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Citation: 69 Fed. Reg. 23951 2004
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### Federal Register/Vol. 69, No. 84/Friday, April 30, 2004/Rules and Regulations

PUERTO RICO-OZONE (8-HOUR STANDARD)-Continued
Designation Category/classification Designated area Date 1 Type Date 1 Type

San Lorenzo Municipio San Sebastian Municipio Santa Isabel Municipio ToaAlta Municipio Toa Baja County Trujillo Alto Municipio Utuado Municipio Vega Alta Municipio Vega Baja Municipio Vieques Municipio Villalba Municipio Yabucoa Municipio Yauco Municipio

1This date is June 15, 2004, unless otherwise noted.

m57. In §81.356, the table entitled §81.356 Virgin Islands. "Virgin Islands-Ozone (8-Hour * * * * * Standard)" is added to read as follows:

VIRGIN ISLANDS-OZONE (8-HOUR STANDARD)
Designation Category/classification Designated area Date 1 Type Date 1 Type

Statewide

.............................................................................. .................... Unclassifiable/Attainment. St. Croix St. John St. Thomas This date is June 15, 2004, unless otherwise noted.

[ERDoc. 04 9152 Filed 4 29 04; 8:45 am]
BILLING CODE 6560-50-P



### ENVIRONMENTAL PROTECTION

AGENCY
40 CFR Parts 50, 51 and 81 [OAR2003-0079, FRL-7651-7] RIN2060-AJ99

Final Rule To Implement the8-Hour Ozone National Ambient AirQuality Standard-Phase 1
AGENCY: Environmental Protection Agency (EPA). ACTION: Finalrule.

SUMMARY: In this document, EPA is taking final action onkey elements of theprogram toimplement the 8-hour

ozone national ambient airquality standard (NAAQS or standard). This finalrule addresses the following topics: classifications for the 8-hourNAAQS; revocation ofthe 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply); how anti-backsliding principles will ensure continued progress toward attainment ofthe 8-hour ozone NAAQS; attainment dates; and thetiming of emissions reductions needed for attainment. We are issuing this rule so that States and Tribes will know how

we plan toclassify areas and transition from implementation ofthe 1-hour NAAQS to implementation ofthe 8- hour NAAQS. Theintended effect ofthe rule is toprovide certainty to States and Tribes regardingclassifications forthe 8-hourNAAQS and their continued obligations with respect toexisting requirements. This document isPhase 1 oftheprogram to implement the 8-hour

ozone NAAQS. We plan to issue a second rule,Phase 2, within thenext several months which will address the remaining 8-hour implementation issues, e.g., requirements forreasonable further progress (RFP),requirements for modeling and attainment demonstrations, and requirements for reasonably available control measures (RACM) and reasonably available control technology (RACT). DATES: Effective Date: This rule is effective on June 15, 2004.
ADDRESSES: TheEPA has established a docket for this action underDocket ID No. OAR-2003-0079. All documents in the docket are listed in the EDOCKET index athttp://www.epa.gov/edocket. Although listed in the index, some information is notpublicly available, i.e., Confidential Business Information

or otherinformation whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the EPA Docket Center (Air Docket), EPA/DC, EPAWest, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legalholidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office ofAir and Radiation Docket and Information Center is (202) 566- 1742.

In addition, we have placed a variety ofearlier materials regarding implementation ofthe 8-hour ozone NAAQS on the Web site: http.'// www.epa.gov/ttn/naaqs/ozone/ o3imp8hr.

FOR FURTHER INFORMATION CONTACT: Mr. John Silvasi, Office ofAir Quality 

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Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541- 5666, fax number (919) 541-0824 orby e-mail at silvasi.john@epa.govor Ms. Denise Gerth, Office ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541- 5550, fax number (919) 541-0824 orby e-mail at gerth.denise@epa.gov. SUPPLEMENTARY INFORMATION:
Outline

.When Did EPAPropose this Rule? I. What is EPA's Schedule forTaking Final Action on the Proposal? I. What is Included in this Rule? IV. In Short, what does this FinalRule Contain? A. How willEPAreconcile the

classification provisions ofsubparts 1 and 2? How will EPAclassify nonattainment areas for the 8-hour standard? B. How willEPA treatattainment dates for

the 8-Hour ozone standard? C. How willEPA implement the transition

from the 1-hour to the 8-hour standard in away toensure continued momentum in States' efforts toward cleaner air? D.What is therequired timeframe for

obtaining emissions reductions toensure attainment by the attainment date? V. EPA's Final Rule.

A. How willEPAreconcile the

classification provisions ofsubparts 1 and 2? How will EPAclassify nonattainment areas for the 8-hour NAAQS? 1.Background.

a. Statutory framework and Supreme Court

decision. b. EPA's proposed rule and notice

reopening the comment period. 2. Summary offinal rule

a.Why did EPA select Option 2? (i)Why will Option 2 bestaccomplish the

policy goals ofEPA? (ii)How is Option 2 Consistent with the

CAA as Interpreted by the Supreme Court? 3. Comments and Responses. 4. Under thefinal classification approach,

how will EPA classify subpart 1areas?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. 5. WillEPA adjust classifications?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. 6. Proposed Incentive Feature.

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. B. How willEPA treatattainment dates for

the 8-hour ozone NAAQS? 1.Background. 2. Summary offinal rule. 3. Comments and Responses. 4. How WillEPAAddress the Provision

Regarding 1-Year Extensions? a. Background. b. Summary offinal rule.

c. Comments and Response C. How willEPA implement the transition

from the 1-hour to the 8-hour NAAQS in

a way to ensure continued momentum in States' efforts toward cleaner air? 1.When will EPArevoke the 1-hour

NAAQS?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses 2. What requirements that applied in an

area for the 1-hourNAAQS continue to apply after revocation ofthe 1-hour NAAQS for that area?

a. Background. b. Summary ofFinal Rule.

c. Section 51.905(a)(1): 8-HourNAAQS

Nonattainment/1 -HourNAAQS Nonattainment (i) Mandatory Control Measures. (ii) Discretionary control measures. (iii)Measures to address growth. (iv) Planning SIPs. d. Section 51.905(a)(2): 8-HourNAAQS

Nonattainment/1 -HourNAAQS Maintenance (i) Mandatory Control Measures. (ii) Discretionary Control measures. (iii)Measures to address growth. (iv) Planning SIPs.

e. Section 51.905(a)(3): 8-HourNAAQS

Attainment /i-Hour NAAQS Nonattainment (i) Mandatory control obligations. (ii) Discretionary control obligations. (iii)Measures to address growth. (iv) Planning SIPs. (v) Maintenance Plans for the 8-hour

NAAQS. f. Section 51.905(a)(4): 8-Hour NAAQS

Attainment/i-Hour NAAQS Maintenance (i)Obligations in an approved SIP. (ii)Maintenance plan. 3. For how long do these obligations

continue to apply?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. 4. Which portions ofan area designated for

the 8-hour NAAQS remain subject tothe 1-hour NAAQS obligations?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. 5. What obligations that applied for the 1-

hour NAAQS will no longer apply after revocation ofthe 1-hourNAAQS for an area?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. (i) Comments on June 2, 2003 proposal: (ii) Comments on draft regulatory text. 6. What is the continued applicability of

the NOx SIP Call afterrevocation ofthe 1-hourNAAQS?

a. Background. b. Summary ofFinal Rule.

c. Comments and Responses. (i) Comments on the June 2, 2003 proposal: D. What is therequired timeframe for

obtaining emissions reductions to ensure attainment by the attainment date? 1. Background. 2. Summary offinalrule. 3. Comments and Responses E. Conformity Under the 8-Hour Ozone

Standard F. Comments on Other Issues 1. Designations ofnonattainment and

attainment areas: 2.Early Action Compacts (EACs): 3.Health and environmental concerns: 4. Clarity andunderstandability of

proposed rule: 5. Regulatory text: 6. Requests for Extension ofComment

Periods: G.Other Considerations 1. What happens ifa source is in the

process ofPSDpermitting at the time that the area in which it is located is designated as nonattainment for the 8- hour ozone NAAQS? H. EPA's Final Action. VI.Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review B.Paperwork Reduction Act C.Regulatory FlexibilityAct 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 SafetyRisks H. Executive Order 13211:Actions That

Significantly AffectEnergy Supply, Distribution, or Use I.National Technology Transfer

Advancement Act J.Executive Order 12898: Federal Actions

toAddress Environmental Justice in Minority Populations andLow-Income Populations K. Congressional Review Act L. Petitions for Judicial Review M. Determination Under Section 307(d)
I. When Did EPA Propose This Rule?

On June 2, 2003 (68 FR 32805), we published aproposed rule to implement the 8-hour ozone NAAQS. The proposal addressed anumber ofimplementation issues, including the two core implementation issues addressed in this final rule, e.g., how the Clean Air Act (CAA or Act) classification provisions will apply for the 8-hour ozone NAAQS and the transition from the 1-hour NAAQS to the 8-hourNAAQS, including when the 1-hour NAAQS will be revoked and anti-backsliding principles. We proposed one or more options for each issue addressed in the proposal. In addition, we included two possible frameworks to implement the 8-hour ozone NAAQS. These frameworks were complete implementation strategies comprised of

one option for each implementation issue addressed in the proposed rule. The following principles guided us in the development ofthe underlying 

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options and the frameworks to implement the 8-hour ozone NAAQS in the proposed rule: to protect public health, provide incentives for expeditious attainment ofthe 8-hour

ozone NAAQS and avoid incentives for delay; to provide reasonable but expeditious attainment deadlines; to establish a basic, straightforward
structure that could be communicated easily; to provide flexibility to States and EPA on implementation approaches and control measures while ensuring that the implementation strategy is supported bythe CAA; to emphasize national and regional measures to help

areas come into attainment and, where possible, reduce the need for those local controls that are more expensive than national and regional measures; and to provide a smooth transition from implementation ofthe i-hour ozone NAAQS to implementation ofthe 8- hour ozone NAAQS. An additional goal

was to clarify the role ofTribes in implementing the 8-hour ozone NAAQS. Section 301(d) ofthe CAA recognizes that the American Indian Tribal governments are generally the appropriate authority to implement the CAA in Indian country. As discussed in the Tribal Authority Rule (TAR) (63 FR 7262, February 12, 1998, and 59 FR 43960-43961, August 25, 1994), it is appropriate to treat Tribes in the same
manner as States. Therefore, when we discuss the role ofthe State in implementing this rule we are also referring to the Tribes. Please refer to the proposed rule (68 FR 32802, June 2, 2003) for a detailed discussion and background information on the 8-hour

ozone problem and EPA's strategy for addressing it, the 8-hour ozoneNAAQS and associated litigation, and the stakeholder process for gathering input into this effort, among other topics.

On August 6, 2002 (68 FR 46536), we published anotice of availability ofthe draft regulatory text for the proposed rule to implement the 8-hour ozone NAAQS. This notice started a 30-day public comment period on the draft regulatory text. In addition, on October 21, 2003 (68 FR 60054), we reopened the public comment period for 15 days
to solicit additional comment on alternative approaches for classifying

ozone nonattainment areas, based on comments received during the comment period.


### II.WhatIs EPA'sSchedule for Taking Final Action on the Proposal?

In our June 2, 2003 proposal, we stated that we planned to issue the final implementation rule in December of 2003. While there is not a CAA deadline for promulgating a strategy to implement the 8-hour ozone NAAQS, the CAA does establish a deadline for EPA to promulgate designations of nonattainment areas under section 107 ofthe CAA. 1We have entered into a consent decree that requires us to promulgate designations by April 15, 2004.2 Our goal was to issue a final implementation rule bythe end of2003 because the States and Tribes indicated

a stronginterest in having an opportunity to understand the impacts ofbeing designated nonattainment prior to promulgation ofdesignations for the 8-hourNAAQS. Based on the large number ofpublic comments received on
our proposal and our need to consider and respond to those comments before taking final action, we were unable to issue a final rule prior to April 15, 2004 that addresses allissues raised in the proposal. This final rule addresses several key components ofthe proposed rule: how the classification provisions ofthe CAA will apply for purposes of the 8-hour ozone NAAQS and the transition from the 1-hour NAAQS to the 8-hour NAAQS, including when the 1-hour NAAQS will be revoked, how anti-backsliding principles will ensure continued progress toward attainment of the 8-hour ozone NAAQS, attainment dates, and the timing ofemissions reductions needed for attainment.

Within the next several months, we plan to issue a second final rule, Phase 2, which will address many ofthe planning and control obligations under sections 172 and 182 ofthe CAA that will apply for purposes ofimplementing the 8-hour ozone NAAQS. These include, among other things, RFP, RACT, attainment demonstrations and maintenance plans, and new source review (NSR). Neither Phase 1 nor Phase 2 will address the appropriate tests under the 8-hour ozone NAAQS for demonstrating conformity ofFederal actions to State implementation plans (SIPs).A proposed rule was published

on November 5, 2003 (68 FR 62689) addressing transportation conformity requirements applicable in 8-hour ozone nonattainment areas. In addition, EPA is revising its general conformity regulations and plans to issue a proposed rule in the spring of2004.

1Section 107(d) ofthe CAA sets forth a schedule
for designations following the promulgation ofa

new orrevised NAAQS. The Transportation Equity Act forthe Twenty-first Century (TEA 21) revised the deadline to promulgate nonattainment designations to provide an additional year (to July 2000) but HR3645 (EPA's appropriation bill in 2000) restricted EPA's authority to spend money to designate areas until June 2001 or the date of the Supreme Court rulingin the litigation challenging the NAAQS, whichever came first.

2American LungAssociation v. EPA (D.D.C.No. 1:02CV02239). Il. WhatIs Included in This Rule?
Today's action, Phase 1 ofthe implementation rule, focuses on two key implementation issues: (1) Classifying areas for the 8-hourNAAQS and (2) transitioning from the 1-hour to the 8-hour NAAQS, which includes revocation ofthe 1-hour NAAQS and the anti-backsliding principles that should apply upon revocation. 3 In addition, it addresses several additional, related issues. We believe that classifications and anti-backsliding are key elements ofthe implementation program that are ofprimary interest to the States and Tribes prior to the final designations. In addition, because section 182(a) ofthe CAA provides that classifications will occur "by operation oflaw" at the time ofdesignation, EPA believes it is critical that the public understands at the timeofdesignations how the classification provisions will apply.

IV.In Short,WhatDoes This Final Rule Contain?

This summary is intended to give only aconvenient overview ofour final rule. It should notbe relied on for the details ofthe actual rule. The final rule (regulatory text) and the discussion ofit in the next section below should be consulted directly.

Both the preamble and the rule may

use the following terms to discuss four categories ofareas for purposes ofthe anti-backsliding provisions: (1) 8-hour NAAQS Nonattainment/ -hourNAAQS Nonattainment; (2) 8-hour NAAQS Nonattainment/ -hourNAAQS Maintenance; (3) 8-hourNAAQS Attainment/ -hour NAAQS Nonattainment; (4) 8-hour NAAQS Attainment/ -hour NAAQS Maintenance. These categories are, respectively: (1) Areas thatremain designated nonattainment forthe 1-hour NAAQS atthe time ofdesignation as nonattainment for the 8-hour NAAQS; (2) Areas that are maintenance areas for the 1-hour NAAQS at the time of designation as nonattainment for the 8- hour NAAQS; (3) Areas that remain designated nonattainment forthe 1-hour NAAQS atthe time ofdesignation as attainment for the 8-hour NAAQS; and (4) Areas that are maintenance areas for the 1-hour NAAQS at the time of designation as attainment for the 8-hour NAAQS.

3We use the term "revocation" as shorthand for

a determination under 40 CFR 50.9(b) that the 1- hour NAAQS no longer applies to one ormore

areas. 

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A. How Will EPA Reconcile the ClassificationProvisionsofSubparts1 and2?How Will EPA Classify Nonattainment A reas forthe 8-Hour Standard?

The final rule incorporates Option 2 oftheproposal. Each area with a current 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in Table 1ofsubpart 2) willbe classified under subpart 2based on its 8-hour design value. All other areas will be covered under subpart 1 usingtheir 8- hour design values.

In brief,this approach works as follows:

* First, we will determine which 8- hour areas willbe covered under subpart 2 and which under subpart 1. Any area with a 1-hour ozone design value (atthe time ofdesignation) that
meets or exceeds the statutory level of 0.121 ppm that Congress specified in Table 1ofsection 181 will be classified under subpart 2 and will be subject to the control obligations associated with its classification. 4 Any area with a 1- hour design value (at the time of designation) that is below the level of 0.121 ppm willbe covered under subpart 1 and subject to the control obligations in section 172.

* Second, subpart 2 areas will be classified as marginal, moderate, serious, severe or extreme based on the area's 8-hour design value (at the time ofdesignation). Since Table 1 is based

on 1-hour design values, and application ofthe Table as written would produce absurd results, we are promulgating a regulation translating the thresholds in Table 1 ofsection 181 from 1-hour values to 8-hour values.

Under the Final Classification Approach, How Will EPA Classify Subpart 1 Areas?

We are adopting the second option but modified as a result ofcomments. We are creating an overwhelming transport classification that will be available to subpart 1 areas that demonstrate they are affected by overwhelming transport ofozone and its precursors and demonstrate they meet the definition ofarural transport area in section 182(h). However, areas would
not have to demonstrate that transport

was due solely to sources from outside the State (interstate transport) as was implied by the June 2, 2003 proposal. All other areas that do not qualify for the overwhelming transport classification would not be classified.

4In the Phase 2rule, we will address the control obligations that apply to areas under both subpart 1and subpart 2. Proposed Incentive Feature
We are not including the proposed incentive feature in the final rule.

B. How Will EPA TreatAttainment Dates forthe8-HourOzone Standard?
We are adoptingthe timeperiods for attainment that we proposed for areas under both subpart 1 and subpart 2 of the CAA. For areas subject to subpart 2 ofthe CAA, the maximum period for attainment will run from the effective date ofdesignations and classifications for the 8-hour standard and will be the

same periods asprovided in Table 1 of section 181(a): * Marginal-3 years * Moderate-6 years * Serious-9 years * Severe-15 or 17 years * Extreme 20 years

Consistent with section 172(a)(2)(A), for areas subject to subpart 1 ofthe CAA, the period for attainment will be

no later than 5 years after the effective date ofthe designation. However, EPA may grant an area an attainment date no later than 10 years after designation, if warranted based on the factors provided in section 172(a)(2)(A).

How Will EPA Address the Provision Regarding 1-Year Extensions?

We are adoptingthe interpretation that we proposed on June 2, 2003. Under both sections 172(a)(2)(C) and 181(a)(5), an area will be eligible for the first ofthe 1-year extensions under the 8-hour standard if, for the attainment year, the area's 4th highest daily 8-hour average is 0.084 ppm or less. The area will be eligible for the second extension if the area's 4th highest daily 8-hour value, averaged over both the original attainment year and the first extension year, is 0.084 ppm or less.
C.How Will EPA Implement the TransitionFromthe I-Hourto the8- HourStandardin a Way To Ensure ContinuedMomentum in States'Efforts TowardCleanerAir?

There are two key issues that EPA considered together regarding the transition from the 1-hour standard to the 8-hour standard: (1) When will the 1-hour standard no longer apply (i.e.,be "revoked"); and (2) what protections are in place to ensure that, once the 1-hour standard is revoked, air quality will not degrade and that progress toward attainment will continue as areas transition from implementing the 1-hour standard to implementing the 8-hour standard. As in theproposed rule, the second key issue has three components: (1) What requirements that applied based on an area's classification for the 1-hour standard must continue to apply to that area; (2) for how long; and (3) in what area. Below, we set forth our final transition approach in fourparts: (1) When will the 1-hour standard no longer apply (i.e., when will itbe revoked); (2) what 1-hour obligations should continue to apply once the 1- hour standard is revoked; (3) how long should those requirements continue to apply; and (4) what is the geographic

area subject to the requirement.

1.When Will EPA Revoke the 1-Hour Standard?

We are adopting Option 1.We will revoke the 1-hour standard in full, including the associated designations and classifications, 1year following the effective date ofthe designations for the 8-hourNAAQS.
2.What Requirements That Applied in

an Area for the 1-Hour NAAQS Continue To Apply After Revocation of the 1-HourNAAQS for That Area?

The approach we are adopting in the final rule is summarized below under the individual sections discussing each category ofarea and type ofcontrol obligation.

a. Section 51.905(a)(1):8-Hour NAAQS Nonattainment/l-Hour NAA QS Nonattainment (i) Mandatorycontrolmeasures.We

are adopting the approach we proposed. All areas designated nonattainment for the 8-hour ozone NAAQS and designated nonattainment forthe 1-hour

ozone NAAQS at the time ofdesignation for the 8-hour NAAQS remain subject to control measures that applied byvirtue ofthe area's classification forthe 1-hour standard.

(ii) Discretionary controlmeasures. We are adopting the approach we set forth in ourproposed rule. A State may revise or remove discretionary control

measures (includingenforceable commitments) contained in its SIP for the 1-hour standard so long as the State demonstrates consistent with section 110(1) that such removal ormodification will notinterfere with attainment ofor progress toward the 8-hour ozone NAAQS (or any other applicable requirement ofthe CAA). (iii)Measuresto addressgrowth. We

are not adopting the approach set forth in our proposed rule.For areas designated nonattainment forthe 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS and that are designated nonattainment forthe 8-hour NAAQS, the major source applicability cut-offs and offset ratios for the area's 1- hour classification would notcontinue
to apply after revocation ofthe 1-hour NAAQS. 

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(iv) Planning SIPs. (A) Outstandingrateof progress (ROP)Obligation.We are adopting the approach set forth in ourproposed rule for this category ofareas. States remain obligated to meet the CAA-mandated ROP emission reduction targets that applied for the 1-hour standard, but discretionary measures adopted to meet those targets may be modified, ifthe State makes the necessary showing under section 110(1).

(B) Unmetattainmentdemonstration obligations.In the final rule, we are allowing the States to choose among three options that are tailored after the approaches addressed in the proposed rule. Thus,rather than establishing one mandatory approach, we are adopting a rule that will allow States to choose any
one ofthe following three options:

* Option1. Submit a 1-hour attainment demonstration.

* Option2. Submit, no later than 1 year afterthe effective date ofthe 8-hour designations, an early five percent increment ofprogress plan toward the 8- hour standard.

* Option3. Submit an early 8-hour

ozone attainment demonstration SIP that ensures that the first segment of RFP is achieved early.

b. Section 51.905(a)(2):8-Hour NAAQS Nonattainmentl-Hour NAA QS Maintenance

(i) Mandatorycontrolmeasures.We

are adopting the approach we took in the proposal and the draftregulatory
text. This category ofareas must continue to implement mandatory control requirements (i.e., "applicable requirements") that have been approved into the SIP. However, since maintenance areas do not have any outstanding obligation to adopt mandatory control obligations for the 1- hour standard, the provision only addresses implementation, not adoption. In addition, this section recognizes that maintenance areas had the flexibility to move mandatory controls to the contingency measures portion oftheir maintenance plan.

(ii) Discretionary controlmeasures.As with discretionary control measures for 8-hourNAAQS nonattainment/1 -hour NAAQS nonattainment areas, 1-hour NAAQS nonattainment/1 -hourNAAQS maintenance areas will retain the discretion to modify any discretionary control measures upon ademonstration under section 110(1). We are not promulgating regulatory text because sections 110(1) and 193 ofthe CAA govern such SIP revisions.

(iii)Measuresto addressgrowth.We

are adopting the approach we proposed, but our rationalerelies on the final rule's provision that NSRunder the 1- hour standard will no longer be a required implementation plan element

as ofrevocation ofthe 1-hour standard. Ifan area has been redesignated to attainment for the 1-hour standard as of the effective date ofthe 8-hour nonattainment designation and is no longer required to implement a nonattainment NSRprogram, the area will not be required to revert back to the program it had for purposes ofthe 1- hour ozone standard.

As noted elsewhere, NSR offset ratios and major stationary source applicability provisions under the 1- hour standard are not being defined as "applicable requirements" after the 1- hour standard is revoked. (iv) PlanningSIPs.We are adopting the approach taken in the draft regulatory text. In redesignating an area to attainment, EPA must conclude that the area has met all requirements applicable under section 110 and part D. Thus, maintenance areas do not have continuing progress and attainment demonstration requirements.

c. Section 51.905(a)(3):8-Hour NAAQS Attainment/1-HourNAAQS Nonattainment (i) Mandatorycontrolobligations.We

are adopting an approach consistent with ourproposed rule. We have determined that mandatory control obligations will no longer apply once an
area attains the 8-hour standard. Thus, because these areas are attaining the 8- hour standard, the State mayrequest that obligations under applicable requirements be shifted to contingency

measures once the 1-hour standard is revoked, consistent with sections 110(1) and 193 ofthe CAA. However, the State cannot remove the obligations from the SIP.

(ii) Discretionary controlobligations. 8-hourNAAQS attainment/ -hour NAAQS nonattainment areas will retain the discretion to modify any discretionary controls upon a demonstration under section 110(1). However, such controls must remain in the SIP as contingency measures. (iii)Measuresto addressgrowth.We

are adoptingthe approach we setforth in our proposed rule for this category of

areas. After the 1-hour standard is revoked, the CAA requires such areas to comply with prevention of significant deterioration (PSD), not NSR. (iv) PlanningSIPs.We are adopting

our proposal with some modification. An area ofthis category will not be required to develop and submit outstanding attainment demonstration and ROP plans for the 1-hour standard for so long asthe area continues to maintain the 8-hourNAAQS. However, if the area violates the 8-hour NAAQS prior to having an approved 8-hour maintenance plan under section 110(a)(1), the area will be required to submit a SIP revision to address outstanding ROP and attainment demonstration plans.

(v)Maintenance plans forthe 8-hour NAAQS. We are adopting the approach

we proposed. Areas that are either 8- hour NAAQS attainment/ -hour NAAQS nonattainment or 8-hour NAAQS attainment /1-hour NAAQS maintenance must adopt and submit a maintenance plan consistent with section 110(a)(1) within 3 years of designation as attainment for the 8-hour NAAQS. The maintenance plan should provide for continued maintenance of the 8-hour standard for 10 years following designation for the 8-hour NAAQS and should include contingency measures.

d. Section51.905(a)(4):8-Hour NAAQS Attainment/1-HourNAAQS Maintenance

In the final rule, we created a section 51.905(a)(4) to apply to this category of

areas. Itcovers obligations in an approved SIP and maintenance plans similar in manner to areas that are attainment for the 8-hour standard and

were attainment for the 1-hour standard and had a maintenance plan.

3. For How Long Do These Obligations Continue To Apply?

We are adopting Option 2-control obligations an area is required to retain in the approved SIP for an area's 1-hour classification must continue to be implemented under the SIP untilthe

area attains and is redesignated to attainment for the 8-hour NAAQS. At that time, the State may relegate such controls to the contingency measure portion ofthe SIP ifthe State demonstrates in accordance with section 110(1) that doing so will not interfere with maintenance ofthe 8-hour NAAQS or any other applicable requirement ofthe CAA. Ifat the time the area is redesignated to attainment for the 8-hour standard the State has an outstanding obligation to adopt a controlrequirement under the 1-hour standard, itremains obligated to do so, but may adopt it as a contingency

measure.
4. Which Portions ofan Area Designated for the 8-Hour NAAQS Remain Subject
to the 1-Hour NAAQS Obligations?

The final rule incorporates most aspects ofthe approach as that contained in the proposal and in the draftregulatory text. The final rule provides that only the portion ofthe designated area for the 8-hourNAAQS that was designated nonattainment for 

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the 1-hourNAAQS isrequired to comply with theplanning obligations, except in onecircumstance: iftheState elects toprovide an early increment of progress or an early 8-hour attainment demonstration in lieu ofan outstanding 1-hour attainment demonstration (foran 8-hourNAAQS nonattainment/1 -hour NAAQS nonattainment area under 51.905(a)(1)(ii)(B) and (C)), the increment ofprogress or early 8-hour attainmentplan must apply for purposes ofthe entire 8-hour nonattainment area.

The finalrule does not follow the approach in the proposal for the maintenance planrequirement for 8- hour attainment areas. The maintenance plans required for these areas must demonstrate maintenance only forthe

area designated nonattainment for the 1- hour NAAQS at the time ofdesignation ofthe 8-hour standard.
5. What Obligations ThatApplied for the 1-hourNAAQS Will No Longer Apply AfterRevocation ofthe 1-hour NAAQS for an Area?

We arerevising the approach we set forth in ourproposed rule. In addition to theobligations noted in ourproposal that would no longer apply after the 1- hour NAAQS is revoked, we are also providing clarification regarding the penalty obligations under sections 181(b)(4) and 185 ofthe CAA that apply in severe and extreme areas thatdo not attain the 1-hour standard by the applicable attainment date. The final rule alsowould not retain NSRunder the 1-hourNAAQS. The finalrule provides thatas oftheeffective date of revocation ofthe 1-hour standard:

* We will no longer make findings of failure to attain the 1-hour standard and, therefore, (a) we will notreclassify areas to ahigher classification forthe 1-hour standard based on such a finding, and (b) areas that were classified as severe
or extreme forthe 1-hour NAAQS are not obligated to impose fees as provided under sections 181(b)(4) and 185 ofthe CAA under the 1-hour standard.

* Areas willnot be obligated to continue to demonstrate conformity for the 1-hourNAAQS as ofthe effective date oftherevocation ofthe 1-hour NAAQS.

* An area with an approved 1-hour maintenance planunder section 175A of the CAA may modify the maintenance plan to remove obligations related to developing a second 10-year maintenance plan forthe 1-hour NAAQS and the obligation to implement contingency measures upon
aviolation ofthe 1-hour NAAQS.

* NSRunder the 1-hour NAAQS will

no longerbe arequired implementation plan element in areas that are 8-Hour NAAQS nonattainment/1-Hour NAAQS nonattainment. Instead, NSRunder the 8-hourNAAQS will apply.

6. What Is the Continued Applicability ofthe NOx SIP Call After Revocation of the 1-hour NAAQS?

We are adoptingthe approach we set forth in ourproposed rule and draft regulatory text. States must continue to adhere to the emission budgets established by the NOx transport rules afterthe 1-hour standard is revoked. States retain the authority to revise control obligations they have established for specific sources or
source categories under the NOx SIP Call rule so long asthe State demonstrates consistent with section 110(1) that such modification will not interfere with attainment oforprogress toward meeting the 8-hour NAAQS or any other applicable requirement ofthe CAA.

D. WhatIs theRequiredTimeframe for ObtainingEmissionsReductionsto EnsureAttainmentby theAttainment Date?

We are adoptingthe approach we set forth in ourproposed rule, namely that emissions reductions needed for attainment must be implemented bythe beginning ofthe ozone season immediately preceding the area's attainment date.

V. EPA's FinalRule

A. How Will EPA Reconcile the ClassificationProvisionsofSubparts1 and2?How Will EPA Classify NonattainmentAreas forthe 8-hour NAA QS ?(Section VLA. ofProposal; See 68 FR32811;Section51.902ofDraft andFinalRules)

1. Background

a. Statutory frameworkandSupreme Courtdecision.The CAA contains two sets ofrequirements-subpart 1 and subpart 2-that establish requirements for Stateplans implementing the ozone NAAQS in nonattainment areas. (Both

are found in title I, part D.) Subpart 1 contains general, less prescriptive, requirements for SIPs for nonattainment

areas for any pollutant-including ozone-governed by a NAAQS. Subpart 2 provides more specific requirements for ozone nonattainment SIPs. 5

When we promulgated the 8-hour

ozone NAAQS on July 18, 1997, we indicated that we anticipated that States would implement the 8-hourNAAQS

5State Implementation Plans; General Preamble for the Implementation ofTitle ofthe CAA Amendments of 1990; Proposed Rule." April 16, 1992 (57FR 13498 at 13501 and 13510). under the less prescriptive subpart 1 requirements. More specifically, we concluded that the CAA required areas designated nonattainment forthe 1-hour

ozone NAAQS to remain subject to the subpart 2requirements forpurposes of the 1-hourNAAQS until such time as they met that NAAQS (62 FR 38872). We also stated that those areas and all other areas would be subject only to subpart 1for purposes ofplanning for the 8-hour ozone NAAQS. We determined not to immediately revoke the 1-hour NAAQS for all areas but to promulgate a rule (40 CFR50.9(b)) providing that the 1-hour NAAQS and the associated designation would no longer apply to an area once EPA determined the area had attained the 1- hour NAAQS. Thus, areas that had not yet attained the 1-hour NAAQS retained theirdesignation for that NAAQS and remained subject to the control obligations associated with their classification for the 1-hour NAAQS until they met it.

In February 2001, the Supreme Court ruled that the statute was ambiguous as to the relationship of subparts 1 and 2 forpurposes ofimplementing the 8-hour NAAQS. Whitman v.American TruckingAssociations,531 U.S. 457, 481-86 (2001). The Court concluded, however, that the implementation approach set forth in the final NAAQS rule, which provided norole for subpart 2 in implementing the 8-hour NAAQS,

was unreasonable. Id. Specifically, with respect to classifying areas, the Supreme Court stated: [D]oes subpart 2 provide for classifying nonattainment ozone
areas under the revised standard? It unquestionably does." Whitman,531 U.S. at482.

Despite recognizing that the classification provisions ofsubpart 2 (section 181(a)) apply forpurposes of the 8-hour NAAQS, the Supreme Court also recognized that the subpart 2 classification scheme does not entirely fit with the revised 8-hourNAAQS and leftit to EPA to develop a reasonable resolution ofthe roles ofsubparts 1 and 2 in classifying areas for and implementing a revised ozone NAAQS. Id. at 482-486.



### In particular, the Court noted three portions ofsection 181-the classification provision in subpart 2- that it indicated were "ill-fitted to implementation ofthe revised standard." Id. at 483.

* First, the Court recognized that "using the old 1-hour averages ofozone levels * * * as subpart 

### 2requires* * * would produce at best an inexact estimate ofthe new 8-hour averages * * *"

### Id. 

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* Second, the Court recognized that the design values in Table 1 is based on the level ofthe 1-hour NAAQS (0.12 ppm) and noted that "to the extent the

new ozone standard is stricter than the old one, * * * the classification system ofSubpart 2 contains a gap, because it fails to classify areas whose ozone levels

are greater than the new standard (and thus nonattaining) but less than the approximation ofthe old standard codified byTable 1." Id.

