‘Tribal implications’’ as specified 

in Executive Order 13175. 

The purpose of this final rule is taking 

comment on two issues from the Phase 

1 Rule that EPA agreed to grant for 

reconsideration, in addition to two other 

issues from the Phase 1 Rule. These 

issues concern the implementation of 

the 8-hour ozone standard in areas 

designated nonattainment for that 

standard. The CAA provides for States 

and Tribes to develop plans to regulate 

emissions of air pollutants within their 

jurisdictions. The Tribal Authority Rule 

(TAR) gives Tribes the opportunity to 

develop and implement CAA programs 

such as the 8-hour ozone NAAQS, but 

it leaves to the discretion of the Tribes 

whether to develop these programs and 

which programs, or appropriate 

elements of a program, they will adopt. 

For the same reasons stated in the 

Phase 1 Rule, this final rule does not 

have Tribal implications as defined by 

Executive Order 13175. It does not have 

a substantial direct effect on one or 

more Indian Tribes, since no Tribe has 

implemented a CAA program to attain 

the 8-hour ozone NAAQS at this time. 

Furthermore, this final rule does not 

affect the relationship or distribution of 

power and responsibilities between the 

Federal government and Indian Tribes. 

The CAA and the TAR establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this final rule does 

nothing to modify that relationship. 

Because this final rule does not have 

Tribal implications, Executive Order 

13175 does not apply. 

While the final rule would have 

Tribal implications upon a Tribe that is 

implementing such a plan, it would not 

impose substantial direct costs upon it 

nor would it preempt Tribal law.

Although Executive Order 13175 does 

not apply to this final rule, EPA 

consulted with Tribal officials in 

developing this final rule. The EPA has 

supported a national ‘‘Tribal 

Designations and Implementation Work 

Group’’ which provides an open forum 

for all Tribes to voice concerns to EPA 

about the designation and 

implementation process for the 8-hour 

ozone standard. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule addresses two aspects 

of the Phase 1 Rule that the Agency was 

requested to reconsider and clarifies two 

other aspects of the rule. The final rule 

is not subject to Executive Order 13045 

because the Agency does not have 

reason to believe the environmental 

health risks or safety risks addressed by 

this action present a disproportionate 

risk to children. Nonetheless, we have 

evaluated the environmental health or 

safety effects of the 8-hour ozone 

NAAQS on children. The results of this 

evaluation are contained in 40 CFR part 

50, National Ambient Air Quality 

Standards for Ozone, Final Rule (62 FR 

38855–38896; specifically, 62 FR 38854, 

62 FR 38860 and 62 FR 38865). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final rule is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211, ‘‘Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ (66 FR 28355, 

May 22, 2001) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Information on the methodology and 

data regarding the assessment of 

potential energy impacts is found in 

Chapter 6 of U.S. EPA 2002, Cost, 

Emission Reduction, Energy, and 

Economic Impact Assessment of the 

Proposed Rule Establishing the 

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National 

Ambient Air Quality Standard, prepared 

by the Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, N.C., April 24, 2003. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law 104–113, 

section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

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) that are developed or 

adopted by VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. 

This final rulemaking does not 

involve technical standards. Therefore, 

30604 Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules and Regulations 

EPA is not considering the use of any 

VCS. 

The EPA will encourage the States 

and Tribes to consider the use of such 

standards, where appropriate, in the 

development of the implementation 

plans.

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 requires that 

each Federal agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionate high and 

adverse human health or environmental 

effects of its programs, policies, and 

activities on minorities and low-income 

populations. 

The EPA concluded that the Phase 1 

Rule should not raise any 

environmental justice issues; for the 

same reasons, this final rule should not 

raise any environmental justice issues. 

The health and environmental risks 

associated with ozone were considered 

in the establishment of the 8-hour, 0.08 

ppm ozone NAAQS. The level is 

designed to be protective with an 

adequate margin of safety. The final rule 

provides a framework for improving 

environmental quality and reducing 

health risks for areas that may be 

designated nonattainment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

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

804(2). This rule will be effective June 

27, 2005. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by July 25, 2005. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

M. Determination Under Section 307(d) 

Pursuant to section 307(d)(1)(U) of the 

CAA, the Administrator determines that 

this action is subject to the provisions 

of section 307(d). Section 307(d)(1)(U) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’

While the Administrator did not make 

this determination earlier, the 

Administrator believes that all of the 

procedural requirements, e.g., 

docketing, hearing and comment 

periods, of section 307(d) have been 

complied with during the course of this 

reconsideration rulemaking.

List of Subjects in 40 CFR Part 51

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds.

Dated: May 20, 2005. 

Stephen L. Johnson, 

Administrator.

■ For the reasons stated in the preamble, 

Title 40, Chapter I of the Code of Federal 

Regulations, is amended as follows:

PART 51—[AMENDED]

■ 1. The authority citation for part 51 

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401–

7671q.

Subpart X—Provisions for 

Implementation of 8-Hour Ozone 

National Ambient Air Quality Standard

■ 2. Section 51.900 is amended by 

revising paragraph (f) introductory text 

and adding paragraph (f)(13) to read as 

follows:

§ 51.900 Definitions.

* * * * *

(f) Applicable requirements means for 

an area the following requirements to 

the extent such requirements apply or 

applied to the area for the area’s 

classification under section 181(a)(1) of 

the CAA for the 1-hour NAAQS at 

designation for the 8-hour NAAQS:

* * * * *

(13) Attainment demonstration or an 

alternative as provided under 

§ 51.905(a)(1)(ii).

* * * * *

■ 3. Section 51.905 is amended by 

revising paragraph (e)(2)(ii) and by 

adding paragraph (e)(2)(iii) as follows:

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions?

* * * * *

(e) * * *

(2) * * *

(ii) Upon revocation of the 1-hour 

NAAQS for an area, the State is no 

longer required to include in its SIP 

provisions for CAA section 181(b)(4) 

and 185 fees on emissions sources in 

areas classified as severe or extreme 

based on a failure to meet the 1-hour 

attainment date. Upon revocation of the 

1-hour NAAQS in an area, the State may 

remove from the SIP for the area the 

provisions for complying with the 

section 185 fee provision as it applies to 

the 1-hour NAAQS. 

(iii) Upon revocation of the 1-hour 

NAAQS for an area, the State is no 

longer required to include in its SIP 

contingency measures under CAA 

sections 172(c)(9) and 182(c)(9) that 

would be triggered based on a failure to 

attain the 1-hour NAAQS or to make 

reasonable further progress toward 

attainment of the 1-hour NAAQS. A 

State may not remove from the SIP a 

contingency measure that is an 

applicable requirement.

* * * * *

[FR Doc. 05–10580 Filed 5–25–05; 8:45 am] 

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