* Third, the Court recognized that "Subpart 2's method for calculating attainment dates-which is simply to count forward acertain number ofyears from November 15, 1990 * * * seems to make no sense for areas that are first classified under a new standard after November 15, 1990." More specifically, the Court recognized that attainment dates for marginal (1993), moderate (1996), and serious (1999) areas had passed. Id. at 483-484.

b. EPA 'sproposedruleandnotice reopeningthe commentperiod.In light ofthe Supreme Court's ruling, we examined the statute to determine the

manner in which the subpart 2 classifications should apply for purposes ofthe 8-hour ozone NAAQS. We paid particular attention to the three portions ofsection 181 that the Supreme Court noted were ill-fitted for implementation ofthe revised 8-hour NAAQS. We examined those provisions in light ofthe legislative history and the overall structure ofthe CAA to determine what Congress intended for purposes ofimplementing a revised,

more stringent ozone NAAQS.

On June 2, 2003 (68 FR 32802), we issued a proposed rule which identified
two options for classifying areas for the 8-hour ozone NAAQS. Under Option 1 (68FR 32812), we proposed to classify 8-hour ozone nonattainment areas according to the severity oftheir ozone pollution based on 8-hour design values. 6 Because the subpart 2 classification table is based on 1-hour design values, we proposed to translate the classification thresholds in Table 1 ofsection 181 to 8-hour design values. Under this option, all 8-hour nonattainment areas would be classified

6The design value ofan area isbased on the monitor for the area recording the highest ozone levels and indicates whether the area is violating or meeting the ozone NAAQS. For the 1-hour ozone NAAQS, the design value for an area is generally the 4th highest monitored ozone level at the monitor over a 3-year period. See 40 CFRpart 50, appendix H and Memorandum ofJune 18, 1990 from William G. Laxton re "Ozone and Carbon Monoxide Design Value Calculations." Available at http: //www.epa.gov/ttn/naaqs/ozone/ozonetech/ laxton.htm. For the 8-hour ozoneNAAQS, the design value is the average ofeach yearly 4th highest reading at a monitor overa 3-year period. See 40 CFR part 50, appendix I. under subpart 2 as marginal, moderate, serious, severe or extreme.

Under Option 1, the threshold for the marginal classification would be an 8- hour design value of0.085 ppm. Each of the 8-hour classification thresholds would be the same percentage above the 8-hourNAAQS as the corresponding statutory 1-hour threshold is above the 1-hour NAAQS. Forexample, since the statutory 1-hour ozone level for the moderate classification is 15 percent above the 1-hour NAAQS, the 8-hour

ozone level for the moderate classification would be 15 percent above the 8-hour NAAQS.

The EPA developed a second option designed to provide States with greater flexibility on the measures included in their plans for meeting the 8-hour NAAQS. Under Option 2 (68 FR 32812), which we indicated was our preferred option, we proposed a two-step system for determining classifications for areas. We proposed as afirst step, to divide

areas into two groups based on each area's current 1-hour ozone design value. In accordance with the portion of the Supreme Court decision which indicated that there was no gap in the
statute for those areas with a 1-hour design value above 0.121 ppm-the lowest level in Table 1in section 181(a)-we proposed that areas with a current (i.e., determined at the time of designation) 1-hour ozone design value greater than or equal to 0.121 ppm would be classified under subpart 2 for the 8-hour NAAQS. For areas with a 1- hour design value less than 0.121 ppm, i.e., those areas the Court stated fell into the gap, we concluded that we must make a reasonable determination whether they should be covered under subpart 1or subpart 2. We proposed that all ofthese areas would be covered under subpart 1. Forthe areas that did
not fall into the gap and which must be classified under subpart 2, we proposed to classify them based on ourtranslation ofTable 1 in section 181(a), as described under Option 1.

We received a large number of
comments on the classification options that we proposed, including recommendations for other approaches,
most ofwhich were variations on the options we proposed. On October 21, 2003 (68 FR 60054), we reopened the
comment period on theproposed rule for 15 days to provide the public with

an opportunity for additional comment

on alternative approaches for classifying

areas for the 8-hour ozone NAAQS that

were suggested during the comment period. We also included two alternative strategies (Alternatives A and B) for classifying areas that EPA developed bycombining ideas suggested by different commenters during the initial comment period. 7

Alternatives A and B were designed to place more areas in higher classifications, which would provide

areas with more time to attain but would impose additional mandatory controlrequirements. These alternatives also were designed to avoid or reduce instances in which a subpart 1 area could have higher 8-hour ozone levels than a subpart 2 area.

Alternative A would classify areas solely on the basis of8-hour design values. The key feature ofthis alternative was that EPA would create a classification table of 8-hourvalues starting from an 8-hour design value that,to the extent possible, would be approximately equivalent to the 1-hour design value of0.121 ppm in Table 1. Thus, the lowest level in the regulatory table was the 8-hour approximation of the 1-hour NAAQS as suggested by commenters, i.e., 0.091 ppm. Areas with

an 8-hour design value lessthan 0.091 ppm would be covered under subpart 1. Areas with an 8-hourdesign value at or above this level would be classified under subpart 2. To place areas in higher classifications, we narrowed the range foreach classification to use 50 percent (instead of 100 percent) ofthe percentages that the classification thresholds were above the 1-hour NAAQS in our proposed June 2003 translation ofTable 1. In other words, since the moderate threshold for the 1- hour NAAQS is 15percent above the 1- hour NAAQS, we would adjust the moderate threshold forpurposes ofthe 8-hourNAAQS to be 7.5 percent above 0.091 ppm (the lowest level in Table 1 for Alternative A).

Alternative B, amodified version of Option 2, retained the first step of Option 2, where we divide the areas based on their current 1-hour design value. As in Option 2, areas with 1-hour design values exceeding the statutory 0.121 ppm level would be regulated under subpart 2. In addition, any "gap"

area (i.e., those with a 1-hour design value less than 0.121 ppm) with a moderate-level (orhigher) design value would be classified under subpart 2. All

7Thenotice also solicited comment on additional issues that would arise ifwe selected one of the approaches identified in the notice reopening the
comment period: (1) Whetherwe should modify the 5percent reclassification feature ofsection 181(a)(4) ofthe CAA if we change ourclassification scheme
to have a narrower range for each classification; (2) whether we should adopt the suggestion by
commenters on the June 2, 2003 proposal that we change the 1-hourozone threshold to 0.125 ppm rather than 0.121 ppm to determine ifan area falls into subpart 1vs. subpart 2 under classification Option 2; and (3) whether an adjustment other than 50 percent would be more appropriate for narrowing therange ofeach classification. 

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other gap areas would be covered by subpart 1. As with Alternative A, to place subpart 2 areas in higher classifications, we narrowed therange for each classification to 50 percent of the range in Table 1 ofsection 181. In other words, the moderate threshold would be 7.5 percent above the 8-hour NAAQS (0.085ppm).

2. Summary ofFinal Rule

After considering all ofthe comments that were submitted, we are adopting Option 2. Each area with a current 1- hour design value at or above 0.121 ppm (thelowest 1-hour design value in Table 1 ofsubpart 2) will be classified under subpart 2based on its 8-hour design value. All other areas willbe covered under subpart 1using their 8-hour design values.

In brief,this approach works as follows:

* First, we will determine which 8- hour areas willbe covered under subpart 2 and which under subpart 1. Any area with a 1-hour ozone design value (atthe time ofdesignation) that
meets or exceeds the statutory level of 0.121 ppm that Congress specified in Table 1ofsection 181 will be classified under subpart 2 and will be subject to the control obligations associated with its classification. 8 Any area with a 1- hour design value (at the time of designation) that is below the level of 0.121 ppm willbe covered under subpart 1 and subject to the control obligations in section 172.

* Second, subpart 2 areas will be classified as marginal, moderate, serious, severe or extreme based on the area's 8-hour design value (at the time ofdesignation). Since Table 1 ofsection 181 is based on 1-hour design values, and application ofthe Table as written would produce absurd results, we are promulgating a regulation translating the thresholds in Table 1 ofsection 181 from 1-hour values to 8-hour values. (SeeTable 1 "Classification for 8-Hour 

### NAAQS for Areas Subject to Section 51.902(a)" in section 51.903.)

* Third, in accordance with section 181(a)(4) and 181(b)(3), the State may request a lower orhigher classification.

* Finally, as described in more detail below, section 172(a)(1) provides EPA with discretion whether to classify areas under subpart 1 and we are creating one classification for qualifying areas affected by overwhelming transport. All other areas covered under subpart 1 will not be classified.

a. Why didEPA select Option2?The EPA carefully considered the many

SIn the Phase 2rule, we will address the control
and planning obligations that apply to areas under both subpart 1and subpart2. 

### comments we received on classification options and, in fact, sought additional input on alternatives presented and developed pursuant to comments received on the June 2003 proposal. The
commenters were deeply divided on the merits ofthe options. Even after the conclusion ofthe October 2003
comment period, most commenters still favored Option 2 or Option 1. Only a few favored either Alternative A or Alternative B. Those commenters who suggested alternatives to Option 1 or Option 2 during the initial 60-day
comment period did not support Alternatives A and B (whichblended several suggestions from the initial comments) and they remained convinced that their suggested approach

was the best classification approach.

Because the commenters were strongly divided overthe appropriate classification approach, EPAreexamined the various alternatives in light oftheir consistency with the CAA,

as interpreted bythe Supreme Court, and their consistency with EPA's stated goals. While EPAbelieves that Options 1 and 2 and Alternatives A and B are all legally supportable under the CAA, we concluded that Option 2 best fits with the policy goals enunciated by EPA in the proposal and re-affirmed here. Thus, EPA has selected Option 2.We explain below why Option 2 will best accomplish the policy goals ofEPA and why we believe it is consistent with the CAA. (i) Why will Option2 bestaccomplish thepolicygoalsofEPA ?One ofEPA's stated goals atproposal was to provide flexibility to States and Tribes on implementation approaches and control

measures within the structure ofthe CAA. As compared with the other alternatives considered, Option 2places

more areas under the more flexible provisions ofthe CAA (subpart 1), which will provide the States and Tribes with greater discretion in determining the mix ofcontrols needed
to expeditiously attain the 8-hour NAAQS. Forexample, Option 1would place all areas under subpart 2, which mandates anumber ofspecific control
measures, thus limiting the States and Tribes ability to consider whether there

are more effective and less costly ways to achieve the same level ofemission reductions. 9 For example, an area might be able to achieve greater air quality improvement atless cost from local NOx reductions than from local volatile organic compounds (VOC)reductions of 15 percent mandated for certain subpart

'Similarly, Alternatives A and B would result in fewer areas being placed under subpart 1. (See 68 FR 60060, Table 2. October 21, 2003). 2 areas. This will enable some areas to meet the 8-hourNAAQS atless cost than under the other classification options because the States and Tribes willhave greater flexibility in determining which control requirements
to adopt to meet the NAAQS. Because

areas are required to attain the NAAQS

as expeditiously aspracticable under both subpart 1 and subpart 2, Option 2 should notresult in longer attainment periods than Option 1, with the exception ofareas significantly affected by transported pollution (discussed below).

Additionally, placing some areas in subpart 1provides States and EPA with greater flexibility to determine appropriate controls for areas that would have difficulty attaining the 8- hour NAAQS due to interstate pollution transport. In the 13 years since the CAA Amendments of 1990 were enacted (at which time, Congress created subpart 2),

we have learned much about the longrange transport ofozone and the importance ofemploying regional controls in addition to local controls. Subpart 2 does not allow EPA and the States to consider transported pollution in determining the feasibility and benefits ofmandated controls or in determining the appropriate attainment date for an area. Because ofour increased understanding oftransported pollution since Congress enacted the

more restrictive provisions of subpart 2,

we believe it makes sense to adopt an approach that does not shift "gap" areas into subpart 2. In other words, where Congress has not explicitly mandated that areas are subject to subpart 2, we don'tbelieve itmakes sense to adopt an approach that would shift some or all of those "gap" areas to subpart 2, which provides significantly less flexibility for bringing areas affected bytransported pollution into attainment. (We discuss in more detail the flexibility provided by subpart 1 and how itbetter allows consideration ofthe current scientific knowledge regarding ozone formation and transport in the section below discussing why we place all ofthe "gap" areas in subpart 1.)

The EPArecognizes that the flexibility ofOption 2 comes with some added complexity. One ofEPA's stated goals was to establish an approach that is easy to understand. While Option 1 (classifying all areas under subpart 2) is simpler, we believe our goals regarding flexibility outweigh the simplicity of Option 1.

Another ofEPA's stated aims at proposal was to ensure expeditious but reasonable attainment dates for the 8- hour NAAQS. The EPA believes that Option 2 is consistent with this 

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principle. Compared to Alternatives A and B, Option 2 will place more areas in lower classifications with shorter maximum attainment dates, encouraging expeditious attainment. While some commenters believed that maximum attainment dates under Option 2 would not allow enough time for some areas to meet the NAAQS, we believe that Option 2provides sufficient time for most areas and that to the
extent some areas mayhave difficulty, the CAA provides an avenue for relief, which is discussed below.

Based on information concerning the hypothetical nonattainment areas, 1 0 11

we are confident that under Option 2
most areas currently exceeding the 8- hour NAAQS will be able to meet the NAAQS within the time limits provided for their classification, taking into consideration projected improvements in air quality under current programs and the potential for adoption offurther national, regional and local measures.

EPA notes that there are uncertainties
atthis time about the time periods needed for attainment, especially for the limited number ofareas needing substantial emissions reductions to attain. For example, it is difficult to determine in advance ofState development ofattainment plans when such an area will be able to attain the NAAQS. These plans arebased on highresolution local air quality modeling, refined emissions inventories and detailed analyses ofthe impacts and
costs ofpotential local control

measures.

Another factor is that new methods of achieving cost effective emissions reductions are continuing to be developed. Our repeated experience

over the past three decades is that market forces stimulated bythe CAA have repeatedly led to technological advances and learning through

1 Revised: Background Information Document, Hypothetical Nonattainment Areas for Purposes of Understanding the EPA Proposed Rule for Implementing the 8-Hour Ozone National Ambient Air Quality Standard in Relation to Re-Opened Comment Period Illustrative Analysis Based on 2000 2002 Data. U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofAir Quality Planning and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ ozone,o3imp8hr/.

11Qualitative Assessment ofAlternative Coverage and Classification Options. First Addendum to "Cost, Emission Reduction, Energy, andEconomic Impact Assessment ofthe Proposed Rule Establishing the Implementation Framework for the 8-hour, 0.08ppm Ozone National Ambient Air Quality Standard." Prepared by Innovative Strategies and Economics Group, Air Quality Strategies and Standards Division, Office ofAir Quality Planning and Standards, Office ofAir and Radiation, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina. April 8, 2004. experience, making it possible over time to achieve greater emissions reductions
atlower costs than originally anticipated.12

Other uncertainties reflect use ofthe
most recent three years ofair quality data for the actual designations and classifications, and use ofmore refined and area-specific modeling methodologies for projecting future

ozone concentrations.

Regarding the useoflater air quality data, we have interpreted the CAA's requirements under section 181 such that we must classify nonattainment

areas that are covered under subpart 2 based on the most recent ozone design values, which arebased on three years ofdata. Because ofyear-to-year variations in meteorology, this "snapshot in time" may not be representative ofthe normal magnitude ofproblems that anumber ofareas face.

Regarding modeling methodologies, national/regional modeling may indicate that a number ofmoderate

areas may face difficulty attaining the standard bythe maximum attainment date required for an area's classification. However, when a State using photochemical grid modeling predicts concentrations that are above the NAAQS after application ofSIP controls, an optional weight ofevidence determination which incorporates, but is not limited to, other analyses, such as air quality and emissions trends, maybe used to address uncertainty inherent in the application ofphotochemical grid models. (Issues related to implementation ofthe standardincluding issues on the attainment demonstration and modeling-will be addressed in the second phase of rulemaking.)

We are aware that some 8-hour nonattainment areas in the Eastern U.S. that are classified moderate using 2001- 2003 air quality data will have difficulty attaining the NAAQS by the attainment date of2010 (6 years after designation). We encourage States to request reclassification upward where the State finds that an area may need more time
to attain than their classification would permit. In addition, EPA will consider

12For instance, the cost ofselective catalytic reduction (SCR) catalyst (for control ofNOx)has
gone from $11,000 $14,000/cubic meter in 1998 to $3,500 $5,500/cubic meter currently. Advancements in low NOx burner (LNB) technology and staged combustion have resulted in sharp NOx reductions at much lower costs. New burner technologies have lowered NOx emissions reductions by as much as 50percent from previous designs. Costs have decreased from $25 38/kW in 1993 to about $15/kW in 2003. Memorandum of October 10, 2003 from Jim Staudt,Andover Technology Partners, Re: Prime Contract 68 W 03 028; Subcontract Agreement 23BL001 14; ATP Contract #:C 03 007. 

### bumping up areas subject to the five percent provision ofsection 181(a)(4) of the CAA on our own initiative where there is evidence that an area is unlikely
to attain within the period allowed by theirclassification. The rulemaking that
sets forth designations and 

### classifications forthe 8-hour standard discusses criteria we would use ifwe take this action.

Ifa State finds during the attainment 

### planning process thatfeasible controls

are not available and an area may need

more time to attain the 8-hour NAAQS than their classification would permit, the statute provides aremedy. A State

can receive more time to attain by voluntarily submitting a request to EPA for ahigher classification. Section 181(b)(3) ofthe CAA directs EPA to grant a State's request for a higher classification and to publish notice of the request and EPA's approval. Although the area would have to meet the additional requirements for the higher classification, the same would be
true ifthe area had been initially classified higher, under a system that placed more areas in higher classifications. Voluntary reclassification maybe an attractive option if the State is unable to develop

aplan that demonstrates an area will attain within the time period forits assigned classification. Some
commenters were concerned that it may be difficult to develop support for a voluntary reclassification among interested parties. However, webelieve such dialogue will lead the State to undertake athorough analysis and balancing ofhow expeditiously the area

can attain the NAAQS and the costof the measures needed for attainment as these issues will be foremost in the stakeholders' minds.

The EPAprefers Option 2rather than the alternatives that place more areas intohigher classifications because in addition to providing a longer maximum timeframe in which to attain, the higher classifications impose additional statutorily-mandated requirements. While the additional requirements might be appropriate for

areas that truly need the longer period
to attain, it is likely that a number of

areas that do notneed a longer period
to attain would also be placed in a higher classification under these alternatives. For example, several areas that would be covered by subpart 1 under Option 2, and which EPA projects

are likely to attain the 8-hourlevels NAAQS within 3 years based on existingprograms, would be classified 

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as moderate areas under Alternative B. 13
In those areas, the additional moderatearea controlrequirements are unlikely
to be needed for expeditious attainment.

The EPA believes that under any of the classification approaches that were considered there willbe areas that are "misclassified"-i.e., the classification will not reflect the time the area needs to attain and the level ofcontrols needed. The statute does not allow EPA
to reclassify an area to a lower classification, except as provided in section 181(a)(4) regarding an initial 5 percent adjustment. It does, however, as described above, provide continuing authority for areas to be reclassified to

ahigher classification. For that reason, EPA believes the better approach is to

use a scheme that may classify areas too low and areas that need more time to attain can use the voluntary reclassification provision ofthe CAA to obtain the appropriate classification.

(ii) How is Option2 consistentwith the CAA asInterpretedby theSupreme Court?The legal framework for Option 2 is described in detail in the June 2, 2003 proposed rule (68 FR 32813). In short,EPArelies on the Supreme Court's recognition that there is a gap in the statute with respect to areas "whose

ozone levels are greater than the new standard (and thus not attaining) but less than the approximation ofthe old standard codified by Table 1." Thus, for

areas with a 1-hour design value above the level codified in Table 1, EPA interprets the Supreme Court as determining that the CAA mandates that they be classified under subpart 2. For all other areas, the Court indicates there is a gap and EPA must determine a reasonable approach for classifying these areas. Option 2 is consistent with the CAA as interpreted by the Supreme Court because itplaces all areas with a 1-hour design value of0.121 ppm or greater in subpart 2 and, for thereasons provided below, EPA's decision to classify all "gap" areas under subpart 1 is reasonable.

As we noted in the June 2, 2003 proposal (68 FR 32814), when faced with a similar issue following
enactment ofthe CAA Amendments of 1990, we determined that areas that Congress did not mandate fall into the classification scheme ofsubpart 2

13

Revised: Background Information Document, Hypothetical Nonattainment Areas for Purposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone National Ambient Air Quality Standard in Relation to Re-Opened Comment Period Illustrative Analysis Based on 2000 2002 Data. U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofAir Quality Planning and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ ozone/o3imp8hr/. should be subject to only the planning obligations ofsubpart 1.14 We believe it is appropriate to continue that interpretation ofthe CAA for 8-hour

ozone areas-despite the fact that a significant number ofareas designated nonattainment for the 8-hour NAAQS will fall into this group. This decision is reasonable because subpart 2 was developed byCongress 13 years ago and

our scientific understanding ofthe

causes ofozone pollution and the transport ofozone and its precursors has significantly advanced. In addition, subpart 1was developed atthe time that the 1-hour NAAQS was the NAAQS of

concern. At that time, many areas had

along-term ozone problem that they had been unable to solveunder the more flexible pre-1990 provisions ofthe CAA. The 8-hour NAAQS is different in many ways from the 1-hour NAAQS. Moreover, the areas that will be subject
to subpart 1 areprimarily areas that have not had the long-term pollution problem that Congress was concerned about when it created subpart 2.

Congress enacted subpart 2 with the understanding that all areas (except marginal areas, for which few, if any, controls for existing sources were required) would have to employ additional local controls to meet the 1- hour ozone NAAQS in a timely fashion. Since then, many local, regional and national control measures have been implemented, our understanding ofthe importance ofinterstate pollution transport has improved, and we have promulgated interstate NOx transport rules to address transported pollution (theNOx SIP call, October 27, 1998, 63 FR53756). Today, regional modeling by EPA indicates that the majority of potential 8-hour nonattainment areas that fall into the gap will attain the 8- hour NAAQS by 2007 based on reductions from the NOx SIP Call, the Federal MotorVehicle Emissions Control Program, and other existing Federal and State control measures, without further local controls. Some gap areas would be classified as moderate areas ifplaced under subpart 2. The EPAregional modeling shows that many ofthese are projected to

14These areas included: (a)The transitional areas under section 185A (areas that were designated as

an ozone nonattainment area as ofthe date of
enactment ofthe CAA Amendments of1990 but that did not violate the 1-hour ozone NAAQS between January 1, 1987, and December 31, 1989); (b) nonattainment areas that had incomplete (orno)
recent attaining data and therefore could notbe designated attainment; and (c) areas that were violating the 1-hourozone NAAQS by virtue of their expected number ofexceedances, but whose design values were lower than the threshold for which an area can be classified under Table 1of subpart 2 (submarginal areas). See 57 FR 13498 at 13524 col. 3 et seq. (April 16, 1992). attain by 2007 through existingregional

or national measures. (The proposal provides estimates ofthe numbers of
areas, see 68 FR 32814, col. 3).15 Ifthese

areas were to be classified as moderate, they would be required to implement statutorily specified controls for moderate areas. We believe it is reasonable to adopt an approach that would notmandate new local controls in areas projected to meet the NAAQS within 3 years through emissions reductions required by existing programs. Some commenters contended that placing these areas in subpart 1 created

an "equity" problem because other areas with a similar 8-hourozone design value would be placed under subpart 2. The EPA considered this issue when it reopened the comment period and set forth alternatives that would have placed areas with similar 8-hour design values in the same classification. While in one light such a situation may be perceived as inequitable, EPAbelieves that this is generally not the case. As an initial matter, EPA notes that the areas that fall under subpart 2 are areas with higher ozone 1-hour peak concentrations-i.e., areas with levels above the 1-hour NAAQS. 16 Thus, the

areas classified under subpart 1 do not have the same type ofozone problem as those classified under subpart 2 and the

same control programs may not be needed for both types ofareas. We note that the areas that will be classified under subpart 2 are the type ofarea that Congress considered at the time that it developed subpart 2 and it is more likely that subpart 2 will provide benefits for these areas. We also note that in theproposed rule, we proposed several ways to make the obligations under subpart 1 similar to those under subpart 2 for areas with a similar ozone problem. Thus, there are other means to address any inequities; EPA will

15See also: Background Information Document, Hypothetical Nonattainment Areas forPurposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone National Ambient Air Quality Standard. Illustrative Analysis Based on 1998 2000 Data. U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofAir Quality Planning and Standards, Draft, April 2003. Available at: http://www.epa.gov/ttn/naaqs/ozone/ oimp8hr.

16Forinstance, the range of1-hour ozone design values ofthe hypothetical subpart 1areas is from 0.101 ppm to 0.120 ppm, with an average of0.111
ppm. The range of1-hour design values ofsubpart 2areas is from 0.122 ppm to 0.175 ppm with an average of0.133 ppm. See docket document OAR 2003 0079 0573 (REVISED: Background Information Document, Hypothetical Nonattainment Areas forPurposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone NAAQS in Relation to Re-Opened Comment Period) forthe data used for these statistics. 

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consider equity and other factors in deciding controlrequirements for subpart 1 areas in Phase 2.

Most ofthe gap areas would be classified as marginal ifclassified under subpart 2by 8-hour design value. 17
Because control requirements for marginal areas are similar to those for subpart 1 areas, and because most of these areas are projected to attain within 3 years, the distinction in regulatory category may make nopractical difference for many ofthese areas. However, placing these areas under subpart 1provides States and EPA with greater discretion to handle implementation difficulties that might arise in some ofthese areas. For example, a gap area might be unable to attain within the maximum attainment date for marginal areas (3 years after designation) because ofpollution transport from an upwind nonattainment area with alater attainment deadline. In that event, subpart 2 would call for the area to be reclassified as moderate and for the area to implement additional local controls specified for moderate areas. For areas under subpart 1,however, we could provide additional time for the area to attain while the upwind sources implemented required controls if this

were determined to be a more effective

or more appropriate solution. Although regional modeling projections indicate that the NOx SIP Call will bring most gap areas into attainment by 2007, some States have voiced concern that interstate or intrastate pollution transport may make timely attainment difficult for some 8-hour areas with
near-term attainment deadlines (e.g., 2007). Subpart I would provide States and EPA with more flexibility on the remedy in any such cases, while still requiring that subpart 1 areas adopt all reasonably available control measures to attain as expeditiously as practicable. 18
Some mayperceive the placement of gap areas in subpart 1 (based on their 1-

17Background Information Document, Hypothetical Nonattainment Areas for Purposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone National Ambient Air Quality Standard. Illustrative Analysis Based on 1998 2000 Data. U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofAir Quality Planning and Standards, Draft, April 2003. Available at: http://www.epa.gov/ttnlnaaqs/ozone/ o3imp8hr/.

18Concern about transport is supported by EPA's modeling forthe Interstate Air Quality Rule (69FR 4566, January 30, 2004);EPA has proposed to find that in the absence offurther controls, 25 States would significantly contribute to downwind nonattainment in otherStates in 2010, even after the NOx SIP Call hasbeen in full effect. As aresult, EPA has proposed to require the 25 States to reduce their emissions ofNOx to reduce interstate transport, with the reductions to be achieved by 2010 and 2015. hour design values) as inequitable compared to placing other areas that have similar 8-hour design values in subpart 2 (based on their 1-hour design values). We do not believe, however, that it makes sense to limit our authority by placing gap areas in subpart 2 even though they may have 8-hour design values similar to areas that will be classified under subpart 2.

An advantage ofAlternatives A and B

was that they avoided or reduced equity

concerns raised by some commenters with Option 2. Regardless, we believe that equity considerations should not override other considerations in determining how to best help areas attain the 8-hour NAAQS. Congress mandated that areas with 1-hour ozone levels above the level 0.121 ppm be classified under subpart 2. However, Congress did not specifically address the areas that fall into the "gap." Where Congress has left to EPA's discretion how to classify areas, webelieve that factors we have considered above 19 outweigh any desire for "equity."

Additionally, we note that since 1990

we have learned that NOxcontrol is

more important for many areas than was recognized at the time ofthe 1990 CAA Amendments. Some mandatory

measures in subpart 2, such as the 15 percent VOC reduction required for certain areas, focus on VOC reductions. In some areas itwill be more effective and less costly to reduce ozone through

a strategy thatplaces more emphasis on NOx than VOC, and a 15 percent VOC reduction may not bepart ofan optimal strategy. Subpart 1 would allow such

areas greater flexibility on choice of controls.

In summary, Option 2 meets the policy goals EPA specified in the proposal-most importantly, providing flexibility, and encouraging expeditious attainment ofthe NAAQS-and is consistent with the Supreme Court's ruling. Commenters were divided on the merits ofdifferent classification approaches and no single option appealed to a large majority of stakeholders. On balance, EPA determined that Option 2 was preferable
to the other options identified. Thus, EPA is adopting Option 2.
3. Comments and Responses

This preamble briefly summarizes major comments on each portion ofthe

19These include trying to meet the following objectives as discussed above: (a) Providing flexibility in determining the mosteffective control; (b) achieving attainment at costs lower than those for strategies with prescribed measures; (c) providing flexibility in addressing nonattainment

areas that arehave difficulty attaining due to transport; and (d) ensuring expeditious but reasonable attainment dates. Phase 1rule and generally provides a briefresponse to those comments. The response to comment (RTC) document presents a more complete description of
comments received and a more complete response to those comments.

Comment: The commenters were split

on whether they preferred Option 1, under which all areas are classified under subpart 2 ofthe CAA, or Option 2, under which 8-hour nonattainment

areas with 1-hour ozone design values of0.121 ppm or greater at the time of designation are classified under subpart 2 and all other 8-hour nonattainment

areas are classified under subpart 1. Those who supported Option 2, indicated it madebetter policy sense,
was more flexible and more appropriate than Option 1, cost less, was better integrated with other regulations, provided more reasonable attainment dates, and was more consistent with the Supreme Court decision. A number of
commenters supported Option 2, but recommended variations ofthat approach. These commenters raised one (orboth) oftwo concerns with the approach recommended byEPA: (1) Since most ofthe areas fall into the lower classifications with short-term attainment dates, it does not provide sufficient time for many areas to attain; and (2) since some areas classified under subpart 1 willhave amore severe 8-hour ozone problem than some areas classified under subpart 2, Option 2 is

or maybe perceived as inequitable. In addition, several commenters recommended options different than either ofthe options proposed by EPA.

Those who favored Option 1 argued that it was more consistent with the Supreme Court's decision and the CAA, that Subpart 2 was more likely to produce progress and faster attainment,

was more consistent with Subpart 2 of the CAA, was more equitable and fair, and that Subpart 1 had other problems that made it less desirable.

Some commenters claimed both Options 1 and 2 were flawed, based on
concerns about transport and concerns related to the Supreme Court decision. We received comments on the translation ofSection 181's Table 1. These comments addressed the

concerns such as: the proposed translation could result in attainment deadlines which areunrealistic and unachievable; it would be more logical and more consistent with the nature of the standard being implemented-the 8- hour standard-for EPA to translate the Table 1thresholds into approximate 8- hour equivalents; and the starting threshold should be different from what EPA proposed. Some commenters 

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offered other alternatives for the translation and/or the starting threshold.

There were several specific comments related to the draft regulatory text.

Ourrationale for adopting Option 2 as the final classification approach is presented above. Below is abrief synopsis ofthe response to major
comments.

Response to Comments Supporting Option2:We generally agree with these comments and the final rule incorporates Option 2.

Response to Comments that SupportedOption2, But Recommending VariationsThatWould ProvideMore TimeforAttainment: Based on our projections offuture air quality based on regional modeling and experience with ozone control in the past, we believe that States may find during the attainment planningprocess that a limited number ofareas may need

more time to attain the 8-hourNAAQS than their classification would permit. However, the statute provides a remedy for this situation. A State can receive

more time to attain by voluntarily submittinga request to EPA for ahigher classification-inclu ding the classification they had under the 1-hour NAAQS. The CAA (Section 181(b)(3)) directs EPA to grant a State's request, and to publish notice ofthe request and EPA's approval. Although the area would have to meet the additional requirements for the higher classification, the same would be true if the area had been initially classified higher, under a classification system that placed more areas inhigher classifications. The EPArecognizes that voluntary reclassification is a legitimate option under the CAA, and may be an attractive option ifthe State is unable to develop a plan that demonstrates an
area will attain within the time period for its assigned classification. As noted in the October 21, 2003 notice reopening the comment period, we considered other classification approaches, including those suggested by commenters and EPA's Alternatives A and B, which would provide more

areas with later attainment dates by placing more areas in higher classifications. However, EPA found that alternatives that provided more time to the areas with the worst ozone problems also provided higher classifications, accompanied by additional statutorily-mandated requirements, for areas that EPA believes may attain by the 2007 ozone

season based on projected emissions reductions from existing programs. Under these approaches, these areas would be subject to controls that may not be necessary for attainment. The EPA believes it is more appropriate to

use the statutory mechanism for a voluntary bump up for areas classified "too low" than to mandate controls for

areas based on a classification that is "too high."

Response to Comments thatNoted that Option2 MayBe Perceivedas Inequitable:A number ofother commenters dismissed the characterization ofOption 2 as being inequitable. The EPA's response to the equity issue is discussed above.

Response to Comments that Recommended OptionsDifferentthan the OptionsProposedby EPA:Certain commenters suggested that areas still
not meeting the 1-hour NAAQS should continue to implement the 1-hour NAAQS under subpart 2, but once the NAAQS is attained (or all mandated controls were implemented) the area would implement the 8-hourNAAQS under subpart 1. All areas attaining the 1-hour NAAQS would begin implementing the 8-hourNAAQS under subpart 1.

As explained more fully in the response to comments (RTC) document, EPA does not believe this approach is consistent with the CAA or the Supreme Court's decision on implementation ofa revised ozone NAAQS. The issue before the Court was whether the classification provisions ofsubpart 2 apply for purposes ofimplementing the revised 8- hour ozone NAAQS. The Court unequivocally stated that those provisions do apply for purposes of implementing the 8-hour ozone NAAQS. 531 U.S. 482-84. We believe that any option that does notprovide a role for the subpart 2 classification
structure in implementing the 8-hour NAAQS is not consistent with the Court's interpretation ofthe CAA.

Commenters suggested several other options, some ofwhich were described in our notice reopening the public comment period. Under one ofthese options, we would reduce the range for the subpart 2 classifications, which would have classified more subpart 2

areas in higher classifications, thereby extending the maximum period for attainment. We have addressed the problems associated with thatkind of classification structure above. Under another ofthese options, the classification structure would have relied solely on 8-hour ozone design values. This approach was avariant of Option 2 in which all areas with 8-hour design value ofless than a value that is equivalent to the 1-hour value of0.121 ppm would be covered by subpart 1. This variant ofOption 2 has the effect ofmoving source areas from Subpart 1
to Subpart 2 and atthe same time placing more Subpart 2 areas in lower classification categories. The Subpart 2

areas placed in these lower classification categories would be subject to fewer mandatory requirements. However, EPAbelieves that this approach would increase the number of areas for which the initial classification would notprovide sufficient time to attain.

The EPA's assessment ofthese and other options is included in the RTC document.

Response to Comments thatFavored Option1 andA rguedthatit wasMore Consistentwith the CourtDecisionand the CAA: We believe Option 2 is a reasonable method for addressing the gaps that the Supreme Court recognized in the CAA. Option 2 provides more flexibility than Option 1 to States and Tribes to design strategies to meet the 8- hour ozone NAAQS in the most effective and least costly way consideringlocal circumstances, while requiring and providing incentives for expeditious attainment ofthe healthbased NAAQS. Since Option 1would require all 8-hournonattainment areas to be covered under subpart 2 with its set ofprescriptive control measures, it would generally cost more but would
notrequire attainment any more expeditiously than Option 2. Both subpart 1 and 2 require attainment dates "as expeditious aspracticable" regardless ofthe maximum attainment dates specified in the CAA.

We believe that Option 2 is consistent both with the CAA and the Supreme Court's decision in Whitman as described above and in the June 2, 2003 proposed rule (68 FR 32813). In short, EPA relies on the Supreme Court's recognition that there is agap in the
statute with respect to areas "whose

ozone levels are greater than the new standard (and thus not attaining)but less than the approximation ofthe old standard codified by Table 1." Thus, for

areas with a 1-hour design value above the level codified in Table 1, EPA interprets the Supreme Court as determining that the CAA mandates that they be classified under subpart 2. For all other areas, the Court indicates there is a gap and EPA must determine a reasonable approach. For thepolicy

reasons specified above, in the RTC and in the preamble to the proposed rule (68 FR 32814-15), EPA believes it is reasonable to address these "gap" areas under subpart 1.

Response to CommentsAssertingthat EPA doesnothaveAuthority toModify Table1 toReflect 8-HourOzone Values: We disagree with those commenters who claim EPA does not have authority
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reflect 8-hour design values. We acknowledge that EPA is applying the
statute other than in the way itis written. We believe we have authority to do sobecause to apply it as written would produce absurd results. In enacting the classification structure in subpart 2, Congress linked the severity ofan area's air quality problem with the time needed to attain and the stringency ofthe controls that an area would be required to adopt. Thus, areas with a
more significant air quality problem

were granted more time to attain the NAAQS, but were also subject to more stringent controls. Ifwe applied Table 1,

as written, for purposes ofthe 8-hour NAAQS, the classification scheme would not be related to the severity of the area's 8-hour ozone problem.

If 1-hour values were used to classify 8-hournonattainment areas based solely

on Table 1as presented in section 181 ofthe CAA, there would be 2 serious
areas, 9 moderate areas, and 26 marginal

areas. 20 Unlike other areas, marginal

areas (as explained elsewhere) are not subject to the requirement for attainment plans to ensure that they identify and adopt the controls necessary for attainment bytheir attainment date. Based on EPA's modeling projections offuture ozone levels and past experience working with
states on ozone SIPs, EPA believes itis clear that most ofthe areas that would be marginal if classified by 1-hour design value would fail to attain the 8- hour standard without additional local controls by the spring 2007 attainment date for marginal areas. These include major cities with elevated 8-hour ozone levels such as Chicago and Dallas-Fort Worth. In fact, over a quarter ofthese

areas that would be marginal if classified by 1-hour design values were not projected to attain the 8-hour NAAQS without additional local controls even by 2010. The projection that many ofthese areas would not attain by 2010 without additional controls is further evidence they would
not attain in 2007 without further controls. Thus, for many areas, classifying by 1-hour design value would not reflect the severity oftheir 8-

2 0Based on data from: Revised: Background Information Document, Hypothetical Nonattainment Areas forPurposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone National Ambient Air Quality Standard in Relation to Re-Opened Comment Period Illustrative Analysis Based on 2000 2002 Data. U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofAir Quality Planning and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ ozone/o3imp8hr/. hour ozone problem or the time needed
to attain.

An additional problem is that the practical effect ofplacing many areas that cannot attain by 2007 into the marginal classification would be to delay development ofplans for improving air quality to meet the 8-hour standard. This would be inconsistent with Congress's intent, reflected in the requirements ofthe Act, that areas attain air quality standards as expeditiously as practicable. Rather, Congress intended classifications to approximate the attainment needs ofareas. In this circumstance, it is appropriate for EPA
to make, byway ofregulation, a limited modification to Table Ito reflect Congressional intent.

We recognize that even under the approach adopted by EPA, some ofthe

same anomalies will be created. For example, some areas may need more time to attain than provided bythe area's initial classification. However, these anomalies are more limited because the classifications more appropriately recognize an area's 8-hour

ozone problem. As noted above in our discussion on thebasis for selecting Option 2, webelieve the statutory mechanisms such as voluntary bump ups can address these inequities in the limited situations in which they arise. In comparison, if 1-hour values were used to classify 8-hour nonattainment

areas based solely on Table 1 as presented in section 181 ofthe CAA, there would only be 2 serious areas, 9 moderate areas, and 26 marginal areas. This is a much different distribution than using Option 2, in which there would be more areas in the higher classifications (1 severe-17, 4 serious, 21 moderate) and far fewer (11) marginal

areas. And, under the adopted approach, the distribution under subpart 2 is based on the area's 8-hour design value not its 1-hour design value. 2 1

Response to CommentsFavoring Option1ArguingthatSubpart2 was

more Likely toProduceProgressand Faster Attainment:Other commenters raised concerns that because subpart 1 is less prescriptive than subpart 2 and potentially allows later attainment dates for the less polluted areas, areas will not

21Based on data from: Revised: Background
Information Document, Hypothetical Nonattainment Areas forPurposes of Understanding the EPA Proposed Rule for Implementing the 8-hour Ozone National Ambient Air Quality Standard in Relation to Re-Opened Comment Period Illustrative Analysis Based on 2000 2002 Data. U.S. Environmental Protection Agency, Office ofAirand Radiation, Office ofAir Quality Planning and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ ozone/o3imp8hr/. in fact attain the 8-hourNAAQS as quickly under subpart 1 as they would be required to do under subpart 2. As evidence, these commenters point to the past failure ofareas to attain the ozone NAAQS prior to the enactment of subpart 2 in 1990. We disagree.

Subpart 1 and subpart 2both require

areas to attain the 8-hour ozone NAAQS

as expeditiously aspracticable. Thus, the intention ofthe CAA is that regardless ofwhether an area is covered under subpart 1 or subpart 2, it must achieve clean air on the same schedule- i.e., as expeditiously as practicable. In addition, CAA section 172(c)(1) requires that a SIP for a nonattainment area "* * * shall provide for implementation ofall reasonably available control measures ["RACM"] as expeditiously as practicable * * * and shall provide for attainment ofthe [NAAQS]." In reviewing SIPs for approvability under subpart 1, we will evaluate whether the emission control measures in the SIP and the timing ofimplementation comports with the RACM and attainment provisions to ensure all RACM are adopted and implemented as expeditiously as practicable and that the attainment date is as expeditious as practicable. Subpart 1 sets an initial outside attainment date of5 years following designation for the 8-hour NAAQS. Subpart 2 sets the earliest outside attainment date as 3 years following designation 22 for marginal areas. Under subpart 2, marginal areas are not required to submit attainment demonstrations and, for allpractical purposes, are not required to adopt additional local controls for existing

sources. 23 Thus, in general, Congress anticipated that these areas would come into attainment within 3 years without significant additional local controls. We believe that most areas covered under subpart 1with air quality problems similar to marginal areas will in fact

come into attainment with the 8-hour

22Asprovided below, in the section regarding attainment dates for the 8-hour ozone NAAQS, subpart 2 actually specifies that the attainment period runs from the date ofthe 1990 CAA Amendments rather than the date ofdesignation. However, as we explain in the attainment date section, for purposes of 8-hour NAAQS, we believe Congress intended those dates to run from the date ofdesignation.

23The only control obligations mandated for marginal areas are that they fix flawsin their RACT rules and their I/M programs that existed at the time ofthe 1990 CAA Amendments. Areas designated nonattainment forthe 1-hour NAAQS, which were the areas with thepre-90 RACT and I/M obligations, have already made these corrections. It is unlikely that any areas designated nonattainment for the 8- hour NAAQS willnot have already made these corrections if they have such programs in place. 

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NAAQS on a similar timeframe as areas classified as marginal (i.e., 3years following designation). 2 4 

### In fact, we believe theprospects fornear-term attainmentbased on existing programs
aremore favorable now than they were in 1990because national and regional control programs already in place will achieve substantial reductions in NOx and VOC emissions prior toMay 2007. These include theregional NOx SIP Call, which mandates interstate transport controls forcertain States by May 31, 2004 (63 FR53756, October 27, 1998); progressively more stringent emissions standards for new cars and light-duty trucks issued since 1990, mostrecently theTier 2motor vehicle emission standards, and associated sulfur-in-gasoline requirements (65 FR 6698, February 10, 2000); and theheavy duty dieselrule (66 FR5002, January 18, 2001).

For areas covered under subpart 1 with an air quality problem similar to subpart 2moderate areas, the presumptive maximum attainment date will be 1year earlier-i.e., 5 years following designation rather than 6 years. Toreceive a later attainment date, section 172(a)(2)(A) requires such areas to demonstrate more time isneeded based on the severity ofnonattainment and the availability and feasibility of pollution control measures. Asto the first factor-severity ofnonattainmentEPA believes thatit wouldbe difficult tojustifyproviding a period longerthan 6years since similar areas classified under subpart 2would not have a longer time to attain. Thus, such an area would need todemonstrate thatthe availability and feasibility ofcontrol measures (includingthose mandated under subpart 2) wouldjustify an extension longer than 6years. A similar analysis would apply ifan area with an even
more significant airquality problem

were covered under subpart 1.For this reason, we do notbelieve thatpublic health concerns support classifyingall

areas with similar airquality under subpart 2.
4. Under theFinal Classification Approach, How WillEPA Classify Subpart 1Areas? (Section VI.A.4. of Proposal; 68 FR 32813; Section 51.904 ofDraft and Final Rules)

a. Background.Section 172(a)(1) provides thatEPAhas the discretion to classify areas subject to subpart 1.We proposed two options with respect to classifications for areas subject only to subpart 1(68 FR32813).First, we proposed to create no classifications. Second, weproposed to create one

24See 68 FR 32814. classification-an interstate overwhelming transport classification for areas that submit amodeled attainment demonstration showing the area's nonattainment problem is due to overwhelming transport and that meet the definition ofa ruraltransport area under section 182(h) ofthe CAA. As we noted in the June 2, 2003 proposal, the

area would receive an attainment date that is consistent with section 172(a)(2)(A), but that takes into consideration the following: * The attainment date ofupwind nonattainment areas that contribute to the downwind area's problem; and * The implementation schedule for upwind area controls, regardless oftheir geographic scope (e.g., national, regional, statewide, local).

This option would partially address Tribal concerns about designations where aTribal area designated nonattainment does not contribute significantly to its own problem. This is

one ofthe key issues for the Tribes who seek to have economic growth from new
sources within theirjurisdiction but that have difficulty obtaining emission reduction offsets from sources located either inside or outside Tribal areas.

b. Summary offinal rule.We are adopting the second option but modified as aresult ofcomments. We

are creating an overwhelming transport classification that will be available to subpart 1 areas that demonstrate they

are affected by overwhelming transport ofozone and its precursors and demonstrate they meet the definition of

arural transport area in section 182(h). However, areas would not have to demonstrate that transport was due solely to sources from outside the State (interstatetransport) as was implied by the June 2, 2003 proposal. All other

areas that do not qualify for the overwhelming transport classification would not be classified. In addition, an

area may consider the effects of international transport ofozone and precursors in determining if the area is affected by overwhelming transport.

An overwhelming transport classification will accomplish several purposes. One purpose is to communicate to the public the need for

an attainment date to account for the control timetable for upwind areas whose emissions are overwhelmingly contributing to the area's nonattainment problem. An area will be classified as an "Overwhelming Transport Area" upon full approval ofan attainment demonstration SIP that demonstrates, using EPA-approved modeling, that the nonattainment problem in the area is due to "overwhelming transport," as set forth in guidance. The area must also meet thatpart ofthe definition ofarural transport area in section 182(h) that requires that an area not be in or adjacent to a Consolidated Metropolitan Statistical Area (CMSA).

In approving an attainment date for the area, EPA will consider: (1) The attainment date ofthe upwind nonattainment area or areas that contribute to the downwind area's problem; and (2) the implementation schedule for upwind area controls, regardless oftheir geographic scope (e.g., national, regional, statewide, local).

In the June 2003 proposal, we proposed that such areas would be subject to requirements similar to those that apply to areas classified as marginal under subpart 2. We are considering the
comments we received on the issue of applicable requirements for these subpart 1 areas and will address this issue after we issue guidance on assessment ofoverwhelming transport.

In addition, the proposed rule also indicated that we could consider more flexibility forconformity for such areas. In our proposed transportation conformity rule published on November 5, 2003 (68 FR 62690), we did not propose any specific conformity flexibility for areas affected by ozone transport. However, many ofthe proposed options, including the types of emissions tests used in conformity, would be available to areas affected by transport, as well as othertypes of8- hour ozone areas. In addition, the existing transportation conformity rule already provides flexibility in such things astransportation modeling requirements for smaller areas with less

severe local air quality problems. Also, EPA intends to propose in afew months

more flexible NSRprovisions that would apply in such areas.

We believe the overwhelming transport classification for areas covered under subpart 1 is consistent with the CAA and is reasonable. We believe that the classification should be restricted to rural areas because these areas will generally not have significant sources of emissions to control and therefore are notlikely to contribute much to their

own nonattainment problem. There are exceptions, ofcourse, such asrural

areas with large sources such aspower plants, but such areas would also need
to meet the other criteria for the classification, such as not contributing significantly to nonattainment in other

areas.

In determining an attainment date for

areas classified as "transport," we would apply the criteria in section 172(a)(2)(A). The second criterion in section 172(a)(2)(A)-the availability 

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and feasibility ofcontrol measures-will allow EPA to consider the effects of transported pollution in setting an appropriate attainment date for these

areas ofno later than 10 years following designation.

We recognize that there may be areas affected by transport that don't meet the definition ofrural transport. However, in determining attainment dates for

areasunder section 172(a)(2)(A), we can consider the availability and feasibility ofcontrol measures; thus, areas that do
not meet the definition ofa rural transport area should be able to adopt

an attainment date that reflects the time period for reductions in upwind areas that are contributing to nonattainment.

The EPA decided not to exercise its discretion to create additional classifications for subpart 1 areas. We do not believe another classification is necessary for expeditious attainment of the 8-hourNAAQS for these other subpart 1 areas.

The final rule (section 51.904(a)) provides for a subpart 1 area to be classified as an overwhelming transport

area ifit meets the criteria as specified for rural transport areas under section 182(h) ofthe CAA and overwhelming transport guidance that we will issue in the future. Although EPA's June 2, 2003 notice referenced an EPA guidance document asthe criteria for determining the contribution ofsources in one or
more other areas are an overwhelming

cause ofan area being designated nonattainment, we believe that guidance needs to be updated. Thus, we are retracting our previous guidance and will issue revised guidance. We plan to address control requirements applicable
to these areas in Phase 2.

c. Comments and Responses
Comment:Most ofthe commenters 

### who commented on classifications for subpart 1 areas objected to the requirement that to receive an overwhelming transport area classification an area must demonstrate that it is arural transport area. Many of these commenters pointed out that there

are a number ofareas that do not meet that definition and that do not generate

a significant portion ofemissions that contribute to the area's nonattainment problem. Some also stated that the CAA does not mandate this as acriterion and thus the test was unduly restrictive. These commenters asked that the availability ofthe overwhelming transport classification be based only on whether an area is a victim of overwhelming transport.

Response:The CAA does not mandate that an area be considered rural in order
to receive an overwhelming transport classification under subpart 1. However,

we believe that areas that are not rural,

even if they are affected to a significant degree by transport, in general contribute atleast some degree to their

own and likely to other areas' nonattainment problems. The final rule, therefore, is as proposed-the overwhelming transport classification is only available to areas that meet the criteria for rural transport areas under section 182(h) ofthe CAA.

Comment:One commenter suggested EPA provide increased flexibility for

areas that would be classified as nonattainment, primarily forreasons related to transport. A special category for transport areas, should be created for
areas that are in attainment ofthe 1- hour standard but, if not for the impact oftransport, would not be in violation ofthe new 8-hour standard. The regulatory requirements for transport

area should be minimal and required compliance dates should extend out at least as long asthe upwind states.

Response:We note that 8-hour ozone nonattainment areas covered under subpart 1generally will be close to attaining the 1-hour standard. We believe the criteria used to determine overwhelming transport will invariably result in a situation where an area subject to overwhelming transport would be in attainment ofthe standard but for transport. Subpart 1provides a maximum of 10 years from the effective date ofnonattainment designation for attainment. We note, however, that if such an area believes that itwould need

an attainment date longer than 10 years, it could request to be reclassified under subpart 2 to a classification with a longer attainment date. The area would, ofcourse, have to meet the requirements ofits subpart 2 classification (either its requested classification or the rural transport classification if it so qualifies).
5. Will EPA Adjust Classifications? (Section VI.A.9. ofProposal; 68 FR 32816; Section 51.903(b) and (c) ofFinal Rule)

a. Background.Under sections 181(a)(4) and 181(b)(3), an ozone nonattainment area may be reclassified
to the next higher or lower classification. Section 181(a)(4) ofthe CAA states:

Ifan area would have been classified in another category ifthe design value in the

area were 5percent greater or 5percent less than the level on which such classification

was based, the Administrator may, in the Administrator's discretion, within 90 days after the initial classification, adjust the classification toplace the area in such other category. Inmaking such adjustment, the Administrator mayconsider the number of exceedances ofthe nationalprimary ambient air quality standard forozone in the area,the level ofpollution transport between thearea and other affected areas, including both intrastate and interstate transport, and the mixofsources and air pollutants inthe area.

Section 181(b)(3) requires the Administrator to grant the request of any State to reclassify a nonattainment

area in the State to a higher classification.

b. Summaryoffinal rule.We are adopting the approach we included in the proposal. For areas subject to subpart 2, section 181(a)(4) ofthe CAA provides that classifications may be adjusted upward ordownward for an

area ifthe area's design value is within 5 percent ofanother classification. If,for example, an area is subject to a subpart 2 classification and there is evidence that the area will not benefit significantly from local controls mandated by subpart 2 forthe area's classification and can attain within the timeperiod specified for the next lower classification, the area may obtain some reliefbased on the 5 percent rule in the CAA if applicable. In addition, section 181(b)(3) requires the Administrator to grant the request ofany State to reclassify a nonattainment area in the State to a higher classification.

Section 51.903 was revised from the initial draft regulatory text language to add the reclassification provisions in section 181(a)(4) and 181(b)(3).

c. Comments and Responses

Comment:Several commenters supported the use ofprovisions in section 181(a)(4) to allow adjustment of

a classification. Comments indicated that this approach could result in cost savings in cases where the increased controls ofthe higher classification would notbe needed for attainment. One commenter noted that the Administrator should consider several factors in making the adjustment under section 181(a)(4), including the number ofexceedances ofthe NAAQS and complexity ofthe problem. The
commenterrequested that EPA explain how the Administrator would make this decision and the process that will be used. Another commenter recommended that the actual test of compliance with the provisions of section 181(a)(4) should include allowance for meteorological fluctuation in order to avoid States havingto meet

an average design value well below the NAAQS before deemed in compliance.

Response:The EPA's guidance on the 5 percent bump down provision in section 181(a)(4) is contained in the November 6, 1991 Federal Register (56 

### FR 56698) which established theinitial 

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designations and classifications. In a separate Federal Register notice, EPA will invite States to submit bump down requests. The EPA will describe the criteria (includingany changes from the 1991 criteria) for approval of5 percent bump downs in that notice and will provide at least a 30-day period for States to submit theirrequests. Section 181(a)(4) authorizes the Administrator
to adjust aclassification within 90 days afterthe initial classification. The EPA continues to believe, as provided in the June 2, 2003 proposal, that section 181(a)(4) does notprovide a basis for an
area to move from subpart 2 to subpart 1.

6. Proposed Incentive Feature (Section VI.A.6. ofProposal; See 68 FR 32815; 51.903(b) ofDraft Rule)

a. Background.In the proposed rule (68FR 32815), we sought comment on
aclassification feature that would allow

areas classified under subpart 2 to qualify for a lower classification upon a demonstration the area would attain the 8-hourNAAQS by the earlier attainment date ofa lower classification. For example, an area that would be classified "moderate" based on its 8- hour design value would qualify for a "marginal" classification by demonstrating it would attain the 8- hour NAAQS within 3 years of designation.

b. Summary offinal rule.We are not including the proposed incentive feature in the final rule.We received

numerous adverse comments on the idea, raising both legal and policy issues. Because we agree as apolicy
matter that we should not adopt the incentive feature, we do not reach the legal issue ofwhether the statute grants such authority. Ourbasis for this decision is provided more fully in the RTC document, portions ofwhich are excerpted below. In short, we believe that only a few areas would have benefitted from this proposal considering the flexibility already available under classification Option 2, and we believe that the difficulties in developing and implementing such an approach outweigh any benefits. In particular, commenters on the June 2, 2003 proposal were concerned that we did not identify the type ofmodeling that areas could rely on to take advantage ofthis option. While we had
not identified in the June 2, 2003 proposal the type ofmodeling that could be used, we had referenced our current modeling guidance in the draft regulatory text which was published on August 6, 2003. Additionally, we believe it would be very difficult for an

area to have completed the necessary modeling and for us to approve such a SIP submission much in advance ofthe attainment date for amarginal area. Further, if the area did not meet that attainment date, itwould need to begin the modeling process over again almost immediately. We now believe that it makes more sense for the area to prepare the modeling required for its higher classification and, ifthe area attains the NAAQS earlier than the attainment date for its classification, our Clean Data Policy 25 will provide relief from RFP requirements.

c. Comments and Responses
Cornment:About halfthe commenters that addressed this issue opposed the incentive feature. These comments originated mainly from environmental organizations and some State and local air pollution control agencies and organizations. Many ofthese
commenters questioned the legal basis for such afeature and also believed modeling is too inaccurate or unreliable
to be used for classification purposes. They believed that monitoring data should be the sole basis for classifications. The other comments received on this issue supported the incentive feature. These comments originated mainly from industrial representatives and organizations, as well as several State and local air agencies and transportation agencies and organizations.

Response:Our analysis indicates that the incentive feature would nothave helped very many areas. Of21 hypothetical nonattainment areas classified as moderate (based on 2000- 2002 air quality data), our modeling projects that only 3 would have qualified without first adopting further controls. No serious or higher classified

area would have qualified without further controls. Very few areas would

even receive aclassification higher than moderate. In addition, even ifwe adopted this approach, we do not believe there would have been enough time for areas seeking amarginal classification to submit a plan with local controls that demonstrate attainment by

a Spring attainment date in 2007 and implement the controls by the Spring of 2006. In addition, we would have to develop guidance for the demonstration. Furthermore, although many commenters supported havingthe

2 5Memorandum ofMay 10, 1995, "RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," from John S. Seitz, Director, Office of Air Quality Planning and Standards. Available at: http://www.epa.gov/ttn/oarpgltl/memoranda/ clean]5.pdf. feature, many othercommenters objected to the feature on anumber of grounds. Because ofthe difficulties involved in administering such a program, the unfavorable timing, and the anticipated low number ofareas that could benefit from the feature, we are notincorporating the feature in the final rule.

A number ofcommenters who opposed the feature contended that the approach was not supported by the CAA. Since we are not adoptingthe feature in the final rule on policy grounds, we do not address the legal issues here.

B. How Will EPA TreatAttainment Dates forthe 8-HourOzone NAA QS? (SectionVLB. ofProposal; See 68FR 32816;51.903and51.904Draftand FinalRules)

1. Background

Under Subpart 2 ofthe CAA, maximum attainment dates are fixed as

a function ofa nonattainment area's classification under Table 1. The CAA provides that an area's attainment date
mustbe "as expeditious aspracticable but no later than" the date provided in Table 1for that area's classification. The statutory dates are specified as a set number ofyears from the date of
enactment ofthe CAA Amendments of 1990. Since a strict application ofTable 1 would produce absurd results for most

areas (i.e., areas classified as marginal would have aNovember 15, 1993 attainment date, moderate areas would have aNovember 15, 1996 attainment date, etc.), we are promulgating a targeted revision ofTable 1 to reflect attainment dates consistent with Congressional intent.

While the attainment dates in Table 1

are expressly linked to the date of
enactment ofthe CAA Amendments of 1990, this is also the date on which
most areas were designated and classified as a matter oflaw. In addition,

as explained in thepreamble to the proposed rule (68 FR 32817), other provisions ofthe CAA specify that the date for attainment shall run from the date ofdesignation and/or classification

as a matter oflaw for an area. Consistent with this, we proposed that the starting point for the set timeframes for attainment would be the date an area is designated and classified for purposes ofthe 8-hourNAAQS. 26 Thus, for example, an area classified as marginal for the 8-hour NAAQS would have up

26As explained in ourproposed rule, areas will
be classified as a matter oflaw at the same time they

are designated; thus, we simply refer to "designation" rather than designation and classification. 

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to 3 years from designation to meet that NAAQS and amoderate area would have up to 6 years from designation to attain.

For areas covered under subpart 1, attainment dates are setunder section 172(a)(2)(A), which provides that the SIP must demonstrate attainment as expeditiously as practicable but no later than 5 years after designation, with up to 10 years after designation permitted if the severity ofthe area's airpollution and the availability and feasibility of pollution control measures indicate

more time is needed. In the draft regulatory text, we provided that EPA would establish the attainment date for

an area atthe time we approve the area's attainment demonstration.

2. Summary ofFinal Rule

We are adopting the timeperiods for attainment that we proposed for areas under both subpart 1 and subpart 2 of the CAA. For areas subject to subpart 2 ofthe CAA, the maximum period for attainment will run from the effective date ofdesignations and classifications for the 8-hourNAAQS and willbe the

sameperiods as provided in Table 1 of section 181(a): * Marginal-3 years, * Moderate-6 years, * Serious-9 years, * Severe-15 or 17 years, and * Extreme 20 years.

We are adopting this approach because applying the table, as written, would produce absurd results. Forthe

reasons above and discussed in the preamble to the proposed rule, we believe it is consistent with Congressional intent to begin the time periods for attainment specified in Table 1in section 181(a) at the time of designation and classification.

Consistent with section 172(a)(2)(A), for areas subject to subpart 1 ofthe CAA, the period for attainment will be

no later than 5 years after the effective date ofthe designation. However, EPA may grant an area an attainment date no later than 10 years after designation, if warranted based on the factors provided in section 172(a)(2)(A). The EPA will establish an attainment date for each subpart 1 area at the time we approve
an attainment demonstration for the

area.
3. Comments and Response

Comment:Several commenters 

### reiterated the CAA's requirement that

areas attain the NAAQS as "expeditiously as practicable." They felt that the attainment deadlines in the proposed rule would impede the progress that areas have made and would subject the general public to years ofunhealthy air quality. One commenter suggested that EPA create enforceable short-term compliance dates
to assure citizens ofdownwind States that upwind States are meeting their longer-term compliance deadlines. Other commenters felt that the attainment dates under both subpart 1 and 2 that were proposed did not provide enough time for areas to attain for anumber ofreasons, such as: areas would not be able to take credit for emissions reductions from Federal
measures, the slow turnover ofmobile

source fleets would not achieve the needed mobile source reductions in the timeframes proposed, EPA's Clear Skies modeling shows that a number ofareas in the mid-Atlantic and northeast will
not come into attainment before the middle ofthe next decade, it would not be feasible to have stationary and mobile source controls in place 3 years before the attainment dates for purposes ofmonitoring, etc. However, a number ofcommenters agreed with EPA's proposal to establish attainment dates that correspond to the timeframes established under subpart 2 ofthe CAA from the date of8-hournonattainment designations. In addition, one commenter stated that theproposal did
not clearly address how attainment dates for subpart 1 areas would be set. Finally, several commenters recommended that EPA change the attainment dates to November or December ofthe attainment year rather than in April so areas can use the ozone
season air quality data from the attainment yearto demonstrate attainment.

Response:As stated in ourJune 2, 2003 proposal, under subpart 2 ofthe CAA, maximum attainment dates are fixed as a function ofa nonattainment area's classification under Table 1. The CAA provides that an area's attainment date must be "as expeditious as practicable but no later than" the date prescribed in Table 1for that area's classification. The dates were specified

asthe number ofyears from the date of
enactment ofthe CAA Amendments, which was November 15, 1990, which

was also the date ofdesignation and classification by operation oflaw for
most subpart 2 areas. We believe that applying the attainment dates as expressly provided under Table 1 would produce absurd results, since a strict application ofTable 1would result in

an attainment date ofNovember 15, 1993 for marginal areas and an attainment date ofNovember 15, 1996 for moderate areas. Although we believe

a strict application ofthe statute would produce absurd results, we do not believe that allows broad authority to rewrite the statute. Rather, we look to the legislative history and other provisions ofthe CAA to discern Congressional intent. Consequently, forthe reasons provided above and in thepreamble to the proposed rule, we have determined that attainment dates will run from the effective date ofdesignations and classifications forthe 8-hour ozone NAAQS. Since we are designating and classifying areas for the 8-hour ozone NAAQS with an effective date ofJune 15, 2004, the corresponding attainment periods would run from June 15, 2004.

We do notbelieve we have authority
to change the attainment dates to November or December ofthe attainment year as several commenters requested. We believe that Congress would have intended for areas designated nonattainment and classified under subpart 2 forthe 8-hour NAAQS
to have attainment periods consistent with those in Table 1 (e.g., 3 years for marginal areas, 6 years for moderate
areas, etc.)This would result in the 8- hour marginal attainment datebeing 3 years from the effective date of designations for the 8-hourNAAQS (i.e., June 15, 2007),the moderate attainment being 6 years from the effective date of designations for the 8-hourNAAQS (i.e., June 15, 2010),etc.

Additionally, EPA does nothave the authority to shorten attainment dates or lengthen attainment dates to allow areas to take credit for emissions reductions from future Federal or regional

measures as several commenters suggested. The statute provides for all

areas to attain as expeditiously as practicable. As part ofits attainment demonstration, a State must demonstrate that there are no reasonably available controls that can expedite attainment. Therefore, States must address why they cannot attain earlier than the maximum attainment date. As
to longer attainment dates, States may request a voluntary bump up ifthey believe an area cannot attain byits maximum statutory attainment date through the adoption ofRACM.

For areas classified under subpart 1, attainment dates will be setunder section 172(a)(2)(A), which provides that the SIP must demonstrate attainment as expeditiously as practicable but no later than 5 years after designation or 10years after designation ifthe severity ofthe area's air pollution and the availability and feasibility ofpollution control measures indicate more time is needed. Under subpart 1, we will establish an attainment date for an area atthe time

we approve an attainment demonstration for the area. The State 

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must support that the attainment date is expeditiously as practicable and must justify any attainment date later than 5 years using the factors in section 172(a)(2)(A). The attainment date will be the date in the approved SIP. Thus, if an area submits an approvable attainment demonstration showing that they can attain the 8-hour NAAQS in, e.g., 4 years, the area's attainment date will be 4 years from the effective date ofdesignations for the 8-hourNAAQS.

4. How Will EPA Address the Provision Regarding 1-Year Extensions? (Section VI.B.2 ofProposed Rule; 68 FR 32817; Sections 51.907 ofDraft and Final Rules)

a. Background.In limited circumstances, both subpart 1 and subpart 2 ofthe CAA provide for two brief attainment date extensions for

areas that do not attain by their attainment date. Section 172(a)(2)(C) of subpart 1 (which applies for all NAAQS) provides for EPA to extend the attainment date for an area by 1 year if the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan and no more than

aminimal number ofexceedances ofthe NAAQS has occurred in the area in the attainment year. Up to two 1-year extensions may be issued for a single nonattainment area.

Section 181(a)(5) ofsubpart 2 contains

a similar provision for the ozone NAAQS, but instead ofproviding for an extension where there has been a "minimal" number ofexceedances, it allows an extension only ifthere is no
more than one exceedance ofthe NAAQS in the yearpreceding the extension year. The language in section 181(a)(5) reflects the form ofthe 1-hour

ozone NAAQS, which is exceedancebased and does notreflect the 8-hour

ozone NAAQS, which is concentrationbased. 27We proposed that since section

27The 1-hour NAAQS, an exceedance-based NAAQS, isbasically allowed to be exceeded an average ofonly once a year over a 3-year period. (Thisis a generalization ofhow attainment is determined; the actual method considers other factors such as completeness ofthe data.) See 40 CFR, appendix H. In contrast, the level ofthe 8- hour NAAQS (0.08ppm, 8-hour average) can be "exceeded" morethan once a year on average because the form (concentration-based) ofthat NAAQS is determined by averaging the 4th high reading for each yearover a 3-year period. Section 50.10(b) provides that the 8-hour NAAQS is met at

an ambient air quality monitor when the average of the annual fourth-highest daily maximum 8-hour
average ozone concentration is less than or equal to 0.08 ppm. 40 CFR part 50, appendix I. Example 1 in appendix Iprovides an example ofan ambient monitoring site attaining the 8-hour ozone NAAQS. The example shows that over a 3-yearperiod, there

were 10 exceedances of the level ofthe 8-hour 

### 181(a)(5) does not reflectthe form ofthe 8-hourNAAQS and application would produce an absurd result,it was reasonable tointerpret this provision in

amanner consistent with Congressional intent, but reflectingthe form ofthe 8- hour NAAQS. In addition, weproposed to apply thetest in section 172(a)(2)(C), which applies to areas subject to subpart 1,in the same manner aswe apply the test under section 181(a)(5) for areas subject to subpart 2. Specifically, we proposed that an area would be eligible for the first 1-year extension under section 172(a)(2)(C) and under 181(a)(5) if,forthe attainment year,the area's 4th highest daily 8-hour average is0.084 ppm orless. The area will be eligible for the second extension ifthe area's 4th highest daily 8-hourvalue, averaged

over both the original attainment year and the first extension year, is 0.084 ppm orless.

b. Summary offinalrule.We are adoptingthe interpretation that we proposed onJune 2, 2003. Under both sections 172(a)(2)(C) and 181(a)(5), an
area will be eligible forthefirst ofthe 1-year extensions underthe 8-hour NAAQS if,forthe attainment year,the area's 4th highest daily 8-hour average is 0.084 ppm orless. The area willbe eligible for the second extension ifthe area's 4th highest daily 8-hourvalue, averaged over both the original attainment year and the first extension year, is0.084 ppm orless.

Webelieve that itwould be absurd to apply section 181(a)(5) aswritten for purposes ofthe 8-hour ozone NAAQS. This section was written with theform ofthe 1-hour NAAQS in mind. For purposes ofthe 1-hour NAAQS, an area is violatingthe NAAQS if ithas more than three exceedances ofthe NAAQS at
amonitor over a 3-yearperiod. Thus, if

an area is averaging morethan one exceedance peryear ata monitor, it is violating the NAAQS. For the 1-hour NAAQS, itmakes sense toconsider whether there has been morethan one exceedance in the attainment year for purposes ofgranting an extension because twoormore exceedances indicate a significant likelihood the area will not be able to attain the NAAQS with a 1-year extension ofthe attainment date sincefour exceedances

over a 3-year period mean the area is violating the NAAQS.

For the 8-hourNAAQS, violations are determined based on the concentration

asdetermined by averaging the4th highest reading at amonitor overa 3- year period. Thus, foreach monitor (with complete data), the fourth highest

ozone NAAQS, or an average of3.33 exceedances
per year. readings for each of3 consecutive years
are averaged to determine whether an
area is violating the NAAQS. Ifthe average ofthose readings is at or above 0.085, then the area is violating the 8- hour ozone NAAQS. Unlike the 1-hour NAAQS, an area could have several exceedances ofthe 8-hourNAAQS in the attainment year and still be on track
to attain the NAAQS the following year since attainment is based on an average ofthe fourth highest reading. Forthis
reason, and as we proposed, we believe it makes sense to allow forthe two 1- year attainment date extensions under section 181(a)(5), based on the 4th highest reading at amonitor rather than based on the number ofexceedances. We are interpreting the phrase "minimal number ofexceedances" in section 172(a)(2)(C) to apply in the same

manner.

c. Comments and Response

Comment:The commenters generally supported EPA's proposed interpretation for granting up to two 1- year attainment date extensions. One
commenterrequested clarification that the 4th highest daily average 8-hour

ozone concentration would be used to grant the first extension and the 4th highest daily average 8-hour ozone concentration ofthe attainment year and first extension year would be used to determine eligibility for the second 1- year attainment date extension. The
commenter further expressed support for this approach since it is consistent with how EPA determines whether an
area is violating the 8-hour NAAQS.

Response:No commenters opposed this aspect ofEPA's proposal. However,

we are re-stating that the 4th highest daily average 8-hour ozone concentration would be used to grant the first 1-year extension and the 4th highest daily average 8-hour ozone concentration ofthe attainment year and first extension year would be used to determine eligibility for the second 1- year attainment date extension.
C.How Will EPA Implement the TransitionFromthe I-Hourto the8- HourNAAQS ina Way To Ensure ContinuedMomentum inStates'Efforts TowardCleanerAir?(Section VLC.of theProposal; See 68 FR32818;51.905 ofDraftRule)

There are two key issues that EPA considered togetherregarding the transition from the 1-hour NAAQS to the 8-hour NAAQS: (1) When will the 1-hour NAAQS no longer apply (i.e., be "revoked"); and (2) what protections are in place to ensure that, once the 1-hour NAAQS is revoked, air quality will not degrade and that progress toward 

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attainment will continue as areas transition from implementing the 1-hour NAAQS to implementing the 8-hour NAAQS. As in the proposed rule, the second key issue has three components: (1) What requirements that applied based on an area's classification for the i-hour NAAQS must continue to apply
to that area; (2) forhow long; and (3) in what geographic area. Below, we set forth ourfinal transition approach in four parts: (1) When will the i-hour NAAQS no longer apply (i.e., when will it be revoked); (2) what i-hour obligations should continue to apply

once the i-hour NAAQS is revoked; (3) how long should those requirements continue to apply; and (4) what is the geographic area subject to the requirement?

1.When Will EPA Revoke the i-Hour NAAQS? (Section VI.C.2. ofProposal; See 68 FR 32819; Section 50.9.b. of Proposed and Final Rules)

a. Background.In the proposed rule (68FR 32819), EPAprovided an indepth discussion ofthebackground of the transition rule (40 CFR 50.9(b)) and policy as established inJuly 1997 and

as subsequently revised inresponse to the ongoinglitigation over the 8-hour

ozone NAAQS and court decisions (68 FR 32818-19). In short, at the time the 8-hourNAAQS was promulgated in 1997, EPA anticipated that areas would implement the 8-hour ozone NAAQS under subpart 1. Areas that were not meeting the i-hour NAAQS were obligated to continue to meet that NAAQS and would remain subject to most ofthe requirements that applied due to the area's i-hour classification, including obligations under subpart 2 (62FR 38873). Although EPA concluded in the NAAQS rulemaking that the 1- hour NAAQS was not necessary to protect public health and that the 8- hour NAAQS would replace the i-hour NAAQS (62FR 38863), we determined to delayrevocation ofthe i-hour NAAQS for areas not yet meeting that NAAQS in order to facilitate continued implementation ofthe i-hour obligations (62FR 38873). Thus, we promulgated arule providing for the phase-out ofthe i-hour ozone NAAQS

on an area-by-area basis based upon a determination by EPA for each area that it had met the i-hour NAAQS (40 CFR 50.9(b), as promulgated at 62 FR 38894) ("revocation rule").

Subsequently, because the pending litigation over the 8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and our implementation strategy, we placed two limitations on
our authority to apply the revocation rule: (1) the 8-hour NAAQS must no longer be subject to legal challenge, and (2) it must be fully enforceable. 28 (65 FR 45182, July 20, 2000).

Ultimately, the Supreme Court struck down the implementation strategy provided for in the preamble to the final NAAQS rule. Although the Court agreed with EPA's conclusion that the statute

was ambiguous as to how a revised,

more stringent ozone NAAQS should be implemented, the Court found unreasonable the implementation strategy EPA anticipated atthe time the 8-hourNAAQS was promulgated. Because EPA believes the time atwhich the 1-hour NAAQS should no longer apply is inextricably linked to the overall implementation strategy, EPA determined that it should reconsider 40 CFR 50.9(b) in the context ofthis rulemaking. (68 FR 32818-19).

Consistent with the decision ofthe Supreme Court, ourproposed June 2003 implementation rule anticipated that
some, ifnot all, 8-hour ozone nonattainment areas would implement that NAAQS under subpart 2 ofthe CAA. There was no longer the clear cut dichotomy that we anticipated in 1997-i.e., that 8-hourimplementation would occur under subpart 1 and 1-hour implementation would continue to

occur under subpart 2. Thus, the approach from 1997-where we retained the 1-hour NAAQS for areas that had not met itin order to make clear that such areas retained subpart 2 obligations-merited reconsideration. In addition, we indicated that the area-byarea approach to revocation ofthe NAAQS was needlessly burdensome and that it made more sense to promulgate one rule establishing the date ofrevocation ofthe 1-hour NAAQS for all areas.

With respect to the time at which the 1-hour NAAQS should no longer apply to areas, we sought comment on two options. Under Option 1, we would revoke the 1-hour NAAQS in full 1 year afterthe effective date ofdesignations for the 8-hour NAAQS. The key consideration forwhen the NAAQS would be revoked was the time at which

areas designated nonattainment for the 8-hourNAAQS would be subject to conformity requirements for the 8-hour

ozone NAAQS and our concern that

areas not be subject to conformity for both the 8-hour and the 1-hour NAAQS
atthe same time. We believed that since

our proposed anti-backsliding provisions would ensure that progress toward clean air continued and would

28 In addition, in June 2003, we stayed our authority to apply the revocation rule pending our reconsideration in this rulemaking ofthebasis for revocation. (68 FR 38160, June 26, 2003). obligate areas to continue to meet the control obligations associated with the area's i-hour classification, there was no need to retain the NAAQS and the associated designations and classifications.

Under Option 2, we proposed to retain the NAAQS itself(and the associated designations and classifications) for limited purposes (viz., those identified and discussed in section VI.C.3. ofthe proposed rule, which are the same obligations that would continue to apply under Option 1). For all remaining purposes, we would revoke the i-hour NAAQS and the associated designations and classifications 1 year after the effective date ofdesignations forthe 8-hour NAAQS. This approach would not create adifferent substantive result than Option 1; under both Options, areas would remain subject to the same obligations that applied based on their i-hour classification. Rather, Option 2

was based on a somewhat different legal rationale than Option 1.

b. Summaryoffinal rule.We are adopting Option 1.We will revoke the 1-hour NAAQS in full, including the associated designations and classifications, 1year following the effective date ofthe designations for the 8-hourNAAQS. However, we are adopting strong anti-backsliding provisions which preserve control obligations mandated by subpart 2 for

an area's classification for the 1-hour NAAQS. In light ofthe anti-backsliding provisions, the deciding factor supporting the schedule for revocation is the conformity obligation for areas. We believe it is unnecessary to require

areas to meet conformity for both the 1- hour and 8-hourNAAQS at the same time; equally important, however, is the need to ensure that there is no time when conformity stops applying for

areas that are subject to it under the 1- hour NAAQS and designated nonattainment for the 8-hour NAAQS. Thus, we are adopting a regulation that provides for revocation ofthe 1-hour NAAQS 1 year following the effective date ofthe designation ofthe area for the 8-hour NAAQS since that is the time

an area designated as nonattainment for the 8-hour NAAQS will be subject to conformity requirements for the 8-hour NAAQS.

Our final anti-backsliding provisions will ensure that mandatory subpart 2 control measures that applied due to an area's classification under the 1-hour NAAQS will continue to apply after the 1-hour NAAQS is revoked in full.

Many commenters believed, and we agree, that Option 1is a clearer approach than Option 2. Since both 

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options would lead to the same substantive result, we are adopting the clearer approach. Many commenters recommended alternatives other than those proposed by EPA. Ourbasis for rejecting these approaches is provided below and in the RTC document.

c. Comments and responses. Comment:Most ofthe comments we received addressed the issue ofwhen

we should revoke the i-hour NAAQS. About halfofthe commenters favored revocation ofthe i-hour NAAQS in full 1 year after the effective date ofthe 8- hour designations (proposed Option 1). Only a handful ofcommenters favored partial revocation ofthe i-hour NAAQS (proposed Option 2). Almost athird of the commenters who addressed this issue opposed revocation ofthe i-hour NAAQS. Many ofthe commenters in this group insisted that EPA should retain the i-hour NAAQS because it is necessary to protectpublic health and

some noted that it may be more protective ofpublichealth than the 8- hour NAAQS in several areas such as the South Coast and Houston. A number ofthese commenters also suggested that revocation would be contrary to the CAA and Congressional intent. Several
commenters recommended alternative

means or timing for therevocation of the i-hour NAAQS, including a recommendation to revoke the i-hour NAAQS immediately upon designations for the 8-hourNAAQS.

Response toMajorComments:Several
commenters opposed revocation at all because they believe the 1-hour NAAQS is necessary to protect public health. The issue ofwhether the 1-hour NAAQS is necessary to protect public health is

a standard-setting issue that was resolved in 1997. At that time, EPA determined that it was not necessary to retain the 1-hour NAAQS as a NAAQS in order to protect public health. In settingthe 8-hourNAAQS in 1997, we concluded that replacing the current 1- hour NAAQS with an 8-hourNAAQS is appropriate to provide adequate and

more uniform protection ofpublic health from both short-term (I to 3 hours) and prolonged (6 to 8 hours) exposures to ozone in the ambient air (62FR 38863). The sole issue here is how and when the transition from implementation ofthe 1-hour NAAQS
to implementation ofthe 8-hour NAAQS should occur.

We believe the strong anti-backsliding provisions in section 51.905 will ensure that not only will controls already adopted under the 1-hour NAAQS continue to be implemented until an

area attains the 8-hour ozone NAAQS, but also that there will be no or minimal delay in obtaining additional emissions reductions comparable to those that would have been required had the 1- hour NAAQS remained in place. Although attainment ofthe 1-hour NAAQS would no longer be a goal, the provisions ofsection 51.905 would retain the ROP obligations that would have been required under the 1-hour NAAQS. Furthermore, the provisions of section 51.905 also would retain an area's obligation to either expeditiously complete the 1-hour attainment demonstration or obtain emissions reductions toward meeting the 8-hour NAAQS that substitute for those that would have been required had an area completed its attainment demonstration

on a schedule more expeditious than that required solely for the 8-hour NAAQS. Thus, retainingthe 1-hour NAAQS itselfwould become largely superfluous from the standpoint of obtaining timely emissions reductions.

We disagree with comments that recommended that EPA revoke the 1- hour NAAQS immediately upon a nonattainment designation for the 8- hour NAAQS. We believe that such timing would create a gap when conformity would not apply in the year following designation under the 8-hour NAAQS (since conformity does not apply for the 8-hour NAAQS until 1- year afterdesignation). Comment:A major concern raised by
commenters was that if the NAAQS

were revoked, areas would no longer have to meet the SIP budgets established for the 1-hour NAAQS for conformity purposes. These commenters were concerned that 8-hour ozone nonattainment areas that were nonattainment or maintenance for the 1- hour NAAQS would be able to determine conformity using another less protective test, such as the "build/nobuild" test. One commenter said that if conformity is weakened, billions of dollars will be spent on transportation without accountability for public health impacts. To avoid these results,
commenters suggested that conformity requirements for the 1-hour NAAQS continue to apply until some other point, such as when budgets for the 8- hour NAAQS are available, when areas have an approved maintenance plan for the 8-hour NAAQS, or the end ofareas' 1-hour maintenance planningperiods (assumingthese periods would remain

asthey are, and would not be affected by revocation ofthe 1-hour NAAQS).

Response:The EPA proposed conformity regulations for the new 8- hour ozone NAAQS and new fine particulate matter NAAQS on November 5, 2003 (68 FR 62690).We proposed that

new 8-hour ozone nonattainment areas that have 1-hour ozone SIPs would meet 

### oneofseveral tests, and the menu of options we offered differed depending

onhow the 8-hour area boundary relates to the 1-hour area boundary.We will consider theissues raised by commenters and provide a full response in the context ofthat rulemaking.

However, at thispoint EPAcan respond to the suggestions to revoke the 1-hour NAAQS at alaterpoint such as when 8-hour budgets are available, or the end ofthe 1-hour maintenance planning period. Under these scenarios, there would be a period ofyears where conformity would have to be determined forboth NAAQS atthe same time: a result thatEPA believes could lead toconfusion and additional burden for transportation and airquality planners. TheEPAbelieves itis sufficient that conformity be determined for oneozone NAAQS at a time. Since the 8-hour NAAQS is thehealth-based standard and itis more stringent than the 1-hour NAAQS, webelieve conforming tothe 8-hourNAAQS will be sufficient. Comment:One commenter recommended that weprovide an option that allows States to submit an 8- hourconformity budget early and suspend the 1I-hourconformity requirements at thetime the 8-hour budget is determined tobe adequate. A second commenter suggested something similar,that EPArequire Statesto expeditebudgets for the 8-hour standard in areas where the 8-hourboundary is larger.

Response:TheEPA did not proposeto revoke the 1-hour NAAQS earlier than 1year after designations, in part because

we did notbelieve that areas would be able to submit an 8-hour SIP earlier than 1-year following designation. Furthermore, EPA's proposal was intended to align therevocation ofthe 1-hour NAAQS with the application of conformity requirements for the 8-hour NAAQS 1year after the effective date of 8-hour nonattainment designations. The EPA continues tobelieve it isunlikely that areas willhave adequate budgets that address the 8-hourNAAQS before EPA revokes the 1-hour NAAQS. Such budgets cannot stand alonebut have to be associated with adopted control

measures and demonstrations ofeither attainment orRFP, and webelieve developing these SIPs will take States

some time. Once the SIPs are submitted, EPA must find them adequate, a process which EPA intends tocomplete within 90days ofreceiving a SIP.It isunlikely that States will be able to complete the workto submit 8-hourozone SIPs 1year fromthe effective date of8-hour ozone
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sufficiently in time forEPA to find them adequate before the 1-hour NAAQS is revoked.

Given these facts and the fact that EPA did not propose an option for revoking the standard earlier than 1year after 8-hour designations are effective, EPA does not intend to provide for early revocation ofthe 1-hour NAAQS, nor will EPArequire 8-hour areas to expedite development oftheir 8-hour SIP for thispurpose. All areas must submit SIPs as soon aspracticable, and EPA wants States to develop quality SIPs to support attainment demonstrations and conformity determinations. Prior to the revocation ofthe 1-hour NAAQS, new transportation plan and transportation improvement plan must conform to the applicable SIP budgets for the 1-hour NAAQS. Comment:Some commenters rebutted EPA's assertion that revoking the 1-hour NAAQS is necessary so that agencies

can focus on planning for the 8-hour NAAQS. These commenters stated that neither the revocation ofthe 1-hour NAAQS (orthe budgets) isjustified on this basis with respect to transportation and emissions modeling,because under either NAAQS, similar work in establishing base year inventories, and future forecasts oftravel and emissions
must be done. Once theresources are in place to make future forecasts,
commenters thought that the level of effort in both time and money to produce analyses to different regional boundaries is relatively small, and ample resources are available to pay for the additional analyses needed to determine conformity to both NAAQS.

The EPA also received comments of the opposite opinion. A number of
commenters supported EPA'sproposal that conformity apply for one NAAQS at

atime. One commenter stated that determining conformity for two separate

ozone NAAQS would result in undue administrative burden, create confusion about requirements in the public process and make synchronization of the air quality and transportation planningprocesses more difficult. A couple ofcommenters argued that having to determine conformity forboth

ozone NAAQS would drain limited

resources in transportation and environmental agencies. One ofthese
commenters contended that demonstrating conformity for two ozone NAAQS could in fact delayprogress, due to the high administrative burdens.

Response:While these comments focus solely on theresources necessary to determine conformity for both NAAQS, EPAbelieves a discussion of

resources should include all aspects of attainment planning. Under EPA's proposal, with revocation ofthe 1-hour NAAQS, conformity will no longer apply for that NAAQS as a matter of law. Therefore, in order for conformity
to apply for both NAAQS as one commenter requests, both NAAQS have
to be implemented atthe same time, i.e., the 1-hour NAAQS would have to be implemented in addition to the 8-hour NAAQS. This would mean continuation oftherequirements to demonstrate attainment and maintenance ofthe 1- hour as well as the 8-hour NAAQS. The EPA believes that it would be a substantial increase in burden for States to plan for attainment ofboth NAAQS, which includes conformity but also includes creating inventories for each

source sector, determining feasible control measures, writing rules to implement control measures, permitting stationary sources, establishing ROP plans, runningiterations ofair shed modeling, and demonstrating attainment.

In 1997, EPA determined that the 1- hour NAAQS is not necessary to protect public health. Where they are not required by anti-backsliding provisions, EPA does not believe that the additional burden States would undertake in planning to achieve both the 1-hour and the 8-hour NAAQS is necessary to protect public health.

2. What Requirements That Applied in

an Area for the 1-Hour NAAQS Continue To Apply After Revocation of the 1-HourNAAQS for That Area? (Section VI.C.3. ofProposal; 68 FR 32820; Section 51.905(a) ofthe Draft and Final Rules)

a. Background.In this section ofthe June 2, 2003 proposed rule (68 FR 32820), we considered what obligations from subpart 2 that applied to an area based on its classification for the 1-hour

ozone NAAQS should continue to apply
to such area afterit has been designated for the 8-hour NAAQS and the 1-hour NAAQS has been revoked. We proposed that the continuity ofparticular obligations may vary depending on the attainment status ofan area for the 8- hour NAAQS. The proposed rule addressed two categories ofareas: (1)

areas that are designated nonattainment for the 8-hour NAAQS and that were designated nonattainment for the 1-hour NAAQS on or after November 15, 1990; and (2) areas that are designated attainment forthe 8-hour NAAQS and that were designated nonattainment for the 1-hour NAAQS on or after November 15, 1990. Furthermore, we divided the types ofobligations into four categories for purpose ofour analysis: (1) Mandatory control measures (e.g., NOx RACT, I/M, and fuel programs); (2) discretionary control

measures (e.g., control measures or other obligations the State selected and adopted into the SIP for purposes of attainment, ROP or any other goal to benefit air quality, but which are not specifically mandated by subpart 2); (3) growth management (NSR); and (4) planning activities (attainment and maintenance demonstrations and RFP plans). We addressed conformity separately because it is a subpart 1 requirement. In addition, we addressed the NOx SIP Call separately since this obligation applies statewide and withoutrespect to the designation status ofareas within the State.

In the draft regulatory text released in August 2003, for areas designated nonattainment for the 8-hour NAAQS,

we broke into two groups the areas designated nonattainment forthe i-hour NAAQS on or afterNovember 15, 1990: (1) Areas that remain designated nonattainment for the i-hour NAAQS at the time ofrevocation ofthe i-hour NAAQS; and (2) areas that were designated nonattainment forthe i-hour NAAQS but that have been redesignated
to attainment for the i-hour NAAQS (i.e., "maintenance areas") at the time of revocation ofthe i-hour NAAQS. 29 In response to comments on theproposed rule and draftregulatory text, the final regulation creates the same subcategorization for areas designated attainment for the 8-hour NAAQS. In the final rule and in the preamble discussion below, we also break into the

same two groups the areas designated attainment for the 8-hour NAAQS. Thus, in the preamble and rule we consider the obligations that continue to apply forfour categories ofareas: (1) Areas that remain designated nonattainment for the i-hour NAAQS at the time ofdesignation as nonattainment for the 8-hour NAAQS; (2) areas that are maintenance areas for the i-hour NAAQS at the time of designation as nonattainment for the 8- hour NAAQS; (3) areas that remain designated nonattainment forthe i-hour NAAQS atthe time ofdesignation as attainment for the 8-hour NAAQS; and (4) areas that are maintenance areas for the i-hour NAAQS at the time of designation as attainment for the 8-hour NAAQS. Both the preamble and the rule mayuse the following terms to discuss

29The draft regulatory text did not accurately
reflect thepreamble discussion which distinguished maintenance areas at the time of designation for the 8-hour NAAQS from those that remained designated nonattainment at the time of 8-hour designation. For the final rule, we usethe time of8-hour designations rather than the time the 1-hour NAAQS is revoked. 

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these four categories: (1) 8-hour NAAQS nonattainment/1 -hourNAAQS nonattainment (2) 8-hourNAAQS nonattainment/1 -hourNAAQS maintenance; (3) 8-hourNAAQS attainment/ -hourNAAQS nonattainment (4) 8-hourNAAQS attainment/ -hourNAAQS maintenance. Under each ofthese sections in the preamble, we address how the final rule treats the four types ofobligations identified in the proposed rule: (1) Mandatory control measures; (2) discretionary control measures; (3) growth; and (4) planning obligations.

b. Summary offinal rule.The approach we are adopting in the final rule is summarized below under the individual sections discussing each category ofarea and type ofcontrol obligation.

c. Section 51.905(a)(1):8-hour NAAQS nonattainmentl1-HourNAAQS nonattainment.

(i) Mandatorycontrolmeasures. (Section VI.C.3.a.i. ofproposed rule; see 68 FR 32820; sections 51.900(f) and 51.905(a)(1) ofthe draft and final rules.)

(A) Background.For areas designated

nonattainment for the 1-hourNAAQS at the time they are designated nonattainment for the 8-hour NAAQS,

we proposed that, to the extent the area has met a mandatory SIP obligation under the CAA that is included aspart ofthe approved SIP, the State may not modify or remove that measure except to the extent that itmay have modified

or removed that measure for purposes of the 1-hourNAAQS (68 FR 32820). For example, if an area was classified as serious for the 1-hour ozoneNAAQS and required to have an enhanced I/M program aspart ofits SIP, the State
cannot remove the enhanced I/M program for that area even though it may be classified as marginal or moderate for the 8-hour ozone NAAQS. However, under the proposal, the State may modify the enhanced I/Mprogram consistent with EPA's enhanced I/M regulations,just as it may have done for purposes ofthe 1-hour NAAQS. (We address below when the obligation to retain such control measures as active control programs no longer applies, the geographic area in which the obligation applies, and the demonstration a State
must make at that point to modify the SIP.)

For control measures that the State has not yet adopted, we proposed that the State remains obligated to adopt and submit such control measures. And,

once adopted into the approved SIP, the State may not modify or remove such

measures except to the same extent that it could have modified orremoved them for purposes ofthe 1-hour NAAQS. Our draft regulatory text referred to these obligations as "applicable requirements" and we identified the subpart 2 mandatory control measures in the definitions section under "applicable requirements."

(B) Summaryoffinal rule.We are adopting the approach we proposed. (See sections 51.905(a)(1)(i)and 51.900(f) ofthe final rule.)All areas designated nonattainment for the 8-hour

ozone NAAQS and designated nonattainment for the 1-hour ozone NAAQS atthe time ofdesignation for the 8-hour NAAQS remain subject to control measures that applied byvirtue ofthe area's classification for the 1-hour NAAQS.

As we stated in the preamble to the proposed rule (68 FR 32819), there are

anumber ofprovisions in the CAA that

we believe are evidence ofCongress' intent that these obligations continue to apply despite EPA's determination that the 1-hour NAAQS is no longer necessary to protect public health. For example, atthe time ofthe 1990 Amendments to the CAA, Congress designated and classified existing ozone nonattainment areas (and classified all other ozone nonattainment areas) as a matter oflaw. Congress also provided that areas could not remove from the SIP controls mandated by subpart 2

even afterthe area attains the NAAQS and is redesignated to attainment. At most, the State could move such controls to the contingency plan provisions ofthe SIP. See CAA section 175A(d). Also significant is that in 1990, Congress enacted aprovision specifying States' obligations with respect to control measures for aNAAQS after EPA revised that NAAQS to be less stringent. In section 172(e), Congress specified that ifEPA revises a NAAQS and makes itless stringent, EPA must promulgate regulations applicable to

areas that have not yet attained the original NAAQS to require controls that

are no less stringent than the controls that applied to areas designated nonattainment prior to such relaxation. We believe that, if Congress intended

areas to remain subject to the same level ofcontrol where a NAAQS was relaxed, they also intended that such controls
not be weakened where the NAAQS is made more stringent. Finally, we noted that the Supreme Court cautioned against making subpart 2 "abruptly obsolete." For areas designated nonattainment in 1990, Congress intended the mandatory requirements of subpart 2 to apply (as implemented controls or contingency measures) for a significant period oftime. We believe if

we allowed areas to remove those mandated controls from their SIPs it would render those provisions prematurely obsolete, contrary to Congressional intent. We adopt in full the analysis provided at 68 FR 32819, 1st and 2nd columns.

The final rule also reflects, with several exceptions, the table in appendix B ofthe June proposal which identified the applicable requirements. The definition of "applicable requirements" in section 51.900(f) ofthe draftregulatory text erroneously excluded some ofthe requirements included in appendix B. The requirements that weren't included in the proposed regulatory text definition ofapplicable requirement but are included in the definition in the final rule are: * Enhanced (ambient)monitoring under section 182(c)(1) ofthe CAA. * Transportation controls under section 182(c)(5) ofthe CAA.

* Vehicle miles traveled provisions of section 182(d)(1) ofthe CAA.

* NOx requirements under section 182(f) ofthe CAA.

One exception in which the final rule does not reflect appendix B ofthe proposal concerns the requirement for reformulated gasoline (RFG). Appendix B erroneously included RFG as an applicable requirement under subpart 2. As discussed below under "Comments and responses," itis not an applicable requirement under subpart 2 and is not included as such in section 51.900(f) of the final rule. In addition, Appendix B listed NSR (major source applicability and offsets) as "applicable requirements" under subpart 2. Although these would be applicable requirements under subpart 2 for the 8- hour standard, they would not be applicable requirements under subpart 2 for the 1-hour standard afterthe 1-hour standard is revoked. 3 0

(C) Comments andresponses

Comment:Concerning the June 2, 2003 proposal, several commenters believed that not all control requirements required by an area's 1- hour classification would necessarily help achieve the 8-hour NAAQS and therefore opposed the proposed antibacksliding provisions. Other
commenters supported the proposal.

Concerning the draft regulatory text, commenters generally reiterated their
comments from the June 2, 2003 notice

30 In addition, Appendix E ofthe June 2, 2003 proposal treats 1-hour NSR as an applicable requirement after the 1-hour standard isrevoked. Under the final rule, 1-hour NSR would not be a required implementation plan element after the 1- hour standard is revoked. Instead, NSR under the 8-hour NAAQS will apply. 

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in commenting on the draftregulatory text.

Response:As we noted above and in the preamble to the proposed rule, we examined the CAA as awhole to discern Congressional intent since Congress did
not specifically address anti-backsliding where EPA promulgated a more stringent NAAQS. After considering the "as a matter oflaw" designation and classification for the 1-hour NAAQS, section 172(e), and the CAA's redesignation provisions, we believe that Congress intended these areas to continue to implement requirements that applied in the area for the 1-hour NAAQS. Comments:The EPA's June 2proposal listed RFGin appendix B as an "applicable requirement" for severe and above ozone nonattainment areas; itwas also listed as an "applicable requirement" in the draftregulatory text under section 51.900(f). The EPA received a number ofcomments addressing RFG requirements. Some
commenters argued that theprogram

was ofno environmental benefit in certain locations, and should notbe required. One commenter suggested that where it is estimated that the costsper ton ofVOCremoval would be around $36 million per daily ton removed or around $100,000 per annual ton removed, with no measurable benefit to

ozone levels, that requiringuse ofRFG would be an "absurd result"justifying

awaiver ofthe RFGrequirement. One
commenter argued that the rules providing for ozone nonattainment areas to opt-in to the RFGprogram should be liberalized, to allow additional areas to avail themselves ofthe benefits ofRFG. Other commenters argued against such liberalization, on the basis that the fuels industry is already burdened with implementation offar-reaching fuels regulations and does not need the additional difficulties that would be associated with the proliferation ofRFG opt-ins.

Response:The EPA has decided that it is not appropriate to list RFGas an "applicable requirement" in the final rule in section 51.900(f). The RFG program is not adopted as a State program in SIPs, as are the other "applicable requirements" listed in today's final rule. Rather, RFG is required under aFederal program. Itis prescribed in some instances by statute, and in other instances States are allowed to opt-in and opt-out ofthe program in accordance with Federal statutory prescriptions and EPA rules. The EPA recognizes that the scope and applicability ofthe RFGprogram during and after implementation ofthe new 8- hour ozone standard raises various 

### issues thatneed further clarification. However, such clarification ismore appropriately provided in a separate undertaking. Since Federal RFG does not appear on thefinalrule's list of "applicable requirements" in subpart 2, there isno need torespond in this rulemaking to the commentsregarding implementation ofthe RFGprogram. Therefore, while not an "applicable requirement" undertoday's rules, the RFG requirement isnonetheless applicable underthe CAA for certain areas, and EPA will determine in the future whether this requirement would change for these areas when they attain the ozone NAAQS. Comment:One commenter noted that the language in thedraft regulatory text is based upon thedate ofrevocation of the 1-hour ozone NAAQS, which is at least oneyear later than that specified in the proposed rule.The date of revocation is also highly uncertain compared to the date ofdesignation, which isdriven bythe Consent Decree. The Draft Regulatory Text therefore conflicts with theproposed rule language. The commenter prefers use of the date ofdesignation forthese and other applicable requirements.

Response:Theregulatory text has been revised tokey therequirement from the effective date ofdesignation for the 8-hour NAAQS. Comment:One commenter believed there was aconflict between the June 2, 2003 notice and the draft regulatory text concerning thetiming ofthe 1-hour NSR obligation. The draft section 51.905(a)(1) provision would applyfor areas designated nonattainment for the 1-hour NAAQS atthe time ofrevocation ofthe 1-hour NAAQS, buttheJune 2, 2003 notice provision would applyto areas designated nonattainment for the 1-hour NAAQS atthe time ofdesignation ofthe 8-hourNAAQS. The commenter recommended thatthe rulebebased on the date ofdesignation forthe 8-hour NAAQS.

Response:We agreethere was a conflict in the draft regulatory text on this matter. However, as discussed below, the final differs from the proposal in that afterthe 1-hour NAAQS is revoked, NSRunder the 1-hour NAAQS will no longerbe arequired implementation plan element in areas that are 8-Hour NAAQS nonattainment/ 1-Hour NAAQS nonattainment. Instead, NSRunder the 8-hour NAAQS will apply.

(ii)Discretionary controlmeasures. This discussion ofdiscretionary

measures includeshow weplan to treat enforceable commitments approved into the SIP. (section VI.C.3.a.ii. ofproposed rule, see 68 FR32821, and section VI.C.3.a.v. ofproposed rule; see 68 FR 32822; section 51.905(d) ofdraft and final rules;there is noparallel provision in the final rule.)

(A) Background.Many approved SIPs contain control measures that are not specified under subpart 2 for the area, but that the State chose to adopt as part ofthe demonstration ofattainment or part ofthe ROP requirement for the 1- hour NAAQS. Forthese kinds of
measures, we proposed that States retain the discretion they now have to modify theserequirements in their SIPs. For purposes ofthe 1-hour NAAQS, States may currently revise or remove those requirements so long as they make

a demonstration consistent with section 110(1) that such removal ormodification would notinterfere with attainment of

orprogress toward the 1-hour ozone NAAQS (or any other applicable requirement ofthe CAA). 31 Once the 1- hour standard is revoked, for purposes ofthe 8-hourNAAQS, the same discretion to modify a SIP would apply except the State would need to make the demonstration required by section 110(1) with respect to the 8-hour NAAQS, not the 1-hour NAAQS. See 68 FR 32821 for an example ofhow this would work.

We also proposed that States remain obligated to meet enforceable commitments approved into a SIP to the

same extent as ifthey were adopted

measures (68 FR 32822). This includes enforceable commitments to perform a mid-course review. The only way a State may modify or remove such a commitment is through a SIP revision makingthe required demonstration under section 110(1). (B) Summary offinalrule.We are adopting the approach we setforth in

ourproposed rule. A State may revise or
remove discretionary control measures (includingenforceable commitments) contained in its SIP for the 1-hour NAAQS so long as the State demonstrates consistent with section 110(1) that such removal ormodification will notinterfere with attainment ofor progress toward the 8-hour ozone NAAQS (or any other applicable requirement ofthe CAA). Under the rule, States remain obligated to meet any SIP-approved commitment to perform a mid-course review. These SIP commitments generally do not bind the

31Forpurposes ofthe preamble to this rulemaking, whenever we statethat a State must make the demonstration required under section 110(1) to modify its SIP, we also mean that the State
must make therequired demonstration under section 193 to the extent the affected area is designated nonattainment and the SIP requirement the Stateis modifying was a control requirement in effect orrequired to be in effect prior to November 15, 1990. 

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States to take any specific action in response to the results ofthe mid-course review. The EPA anticipates that rather than using these reviews to ensure areas meet the 1-hour NAAQS (which will have been revoked), States and EPA can
use thesereviews to ensureprogress is being made consistent with needs for the 8-hourNAAQS.

Note, however, that since general provisions for modifying or removing control measures in a SIP are already provided in the statute (sections 110(1) and 193), we do notbelieve there is a need to have a duplicative provision in this final rule. Therefore, even though the draft regulatory text contained such

aprovision (section 51.905(d)), the final rule does not contain that provision. (C) Comments and Responses

Comment:Several commenters supported the proposal regarding discretionary control measures. Other
commenters believed that States should
not be held to commitments to submit the mid-course review required under their 1-hour SIP. Some commenters objected to theprovision in draft regulatory text for allowing "relaxations" ofthe SIP under sections 110(1) and 193 ofthe CAA.

Response:Sections 110(1) and 193 allow States to modify the discretionary controls in their SIPs iftheprovisions ofthose sections are met. While we believe it is important to prevent backsliding consistent with the statutory provisions, we do not believe it is appropriate to further restrain the discretion Congress granted to States in determining the appropriate mix of controls in the SIP. We believe that a State may revise discretionary controls approved in its SIP as longas it meets the criteria specified in sections 110(1) and 193. We believe the testsprovided in sections 110(1) and 193 will prevent the adverse effects envisioned by the
commenter.

(iii)Measuresto addressgrowth. (section VI.C.3.a.iii ofproposed rule; see 68 FR 32821; sections 51.900(f) and 51.905(a)(1) ofthe draft and final rule.)

(A) Background.In general, the SIP provisions in the CAA include one provision to address growthnonattainment NSR. We discuss conformity for all areas in a later section.

For areas that are 8-hourNAAQS nonattainment/1 -hourNAAQS nonattainment, we proposed in the June 2, 2003 notice that the major source applicability cut-offs and offsetratios for nonattainment NSRthat applied for

an area's 1-hour classification continue
to apply. (B) Summaryoffinal rule.The final rule treats 1-hour NSR as arequirement that will no longer apply once the 1- hour NAAQS is revoked. We provide a
more thorough discussion ofthe approach in our final rule and the rationale in the section below discussing 1-hour NAAQS obligations that no longer apply as ofrevocation of the 1-hour NAAQS. (C) Comments andresponses. Comments and responses are included in the section below discussing 1-hour NAAQS obligations that no longer apply

as ofrevocation ofthe 1-hour NAAQS.

(iv) PlanningSIPs. (A) Outstanding ROPobligation. (section VI.C.3.a.iv ofproposal; 68 FR 32822; section 51.905(a)(1) ofthe draft and final rules).

(1) Background.In the June 2, 2003 proposal, we proposed that States remain obligated to address separately 1-hour ROP requirements that do not overlap with RFP obligations for the 8- hour NAAQS. 32Where outstanding ROP and RFP obligations overlap, the area need not submit a separate ROP plan for the 1-hour NAAQS but must show that the 8-hour ROP plan is no less stringent than the 1-hour ROP requirement. For ROP provisions already adopted into the SIP, we proposed that the State may
remove or revise control measures needed to meet the ROP milestone if such control measures were discretionary (i.e., not mandated by subpart 2 for the area's 1-hour classification), as discussed above, and the State makes ademonstration under section 110(1) including ademonstration that the revision will not interfere with meeting the 1-hour ROP and 8-hour RFP goals. (2) Summary of final rule.We are adopting the approach set forth in our proposed rule for areas that are 8-hour NAAQS nonattainment/1 -hourNAAQS nonattainment. States remain obligated
to meet the CAA-mandated ROP emission reduction targets that applied for the 1-hour NAAQS, but discretionary measures adopted to meet those targets may be modified, ifthe State makes the necessary showing under section 110(1).

In addition, we are providing further clarification regarding how this obligation applies. Areas that have an outstanding obligation for an approved 1-hour ROP SIP for one or more ofthe ROP periods (e.g., 1999-2002, 2002- 2005, 2005-2007) must still develop and

32 In this rulemaking, we use "ROP" to refer to the rate ofprogress requirement forthe 1-hour NAAQS and "RFP" to refer to both therate of
progress requirement under subpart 2 and the reasonable further progress requirement under subpart 1for the 8-hour ozone NAAQS. submit to EPA (if they have not already 

### done so) all outstanding 1-hour ROP plans. Where a 1-hour ROP obligation overlaps with an 8-hour RFP 

### requirement, the State's 8-hour RFP

measures can be used to satisfy the 1- 

### hourROP obligation.

The State may choose to show that both the 8-hour and 1-hour ROP obligations are met through a single 8- 

### hourplan submittal.To prevent backsliding, the State mustensure that 

### the 8-hour RFPemission plan is atleast

as stringent as the 1-hour ROP emission target, for the year in which 1-hour ROP mustbe met. The State may do this by first establishing an RFP emission target 

### for the entire 8-hour ozone nonattainment area, forthe 1-hour ROP target year. Ifthe 8-hourRFP emission target for the 8-hour area for the same 

### period ismore stringent than the 1-hour ROPemission target forthe 1-hourarea (assumingthe 8-hour area includes the entire 1-hour area), the State is not obligated to submit a separate 1-hour ROPplan, but can rely solely on the 8- hour RFP plan and emission target to demonstrate that the 1-hour target will be met. However, the State must ensure that the emission target will be met for the same period as for 1-hour ROP (e.g., 2003-2005). The State may rely on any control measure to meet both ROP for the 1-hour NAAQS and RFP for the 8- hour NAAQS. Appendix A below provides an example ofhow this might work.

In the June 2, 2003 proposal (68 FR 32835), we proposed that the Agency's Clean Data Policy 33 would remain effective under the 8-hour ozone NAAQS, and we therefore intend to apply thispolicy in implementing this final rule for areas that achieve the 8- hour NAAQS. Thus, if an area attains the 8-hour ozone NAAQS, under the Agency's "Clean Data Policy," EPA may waive the 1-hour RFP obligation for the

area based on a determination that the

area has attained the 8-hour NAAQS. Under that policy, the State will not be subject to the 1-hour RFP requirement for so long asthe area remains in attainment with the 8-hourNAAQS. (The EPA will address the applicability ofthe Clean Data Policy for 8-hour

ozone nonattainment areas in Phase 2 of the implementation rule.)

We believe that there is ambiguity in the statute regarding whether areas should remain subject to the requirement to submit planning SIPs, such asthe 1-hour ROP plans. Unlike control obligations, we do notbelieve there is as strong an argument that Congress intended areas to continue to

330p cit. 

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submitplanning SIPs fora NAAQS that EPA hasdetermined is no longer necessary toprotectpublic health. Section 172(e), which applies when EPA relaxes a NAAQS, onlyrequires EPA to ensure that control measures are
no less stringent than they were forthe

more stringent NAAQS thathasbeen replaced. Itdoes not indicate a Congressional intent that areas remain obligated toplan for and meet aNAAQS

asit existed before itwasrevised. However, both attainment demonstrations and ROPplans result in the adoption ofcontrol obligations. And, ifEPAdetermined that these planningrequirements did not apply at all, areas currently designated

nonattainment for the I-hour NAAQS that have not met these obligations might be subject to less stringent controls than would have otherwise applied. Thus, in consideringhow to treat this obligation, webalanced the need toensure the same level ofcontrol with thedifficulties associated with meeting this obligation.

For purposes ofROP, the exercise of calculating thereductions necessary to meet ROP isrelatively simple. Moreover, as provided above, even ifthe Statemust calculate ROP separately for the i-hour and 8-hourNAAQS, it may stillrely on one ormore ofthe same control measures to meetboth those obligations. Additionally, webelieve that most ofthe areas with an outstanding i-hour ROP obligation will be able to demonstrate thatthe 8-hour RFP targets for the same time period will be more stringent and thus will not berequired toprepare a separate i-hour ROP plan. Finally,we notethat States have already submitted and, EPA has already approved i-hour ROPplans for most i-hour nonattainment areas. Thus, the anti-backsliding provisions regarding the continued obligation to adopt and submit i-hour ROP plans will affect only a handful ofareas. For these reasons, we are adopting aregulation that requires areas that are 8-hour NAAQS nonattainment/1 -hourNAAQS nonattainment to continue to adopt and achieve the levelofROPreductions mandated byCongress under the CAA for that NAAQS.

(3) Comments and responses Commentson June2, 2003Proposal: Few commenters submitted comments
on theportion oftheproposed rule discussing the anti-backsliding requirements applicable to 1-hour ROP. Several commenters generally opposed any continued planning obligations under the 1-hourNAAQS, but did not raise specific concerns with respect to ROP. Similarly, anumber ofother commenters opposed revocation ofthe 1-hour NAAQS and urged retention of all 1-hourplanning and control obligations; but again, these commenters did not raise concerns specific to the proposed anti-backsliding approach for ROP.

One commenter, addressing section 51.905(a)(1)(iii) ofthe draftregulatory text, argued that States should have the abilityto modify ROP measures ifit can be demonstrated that they arenot needed for purposes ofmeeting requirements underthe 8-hour NAAQS

orifmeasures are no longer appropriate due to updated technical information regarding emissions inventory and control strategy effectiveness. Another commenter objected to retainingthe 1- hour ROP requirement, primarily because areas recently reclassified to a higher classification would have a continuing obligation for ROP even if they were not required todevelop an RFP plan underthe 8-hourNAAQS. Another commenter believed the 1-hour ROP requirement should only be required where itis demonstrated tobe needed for attainment ofthe 8-hour NAAQS.

Response:Asprovided above, we believe Congress intended areas to continue to have control measures no less stringent than those thatapplied for the 1-hour NAAQS. Because the ROP obligation results in control obligations,

we believe areas should remain obligated to adoptoutstanding ROP obligations to ensure thatthe ROP milestones aremet. Ifa State believes adopted controls arenot the best fitfor the 8-hour NAAQS, the State retains full discretion to revise those controls so long as therevision doesn't interfere with theROP milestones.

Without this provision, an area with

an unmet obligation to submit and implement a ROP planunder the 1-hour NAAQS could experience backsliding by beingreleased from the obligation to have controls in place that achieve a specified level ofemissions reductions during the interim period priorto implementation ofthe SIPrequired for the 8-hour NAAQS. In other words, if the 1-hour NAAQS were not revoked, the area would have been required to continue to ensure emissions would be reduced by specified levels in specific timeframes. Ifthefinalrule contained

no provision comparable to section 51.905(a)(1)(i), achievement ofthose emissions reductions would almost certainly be delayed. Because we are transitioning to amore stringent and protective airquality NAAQS. We see
no reason whythere should be provisions that would provideless protection to public health. (B) Unmet attainment demonstration obligations(section VI.C.3.a.iv of proposal; see 68 FR 32822; section 51.905(a)(1)(ii) ofthe draft and final rules) (1) Background.Most areas designated nonattainment forthe 1-hour

ozone NAAQS have fully approved attainment demonstrations for the 1- hour NAAQS. Because there are so few

areas without approved attainment demonstrations, in the proposed rule we identified the two types ofsituations of which we were aware and solicited
comment on how to handle those situations. First, there are afew areas that do not have a fully approved attainment demonstration because the

area has not acted in accordance with the timelines provided under the CAA. The second situation is an area which has a future obligation to submit an attainment demonstration. In general, these are areas that, over the past several years, have been reclassified (i.e., "bumped up")to a higher classification. In the preamble to the proposal, we discussed the policyreasons that would support retention ofthe obligation to submit an attainment demonstration and the policyreasons that would counsel against retention ofthat obligation (68 FR 32822). Forboth these groups ofareas, we solicited comment

on whether to retain the obligation to develop a 1-hour attainment demonstration. In addition, we solicited
comment on two alternatives that would address many ofthe policy concerns we noted.

Alternative 1 would require that areas with a current orpast due obligation to submit a new or revised attainment demonstration instead be required to submit a SIP revision that would obtain

an advance increment oflocal emissions reductions toward attainment ofthe 8- hour ozone NAAQS within a specified, short-term timeframe; 5 percent and 10 percent were suggested possibilities for the increment. Under Alternative 2,

areas with acurrent or pastdue obligation to submit a 1-hour attainment demonstration would be required to submit their 8-hourozone attainment demonstration early in lieu ofbeing required to submit a 1-hour attainment demonstration. The draft regulatory text

was developed using the first alternative, and used a 10 percent increment.

(2) Summary offinalrule.In the final rule, we are allowing the States to choose among three options that are tailored after the approaches addressed in the proposed rule. Thus, rather than establishingone mandatory approach,

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States to choose any one ofthe following three options:

* Option1. Submit a i-hour attainment demonstration.

* Option2. Submit, no later than 1 year afterthe effective date ofthe 8-hour designations, an early increment of progress plan toward the 8-hour NAAQS which provides:

* A 5 percent increment ofreduction from the 2002 emissions baseline (NOx and/orVOC). The control measures for achieving this increment must be in addition to measures (or enforceable commitments to measures) in the SIP as ofthe effective date ofdesignation and in addition to national orregional

measures. (The State can take credit for this increment ofreduction toward its RFP requirement under the 8-hour NAAQS.)

* For achievement ofthe emissions reductions within 2 years after submittal (i.e., 3 years after designation).

* Option3. Submit an early 8-hour

ozone attainment demonstration SIP 1 year afterthe effective date of designation for the 8-hourNAAQS that:

* Demonstrates attainment ofthe 8- hour NAAQS by the area's attainment date,

* Provides for 8-hour RFP consistent with the area's classification out to the area's attainment date, and

* Ensures that the first segment of RFp 34 between the end of2002 and the end of2008 is achieved early-by the end of2007.

With respect to Option 2, the final rule specifies a 2002 baseline year for calculating the early increment of progress whereas the draft regulatory
text did not provide a specific baseline year.

As noted above in the ROP section,

we believe the statute is ambiguous regarding the need for States to address planning for aNAAQS no longer needed
to protect public health. However, since these planning SIPs result in the adoption ofcontrol measures, which we believe Congress intended be no less stringent, we examined what approaches would ensure controls are adopted and implemented without unnecessarily obligating States to plan for aNAAQS not needed to protect public health.

Unlike planning for ROP, preparing

an attainment demonstration involves complex modeling and analyses that can be resource intensive both in terms of workload and cost. We don't believe it is appropriate or necessary to mandate that States perform the attainment

34The amount ofwhich will depend on the ROP option in the final rule and the classification ofthe

area. demonstration for a NAAQS that is not needed to protect public health. But we also do not believe it is appropriate to waive in total this obligation in light of the need to ensure there is no delay in achieving emissions reductions to protect public health. We are adopting

an approach thatprovides States with options because itprovides maximum flexibility to States that have outstanding attainment demonstration obligations while continuing to obtain in atimely fashion many or all ofthe emissions reductions that should occur under those obligations, effecting an orderly transition to planningunder the 8-hourNAAQS. In addition, we do not believe it is equitable to relieve these

areas ofthis obligation where other

areas have already adopted controls to meet these obligations and will not be able to modify or remove such controls unless the State can demonstrate that such action is consistent with section 110(1).

Thus, in balancing Congressional intent to ensure no backsliding, equitable treatment ofall areas, the need for areas to begin planning for the 8- hour NAAQS and the limited planning

resources that States have available, we believe the best approach is to provide States with several alternatives, each of which will achieve emissions reductions on a timeframe similar to when they would have been achieved for the 1-hour NAAQS through a 1-hour attainment demonstration SIP. The State may choose the option that is least burdensome in light ofactivities already performed. For example, States with a 1- hour attainment demonstration that is past due or is due in the next several months may have already made significant progress in developing a 1- hour attainment demonstration SIP. Thus, these States may choose the first option. We are aware that one or more States have already begun the process of developing 8-hour attainment demonstrations for some 1-hour nonattainment areas. These States may choose to submit an early 8-hour attainment demonstration SIP. Other
areas, which have not yet made significant progress on 1-hour or 8-hour attainment planning, may wish to

reserve more time for the attainment demonstration process, which can involve complex modeling, and thus choose the third option-to achieve an early increment ofprogress.

For the second option available to States, we chose 5-rather than 10- percent as the amount ofreduction. Under this option, States must achieve the 5 percent emission reduction from local controls (not currently required by the SIP) and within 3 years of 

### designation forthe 8-hourNAAQS. In lightofthe quick timeframe in which to achieve the reductions following designations and the limitation that such reductions cannot be from regional

ornational controls orfrom measures already in the SIP, weconcluded that 10 percent was unduly burdensome. The Statesthat choose this option will need to identify and adopt appropriate controls within a 1-year timeframe and require sources to implement the controls within a short time thereafter. Theselimitations will restrictthe control choices available to States. In addition, because ofthe limited timeframe for adoption and submission ofthe controls to EPA, we do not believe itisreasonable torequire the State to obtain alevel ofreduction that would forcethe States toconcentrate its

resources on the early ROP reduction rather than on an 8-hour attainment plan. However, because the State will notbe able torely on national or regional controls, we are confident that the 5percent requirement will achieve the anti-backsliding goal.

Finally, as with the 1-hour ROP requirement, wenote thatEPA may waivethe 1-hour attainment demonstration requirement for areas based on adetermination that the area has attained the 8-hourNAAQS. The EPA's Clean Data Policy35 provides that 

### ifEPAhas determined that an area has attained the 1-hour NAAQS, itwill not be obligated to submit a 1-hour attainment demonstration for so long as itmaintains the 1-hour NAAQS. Thus, extendingthis policy to the 8-hour NAAQS, ifEPA determines that an area has attained the 8-hour ozoneNAAQS before the time the area is obligated to make a submission underthis portion of EPA's 8-hourimplementation regulations, EPA would waive this requirement for so long as the area remains in attainment with the 8-hour NAAQS. (TheEPA will address the applicability ofthe Clean Data Policy for 8-hour ozonenonattainment areas in Phase 2oftheimplementation rule.)

(3)Commentsandresponses. Comment:Several commenters advocated retaining theplanning obligations under the 1-hourNAAQS, expressingthebeliefthatmomentum willbe lostin implementing controls if these obligations arenot retained. In general, most ofthese commenters also

35Memorandum ofMay 10, 1995, "RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," fromJohn S. Seitz, Director, Office of Air Quality Planning and Standards. Available at: http:// www.epa.gov/ttn/oarpgtl/memoranda/ clean] 5.pdf. 

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opposed revocation ofthe 1-hour NAAQS and believed Congress intended the 1-hourNAAQS to be planned for and met. Some commenters opposed retaining the attainment demonstration requirements under the 1-hour NAAQS afterthe NAAQS is revoked on the basis that State resources are limited and should be focused on developing plans for implementing the 8-hour rather than the 1-hourNAAQS. A few commenters favored the alternative ofrequiring an early plan with an advance increment of emissions reductions toward progress of the 8-hourNAAQS in lieu ofthe attainment demonstration SIP revision. A few other commenters favored the alternative ofrequiring States to submit

an early attainment demonstration SIP for the 8-hourNAAQS.

Only one commenter believed that 10 percent was the appropriate amount under Alternative 1 for an advance increment ofprogress; several others opposed 10percent, claiming that it appeared to be punitive, that there was
no technical support for that amount, and that itmay be more than what was needed for attainment ofthe 8-hour NAAQS.

Some commenters recommended that exceptions be made for any area that made good faith efforts to develop and submit its plan, such as those with a submitted and approved plan that may have been challenged and overturned by

acourt.

Response:We have designed the final rule such that an area without an approved attainment demonstration or ROP plan would still be required to submit and implement a ROPplan and

an attainment demonstration or substitute plan as required for the 1- hour NAAQS. Webelieve this approach will ensure there are no delays in achieving emissions reductions as we transition to the more stringent 8-hour

ozone NAAQS.

We believe that areas that have not met their planning obligations under the 1-hour NAAQS-ifrelieved ofthat obligation afterthe 1-hour NAAQS is revoked-would provide emissions reductions on a more protracted time schedule than areas that had met their 1-hour NAAQS planning obligations. For example, an area that is classified severe-15 for the 1-hour NAAQS would have to obtain RFP reductions and any additional reductions needed for attainment by the end of2005, whereas if that same area is moderate under the 8-hourNAAQS, it would not be required to obtain reductions under the RFP provisionsuntil 2008 and additional reductions for attainment by

sometime in 2009. We believe that the provisions ofthe final rule-by offering three alternative means ofmeeting the 1-hour attainment demonstration obligation-allow sufficient flexibility for a State in these circumstances to choose the most appropriate means to achieve these reductions in the time intended byCongress.

d. Section51.905(a)(2):8-hour NAA QS Nonattainm entl-hour NAA QS Maintenance

In the June 2003 proposal, we discussed the requirements for areas designated as attainment for the 1-hour NAAQS with a maintenance plan atthe time ofdesignation for the 8-hour NAAQS in the same sections discussing the requirements for areas designated nonattainment for the 1-hour NAAQS at the time of 8-hour designations. However, in the draftregulatory provisions, we created a separate subparagraph addressing these areas. Below, we indicate briefly where the obligations for these areas, i.e., maintenance areas atthe time of designation, are the same as for areas designated nonattainment for the 1-hour NAAQS atthe time of8-hour designations. We discuss in more detail where the obligations differ. (i) MandatoryControlMeasures. (section VI.C.3.a.i. ofproposed rule; see 68 FR 32821; sections 51.900(f) and 51.905(a)(2) ofdraft and final rules). (A) Background.In the June 2003 proposal, we proposed that all areas designated nonattainment for the 8-hour NAAQS and that were nonattainment or maintenance for the 1-hour NAAQS at the time of 8-hour designations would be required to continue to implement mandatory measures adopted into the approved SIP. We did not distinguish between areas designated nonattainment for the 1-hour NAAQS at the time of designation for the 8-hourNAAQS and

areas that are maintenance for the 1- hour NAAQS atthe time ofdesignation for the 8-hour NAAQS. However, in the draft regulatory text, we created a separate provision for maintenance

areas because these areas do not have an outstanding obligation to adopt mandatory control obligations for the 1- hour NAAQS.3 6 Thus, the draft regulatory provision for maintenance

areas did not address the future adoption ofcontrols; it simply provided that these areas would be required to continue to implement the applicable requirements (as defined in the regulatory text) in the approved SIP.

We also provided in the June 2003 proposal and the draft regulatory text

3 6In order to redesignate these areas to attainment, EPA had to determine these areas had
met all obligations under partD. See CAA section 107(d)(3)(E). 

### thatifamaintenance area had previously shifted a mandatory control

measure to the contingency provisions, the area would not berequired tobegin implementation ofthatmeasure based

on the 8-hour nonattainment designation. However, themeasure would need toremain as a contingency

measure forthe area and could not be removed from the SIP. (B) FinalRule. We are adopting the approach wetookin the proposal and the draft regulatory text. Areas that are maintenance for the 1-hour NAAQS at thetime of8-hourdesignations and are designated nonattainment forthe 8-hour NAAQS, must continue toimplement mandatory controlrequirements (i.e., "applicable requirements") thathave been approved into the SIP.However, since maintenance areas do nothave any outstanding obligation to adopt mandatory control measures for the 1- hourNAAQS, theprovision only addresses implementation, not adoption. In addition, this section recognizes that maintenance areas had the flexibility tomove mandatory controls to the contingency measures portion oftheir maintenance plan. The

area would not berequired to implement these measures unless itis required to do so forthe area's classification forthe 8-hour NAAQS. However, themeasures would need to remain as contingency measures and could notbe removed from the SIP.

We are adopting therequirement that 1-hour maintenance areas arerequired to continue to implement mandatory controls for the same reasons we provided with respect to 8-hourNAAQS

nonattainment/ -hourNAAQS nonattainment areas above. With respect to mandatory measures thatthe State has moved to the contingency portion of themaintenance plan, we do notbelieve thatCongress intended torequire areas tobegin implementing such measures again based on thepromulgation ofa revised NAAQS unless required based

on the area's classification for the revised NAAQS. These areas have fully complied with the process that Congress established-attainment ofthe (thenexisting)NAAQS and redesignation to attainment for thatNAAQS based on a plan demonstrating thatthe area will maintain theNAAQS. While webelieve these areas should not "backslide" from existing control levels, we do not believe thatfor purposes ofthe 8-hour NAAQS they should berequired to begin implementing once more
measures thatthe Statehas chosen to place in thecontingency measures portion ofthe SIP. (ii)DiscretionaryControlMeasures. (Section VI.C.3.a.ii. ofproposed rule, 

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see 68 FR 32821, Section 51.905(a)(2) of draft regulatory text; there is no parallel provision in the final rule.)

(A) Background.The June 2, 2003 proposal did not discuss the requirements for these areas independent ofall areas that were designated nonattainment for the 1-hour NAAQS on or after November 15, 1990. The draftregulatory text (section 51.905(a)(2)), however, did provide for this situation separately but did not directly address discretionary measures.

(B) SummaryofFinalRule. As with discretionary control measures for 8- hour NAAQS nonattainment/1 -hour NAAQS nonattainment areas, 1-hour NAAQS maintenance/8-hour NAAQS nonattainment areas willretain the discretion to modify any discretionary control measures upon ademonstration under section 110(1). We are not promulgating regulatory text because, as described above, sections 110(1) and 193 ofthe CAA govern such SIP revisions.

(iii)Measuresto addressgrowth. (Section VI.C.3.a.iii ofproposed rule;

see 68 FR 32821; sections 51.900(f) and 51.905(a)(1) ofthe draft and final rules)

(A) Background.In the proposal, we recognized that 1-hour maintenance

areas generally are subject to the prevention ofsignificant deterioration (PSD)program and are no longer implementing the nonattainment NSR program for their previous 1-hour ozone designation and classification. 37 For

areas where the NSRprogram no longer applies under the SIP, we proposed that the areas would not need to revert back
to the NSRprogram they had for purposes ofthe 1-hour NAAQS. The proposal provided examples ofhow this would work (68 FR 32821).

(B) Summaryof final rule.We are adopting the approach we proposed but

our rationale relies on the final rule's provision that NSRunder the 1-hour standard will no longer apply as of revocation ofthe 1-hour standard. Ifan
area has been redesignated to attainment for the 1-hour NAAQS as ofthe effective date ofthe 8-hour nonattainment designation and is no longer required to implement a nonattainment NSR program, the area will notbe required
to revert back to the program ithad for purposes ofthe 1-hour ozone NAAQS. As noted elsewhere, NSR offset ratios and source applicability provisions under the 1-hour standard are not being

37Ifan area located in the Ozone Transport Region was redesignated to attainment, section 184(b)(2) ofthe CAA required it toretain a nonattainment NSRprogram. In addition, it is possible that one ormore areas still has a nonattainment NSRprogram in place because ofthe
way the State wrote the SIP. defined as "applicable requirements" afterthe 1-hour standard is revoked.

As provided in more detail below for 8-hourNAAQS nonattainment/1 -hour NAAQS nonattainment areas, we have determined that 1-hour NAAQS NSR should not continue to apply once the 1-hour NAAQS is revoked for those

areas. It would not bereasonable to require these areas to begin those 1-hour programs again for the 1-year between designation for the 8-hourNAAQS and revocation ofthe 1-hour standard. Moreover, Congress did not intend the nonattainment NSRprogram to continue to apply to most areas once they are redesignated to attainment. Rather, such

areas are subject to the PSD program. For an area that has met the clean air goals for the 1-hour NAAQS, we see no
reason to require such area to revert back to its 1-hour NSRprogram. These

areas will berequired to implement the nonattainment NSRprogram that applies based on their classification for the 8-hour ozone NAAQS. (iv) PlanningSIPs.(Section VI.C.3.a.iV. ofproposed rule, see 68 FR 32822; no specific provision in draft regulatory text or final rule.) (A) Background.In the June 2003 proposal, we did not discuss maintenance areas separate from 8-hour NAAQS nonattainment/1 -hourNAAQS nonattainment areas. However, the preamble discussion focused on areas with an outstanding obligation to submit a 1-hour ROP or attainment plan and the obligation to ensure that the ROP percentage reduction obligations in the approved SIP are achieved. Maintenance areas for the 1-hour NAAQS do not have an outstanding obligation to submit ROP or attainment plans for the 1-hour NAAQS. Thus, the draft regulatory text did not include language similar to that in 51.905(a)(ii) and (iii) for maintenance areas. The draft regulatory text did reflect ROP as
an applicable requirement for maintenance areas, indicating that these

areas must ensure that any SIP revision does not interfere with an approved ROP milestone. (B) Summaryoffinal rule.We are adopting the approach taken in the draft regulatory text. In redesignating an area to attainment, EPA must conclude that the area has met all requirements applicable under section 110 and part D. Thus, maintenance areas do not have continuing progress and attainment demonstration requirements, and the final rule does not establish requirements for maintenance areas related to outstanding attainment demonstration and ROP plans. The final rule does identify the ROP percent reduction requirement as an applicable requirement. However, we note that the ROPperiods for areas redesignated to attainment for the 1-hour NAAQS have already passed and thus any revision to the SIP should not affect ROP reductions for the periods required for the 1-hour NAAQS.

(C) Commentsandresponses. Comment:One commenter believed that 1-hour maintenance areas designated nonattainment under the 8- hour NAAQS should not have to submit updates to the 1-hour maintenance plan, since they will be developing 8-hour attainment plans that will subsume the requirements ofthe maintenance plan previously in effect.

Response:The rule provides that after the 1-hour ozone NAAQS is revoked,

areas are relieved ofresponsibilities to submit updates to their 1-hour maintenance plans. The State may submit arevision to the SIP to remove the provisions that require the update to the maintenance plan.

Comment:One commenter noted that draft Section 51.905(a)(2) would limit shiftingofan applicable requirement to the contingency measure portion ofan area's maintenance plan. Under the proposal, a State may onlymake such a shiftprior to the revocation ofthe 1- hour NAAQS; States may only make subsequent shifts by satisfying the requirements ofsection 110(1) ofthe CAA. The commenter believes that this criterion for shifting measures to the maintenance plan is more stringent and burdensome than therequirements in section 175A ofthe CAA for maintenance plans. In the alternative, the commenter recommends that in lieu ofthe showing required by Section 110(1), that States, instead, be allowed to substitute a control measure with equivalent emissions reductions for the

measures they propose to remove from theirplan.

Response:We agree with the
commenter that section 51.905(a)(2) will limit the authority of an area that was maintenance for the 1-hour standard at the time ofdesignation as nonattainment for the 8-hour standard. However, we disagree with the
commenterregarding the statutory provisions that apply for purposes of SIP revisions. The commenter is incorrect that section 110(1) does not apply to revisions to maintenance plans. Prior to being designated nonattainment for the 8-hour NAAQS, such an area could move adopted measures to the contingency measures portion ofthe maintenance plan based on a demonstration under section 110(1) that such arevision would not interfere with attainment, maintenance or any other applicable requirement ofthe CAA. Our 

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rule provides that upon designation as nonattainment for the 8-hour NAAQS, a i-hour maintenance area will not be able to shift adopted mandatory controls (i.e., those identified as "applicable requirements" in the regulation) to contingency measures as those obligations are now defined as "applicable requirements." Once the

area is redesignated to attainment for the 8-hourNAAQS, such obligations will no longer be defined as "applicable requirements" and the State can move them to contingency measures based on

ademonstration that to do so would not interfere with attainment or maintenance ofthe 8-hourNAAQS or any other applicable requirement ofthe CAA. For adopted control measures that

are not identified as "applicable requirements" in the regulation, the State will continue to have the same authority itcurrently has for shifting adopted controls to contingency
measures, based on a demonstration under section 110(1). Comment:One commenter noted that in section 51.905(a)(2), the clause
"* * * except to the extent required under its 8-hour obligations * * *" could be interpreted to imply that contingency measures in the i-hour maintenance plan become 8-hour

measures by default. The commenter suggested language to avoid an incorrect interpretation.

Response:The final rule reflects this recommended language change with

some slight modifications.

e. Section 51.905(a)(3):8-Hour NAA QSA ttainment/1 -Hour NAA QS Nonattainment

(i) Mandatorycontrolobligations. (Section VI.C.3.b. ofproposal, see 68 FR 32823; section 51.905(a)(3)(i) ofthe draft and final rule)

(A) Background.The proposal noted that the issue ofwhat obligation remains with respect to mandatory control

measures approved into the SIP or required under the CAA is based on the CAA's requirements for maintenance plans. We proposed that ifEPA determined that these areas were required to develop maintenance plans pursuant to section 175A, then they would need to keep (or to adopt and then keep) those control measures in the SIP, though they could shift them to contingency measures.

For an area that was never redesignated to attainment for the 1- hour standard and never had a section 175A maintenance plan, we proposed that ifthe area wants to revise any part ofits current 1-hour SIP, the area must first adopt and submit a maintenance plan consistent with section 110(a)(1) (discussed below). We proposed that these obligations would remain in place but in alater section ofthepreamble proposed options as to when this obligation would no longer apply.3 8 (B) Summaryof final rule. We are adopting an approach consistent with our proposed rule.As

we discuss later in thispreamble, we have determined that mandatory control obligations will no longer apply once an

area attains the 8-hourNAAQS. Thus, because these areas are attaining the 8- hour NAAQS, the State may request that obligations under the applicable requirements ofsection 51.900(f) be shifted to contingency measures once the i-hour NAAQS is revoked, consistent with sections 110(1) and 193 ofthe CAA. However, the State cannot

remove the obligations from the SIP.

Because these areas are in attainment with the health-based NAAQS, we believe that Congress-as with areas redesignated from nonattainment to attainment-did not intend the areas to retain these controls as implemented

measures if the area can demonstrate maintenance without the controls. As with areas redesignated to attainment, the rule provides that the State cannot

remove the measures from the SIP, but rather may move them to the contingency measures portion ofthe SIP. We did not receive comments directly addressing mandatory control obligations for this category ofareas outside the context ofmaintenance plans for these areas discussed below. (ii) Discretionary controlobligations. (Section VI.C.3.b.iii. ofproposal; 68 FR 32823; section 51.905(d) ofdraft regulatory text; no parallel provision in final rule.)

Areas designated nonattainment for the i-hour NAAQS that are designated attainment for the 8-hour ozone NAAQS will retain the ability to modify any discretionary controls upon a demonstration under section 110(1). However, such controls must remain in the SIP as contingency measures. We are not promulgating regulatory text because, as described above, sections 110(1) and 193 ofthe CAA govern such SIP revisions. As with mandatory
measures, we look to the maintenance plan provision ofsection 175A to see what Congress' intent may have been for these areas. Because these areas were nonattainment for the i-hour NAAQS,

we believe Congress intended them to retain the measures in the SIP,but could shiftthem to contingency measures if the area demonstrates it will maintain the 8-hour NAAQS ifthe measure is no

38These two options were: (1) When the area attains the 1-hour NAAQS, or (2) when the area attains the 8-hour NAAQS. longer implemented. We did receive comments directly addressing discretionary control obligations for this category ofareas outside the context of maintenance plans for these areas discussed below.

(iii)Measuresto addressgrowth. (Section VI.C.3.b.i. ofproposal; 68 FR 32823; noprovision in draft or final rule.) (A) Background.The proposal explained that NSR applies only in nonattainment areas.3 9 Since these areas would be designated attainment for the 8-hourNAAQS-the only ozone NAAQS that exists for the area once the 1-hour NAAQS is revoked-they would be subject to PSD, not NSR, once the 1- hour NAAQS is revoked. (B) Summary offinalrule.We are adopting the approach we setforth in

ourproposed rule for areas designated attainment for the 8-hour NAAQS and designated nonattainment forthe 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS. After the 1-hour NAAQS is revoked, the CAA requires such areas to comply with PSD, not NSR. (The States may need to modify their SIPs so that itprovides for PSD rather than NSRin such areas.) We do
not see a basis for mandating that such

areas retain anonattainment NSR program and do notbelieve that Congress intended such aresult. As an initial matter, once the 1-hour NAAQS is revoked, these areas are meeting the onlyozone NAAQS that is in place. Congress specified that PSD shall apply in areas not designated nonattainment (section 161 ofthe CAA). In addition, as provided in more detail below for 8- hour NAAQS nonattainment/1 -hour NAAQS nonattainment areas, we have determined that 1-hour NAAQS NSR should notcontinue to apply once the 1-hour NAAQS is revoked for those

areas.

Note that for these areas, the NSR provisions may be removed from the SIP and need not be shifted to contingency

measures.40 We have never interpreted section 175A ofthe CAA to mandate that nonattainment NSRbe retained as
a contingency measure in the SIP after

an area is redesignated from nonattainment to attainment because we do notinterpret NSRto be acontrol

39Ifan area located in the Ozone Transport Region was redesignated to attainment, section 184(b)(2) ofthe CAA required it to retain a nonattainment NSR program. In addition, it is possible that one ormore areas still has a nonattainment NSR program in place because of the
way the State wrote the SIP.

4 0Memorandum from Mary Nichols to Regional Air Division Directors dated October 14, 1994, entitled "Part D New Source Review (partD NSR) Requirements forAreas Requesting Redesignation to Attainment." 

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measure. (See, e.g., May 12, 2003; 68 FR 25436.)

(C) Comments andresponses. Comment:Some commenters believed that the 1-hour NAAQS should remain in effect, and therefore NSR would continue to apply until the area attains the 1-hourNAAQS and is redesignated
to attainment for that NAAQS regardless ofthe area's status for the 8-hour NAAQS. Other commenters generally agreed with the proposal.

Response:We address the broader legal and policy issues regarding revocation ofthe 1-hour NAAQS in the revocation section ofthisrule.

(iv) Planning SIPs. (Section VI.C.3.b(ii) ofproposed rule; see 68 FR 32823; section 51.905(a)(3)(ii) ofdraft and final rule.)

(A) Background.In the June 2, 2003 proposed rule, we proposed that any outstanding SIP planningrequirements (ROPplans and attainment demonstrations) that applied for purposes ofthe 1-hour NAAQS would
not continue to apply to areas designated attainment for the 8-hour NAAQS for as long as they continue to maintain the 8-hourNAAQS. Ifsuch an

area violates the 8-hourNAAQS prior to having an approved maintenance plan meeting therequirements ofsection 110(a)(1) the obligation to have a 1-hour attainment demonstration and ROPplan would once again apply in the same
manner that they apply for 8-hour NAAQS nonattainment/1 -hourNAAQS nonattainment areas.

The draft regulatory text (section 51.905(a)(3)) contained specific provisions addressing the obligation for

an area designated attainment for the 8- hour NAAQS that subsequently violates the 8-hourNAAQS prior to having an approved maintenance plan under section 110(a)(1). Ifthe area was required to and does nothave an approved attainment demonstration or ROP plan for the 1-hour NAAQS, the State would be required to submit a plan providing for a 10percent emission reduction as a substitute for the attainment demonstration and to adopt and submit any outstanding ROP emission reductions.

(B) Summaryof final rule.We are adopting our proposal with some modification. As an initial matter, section 51.905(a)(3) now only addresses 8-hourNAAQS attainment/i-hour NAAQS nonattainment areas. We have created a new section 51.905(a)(4) that addresses 8-hour NAAQS attainment/ihour NAAQS maintenance areas. The section addressingthat second category ofareas is discussed below. An area that is 8-hourNAAQS attainment/i -hour NAAQS nonattainment will not be required to develop and submit outstanding attainment demonstration and ROP plans for the 1-hour NAAQS for so long asthe area continues to maintain the 8-hourNAAQS. However, if the area violates the 8-hour NAAQS prior to having an approved 8-hour maintenance plan under section 110(a)(1), the area will be required to submit a SIPrevision to address outstanding ROP and attainment demonstration plans as follows. 41 (1) ROPPlans.Foran outstanding 1- hour ROP plan, the State must submit

a SIP providing for any outstanding ROP and the 3-year periods for achieving those reductions will begin January 1 of the year following the 3-yearperiod on which EPAbases its determination. For example, if an area was required to and does not have an approved SIP providing for a9% reduction in emissions from 1996-1999, the obligation to have such a SIP is deferred unless the area violates the 8-hour NAAQS prior to having an approved maintenance plan for the 8-hour NAAQS. IfEPA determines in August 2007 that the area violated the 8-hour NAAQS based on ambient air quality data from 2004-2006 and at that time the area does nothave an approved maintenance plan for the 8-hour NAAQS, the area will be required to submit a SIPproviding for a 9 percent reduction in emissions for the 3-year period ofJanuary 2007-December 2009. The State may rely on national and regional controls for purposes of meeting this increment ofreduction and the 9 percent should be calculated using the 1990baseline. (The 1-hour ROP requirement is calculated from a 1990 baseline, not a2002 baseline, as is the 8-hourRFP requirement.) We have clarified the language in the final regulation to make clear that the requirement to submit theplan for additional emission reductions applies only to the extent that an area had not met its prior planningobligations. For example, if an area was classified as serious for the 1-hour NAAQS and had

an approved 15 percent ROP plan and

an approved 9 percent ROP plan for 1996-1999, then the area does not have any outstanding ROP obligation that
must be met under this provision. However, if the same area only had an approved 15percent ROP plan, but not

an approved 9 percent ROP plan for 1996-1999, then the area has an outstanding 9 percent ROP plan for the 1996-1999 period. Ifthe State had submitted the ROP plan to EPA, but EPA had not yet acted on the

41We discuss the obligation for these areas to adopt a section 110(a)(1) maintenance plan below. submission, the State may notify EPA that it wishes to rely on the previously submitted SIP or it mayelect to submit

a new or revised SIP.

We believe this approach makes sense
as it ensures that the level ofemission reduction that the area was required to achieve, but was not yet enforceable under the SIP, will be achieved expeditiously after aviolation ofthe 8- hour NAAQS occurs. (2)A ttainmentDemonstration.For an outstanding 1-hour attainment demonstration, the final rule requires the State to either: (1) submit an 8-hour maintenance plan that addresses the violation and demonstrates maintenance through EPA-approved modeling; or (2) submit aplan to achieve a 3 percent increment ofprogress within 3 years afterEPA determines the area has violated the NAAQS. The 3 percent increment ofprogress mustbe in addition to measures (or enforceable commitments to measures) in the SIP at the time ofthe effective date of designation and in addition to national

orregional measures.

This approach differs from both the June 2003 proposal and the draft regulatory text in that we do not establish precisely the same requirement for these areas that we establish for areas that are 8-hour NAAQS nonattainment/1-hourNAAQS nonattainment. For areas that are 8-hour NAAQS nonattainment/1-hourNAAQS nonattainment, section 51.905(a)(1)(ii) provides three options for the State. The first option available is that States may choose to submit their 1-hour SIP. We do notbelieve this option makes good policy sense for an area designated attainment for the 8-hour NAAQS to spend resources to develop aplan to achieve the 1-hour NAAQS (which is likely to have been revoked by that time), when the area will already be in the process ofdeveloping the section 110(a)(1) maintenance plan for the area discussed elsewhere in thispreamble.

The second and third options under section 51.905(a)(1)(ii) available to areas that are 8-hour NAAQS nonattainment/ 1-hour NAAQS nonattainment are analogous but notidentical to the two options we provide for areas designated attainment for the 8-hour NAAQS. Both types ofareas are provided with the option ofachieving a specified increment ofprogress. For areas that are 8-hourNAAQS nonattainment/1-hour NAAQS nonattainment, we established

an increment of5 percent and for those designated attainment for the 8-hour NAAQS, we established a 3 percent increment. In general, we believe that those areas initially designated attainment for the 8-hour NAAQS will 

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have a less significant 8-hour problemthese areas tend to record values within

afew parts per billion ofthe NAAQS. Thus, since the increment ofprogress is limited to controls not already adopted into the SIP or required by federal or regional controls, the 5 percent reduction requirement would likelybe excessive for purposes ofaddressing that small deviation from the NAAQS.

The third option available to areas that are 8-hourNAAQS nonattainment/ 1-hour NAAQS nonattainment is to submit an early 8-hour attainment demonstration. Since areas designated attainment for the 8-hourNAAQS are not required to develop attainment demonstrations, it did not make sense to carry this option over. Rather, we determined it made more sense to allow the area to address the violation in the
context ofthe obligation that itdoes have, i.e., to develop a maintenance plan for the 8-hour NAAQS. Thus, for these areas, we created the option of performing a more rigorous maintenance demonstration-a demonstration based on EPA-approved modeling.

(C) Comments andresponses. Comment:Some commenters on draft regulatory text objected to continuing the obligation for areas to submit ROP plans and/or attainment demonstrations for the 1-hour NAAQS after the 1-hour NAAQS is revoked. Some ofthe
comments reflected the fact that the regulatory text mayhave been unclear regarding what the requirement entailed and which areas were affected.

Response:We have designed the final rule such that an area with an unmet planning obligation would still be required to submit and implement arate ofprogress plan and an attainment demonstration (or substitute plan) under the 1-hourNAAQS ifthe area violates the 8-hourNAAQS before ithas an approved maintenance plan. These are

areas that have historically had an

ozone problem and, in general, have 8- hour design values within a few parts per billion ofthe 8-hour NAAQS. Once these areas have an approved 110(a)(1) maintenance plan with contingency
measures, that plan will address future violations ofthe 8-hourNAAQS and the 1-hour obligations will no longer apply. However, until that plan is in place, we believe that Congress would have intended theserequirements to still have significance if the area violates the health-based NAAQS.

The final regulatory text was modified
to clarify that the provision applies to

areas that do not have approved ROP plans and/or attainment demonstrations under the 1-hourNAAQS and that violate the 8-hour NAAQS before having an approved 8-hourmaintenance plan under section 110(a)(1). The regulatory
text also clarifies the obligation that will apply.

(v)MaintenancePlansforthe 8-hour NAA QS. (Section VI.C.3.b(iii) of proposed rule; see 68 FR 32823; Section 51.905(a)(3)(iii)of draft and final rules). (A) Background. In the June 2003 proposal, we proposed that areas designated attainment for the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS on or after November 15, 1990, must adopt and submit amaintenance plan consistent with section 110(a)(1) within 3 years ofdesignation as attainment for the 8-hour NAAQS. The maintenance plan should provide for continued maintenance ofthe 8-hour NAAQS for 10 years following designation for the 8-hourNAAQS and
must include contingency measures. Areas with approved 1-hour maintenance plans under section 175A would be able to modify those maintenance plans consistent with their obligation to have a maintenance plan for the 8-hour NAAQS under section 110(a)(1). Such areas could remove from their maintenance SIPs (a) the obligation
to submit a maintenance plan for the 1- hour NAAQS 8 years after approval of their initial 1-hour maintenance plan; and (b) the requirement to implement contingency measures upon aviolation ofthe 1-hour ozone NAAQS.

The draft regulatory text reflected the description in the June 2003 proposal. (B) Summaryof final rule. We are adoptingthe approach we proposed. However, as noted above, we have now created separate subsections in the rule addressing areas that were designated nonattainment for the 1-hour NAAQS atthe time ofdesignation for the 1-hour NAAQS and areas that were maintenance areas for the 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS. Section 51.905(a)(3)(iii) applies only to areas designated nonattainment for the 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS. Section 51.905(a)(4)(ii) establishes the same requirement for areas that are maintenance for the 1-hour NAAQS at the time ofdesignation for the 8-hour NAAQS. These two provisions provide that 1-hour NAAQS nonattainment/8- hour NAAQS attainment (section 51.905(a)(3)(iii)) and 8-hour NAAQS attainment/ -hourNAAQS maintenance (section 51.905(a)(4)(ii)) areas must adopt and submit amaintenance plan consistent with section 110(a)(1) within 3 years ofdesignation as attainment for the 8-hour NAAQS. The maintenance plan should provide for continued maintenance ofthe 8-hour NAAQS for 10 years following designation for the 8- hour NAAQS and should include contingency measures. We provide additional detail below regarding maintenance areas forthe 1-hour NAAQS. Section 110(a)(1) requires all areas to demonstrate that they will attain and maintain therelevant NAAQS. Most of the areas addressed by this provision of the regulation have historically had problems meeting and/or remaining in attainment ofthe ozone NAAQS. We think it is important for States to ensure that these areas will continue to have clean air so that the health ofcitizens willbe protected.

(C) Commentsandresponses. Comment:A number ofcommenters who addressed this issue in comments

on the June 2, 2003 proposal did not support the section 110(a)(1) maintenance plan requirement. Some
commenters believed the 1-hour NAAQS should remain in effect and with it any existing 1-hour SIP requirements, including section 175A maintenance plan requirements (which would require conformity determinations). One commenter objected to the proposed requirement, alleging the requirement was unnecessary and not required. Two
commenters agreed with the requirement.

In commenting on the draft regulatory text one commenter supported this provision. One commenter recommended that we provide more specific guidance on preparation of section 110(a)(1) maintenance plans and also notrequire modeling for them. Two commenters objected to maintenance plans under section 110(a)(1) because they would not require conformity (as would maintenance plans under section 175A) for areas that currently have maintenance plans under the 1-hour NAAQS. The commenters believed the maintenance planning should be done under section 175A. Another
commenterbelieved that section 110(a)(1) ofthe CAA requires neither contingency measures nor a 10-year plan; the commenter suggested that the section 110(a)(1) maintenance plan merely be a continuation ofthe provisions ofthe existingmaintenance plan.

Response:Because the 1-hour NAAQS would be revoked, the requirements of section 175A would not apply to these

areas (areas initially designated attainment for the 8-hour NAAQS but that were designated nonattainment for the 1-hour NAAQS at the time of enactment ofthe 1990CAA Amendments.) Section 175A applies to 

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redesignations, not to initial designations. After the 1-hour NAAQS is revoked, webelieve that an area that

was previously designated

nonattainment for the I-hour NAAQS or
was designated attainment with a maintenance plan and that initially is designated attainment for the 8-hour

ozone NAAQS, should berequired to demonstrate maintenance only for the 8- hour NAAQS at that point. The area was not "redesignated" attainment for the 8- hour NAAQS, and therefore the section 175A maintenance plan requirement does not apply. We believe that the section 110(a)(1) maintenance provisions-as required in section 51.905-will provide adequate

assurance ofmaintenance ofthe 8-hour NAAQS. The EPA always retains the authority to require a State that fails to maintain the NAAQS to revise its SIP to provide additional maintenance

measures or to redesignate the area nonattainment and require an attainment demonstration.

We do not agree with commenters that opposed aprovision requiring a maintenance plan under section 110(a)(1) for these areas. We believe that the CAA requires that SIPs continue to provide for maintenance ofthe applicable NAAQS under section 110(a)(1). Because these areas have historically experienced ozone problems and generally are close to violating the 8-hourNAAQS, we believe it is prudent
to require a demonstration ofhow they will maintain the 8-hourNAAQS. We think thisrequirement willbenefit citizens by providing better assurance that the air willremain clean and will benefit industry byminimizing the likelihood the area will violate the standard and be redesignated to nonattainment.

f. Section 51.905(a)(4):8-Hour NAA QSA ttainment/1 -Hour NAA QS Maintenance.

As noted above, in the preamble to the proposed rule,EPA addressed in the

same section 1-hour nonattainment

areas and 1-hour maintenance areas that

are designated nonattainment for the 8- hour NAAQS. Comments on the proposed regulatory text noted that section 51.905(a)(3) only addressed 8- hour attainment areas that were designated nonattainment for the 1-hour

ozone NAAQS and not areas that were maintenance for that NAAQS. Thus, the draft rule did not address all aspects of the proposal since it did not include provisions for areas that are maintenance for the 1-hour NAAQS at the time ofdesignations.

We considered revising paragraph 51.905(a)(3) to include 1-hour maintenance areas. However, that 

### subsection included certain requirements not relevant for 1-hour maintenance areas, such as requirements concerning outstanding attainment demonstration and ROP plans. Thus, in thefinal rule,we created section 51.905(a)(4) to applyto areas designated attainment forthe 8-hour NAAQS and that were maintenance

areas for the 1-hour NAAQS atthe time ofdesignation for the 8-hourNAAQS. (i)Obligationsin anapprovedSIP. (51.905(a)(4)(i)).

This subsection isidentical in structure to section 51.905(a)(3)(i). Our

reasons are explained in our discussion ofsection 51.905(a)(3)(i), above. (ii)Maintenance plan. (51.905(a)(4)(ii).As provided above in the discussion ofsection 51.905(a)(3)(iii), we are adopting in our final rule ourproposed interpretation regarding maintenance plans for areas designated nonattainment for the 1-hour NAAQS on or afterNovember 15, 1990 (i.e., areas thatremain designated nonattainment forthe 1-hour NAAQS as well as maintenance areas for the 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS). Specifically, these

areas must adopt a maintenance plan under section 110(a)(1) within 3years of designation for the 8-hourNAAQS. The provision for maintenance areas is the

same as for areas designated nonattainment forthe 1-hour NAAQS. However, for maintenance areas, section 51.905(e), discussed below, crossreferences this provision and addresses the relationship between the existing 1- hour maintenance plan and the 8-hour maintenance plan.

Our reasons for adoptingthis provision arediscussed above. Although these areas already have maintenance plans, thoseplans only address maintenance ofthe 1-hour NAAQS. It is important for these areas to ensure that they have a plan addressing maintenance ofthe 8-hour NAAQS. These areas may evaluate their existing plan and demonstrate how it will ensure maintenance ofthe 8-hour NAAQS, or may modify their existingplan, ormay adopt anew plan, as appropriate.

Comment:One commenter argued that itmakes little sense torequire the Stateto continue to expend the effort and resources toupdate and extend these maintenance plans. The commenter questioned why a newly designated marginal area underthe 8- hour NAAQS should be exempt from implementation plan requirements, while an area previously nonattainment for the 1-hourNAAQS, butnow in attainment forboth NAAQS, should be required to continue with 8 additional years ofmaintenance plan requirements. Response:The final rule (section 51.905(a)(4)) clarifies that these areas (areas that are initially designated attainment for the 8-hour NAAQS but

were attainment areas under the 1-hour NAAQS with approved maintenance plans) arerelieved ofthe requirement to update theirmaintenance plan under section 175(A), but must submit a maintenance plan under section 110(a)(1) that provides for maintenance for 10 years. It should be noted that marginal areas under the 8-hour NAAQS are not "exempt" from implementation plan requirements; they

are still subject to nonattainment new
source review and conformity requirements, for instance. Furthermore, ifa marginal area does not attain the NAAQS by its attainment date, the CAA requires that the area be bumped up in classification, which would require the

area to submit arevised SIP with an attainment demonstration and control

measures required under subpart 2 for the area's new classification. In addition, once the area attains the 8- hour NAAQS, it will be subject to the

more stringent maintenance plan provision in section 175A, which requires the areas to demonstrate maintenance for 20 years.
3. For How Long Do These Obligations Continue To Apply? (Section VI.C.4 of Proposed rule; See 68 FR 32824; Section 51.905(b) ofDraft and Final Rules)

a. Background.In the June 2, 2003 proposed rule, we proposed two options for when the State would no longer be required to continue implementing SIPapproved control obligations required for an area's 1-hour classification. At that time, these requirements could be relegated to the contingency measures portion ofthe SIP ifthe State demonstrated that implementation of the controls was not necessary to attain

or maintain the 8-hourNAAQS (consistent with section 110(1)). For simplification, we refer to this as the timecontrol obligations may be shifted
to the contingency measures. We clarified that the term "control obligations" was intended to refer to the obligations which we determined would continue to apply under the preceding sections oftheproposal, including the NOx transport rules. Under Option 1, control obligations could be shifted to contingency measures when the area achieves the level ofthe 1-hour ozone NAAQS (even ifthe area has not yet attained the 8-hour NAAQS). Under Option 2, control obligations could be shifted to contingency measures once the area attains and is redesignated to attainment for the 8-hour NAAQS (regardless ofwhen, ifever, the area 

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attains the 1-hour NAAQS). The draft regulatory text was developed using Option 1(when the area achieves the level ofthe 1-hour ozoneNAAQS).

b. Summary offinalrule.We are adoptingOption 2-control obligations

an area isrequired toretain in the approved SIP for an area's 1-hour classification must continue tobe implemented under the SIP untilthe

area attains and isredesignated to attainment forthe 8-hourNAAQS. At that time,the State mayrelegate such controls to thecontingency measure portion ofthe SIP ifthe State demonstrates in accordance with section 110(1) thatdoing so will not interfere with maintenance ofthe 8-hour NAAQS or any other applicable requirement oftheCAA. Ifat thetime the area is redesignated to attainment for the 8-hourNAAQS theState has an outstanding obligation to adopt a control requirement under the 1-hour NAAQS, itremains obligated to do so, but may adopt it as a contingency

measure. As discussed above, under EPA's Clean Data Policy, certain obligations such as therequirement to submitROP plans and attainment demonstrations may be suspended based on a determination that the area has attained the 8-hourNAAQS and will no longer apply ifthe area is redesignated to attainment. However, if

an area experiences a violation ofthe8- hour NAAQS priorto being redesignated to attainment the requirements would once again apply.

We areadopting this option because,

asnoted in theJune 2, 2003 proposal, the 8-hourNAAQS istheNAAQS that

we have determined willprotect public health and theenvironment. Only once
an area demonstrates ithas met and can maintain thehealth protective NAAQS do webelieve itwill be appropriate to shiftthese obligations to the contingency measures portion ofthe SIP.This scheme is consistent with what Congress intended. The CAA contemplates under subpart 2 that States must implement certain mandated requirements. Under the maintenance planprovision ofthe CAA (section 175A), such requirements may be shifted to thecontingency measure portion ofthe SIPupon or after redesignation to attainment. Since the relevant NAAQS is now the 8-hour NAAQS, webelieve it is appropriate to require these mandated controls to remain as part ofthe implemented SIP until an area attains the 8-hour NAAQS and isredesignated to attainment. On or afterthat date, aState may move such obligation to the contingency measures portion ofthe SIP consistent with sections 175A and 110(1). Moreover, we believe it is appropriate to use attainment ofthe 8-hourNAAQS rather than attainment ofthe 1-hour NAAQS because, as provided elsewhere in this rulemaking, EPA will no longer be making determinations ofwhether an
area has attained the 1-hour NAAQS and areas will not be required to demonstrate attainment or maintenance ofthe 1-hour NAAQS. Some areas may
never attain the 1-hour NAAQS, as there will be no obligation to do so once it is revoked.

The final rule covers the continued applicability ofthe NOx transport rules under section 51.905(f), rather than as
an "applicable requirement" for purposes ofsection 110(1) because the NOx rules apply regardless ofan area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.

c. Comments andresponses Cornment:Ofthe few commenters who addressed this issue in response to the June 2, 2003 proposal, several favored Option 1, and several favored Option 2. Ofthose who commented on the draft regulatory text, one commenter opposed the provision, and one comment was unclear asto the commenter's concerns. One other
commenter supported theprovision. Several commenters had clarifying questions.

Response:Ourrationale for the choice ofOption 2 is presented above. A more detailed response to these and other
comments appears in the RTC document.

4. Which Portions ofan Area Designated for the 8-Hour NAAQS Remain Subject
to the 1-Hour NAAQS Obligations? (Section VI.C.2 and 3 ofProposal; See 68 FR 32820-32821; 51.905(c) ofthe Draft and Final Rules)

a. Background.In the June 2, 2003 notice, we proposed that the obligation to retain or to adopt and retain a mandatory control obligation applies only to the part ofthe 8-hour ozone nonattainment area that was designated nonattainment for the 1-hour ozone NAAQS. The proposal also provided an example ofhow this would work.

The draft regulatory text provided additional specificity concerning geographic applicability ofthe antibacksliding provisions. The draft text provided that with two exceptions only the portion ofthe designated area for the 8-hourNAAQS that was required to adopt the applicable requirements in 51.900(f) for purposes ofthe 1-hour NAAQS is subject to the obligations identified in paragraph (a) ofthis section with several exceptions. The first exception is an area that is designated nonattainment for the 8-hour 

### NAAQS butthat was nonattainment for the 1-hour NAAQS with an unmet obligation to submit an attainment demonstration; for these areas, the draft regulatory text provided that the entire

area designated nonattainment forthe 8- hourozone NAAQS would be subject to the 10percent advance increment of reduction. The second exception is an
area that is attainment for the 8-hour NAAQS butthat was nonattainment under the 1-hour NAAQS with an unmet obligation to submit an attainment demonstration; for these areas, the 110(1) maintenance plan would have to demonstrate maintenance for the entire 8-hour ozone attainment

area.

b. Summaryoffinal rule.Thefinal rule incorporates most aspects ofthe approach asthat contained in the proposal and in the draft regulatory text. Thefinalrule provides that onlythe portion ofthe designated area forthe 8- hourNAAQS that was designated nonattainment for the 1-hour NAAQS is required to comply with the obligations in subparagraph 51.905(a), exceptifthe State elects toprovide an early increment ofprogress or an early 8-hour attainment demonstration in lieu ofan outstanding 1-hour attainment demonstration (for an 8-hourNAAQS nonattainment area/i-hour NAAQS nonattainment area under 51.905(a)(1)(ii)(B) and (C)), the increment ofprogress or early 8-hour attainmentplan must applyfor purposes ofthe entire 8-hour nonattainment area.

The finalrule does not follow the approach inthe proposal for the maintenance plan requirement for8- hour attainment areas. The maintenance plans required under section 51.905(a)(3)(iii) and (4)(ii) must demonstrate maintenance onlyfor the

area designated nonattainment forthe 1- hourNAAQS at thetime ofdesignation ofthe 8-hourNAAQS. Wereceived comment thatrecommended this obligation apply only to the area that

was originally designated nonattainment for the 1-hour NAAQS. Afterconsidering this comment and our discussion in thepreamble to the proposed rule, we agreewith the commenter. In many States, attainment

areas are identified county bycounty rather than identifying a group of counties as an attainment area.Thus, a State mayhave one ormore groups of counties listed as anonattainment area and thenthe remainingcounties in the State are each identified individually as "attainment." See e.g., 40 CFR 81.311 (Georgia); 81.329 (Nevada). Because the

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that was previously designated

nonattainment for the 1-hourNAAQS,

we believe itmakes the most sense to require the maintenance plan for the

area previously designated

nonattainment for the 1-hourNAAQS. We will set forth in40 CFR Part 81, Subpart E, an identification ofthe boundaries ofareas and the area designations and classifications for the 1-hour NAAQS atthe time ofthe 8-hour designations.

c. Comments andresponses. Comments on June2, 2003 Proposal: With regard to limiting the applicability of 1-hour obligations to that portion of the 8-hour nonattainment area that was also part ofthe 1-hour nonattainment
area, one commenter supports this policy, especially for the enhanced I/M program. The commenter believes that the environmental benefit ofrequiring

an extension ofthe enhanced I/M program to areas recently added to the CMSA and designated nonattainment for the 8-hourNAAQS to be minimal, costly, and disruptive ofthe continued implementation ofthe enhanced I/M program in the current 1-hour nonattainment area.

One commenter objected to requiring the substitute planning requirement (10 percent advance increment ofemission reductions) that applies to areas with an outstanding attainment demonstration for the entire 8-hour ozone nonattainment area. Instead, the
commenter recommended it should only apply to the 1-hour nonattainment

area.

Response:The final rule provides for retaining applicable emission control requirements for an area's 1-hour classification in only the original 1-hour nonattainment area.

As noted in the final rulemaking notice, we are now allowing the State to meet its unmet 1-hour attainment demonstration obligation by submitting the outstanding attainment demonstration or bytaking one oftwo early actions for 8-hour planning: achieve a 5 percent advance increment ofemission reductions or submit an early 8-hour attainment demonstration. The advance increment ofemission reductions is applied throughout the entire 8-hour nonattainment area because, although itis being submitted in lieu ofthe 1-hour requirement, it is intended to address the 8-hour nonattainment problem. Similarly, the 8-hour attainment demonstration is intended to address attainment for the full 8-hour area. Because these alternatives to the 1-hour attainment demonstration are intended to address attainment and progress toward the 8- hour NAAQS, the State would need to apply these requirements, if selected, to the entire 8-hour nonattainment area. We developed these alternatives in response to concerns that areas focus on the 8-hour NAAQS rather than on the 1- hour NAAQS and that continued planning obligations for the 1-hour NAAQS would burden State resources. States still have the flexibility to choose
to develop the 1-hour attainment demonstrations for the 1-hour area if they would like to restrict the unmet planning obligation to the old area.
5. What Obligations That Applied for the 1-HourNAAQS Will No Longer Apply After Revocation ofthe 1-Hour NAAQS for an Area? (Section VI.C.3.d. ofProposal; See 68 FR 32824; Section 51.905(e) ofProposed and Final Rules)

a. Background.In the June 2, 2003 proposed rule (68 FR 328224), we proposed that once the 1-hour NAAQS is revoked, EPA would no longer make findings offailure to attain that NAAQS and, therefore, we would not reclassify

areas based upon a finding that the area failed to attain the 1-hour NAAQS. We indicated areas should focus their

resources on attainment ofthe 8-hour NAAQS and stated that we believed it would be counterproductive to establish

new obligations for States with respect to the 1-hourNAAQS afterthey have begun planningfor the 8-hourNAAQS. In addition, we noted that the attainment dates for areas classified as marginal, moderate and serious had passed and that the CAA does not provide for reclassification ofsevere
areas. We also noted other mechanisms that are available to make sure that States continue to make progress toward attaining the 8-hour NAAQS.

In addition, we indicated that conformity requirements would no longer apply for the 1-hour NAAQS

once the NAAQS is revoked. The June 2, 2003 proposal explains that, under section 176(c) ofthe CAA, conformity applies to areas designated nonattainment or subject to the requirement to develop amaintenance plan pursuant to section 175A. Once the 1-hour NAAQS is revoked, areas would

no longer be designated nonattainment for the 1-hour NAAQS or subject to the obligation to develop amaintenance plan under section 175A for the 1-hour NAAQS and thus would no longer be subject to the obligation to demonstrate conformity (eithertransportation conformity or general conformity) for that NAAQS.

The draft regulatory text incorporated these concepts and also provided that,
atthe time ofrevocation ofthe 1-hour NAAQS, any provisions of applicable SIPs that require conformity 

### determinations in such areas for the 1- hourNAAQS will no longer be enforceable as a matter oflaw pursuant to section 176(c)(5) ofthe CAA.

Additionally, the draft regulatory text reflected the discussion in thepreamble to theproposed rule regarding what portions ofa 1-hour maintenance plan could berevised orremoved once the 1- hourNAAQS was revoked (68 FR 32823).The draft regulatory text provided that areas with approved 1- hourmaintenance plans could modify thoseplans toremove the obligation to submit a maintenance plan for the 1- hourNAAQS eight years after approval ofthe initial 1-hour maintenance plan and toremove the obligation to implement contingency measures upon
a violation ofthe 1-hour NAAQS. The draftregulatory text provided, however, thatthese requirements would remain enforceable until EPA approved a SIP removing orrevisingthem and also provided that EPA would not approve such revisions until EPA approves an 8- hour attainment demonstration for an
area designated nonattainment forthe 8- hourNAAQS or an 8-hour maintenance plan for an area designated attainment for the 8-hour NAAQS. Finally, EPA noted that such a SIP revision must also be consistent with sections 110(1) and 193 ofthe CAA.

b. Summaryoffinal rule. We are adopting the approach we set forth in ourproposed rule and providing clarification regarding the penalty obligations under sections 181(b)(4) and 185ofthe CAA that apply in severe areas that do not attain the 1- hourNAAQS by the applicable attainment date. Thefinal rule provides thatas ofthe effective date ofrevocation ofthe 1-hour NAAQS:

* We will no longermake findings of failure to attain the 1-hour NAAQS and, therefore, (a) we will not reclassify areas to a higher classification for the 1-hour NAAQS based on such a finding, and (b)

areas that were classified as severe for the 1-hour NAAQS are not obligated to impose fees asprovided under sections 181(b)(4) and 185ofthe CAA.

* Areas will notbe obligated to continueto demonstrate conformity for the 1-hour NAAQS as ofthe effective date oftherevocation ofthe 1-hour NAAQS. * An area with an approved 1-hour maintenance plan under section 175Aof the CAA maymodify its maintenance plan to: (1)Remove the planning obligation todevelop the second 10-year maintenance plan forthe 1-hour NAAQS; and, (2) replace the existing 1- hourcontingency measure trigger with

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revision, certain conditions must be
met. Ifthe area is designated nonattainment for the 8-hour ozone NAAQS, itmust first have an approved 8-hour attainment demonstration in place. Ifthe area has been designated as attainment for the 8-hour ozone NAAQS, itmust first have an approved section 110(a)(1) maintenance plan in place for the 8-hour NAAQS.

* NSRunder the 1-hour NAAQS will

no longer apply in areas that are 8-Hour NAAQS nonattainment/ 1-Hour NAAQS nonattainment.

Each ofthese provisions is discussed further below.

(i) FindingsofFailuretoAttain the 1- 

### hourNAAQS. We continue to believe,

as stated in thepreamble to the proposed rule, that areas should focus their resources on attainment ofthe 8- hour NAAQS and that itwould be counterproductive to establish new obligations for States with respect to the 1-hour NAAQS afterthey have begun planning for the 8-hour NAAQS. Moreover, we do not believe there is a basis to determine whether an area has
met the 1-hour NAAQS once that NAAQS no longer applies; once the 1- hour NAAQS is revoked, there will not be an applicable attainment date with which to make a determination as to whether an area has met its attainment date or not. Since the obligations to reclassify areas and impose fees are based on a determination that an area has failed to meet the NAAQS by the appropriate attainment date, those obligations also would no longer apply for the 1-hour NAAQS once the 1-hour NAAQS has been revoked.

While we did not specifically state in

our proposal that severe areas would no longer be obligated to impose fees under sections 181(b)(4) and 185 based on a failure to attain the 1-hour NAAQS after the effective date oftherevocation of the 1-hourNAAQS, it is a logical extension ofourproposal as that obligation is triggered bya finding of failure to attain. In addition, this is consistent with Appendix B ofthe June 2, 2003 proposal, which did not identify the section 185 fee provision as an applicable requirement.

(ii) Conformity underthe ]-hour NAA QS. Regarding conformity, we are adopting the approach we setforth in

our proposed rule (68 FR 32823). The final rule provides that, upon revocation ofthe 1-hour NAAQS for an area, conformity determinations will no longer be required for the 1-hour NAAQS. At that time, any provisions of applicable SIPs thatrequire conformity determinations for the 1-hour NAAQS in such areas will no longer be enforceable pursuant to section 176(c)(5) ofthe CAA.

Under section 176(c) ofthe CAA, conformity applies to areas designated nonattainment or subject to the requirement to develop amaintenance plan pursuant to section 175A for a specific NAAQS. Once the 1-hour NAAQS is revoked, areas designated attainment for the 8-hour NAAQS would no longer be subject to the obligation to demonstrate conformity for the 1-hour NAAQS and would have no conformity obligation for the 8-hour NAAQS. Likewise, even areas designated nonattainment for the 8-hour NAAQS would no longer have an obligation to demonstrate conformity under the 1-hour NAAQS. The reason for this is that these areas would no longer be designated nonattainment for the 1-hour NAAQS and would no longer be required to develop a maintenance plan under section 175A for purposes of the 1-hour NAAQS. (iii) 1-hourmaintenance plans. Regarding the revisions to 1-hour maintenance plans, as noted above, upon revocation ofthe 1-hour NAAQS,

an area with an approved 1-hour maintenance plan under section 175A of the CAA may modify the maintenance plan to remove both the obligation to submit a second maintenance plan for the 1-hour NAAQS 8 years after approval ofthe initial 1-hour maintenance plan and the obligation to implement contingency measures upon

aviolation ofthe 1-hour NAAQS. The maintenance plan requirements will remain enforceable as part ofthe approved SIP until such time asEPA approves a SIP revision removing such obligations. We will not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8-hour NAAQS for an area designated nonattainment for the 8-hour

ozone NAAQS or amaintenance SIP for the 8-hour NAAQS for an area designated attainment for the 8-hour NAAQS. Any revision to such SIP must meet therequirements ofsection 110(1) and 193 ofthe CAA.

(iv)New SourceReview underthe1- hourNAAQS. As noted above concerning anti-backsliding provisions related to growth measures, ourJune 2, 2003 proposal indicated that 1-hour NSRrequirements would continue to apply in anonattainment area ifthat area's classification under the 1-hour

ozone standard (at the time of designation for the 8-hour standard) is higher than its classification under the 8-hour standard (68 FR 32821).We indicated at proposal that Congress intended each area that was classified 

### for the 1-hour ozone NAAQS under subpart 2to adopt the specified control obligations in subpart 2for the area's 1- hourclassification. Accordingly, we proposed thatthe 1-hour NSR obligations continueto apply after revocation.

Wehave now determined thatit is inappropriate to mandate that a State continueto apply 1-hour nonattainment NSRrequirements to such areas. Therefore, today's finalrule specifies that, at thetime that the 1-hour NAAQS isrevoked, a state is no longerrequired toretain a nonattainment NSRprogram in its SIPbased on the requirements that applied by virtue ofthe area's previous classification under the 1-hour standard. Instead, Stateimplementation plans will berequired to include an NSRprogram based onthe area's designation and classification under the 8-hour standard.

Accordingly, a Statemay request approval ofa SIP revision to remove its 1-hour nonattainment NSRprogram fromits SIP. We will approve such changes to a State's SIPbecause we have determined based on section 110(1) of theAct that such changes will not interfere with any State's abilityto reach attainment ofthe 8-hour standard and willbe consistent with reasonable furtherprogress.

For example, upon approval ofa SIP revision for anonattainment area that

we classify asmarginal forthe 8-hour standard, themajor source threshold would be 100 tpy and the offset ratio would be atleast 1.1:1. Any lower major stationary source threshold and higher offsetratio that applied by virtue ofthe area's previous 1-hourclassification would no longer apply. For areas that must comply with nonattainment NSR requirements solelybased onthe area's location within the Ozone Transport Region under Section 184 oftheAct, there will beno change in the major stationary source threshold or offset ratio as these requirements remain the

same for the 8-hour standard.

Although theproposal identified nonattainment NSR as ameasure to address growth and not a control obligation, weproposed to treat NSRin the same manner ascontrol obligations. We stated that such requirements should continueto apply based on Congressional intent toprohibit States from altering orremoving provisions from SIPs ifthe SIPrevision would jeopardize the airquality protection provided in the approved plan. 68 FR at 32819. We further concluded that Congress intended the specified control obligations in subpart 2to continue to apply afterrevocation by virtue ofthe 1- hourclassifications. 

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Upon furtherreflection, and consideration ofpublic comments, we have revised ourapproach concerning NSRin areas thatwere non-attainment for the 1-hour NAAQS and continue to be nonattainment underthe 8-hour NAAQS. While somecommenters believed thatNSRrequirements that are part ofSIPs submitted to meet 1-hour NAAQS requirements should be retained, several preferred that the 1- hour NSRprogram bereplaced by an NSRprogram underthe 8-hour standard when the 1-hour standard isrevoked. Other commenters supported removing the 1-hourNSRrequirements based on
a showing thatremoving the requirements would not interfere with attainment ormaintenance ofthe 8-hour standard. We agree with these commenters that there is no need to retain 1-hour NSRprograms upon a finding under section 110(1) that 8-hour NSRwill not interfere with the State's abilitytoreach attainment ofthe 8-hour standard. Moreover, wenote majorNSR only applies tonew sources and to existing sources thathave a physical change or change in the method of operation. Therefore, emission limitations and otherrequirements in NSRpermits issued under 1-hour NSR programs will continue to be in force when the 1-hour NAAQS is revoked.

Also, our revised approach is more consistent with our longstanding treatment ofNSR as a growth measure. We have historically treated control

measures differently from measures to control growth. We provided no rationale in ourproposal for treating control measures and growth measures in the same manner forpurposes ofthe 8-hour standard, in contrast with our historical approach.

Unlike controlrequirements such as RACT and I/M, theNSRprogram is a growth measure and isnot specifically designed toproduce emissions reductions. Instead, itspurpose isto allow new source growth tooccur without interfering with an area's ability to attain. The statute and regulatory history identify nonattainment NSR as a growth measure. Thus, wehave previously concluded thatNSRis not a "control" measure in the context of Section 175A maintenance plans. See 68 FR25418, 25436 (May 12, 2003). Specifically, we explained that the requirement that contingency provisions include "control" measures does not include nonattainment NSR. We reasoned thatthe LAERand offset requirements included in existingNSR permits would remain in effect for those

sources. Thus, theLAER and offset

measures that wererelied upon to attain theNAAQS would remain in effect after the nonattainment NSRprogram was replaced. We also noted that another preconstruction review program (in that context, PSD) would be triggered to limit growth consistent with attainment in the future. Those considerations apply with equal force here, as discussed in more detail below.

The role ofthe NSRpermitting program as agrowth measure, rather than acontrol measure, is evident in the
structure ofthe Act, which delineates nonattainment NSR and control

measures as separate SIP requirements. In the general requirements for nonattainment plan provisions, NSR permits are listed in CAA 172(c)(5), while control measures are listed in CAA 172(c)(6). Similarly, in defining implementation plan requirements, CAA 110(a)(2)(C) sets forth the requirement forpermit programs and CAA 110(a)(2)(A) the control measures. As we explained in our 1994 policy
memo, 42 ifthe term "measures," asused in sections 110(a)(2)(A) and 110(a)(2)(C), had been intended to include PSD and part D NSR, there would have been no point to requiring that SIPs include both

measures and preconstruction review. Section 172(e), which applies when EPA relaxes aNAAQS, only requires EPA to ensure that "controls" are no less stringent than they were for the

more stringent NAAQS that has been replaced. Itcontains no specific requirements concerning growth

measures.

Moreover, the statute is clear regarding the roles ofthe NSRprogram and control measures in nonattainment

areas. CAA 172(a)(2) requires attainment

as expeditiously aspracticable considering control measures and CAA 172(c)(1) and (c)(6) require implementation ofallcontrol measures
as expeditiously aspractical to provide for attainment ofthe NAAQS by the area's attainment date. Conversely, CAA 173(a)(1)(A) requires only that growth due to proposed sources, when considered together with the other plan provisions required under section 172, be sufficient to ensure RFP. Thus, unlike the control measures required by section 172(c)(1) and (c)(6), NSRis not

ameasure in and ofitselfto assure attainment ofthe NAAQS. Rather, NSR should be considered in conjunction with a State's control measures to
assure, consistent with the requirements in Section 172(c)(4), that the emissions from new sources will be consistent

4 2Part D New Source Review (part D NSR) Requirements forAreas Requesting Redesignation
to Attainment, October 14, 1994, from Mary D. Nichols. with RFP and not interfere with attainment ofthe applicable NAAQS.

In light ofthese different statutory goals, we believe the appropriate review ofNSR SIP revisions under the 8-hour standard is whether: (1) The SIP revision is consistent with reasonable furtherprogress; and whether (2) the SIP revision will notinterfere with the ability to attain.

With regard to the specific requirements of 110(1), we do not believe that States need to make any case-specific demonstration that replacing the 1-hour NSRprogram with

an NSRprogram based on the area's 8- hour classification satisfies the Section 110(1) requirements. As one commenter noted, NSRis aprospective permitting program that only applies to future emissions from new and modified

sources. Any source that is subject to the i-hour NSRrequirements is required
to continue to comply with those requirements. In this respect, there will be no degradation ofair quality by virtue ofthis SIP change. Moreover, unlike control measures, States do not rely on the NSRprogram to generate emissions reductions to move an area further toward attainment. The essential question is whether the NSRprogram changes will hinder future air quality improvements based on future growth projections. Such a question inherently involves a look atthe present day air quality, which is best reflected bythe
current 8-hour classifications. As long

as the State plans to manage growth within the emissions inventory and include growth in their attainment plans, new source growth will be consistent with RFP and not interfere with the State's ability to attain. 

### Therefore, we believe that the 8-hour NSRprogram requirements, based on an area's present air quality needs, will

assure thatprogress continues toward attainment despite future economic growth.

c. Comments andresponses. (i) Comments onJune2, 2003 proposal: Comment:Several commenters addressed this issue.Most agreed with the proposal, but recommended that we clarify that the section 185 penalty fees would notbe imposed after the 1-hour NAAQS is revoked. A few ofthe
commenters disagreed on the basis that EPA should not revoke the 1-hour NAAQS and that all requirements that apply forpurposes ofthe 1-hour NAAQS remain applicable.

Regarding conformity, the majority of
commenters that addressed this issue objected to EPA's proposal. Most of these commenters believed the 1-hour NAAQS and any 1-hour SIP budgets 

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should remain in effect, such that for an
area thatwas designated nonattainment under the i-hourNAAQS, orwas redesignated to attainment and had an approved maintenance plan underthe i-hourNAAQS, conformity requirements would still apply. Given the variety ofcomments we received about how conformity will be implemented, in this section weprovide

aresponse following each type of comment.

Several commenters indicated that revoking the i-hourNAAQS for conformity isbacksliding, and offered several arguments forwhy the i-hour budgets should beretained in i-hour nonattainment and maintenance areas.

Some commenters indicated that once approved, the motor vehicle emissions budget ispart ofthe applicable implementation plan, and EPA may not render them nugatory for conformity purposes. Commenters also asserted that EPA may not unilaterally revise astate's SIP or suspend it, and in orderto require states torevoke thebudgets in their SIPs, EPA wouldhave to find the budgets inadequate. Further, commenters argued thatEPA may not lawfully allow states to discontinue implementation ofthebudgets in their current SIPs, and ifstates wereto decide

on their own thatbudgets no longer applyfor conformity purposes, commenters said thatEPA would be obligated toimpose sanctions pursuant to section 179(a)(3). Commenters asserted that states may not revise their SIPs toremove budgets without complying with section 110(1), which states thatEPA cannot approve revisions "iftherevision would interfere with any applicable requirement concerning attainment and reasonable furtherprogress (as defined in section 171), or any other applicable requirement ofthis Act."

Response:The CAA specifically states that conformity applies only in "a nonattainment area* * *" and "an area that was designated as a nonattainment

area butthatwas laterredesignated by the Administrator as an attainment area and that isrequired todevelop a maintenance planunder section 7505a ofthis title* * *" (42U.S.C. 7506(5)). Therefore, CAA section 176(c)(5) restricts conformity tononattainment

areas and areas that arerequired to submitmaintenance plansunder section 175A; in these areas, theFederal government's sovereign immunity is waived so that states can require conformity tobe determined by the U.S. Department ofTransportation. However, afterrevocation ofthe 1-hour NAAQS, the areas previously nonattainment for the 1-hourNAAQS are no longer nonattainment forthat NAAQS. Similarly, after revocation ofthe 1-hour NAAQS, the areas previouslyrequired to submit section 175Amaintenance plans under the statute for the i-hour NAAQS will no longerberequired to do

so. Therefore, afterrevocation the statutewill no longer waive sovereign immunity to allow States torequire the U.S. Department ofTransportation to perform conformity determinations. States arenot taking any action to
remove the budgets forthe i-hour ozone NAAQS in their SIPs, nor are they required to do so. In fact, EPAhas proposed that 8-hour nonattainment

areas would be able to usethe i-hour budgets forconformity for the 8-hour NAAQS, ifthey exist in an area (November5, 2003, proposed rule, 68 FR 62690).Thus, although the i-hour budgets would remain in the SIP, areas previously designated nonattainment or maintenance for the i-hourNAAQS would no longer berequired or even authorized to show conformity under CAA section 176(c)(5) for thatNAAQS. Similarly, EPAwould have no grounds for imposing sanctions where conformity is not conducted in these

areas because there would be no SIP planning orimplementation failure, since any SIPprovisions requiring conformity would become unenforceable under section 176(c)(5) afterrevocation. EPA also disagrees that States cannot revise their SIPs to remove budgets without a demonstration that 110(1) ismet, because states will not be revising their SIPs to removebudgets.

As we acknowledged in ourJune 2, 2003, proposal, EPA's conclusion that conformity cannot apply in i-hour maintenance areas once the i-hour NAAQS is revoked differs from the approach weplanned to takein 1997. In 1997, we interpreted revoking the 1- hour ozone NAAQS to mean that conformity would not applyforthe 1- hour ozone NAAQS in areas thatwere nonattainment forthe i-hour ozone NAAQS, butthatconformity would continue to apply for the i-hour ozone NAAQS in areas with amaintenance plan. However, the 1997 interpretation would lead to an unfair and counterintuitive result: areas thathad attained the NAAQS and had made the effort to establish amaintenance plan would have to continue arequired program, but areas thathad not attained would not. We reconsidered thisresult and found it tobeunfair and inappropriate. Further, upon reanalyzing CAA section 176(c)(5), we concluded that this interpretation did not fit with the text of the statute.

Although section 110(1) would normally require areas todemonstrate that removing prior SIP requirements would notinterfere with any applicable requirements ofthe CAA, where the CAA itselfnow forbids application ofa prior requirement such ademonstration would be unnecessary. Further, it would interfere with the statutory limitation on the applicability ofconformity to require conformity determinations in

areas that are no longer required by the CAA to submit section 175A maintenance plans.

Comment:Commenters remarked that revoking the 1-hour ozone NAAQS is of particular concern in areas that are currently nonattainment or maintenance for the 1-hour ozone NAAQS that will be designated attainment for the 8-hour

ozone NAAQS, because once the NAAQS is revoked, these areas will no longer be subject to conformity. A couple ofcommenters made the point that revoking the 1-hour NAAQS would have economic implications for their

area because without transportation conformity, the emissions from the transportation sectorcould grow withoutrestraint and therefore, emissions from the industrial sector would have to be limited further. Commenters were also concerned that theirregion would lose the abilityto forecast whether a violation could

occur.

Response:We promulgated the 8-hour

ozone NAAQS in response to the latest data and science regarding ozone; we believe the 8-hour ozone NAAQS is

more protective ofpublic health. In 1997, EPA made the decision to replace the 1-hour ozone NAAQS with the 8- hour ozone NAAQS, because EPA concluded that the 1-hour NAAQS is
notneeded to protect health and welfare.

It is our conclusion that areas that are in attainment for the 8-hour NAAQS would notbe subject to conformity because the statute explicitly limits the applicability ofconformity to designated nonattainment and maintenance areas. These areas still have an incentive to monitor the growth ofemissions from the transportation sector; if these areas violate the 8-hour NAAQS, EPA could redesignate them as nonattainment for the 8-hour NAAQS and conformity would then apply.

The EPA notes that although States could not implement conformity for attainment areas as a matter offederal law, they could still work with their MPOs to estimateregional emissions that would be generated by the planned transportation system to see whether a violation could occur and to address motorvehicle emissions growth. These type ofState activities may be done 

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under State law, when possible, or on a voluntary basis. Comment:One commenter supports, in part, ourproposal to allow amendment ofmaintenance plans, but takes issue with the fact that States would face a continuing obligation to implement contingency measures after revocation ofthe 1-hour NAAQS and the criteria for approval ofsuch amendments. After the 1-hour NAAQS is revoked, a State's obligation to implement contingency measures should automatically be lifted. The Illinois EPArecommends that amendments to the maintenance plans for these areas be approved after the 1- hour NAAQS has been revoked.

Response:Once we revoke the 1-hour NAAQS, the requirement for submission

or subsequent revision ofa section 175A maintenance plan under the 1-hour NAAQS no longer apply. The State still has an obligation to ensure that air quality remains clean and to invoke contingency measures in accordance with the terms ofthe approved SIP. The final rule provides that, upon revocation ofthe 1-hour NAAQS, an area with an approved 1-hour maintenance plan under section 175A ofthe CAA may modify the maintenance plan to remove the obligation to submit a maintenance plan for the 1-hour NAAQS 8 years after approval ofthe initial 1-hour maintenance plan and to remove the obligation to implement contingency

measures upon a violation ofthe 1-hour NAAQS. The final rule provides that EPA would not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8-hour NAAQS for an area initially designated nonattainment for the 8-hour ozone NAAQS or a maintenance SIP for the 8- hour NAAQS for an area initially designated attainment for the 8-hour NAAQS. Anyrevision to such SIP must meet therequirements ofsection 110(1) and 193 ofthe CAA. For areas that are not required to submit attainment demonstrations (e.g., marginal areas), the SIP revisions that affect prior maintenance plans under the 1-hour NAAQS may be made when other portions ofthe 8-hour SIP are due (e.g, the NSR provisions). The EPA disagrees with the comments that certain obligations in the maintenance plan should no longer apply upon revocation ofthe 1-hour NAAQS. The EPAbelieves that in order to ensure that these revisions will not interfere with attainment or maintenance ofthe 8-hour NAAQS, these areas should first have an approved 8-hour attainment or maintenance SIP in place. Comment:A commenter recommended that, in general, the rule should make it clear that any SIP revisions must comply with Sections 110(1) and 193.

Response:The proposed rule-as well

asthe final rule-provides that EPA will
not approve revisions to the maintenance plan untilEPA approves the area's 8-hour SIP for either attainment or maintenance, which will

ensure non-interference with the 8-hour NAAQS. However, the final rule also includes arequirement that the changes
must be in accordance with sections 110(1) and 193. Several commenters supported theproposed rule. Other
commenters believed the 1-hour NAAQS should not be revoked at all, and therefore there would not be a need for the anti-backsliding provision regarding NSR.

Response:We address the issue ofthe revocation ofthe 1-hour NAAQS elsewhere in this notice and do not repeat it here. (ii) Comments on draftregulatorytext (sect. 51.905(e) ofthe draft):

Comment:One commenter believes that proposed 40CFR 51.905(e)(1) contains an apparent misstatement that EPA should correct. That provision
states that upon revocation ofthe 1-hour NAAQS, an area with an approved maintenance plan for that NAAQS may modify that plan to remove the obligation under CAA § 175A(b) to submit a "second round" maintenance plan eight years afterredesignation to attainment and to remove the obligation to implement contingency measures upon a 1-hour NAAQS violation. The provision goes on to say that EPA will not approve a SIP revision making these modifications until the state submits and EPA approves: (1) An 8-hour attainment demonstration, if the area is designated nonattainment for the 8-hour NAAQS; or (2) an 8-hour maintenance SIP under proposed 40 CFR 51.905(a)(3)(iii), if the area is designated attainment for the 8-hour NAAQS. Option (2) does not make sense, however. Proposed 40CFR 51.905(e) by its terms applies to areas with approved 1-hour maintenance plans. Thus, these

areas by definition have been redesignated to attainment-i.e., are no longer nonattainment for the 1-hour NAAQS. Yet proposed 40 CFR 51.905(a)(3)(iii) applies only to areas that are "designated nonattainment for the 1-hour NAAQS at the time of revocation ofthe 1-hour NAAQS." Thus, contrary to the last clause of §51.905(e)(1), areas that are maintenance for the 1-hour NAAQS and attainment forthe 8-hour NAAQS
cannot be subject to §51.905(a)(3)(iii). Response:The commenter has pointed out a flaw in the proposal. The final rule has been modified from the proposal to account for this situation. A separate parallel provision has been established in section 51.905(a)(4) requiring 1-hour maintenance plan areas to submit a maintenance plan under section 110(a)(1). As provided earlier, EPA has also changed the proposed regulatory text-consistent with the June proposal-to indicate that 51.905(a)(3) and (4) apply, respectively to areas that are nonattainment or maintenance ofthe 1-hour NAAQS at the time ofdesignation for the 8-hour NAAQS. Section 51.905(e)(1) has been modified to provide that the State would notbe able to modify an existing 1-hour maintenance plan untilEPA approves the new 8-hour maintenance plan. Comment:One commenter provided suggested language changes to section 51.905(e) that would retain the section 175A maintenance plan and the conformity requirement.

Response:As noted above, once EPA revokes the 1-hour NAAQS, and the

area is an 8-hour attainment area, section 175A maintenance provisions do not apply and conformity forthe 1- hour NAAQS no longer applies.

6. What Is the Continued Applicability ofthe NOx SIP Call After Revocation of the 1-HourNAAQS? (Section VI.C.3.c. ofProposal; See 68 FR 32824; Section 51.905(f)ofthe Proposed and Final Rules)

a. Background.In the June 2, 2003 proposal (68 FR 32824), we noted that it is important to ensure that the transition to the 8-hour NAAQS does
notjeopardize the controls required to be in place under the NOx SIP Callrule and the section 126 rule (i.e., the rules for addressing the long-range transport ofozone and its precursor, NOx). We jointly referred to these rules in the proposal as the NOx transport rules. We indicated that we plan to lift the stayof the 8-hour basis for the NOx transport rules.43 Regardless ofwhether we lift

4 3When EPApromulgated the NOx SIP Call, we required the same level ofreductions for both the 1-hour and 8-hour ozone NAAQS (63FR 57356, October 27, 1998). In response to the Court of Appeals remand ofthe 8-hour NAAQS, EPA stayed the 8-hour basis ofthe NOx SIP Call (65FR 2674, January 18, 2000).However, since the same level of reductions was required for both the 8-hour and 1- hour NAAQS, the stay had no practical effect on States' compliance with therule. Because EPA also stayed the 8-hour portion ofthe Section 126 Rule,

we did not move forward to make the section 126 findings under the 8-hour NAAQS which would trigger the 8-hour control requirements (65 FR 2674, January 18, 2000).We plan to complete rulemaking action on the 8-hour petitions at the time we lift the 8-hour stay. All ofthe States affected by the 1-hour 

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that stay, the controls required have substantialbenefits forreductions of both 1-hour and 8-hour ozone levels. We indicated that we believe that relaxing such controls would be contrary to the principles we identified in the proposal for an effective transition. Thus, we proposed that States must continue to adhere to the emission budgets established by the NOX transport rules afterthe 1-hour NAAQS is revoked in whole or in part.

The draft regulatory text reflected the discussion in the June proposal.

b. Summary offinal rule.We are adopting the approach we setforth in

our proposed rule and draft regulatory
text. States must continue to adhere to the emission budgets established by the NOx transport rules after the 1-hour NAAQS is revoked. States retain the authority to revise control obligations they have established for specific

sources or source categories under the NOx SIP Call rule so longas the State demonstrates consistent with section 110(1) that such modification will not interfere with attainment oforprogress toward meeting the 8-hourNAAQS or any other applicable requirement ofthe CAA. We continue to believe that the reductions required by the NOx transport rules are necessary to address transported emissions for the 8-hour

ozone NAAQS as well as the 1-hour

ozone NAAQS.

c. Comments andresponses. (i) Comments on theJune 2,2003
p roposal: Only ahandful ofcommenters addressed this issue, all ofwhom supported the proposal. Several ofthese
commenters recommended that we lift the stay ofthe NOx transport rules with respect to the 8-hour NAAQS.

D. WhatIs theRequiredTimeframe for ObtainingEmissionsReductionsTo EnsureAttainmentby theAttainment Date (Section VLE ofthe ProposedRule (68FR 32826);Section51.908ofthe DraftandFinalRules)

1. Background

In the June 2003 proposal, we proposed that emissions reductions needed for attainment must be implemented by an area's attainment date. We noted this meant that

and/or 8-hour Section 126Rule are also covered by the NOx SIP Call. The Section 126 Rule contains

aprovision under which the Section 126 findings and control requirements would bewithdrawn if States have approved SIPsmeeting the NOx SIP Call. TheEPA has already withdrawn the 1-hour Section 126 Rule in three States and the District of Columbia and proposed to withdraw the 1-hour rule in all other affected States except one. (We expect to propose action with respect to the rule in the remaining State shortly.) 

### emissions reductions must be implemented bythe beginning ofthe final ozone season prior to the attainment date. Forexample, for areas with an attainment date in May 2010, the emissions reductions need to be implemented bythe beginning ofthe 2009 ozone season because a determination ofattainment will be based on air quality monitoring data from 2007, 2008 and 2009. The proposal cautioned that States should be aware of the consequences offailing to implement the control measures necessary for attainment sufficiently far in advance oftheir attainment date. As noted above, areas covered under subpart 2 can receive up to two 1-year attainment date extensions ifcertain criteria are met. However, if an area does not meet the eligibility requirements for the 1-year extension, it would be subject to areclassification to

ahigher classification (bump up). While

areas covered under subpart 1 are able to obtain up to two 1-year attainment date extensions, there is no provision for abump up in subpart 1. Ifan area covered under subpart 1 fails to attain, section 179 ofthe CAA provides that EPA publish a finding offailure to attain which starts a 1-year time frame for States to submit a SIP revision that provides for attainment within a specified time frame.

2. Summary ofFinal Rule

In section 51.908, we are adopting the approach we set forth in our proposed rule, namely that emissions reductions needed for attainment must be implemented bythe beginning ofthe

ozone season immediately preceding the area's attainment date. We believe that Congress contemplated that control

measures would continue to be implemented up to the attainment year. For example, section 182(c)(2)(B) requires areas classified as serious or higher to achieve an average of3 percent reduction in emissions per year
over each 3-year period untilthe area's attainment date. IfCongress intended

areas to achieve allreductions needed for attainment 3 years prior to attainment, then the last 9 percent reductions required for serious and above areas would be reductions beyond those needed for attainment.We do not believe that Congress mandated these reductions in addition to the reductions needed to attain the NAAQS. In fact, this requirement is included in the
statute as apart ofthe subparagraph addressing attainment and reasonable further progress, which indicates that Congress intended it to address progress toward attainment. This is further supported bythe definition of reasonable further progress in section 171(1) as "annual incremental reductions in emissions * * * for the purpose ofensuring attainment * * *"

Other provisions in the CAA also support the concept that areas do not need to achieve 3 years in advance of the attainment date the fullcomplement ofreductions needed for attainment. For example, Congress only provided marginal areas with 3 years to attain the NAAQS and did require at least minimal additional controls be implemented in such areas. In addition, the fact that Congress provided for two 1-year extensions ofthe attainment date also indicated that Congress believed that some areas might not be fully implementing all measures needed for attainment 3 years in advance ofthe attainment date. Rather, Congress contemplated that areas would have air quality healthy enough to make it substantially likely the area would attain within the next 1 or 2 years. 44

Finally, we note that the NAAQS itselfdoes not contemplate that air quality must be at "attainment levels" for each ofthe 3 years on which attainment is based. Rather, attainment is determined based on an average ofthe 4th high reading at a monitor over a 3 yearperiod. Thus, the 4th high reading for an area could be above the NAAQS for one or both ofthe years preceding the attainment year, but so long asthe 4th high level for the other year(s) was low enough to produce an average ator below 0.084 ppm, the area would be attaining the NAAQS.

As noted in the June 2003 preamble, despite the fact that we believe an area need not have all controls implemented until thebeginning ofthe final attainment season, the State needs to consider that attainment is based on a 3-year average. Thus, the State will need to ensure that implementation of controls is not unduly delayed. A State that plans to achieve reductions bythe beginning ofthe ozone season prior to the attainment date may still experience meteorology conducive to very high

ozone formation in that last ozone
season that may result in the area having a 4th highest daily ozone concentration above the level ofthe 8- hour NAAQS, making it ineligible for the first ofthe 1-year extensions. Such

an area-ifclassified under subpart 2-

44 As discussed in the section regarding the two 1-year attainment date extensions, section 172(a)(2)(C), which applies to all pollutants, allows fora 1-year attainment date extension if the area has had "minimal exceedances" in the attainment year and section 181(a)(5), which applies to ozone nonattainment areas classified under subpart 2, allows for a 1-year extension if the area has had no

more than 1exceedance in the attainment year. 

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would then be reclassified (bumped up) to ahigher classification and be subject
to additional planningrequirements and mandatory control measures. Thus, a State should be aware ofthe consequences ofdelaying too longto implement control measures needed for attainment. Additionally, inreviewing implementation timeframes in SIPs, EPA will consider whether those timeframes are as expeditious as practicable. A guidance memorandum from John Seitz ofNovember 30, 1999 45
reiterates the need to implement

measures as expeditiously as practicable:
In order forEPA to determine whether an
area has provided forimplementation as expeditiously aspracticable, the Statemust explain why the selected implementation schedule is theearliest schedule based on the specific circumstances ofthat area. Such claims cannot begeneral claims that more time is needed butrather should be specifically grounded in evidence of economic or technologic infeasibility. While it may beappropriate for some control

measures tobe implemented shortly after adoption, theEPArecognizes thatother

measures may need alonger period. TheEPA will review the State's submission to ensure that sufficient information is provided for the EPA to determine whether the State has adopted all RACMnecessary for attainment

as expeditiously aspracticable and provided for implementation ofthose measures as expeditiously aspracticable. TheEPA will make those determinations based on the information provided by theState and any other information available totheEPA at the time the Agency approves or disapproves the attainment demonstration.

3. Comments and Responses

Comment:Some commenters agreed with ourproposal as written, i.e., to require that emission reductions needed for attainment be implemented by the beginning ofthe ozone season prior to the attainment year.

However, several commenters disagreed with the timeframe that was included in ourproposal because it precludes areas from realizing the benefit ofFederal measures prior to developing additional local controls.

Another commenter stated that the attainment deadlines place an extraordinary burden on metropolitan

areas to achieve the level ofemissions reductions necessary to demonstrate attainment. The commenter felt that requiring emissions reductions to be implemented at the beginning ofthe

45Memorandum, "Guidance on theReasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas." John S. Seitz, Director, Office ofAir Quality Planning and Standards. November 30, 1999. Web site: http://
www.epa.gov/ttn/oarpgltlpgmhn I. ozone season prior to the attainment date is 1year earlier than is required. The commenter stated that so longas there are no exceedances in the attainment year, i.e., having controls in place bythe beginning ofthe ozone
season ofthe attainment year, the area has met the statutory requirement and could qualify for the first oftwo 1-year attainment date extensions allowed under the CAA. The commenter further stated that controls for moderate areas would need to be in place by about the

same time the area's SIP must be submitted to EPA in order to provide 3 years ofclean data for the demonstration ofattainment.

Other commenters stated that all emissions reductions needed for attainment must be implemented in sufficient time to ensure attainment by the attainment date without relyingon the CAA provisions for the 1-year extensions.

Response:Section 172(c)(2) ofthe CAA requires that emissions reductions needed for attainment be phased in such that RFP toward attainment is achieved. For areas classified as moderate under subpart 2, their attainment date would be as expeditiously aspracticable but no later than 6 years after the date of classification. Their ROP requirement would be atleast a 15 percent VOC emissions reduction from the base year to be achieved no later than 6 years after the base year. However, ifthe area needed more than 15 percent VOC reductions in order to demonstrate attainment, then any additional reductions would also have to be achieved bythe beginning ofthe ozone
season prior to the area's attainment date.

The CAA requires each area to demonstrate attainment as expeditiously

aspracticable but no later than the maximum timeframe specified in the CAA for the area. In addition, each area is required to adopt RACM. In determining whether measures are reasonably available, we consider cost, technical feasibility and whether implementation will advance the attainment date. An area cannot reject local control measures that are technically and economically feasible in favor of awaitingthe implementation of national or regional controls, if to do so would delay attainment ofthe NAAQS. The consequences offailing to implement the control measures necessary for attainment sufficiently far in advance ofthe attainment date are discussed above and in the proposed rule.

Areas covered under subpart 1 are also able to obtain up to two 1-year extensions ofthe attainment date (see section 172(a)(2)(C)). There is no provision forbump-up in classification similar to that under subpart 2. However, ifan area fails to attain, section 179 ofthe CAA provides that EPA publish a finding that the area failed to attain. The State then must submit within 1 year after that publication arevision to the SIP that provides for attainment within the time provided under section 179. Section 179 also provides that the SIP revision must also include any additional measures that EPA may prescribe.

Comment:Several commenters suggested that nonattainment areas should be afforded the opportunity to install controls in time to monitor for attainment before the attainment deadline. The commenters believes that for many industrialized and metropolitan areas classified under Subpart 2 as marginal, moderate or serious, it will notbe feasible to have stationary and mobile source controls in place 3 years before the attainment deadlines for the purposes ofattainment monitoring.Pragmatically, state SIPS will notbe finalized until mid-2007, at which time industrial facilities can begin the 18-24 month period for detailed engineering, permitting and procurement ofNOx control equipment. The installation ofcontrols would occur
over a 5-year average facility turnaround period. Furthermore, Tier II fuels and engines willjust be entering the market

as will cleaner diesel fuel and engines. It is virtually certain that many ofthese

areas will not have the necessary emission reductions inplace 3 years before the attainment deadline and will be required to rely on the case-by-case extensions to the designated attainment deadlines. The commenters believe that Congress did not intend for EPA to establish attainment deadlines that would in alarge number ofcases automatically require areas to use deadline extensions; such areas have probably been misclassified. All nonattainment areas should be afforded the opportunity to install controls in timeto monitor for attainment by the attainment deadline, but notthree years prior to the attainment year. This would also eliminate the need for case-by-case extensions.

Response:The final rule does not require emission reductions to be in place three ozone seasons prior to the attainment date. However, the after-thefact determination ofwhether an area actually attains the NAAQS by its attainment date mustbe done by looking back atthe previous 3 years of ambient air quality data. As noted elsewhere in thispreamble, the CAA 

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provides forup to two 1-year extensions ofthe attainment date. Comment:Marginal areas may not be able to demonstrate compliance in 3 years and the final rule should provide for automatic extensions for such areas. Additional time to implement all of these reductions maybe required in order for marginal areas to comply. By creating an automatic extension, EPA will avoid the inevitable cost ofSIP nonattainment planning problems that communities will face ifthese measures

are fully implemented.

Response:The general assumption for marginal areas is that they will be able to attain without significant additional emissions controls. As such, section 182(a) specifies very little in terms of mandatory obligations for marginal

areas. Ifan area needs additional controls and time to implement such controls, itmay need to be reclassified
to ahigher classification. The CAA does
not allow EPA to extend attainment dates for aclassification. Comment:One commenter noted that EPA's proposal provides: "For each nonattainment area, the State must provide for implementation ofall control measures needed for attainment

no later than thebeginning ofthe attainment year ozone season." CAA §51.908(e). Attainment ofthe 8-hour NAAQS is based on analysis of3 years ofdata. Part 51, App. I 2.3(a) ("The primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the 3-year average ofthe annual fourth highest daily maximum 8-hour average ozone concentration is less than

or equal to 0.08 ppm."). Thus, to meet the statutory requirement that SIPs provide for attainment, the rule must require SIPs to provide for implementation ofallcontrol measures needed for attainment no later than 3 years before the attainment date.

Response:We disagree with the
comment. In section 51.908, we are adopting the approach we setforth in

our proposed rule, namely that emissions reductions needed for attainment must be implemented by the beginning ofthe ozone season immediately preceding the area's attainment date. Ourrationale is presented above. Comment:In addition, a commenter stated that this timing was inconsistent with the draft modeling guidance which essentially requires areas with an attainment date of2013 to have their controls in place by 2011 to perform an attainment demonstration. The 2011 date is inconsistent with theproposal which would require that the emissions reductions be inplace in 2012. The commenter further stated that it seems inappropriate that the draft modeling guidance would be driving the schedule for implementation ofcontrol measures

as opposed to the 8-hour implementation rule.

Response:Comments on the modeling requirements will be addressed in Phase 2 ofthis rulemaking. The approach on when emission reductions needed for attainment must be in place was not based on the modeling requirements, but on the rationale stated in the preamble to the final rule. The modeling guidance will be revised for consistency with the final rule.

E. Conformity Underthe 8HourOzone Standard

The June 2, 2003 proposal provided background discussion on issues related
to transportation conformity and general conformity under the 8-hour ozone standard. See sections VI.M (68FR 32841) and VI.N. (68 FR 32842). However, we did not propose any rules related to either. We did receive a number ofcomments on this topic, however. Responses to those comments

are included in theresponse to comments document.

F. Comments on OtherIssues

We received comments on other issues associated with elements ofthis final rulemaking. We address those
comments here. Comments on any other issues not discussed in thispreamble or the RTC accompanying this final rule will be addressed in the second phase ofthis final rulemaking.

1. Designation ofNonattainment and Attainment Areas

We received a number ofcomments

on the designation process.

Response:As we noted in the June 2, 2003 proposal, we did not propose to establish attainment/non attainment designations nordid we address the principles that will be considered in the designation process; we issued guidance

on the principles that States should consider in making designation recommendations in March 2000.46 The designation process is being conducted separately.

4 6EPA issued the memorandum "Boundary
Guidance on Air Quality Designations for the 8- Hour Ozone National Ambient Air Quality Standard (NAAQS or Standard)" onMarch 28, 2000, from John S. Seitz, Director, Office ofAir Quality Planning and Standards, to theAir Directors, Regions I X, to provide guidance to State and local agencies andTribes on designating areas and EPA's views on boundaries fornonattainment areas for the 8-hour NAAQS. 2. Early Action Compacts (EACs). (Section VIII.A.2. and 3 ofthe Proposal; See 68 FR 32859)

We received a number ofcomments that addressed EACs. The June 2, 2003 proposal included a description and background information concerning EACs, but the proposal made clear that

we were notproposing any rulemaking

on EACs in that notice.

Response:The comments we received willbe addressed in the rule that takes final action on the proposed rule to defer the effective date for EAC areas and therefore those comments are not addressed in this current rulemaking. We note that existing 1-hour maintenance areas willremain subject
to all therequirements ofthat maintenance plan and transportation conformity, until the 1-hour standard is revoked 1 yearfollowing the effective date ofthe area's 8-hour designation. If EPA takes final action deferring the effective date ofthe 8-hour designation for an EAC area, revocation ofthe 1- hour standard will also be effectively deferred for such area. Therefore, for such an EAC area that is a 1-hour maintenance area, the 1-hour maintenance plan, and 1-hour conformity, will continue to apply until 1 year after the 8-hour designation takes 

### effect.

3. Health and Environmental Concerns

We received a number ofgeneral
comments related to health and environmental concerns. Some ofthese cited national health statistics or provided information concerning the levels ofozone in their communities or information concerning the adverse health symptoms ofthemselves or friends, relatives, orpatients. These
commenters generally cited this 

### information as a way ofencouraging EPA to ensure expeditious attainment of the 8-hour ozone NAAQS and in some
cases to support leaving the 1-hour NAAQS and its implementation process in place.

Response:We have addressed these latter concerns above in discussion of the classification system, revocation of the 1-hour NAAQS and the antibacksliding provisions that serve to

ensure that the 8-hourNAAQS is attained as expeditiously aspracticable with little or no delay in emission reductions as a result ofrevoking the 1- hour NAAQS.
4. Clarity and Understandability of Proposed Rule

A number ofcommenters expressed

concern about the complexity ofthe proposed rule, and the lack of apparent 

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clarity and transparency. A number of these commenters complained that due
to the large number ofcombinations of options that were possible from the proposal, it was difficult or impossible
to determine exactly what the effect of the rule would be.

Response:One ofourprinciples in drafting the proposal was to make the rule as understandable aspossible. However, the Supreme Court's ruling on
our previous implementation approach left it to EPA to develop an implementation scheme with only general guidance as to how to proceed. Because the consequences of implementation under aparticular approach might be fairly large, we felt obligated to place as many practicable options in ourproposal as possible to

assesspublic reaction byproviding an opportunity for comment. This approach obviously added complexity
to theproposal. We tried to minimize the complexity by setting forth two example frameworks for how some options could work in conjunction with each other. We also attempted in the draft regulatory text to focus on one set ofoptions to illustrate how one set of options would work together. We attempted to simplify where we could and to provide other materials in the docket and on our web site for this rulemaking (e.g., the "roadmap" and the crosswalks between the June 2, 2003 proposal and the draft regulatory text) to enable thereader to more easily see relations between various sections ofthe proposal and to provide a synopsis of the options being proposed. Although the very nature ofthe proposal was complex, webelieve that the public had sufficient opportunity to comment on the rule.

5. Regulatory Text

A number ofcommenters chastised us for not providing regulatory text with the proposal.

Response:As noted above, we did provide for public comment draft regulatory text, which reflected one set ofproposed options. On August 6, 2002 (68FR46536), we published a notice of availability ofthe draft regulatory text for the proposed rule to implement the 8-hour ozone NAAQS. This notice started a 30-day public comment period

on the draft regulatory text.

6. Requests for Extension ofComment Periods

We received a number ofrequests for extension ofthe comment periods on the three notices related to ourproposal (theJune 2, 2003 proposal, 47 the notice ofavailability ofthe draft regulatory text,4 8 and the notice reopening the
comment period on the classification approach. 49)We did not grant any of these requests. 5 0 We provided a 60-day
comment period on ourfull implementation proposal, which was published on June 2, 2003. We also provided a separate 30-day comment period on draft regulatory text (notice of availability was published on August 6, 2003). The October 21, 2003 notice was very narrow, supplementingjust one aspect ofthe June 2, 2003 proposal. We believe that a 15-day comment period

was sufficient to address this limited issue. That notice was based on several
comments which were submitted during the public comment period. Those
comments have been available to the public since early August.

We are committed by a consent decree
to designate areas for the 8-hour ozone NAAQS by April 15, 2004. We believe it was essential to move forward to provide the public health protection that implementation ofthe 8-hour NAAQS will yield. We have recognized the strong interest from many stakeholders in ourissuance ofa final implementation rule prior to the April 2004 designation deadline. These interests, in conjunction with the

reasons set forth above, support our denial ofrequests for an extension ofthe
comment period. However, asis normally the case, we considered
comments received after the close ofthe
comment period to the extent we were able to do so without impeding the process for issuing the final rule.

47OAR 2003 0079 0081,0085 American Petroleum Institute (API) requests for extension to the August 1st, 2003 comment deadline.

48OAR 2003 0079 0405 Request forExtension
ofTime for Filing Comments on Draft Regulatory Text forProposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) submitted by Howard J. Feldman, Director, American Petroleum Institute.

4 90AR 2003 0079 0542, 0589, 0590 Request for Extension oftime for 15-day comment period on approaches to implement the 8-hour ozoneNAAQS, submitted by Gregory Dana, Vice President Environmental Affairs, Alliance ofAutomobile Manufacturers.

OAR 2003 0079 0555 Request forextension of time for 15-day comment period on alternative approaches to implement the 8-hour ozoneNAAQS submitted by Howard Feldman, Director Regulatory Analysis and Scientific Affairs, American Petroleum Institute (API).

OAR 2003 0079 0572 Request forExtension of Public Comment Period submitted by Leslie S. Ritts, Counsel to The National Environmental Development Associations Clean AirRegulatory Project (NEDA/CARP).

50See, forinstance, OAR 2003 0079 0165 Letter from S. Page, Director, OAQPS to H.J. Feldman, Director, API, denying extension of
comment period. G. Other Considerations Although Phase 2 ofthe final rule will address aspects ofimplementation of the 8-hour ozone NAAQS that are not addressed in thisrulemaking, additional information is provided below regarding

new source review forthe 8-hour ozone NAAQS.

1.What Happens Ifa Source Is in the Process ofPSDPermitting atthe Time That the Area in Which It Is Located Is Designated asNonattainment for the 8- Hour Ozone NAAQS?

An area's designation at the time the final permit is issued determines which majorNew Source Review (NSR) requirements apply to the construction activity.

Accordingly, ifa source has received its PSD permit before the area is designated nonattainment, it may constructunder the terms ofthat permit ifitcommences an ongoingprogram of construction within the required time period and completes the project within

areasonable time. However, if the area is designated nonattainment before the permit is issued (even ifthe reviewing authority deemed the PSD application complete),the PSD permit may not be issued. The source would be required to submit a new application to comply with therequirements ofthe applicable nonattainment major NSRprogram before receiving a final permit and beginning construction. 40 CFR 52.24(k) and 40 CFRpart 51, appendix S. We have consistently applied this approach in past designation and redesignation situations.

This approach is consistent with CAA section 165, which states that PSD permitting requirements apply only in attainment and unclassifiable areas. The DCDistrict Court ofAppeals affirmed thisplain reading ofthe statute in the AlabamaPowerdecision (636 F.2d 323). In response to EPA's attempt to apply PSDpermitting requirements in some nonattainment areas, the court stated, "After careful consideration ofthe
statute and the legislative history, we must accept the contention ofthe industry petitioners that the phrase 'constructed in any area to which this part applies' limits the application of section 165 to major emittingfacilities
to be constructed in [attainment and unclassifiable areas]." The court went

on to say, "The plain meaning ofthe inclusion in section 165 ofthe words ,any area to which this part applies' is that Congress intended location to be the key determinant ofthe applicability ofthe PSDreview requirements."

This approach is also consistent with the regulatory text in the Federal PSD 

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regulations. These regulations limit the applicability ofPSD requirements to "an

area designated as attainment or unclassifiable." 40 CFR 51.166(a)(7)(i); 52.21(a)(2)(i).

H. EPA'sFinal Action
We are taking final action on key elements ofthe program to implement the 8-hour ozone NAAQS. This final rule addresses the following topics: Classifications for the 8-hourNAAQS; revocation ofthe 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply); how anti-backsliding principles will ensure continued progress toward attainment ofthe 8-hour ozone NAAQS; attainment dates; and the timing of emission reductions needed for attainment. A summary ofthe rule appears in section IV ofthis preamble.


### VI. Statutory andExecutive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview

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 ofManagement and Budget (OMB) review and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in arule 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 ofthe 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 thebudgetary impact ofentitlements, grants, user fees,

or loan programs or therights and obligations ofrecipients thereof; or

(4) Raise novel legal orpolicy issues arising out oflegal mandates, the President's priorities, or the principles
setforth in the Executive Order.

Pursuant to the terms ofExecutive Order 12866, ithas been determined that thisrule is a "significant regulatory action" because itraises novel legal or policy issues arising out oflegal mandates. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations willbe documented in the public record.

B. PaperworkReductionAct

This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act, 44U.S.C. 3501 etseq. Thisrule merely interprets the requirement to develop State implementation plans to achieve anew or revised NAAQS. This requirement is prescribed in the CAA sections 110 and part D, subparts 1 and 2 ofTitle 1. The present final rule does
not establish any new information collection burden apart from any that required bylaw. A SIP contains rules and other requirements designed to achieve the NAAQS bythe deadlines established under the CAA, and also contains a demonstration that the State's requirements will in fact result in attainment. Such adocument is not considered information collection. Burden means the total time, effort, or financial resources expended bypersons 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 acollection 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 ofinformation unless it displays acurrently valid OMB control number. The OMB control numbers for EPA's regulations in 40CFR are listed in 40 CFRpart 9.

C.RegulatoryFlexibilityAct

The Regulatory Flexibility Act generally requires an Agency to prepare

aregulatory flexibility analysis ofany 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 ofsmall entities. Small entities include smallbusinesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts oftoday's 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 121.); (2) a governmental jurisdiction that is a government ofa city, county, town, school district or special district with apopulation ofless than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts oftoday's rule on small entities, Icertify that this action will not have a significant economic impact on a substantial number ofsmall entities. Thisrule will not impose any requirements on smallentities. Rather, thisrule interprets the obligations established in the CAA for States to submit implementation plans in order to attain the 8-hour ozone NAAQS. We are issuing thisrule so that States and Tribes will know how we plan to classify areas and transition from implementation ofthe 1-hour NAAQS
to implementation ofthe 8-hour NAAQS.

D. UnfundedMandatesReform Act

Title II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of theirregulatory actions on State, local, and Tribal governments and the private
sector. Under section 202 ofthe UMRA, EPA generally mustprepare awritten 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 theprivate sector, of $100 million or more in any 1 year. Beforepromulgating an EPArule for which a written statement is needed, section 205 ofthe UMRA generally requires EPA to identify and consider a reasonable number ofregulatory alternatives and adopt the least costly,
most cost-effective or least burdensome alternative that achieves the objectives oftherule. The provisions ofsection 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 orleast 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 oruniquely affect small governments, including Tribal governments, it must have developed under section 203 ofthe 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 ofEPAregulatory 

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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 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. The estimated administrative burden hour and costs associated with implementing the 8-hour, 0.08 ppm NAAQS were developed upon promulgation ofthe NAAQS and presented in Chapter 10 of U.S. EPA 1997, RegulatoryImpact AnalysesfortheParticulate Matterand OzoneNational Am bient Air Quality Standards,Innovative Strategies and Economics Group, Office ofAir Quality Planning and Standards, Research Triangle Park, NC, July 16, 1997. The estimated costs presented there for States in 1990 dollars totaled $0.9 million. The corresponding estimate in 1997 dollars is $1.1 million. Should the

more traditional classification option be adopted as the implementation framework, these costs may increase modestly, but would not reach $100 million. Thus, today's rule is not subject
to therequirements ofsection 202 and 205 ofthe UMRA.

The CAA imposes the obligation for States to submit SIPs to implement the 8-hour ozone NAAQS; in thisrule, EPA is merely fleshing out those requirements. However, even ifthis rule did establish a requirement for States to submit SIPs, it is questionable whether

arequirement to submit a SIP revision would constitute a Federal mandate in any case. The obligation for a State to submit a SIP that arises out ofsection 110 and part D ofthe CAA is not legally enforceable by a court oflaw, and at most is acondition for continued receipt ofhighway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421(5)(9a)(I) ofUMRA (2 U.S.C. 658(a)(I)). Even ifit did, the duty could be viewed as falling within the exception for a condition ofFederal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).

In this rule,EPA has determined that this rule contains noregulatory 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 Order13132:Federalism
Executive Order 13132, entitled "Federalism" (64 FR43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby 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 ofgovernment."

This 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 ofpower and responsibilities amongthe various levels ofgovernment, as specified in Executive Order 13132. As described in section D, above (on UMRA), EPA previously determined the costs to States to implement the 8-hour ozone NAAQS to be approximately $1 million. While this rule considers options not addressed atthe time the NAAQS were promulgated, the costs for implementation under these options would may rise modestly. This rule fleshes out the statutory obligations of States in implementing the 8-hour

ozone NAAQS. Finally, the CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule would not modify the relationship ofthe States and EPA for purposes ofdeveloping programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to thisrule.

Although section 6 ofExecutive Order 13132 does not apply to this rule,EPA actively engaged the States in the development ofthis rule. EPA held regular calls with representatives of State and local air pollution control agencies. EPA also held three public meetings at which it described the approaches it was considering and provided an opportunity for States and various other governmental officials to comment on the options being considered. Finally, EPA held three public hearings after the proposed rule

was published to obtain public
comments.

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 determination is stated below.

This rule concerns the implementation ofthe 8-hour ozone NAAQS in areas designated nonattainment for that NAAQS. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within theirjurisdictions. The regulations flesh out the statutory obligations ofStates and Tribes that develop plans to implement the 8-hour

ozone NAAQS. The TARgives Tribes the opportunity to develop and implement CAA programs such as the 8- hour ozone NAAQS, but it leaves to the discretion ofthe Tribe whether to develop these programs and which programs, or appropriate elements ofa program, they will adopt.

This rule does not have Tribal implications as defined byExecutive Order 13175. Itdoes not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented aCAA program to attain the 8-hour ozone NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution ofpower and responsibilities between the Federal government and Indian Tribes. The CAA and the TARestablish the relationship ofthe Federal government and Tribes in developing plans to attain the NAAQS, and thisrule does nothing
to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply.

The EPA also notes that even if Tribes choose to develop plans to implement the 8-hour ozone NAAQS in the future, theseregulations would not impose substantial direct compliance costs on such Tribes, nor would they preempt Tribal law. As provided above, EPA has determined that the totalcosts for implementing the 8-hour ozone NAAQS by State, local, and Tribal governments is approximately $1 million in all areas designated nonattainment forthe NAAQS. The percentage ofIndian country that will be designated nonattainment for the 8-hour ozone NAAQS is very small. For Tribes that choose to regulate sources under their jurisdiction, the costs would be attributed to inspecting regulated facilities and enforcing adopted regulations.

Although Executive Order 13175 does
not apply to this rule,EPA did consult with Tribal officials in developing this rule and encouraged Tribal input at an 

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early stage. The EPA supports a national "Tribal Designations and Implementation Work Group" which provided an open forum for all Tribes to voice concerns to EPA about the designation and implementation process for the 8-hour ozone NAAQS. These discussions have given EPA valuable information about Tribal concerns regarding implementation ofthe 8-hour

ozone NAAQS. The work group sent issue summaries and suggestions for addressing them to the newly formed National Tribal Air Association (NTAA), who in turn sent them to Tribal leaders. EPA encouraged Tribes to participate in the national public meetings held to take comment on early approaches to the rule. Several Tribes madepublic comments at the April 2002 public meeting in Tempe, Arizona.

Furthermore, EPA sent individualized letters to all federally recognized Tribes about the proposal and gave Tribal leaders the opportunity for consultation. EPA received comment from the NTAA raising several questions: (1) NTAA asked for clarification on the nature of EPA's support for Tribes without Treatment in the same manner as a State (TAS) status and asked ifEPA would provide technical assistance in interpreting SIP documentation to a Tribe without TAS approval; (2)NTAA asked EPA to explain how it envisions its rolein continuing consultation with Tribes throughout the execution ofSIPs. These comments will be addressed in the technical support document. The NTAA's final comment cited concerns with the impact ofNSRrequirements on the Tribes. The EPA intends to address these NSR comments in the Tribal NSR Rule.

G.Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafety 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 otherpotentially effective and reasonably feasible alternatives considered by the Agency.

The rule is not subject to Executive Order 13045 because it implements a previously promulgated health based Federal standard (thisrule implements the 8-hour ozone NAAQS). Nonetheless,

we have evaluated the environmental health or safety effects ofthe 8-hour

ozone NAAQS on children. The results ofthis evaluation are contained in 40 CFRpart 50, National Ambient Air Quality Standards for Ozone, Final Rule (62 FR 38855-38896; specifically, 62 FR 38855, 62 FR 38860 and 62 FR 38865).

H. Executive Order13211:ActionsThat SignificantlyAffect EnergySupply, Distribution,or Use

This rule is not a "significant energy action" as defined in Executive Order 13211, "Actions That Significantly Affect Energy Supply, Distribution, or Use," (66 FR28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use ofenergy.

Information on the methodology and data regarding the assessment of potential energy impacts is found in Chapter 6 ofU.S. EPA 2003, Cost, EmissionReduction, Energy,and EconomicImpactAssessm entofthe ProposedRule Establishingthe ImplementationFramework forthe 8- Hour,0.08ppm OzoneNational AmbientAirQuality Standard,prepared by the Innovative Strategies and Economics Group, Office ofAir Quality Planning and Standards, Research Triangle Park, N.C.April 24, 2003.

I.NationalTechnology Transfer AdvancementAct

Section 12(d) ofthe National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 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 rulemaking does not involve technical standards. Therefore, EPA is
not considering the use ofany VCS.

The EPA will encourage the States and Tribes to consider the use ofsuch standards, where appropriate, in the development ofthe implementation plans. J Executive Order12898:Federal Actions ToAddressEnvironmental Justice inMinorityPopulations and Low-Income Populations

Executive Order 12898 requires that each Federal agency make achieving environmentaljustice part ofits mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects ofits programs, policies, and activities on minorities and low-income populations.

The EPAbelieves that this rule should
notraise any environmentaljustice issues. The health and environmental risks associated with ozone were considered in the establishment ofthe 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with

an adequate margin ofsafety. The rule provides a framework for improving environmental quality and reducing health risks for areas that may be designated nonattainment.

K. Congressional ReviewAct

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 arule report, which includes a copy ofthe rule,to each House ofthe Congress and to the Comptroller General ofthe United States. The EPA will submit areport containing this rule and otherrequired information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register.A Majorrule 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). Thisrule will be effective June 15, 2004.

L.Petitionsfor Judicial Review

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit byJune 29, 2004. Filing a petition forreconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview 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). 

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M.DeterminationUnderSection307(d)

Pursuant to section 307(d)(1)(V) ofthe CAA, the Administrator determines that this action is subject to theprovisions ofsection 307(d). Section 307(d)(1)(V) provides that the provisions ofsection 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 ofthe procedural requirements, e.g., docketing, hearing and comment periods, of section 307(d) have been complied with during the course ofthis rulemaking. Appendix A to Preamble-Example for 8-Hr Ozone Preamble PortionDealing with Anti-Backsliding and Outstanding 1-HrROPObligation

Consider a 1-hour nonattainment area classified as Severe-15. For simplicity, only

oneprecursor is assumed here, and this example does not account for issues of creditability established by the CAA. The 1- hour Severe-15 areas arerequired toreach attainment no laterthan 15years after the 1990 base year, i.e., inyear 2005. TheROP requirement over this 15-year period would be accomplished by an initial 15 percent reduction in emissions inthe first six years, followed by additional 3percentperyear reductions (9 percent averaged over three years) until attainment isreached butnolater than the attainment date (with any additional reductions needed for attainment). Suppose

an area started with abase year emissions inventory of 1000 tons/day (t/d);after an initial 15 percentreduction, thearea's emissions in 1996 wouldbe 850 t/d. Subsequent additive linear9 percent reductions would net 24 percent, 33 percent, and 42percent reductions, leaving emissions of760 t/d in 1999, 670 t/d in 2002, and 580 t/d in 2005. (Since each subsequent 9 year incremental reduction toward attainment would have to account for adjustments in the base year inventory because ofnoncreditable reductions, actualreductions would vary somewhat from those shown here.)

Assume thatthe same areais classified Serious for the 8-hour NAAQS. Under one of

our proposed options for such an area, the

area wouldbe required to submitan RFP plan in 2006 that shows (forthe 6-year period from theend of2002 tothe end of2008) an 18 percent reduction from a2002 base year. The 1-hour NAAQS ROP schedule thus overlaps the 8-hour one, which begins in base year 2002 and continues toyear 2013. As the same 1-hour Severe-15 areatransitions to an 8-hour serious nonattainment area, overlap occurs during years 2002 through 2005. During this interval, the area will complete its last 9percent incremental reduction in year 2005 forits 1-hour obligation while atthe same time beginning tomeet the 8-hour obligation of 18percent by 2008. Therefore, between 2002 2005, the

area willneed to get (670 t/d -580 t/d =) 90 t/d reductions tomeet its 1-hour obligation. The area would also berequired toget between 2002 2008 an 18 percent reduction from the 2002 base inventory of670 t/d which equals a 121 t/d in reductions. However, since the 90 t/d is already obtained for the 2002 2005 period, the area need only get an additional (121 t/d -90 t/d =) 31 t/d reductions to meet the 8-hour obligation from 2005 out to 2008. Therefore, if this area had
not actually submitted a 1-hour ROP plan that covered the 2002 2005 period, and it submitted its 8-hour RFP plan that achieves the 121 t/d reduction, itwould be deemed to have met its 1-hour ROP obligation, provided that the RFP plan insured that 90 t/d would be achieved by 2005.
Appendix B to Preamble-Glossary of Terms and Acronyms bump-up Reclassify to higher classification CAA Clean Air Act CAAA 1990 Clean Air Act Amendments CFR Code ofFederal Regulations CMSA Consolidated Metropolitan Statistical Area EAC Early Action Compacts EPA Environmental Protection Agency I/M Inspection and Maintenance Area LAER Lowest achievable emission rate LNB Low NOx Burner MCR Mid-course review MPO Metropolitan Planning Organization NAAQS National Ambient Air Quality Standards NOx Nitrogen oxides NSR New source review NTAA National Tribal Air Association NTTAA National Technology Transfer Advancement Act of 1995 OMB Office ofManagement and Budget OTR Ozone Transport Region PAMS Photochemical Assessment Monitoring Stations ppm Parts per million PSD Prevention of significant deterioration RACM Reasonably available control

measures RACT Reasonably available control technology RFG Reformulated gasoline RFP Reasonable further progress ROP Rate ofprogress SBA Small Business Administration SCR Selective Catalytic Reduction SIPs State implementation plans TAR Tribal Authority Rule TAS Treatment in the samemanner as a State t/d Tonsperday TEA 21 Transportation Equity Act for the Twenty-first Century UMRA Unfunded Mandates Reform Act of 1995 VCS Voluntary consensus standards VOC Volatile organic compound

List of Subjects

40 CFRPart50

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

40 CFRPart51

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

40 CFRPart 81
Environmental protection, Air pollution control, National parks, Wilderness areas.

Authority: 42 U.S.C. 7408;42U.S.C. 7410; 42 U.S.C. 7501 7511f; 42U.S.C. 7601(a)(1); 42 U.S.C. 7401.

Dated:April 15, 2004. Michael 0. Leavitt, Administrator.
* Forthereasons stated in thepreamble, Title40, Chapter Iofthe Code ofFederal Regulations is amended as follows:


### PART50-NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY STANDARDS

* 1.The authority citation forPart50 continues to read as follows:

Authority: 42 U.S.C. 7401, etseq.
* 2. Section 50.9 is amended byrevising the second sentence ofparagraph (b) to read as follows: §50.9 National 1-hour primaryand secondary ambient airqualitystandardsfor
ozone.

(b)* * * The 1-hour NAAQS set forth in paragraph (a) ofthis section will

no longer apply to an area one year after the effective date ofthe designation of that area forthe 8-hour ozone NAAQS pursuant to section 107 ofthe Clean Air Act. * * *



### PART51-REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS

* 3. The authority citation forPart51 continues to read as follows:

Authority: 23U.S.C. 101; 42 U.S.C.7401 7671q.
* 4.Part 51 is amended by addinganew subpart Xto read as follows: 

### SubpartX-Provisions for Implementation of 8-hourOzone National AmbientAirQualityStandard

Sec. 51.900 Definitions. 51.901 Applicability ofpart 51. 51.902 Which classification and area planning provisions ofthe CAA shall apply to areas designated nonattainment forthe 8-hour NAAQS? 51.903 How dothe classification and attainment date provisions in section 181 ofsubpart 2oftheCAA apply to areas subject to §51.902(a)? 51.904 How dothe classification and attainment date provisions in section 

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172(a) ofsubpart 1ofthe CAA apply to
areas subject to §51.902(b)? 51.905 How do areas transition from the 1- hour NAAQS tothe 8-hour NAAQS and what are the anti-backsliding provisions? 51.906 [Reserved] 51.907 Foran area thatfails to attain the 8- hour NAAQS by its attainment date, how does EPA interpret sections 172(a)(2)(C)(ii) and 181(a)(5)(B) ofthe CAA? 51.908 What is therequired timeframe for obtaining emission reductions to ensure attainment by the attainment date? 51.909 51.916 [Reserved]
Subpart X-Provisionsfor Implementation of8-hour Ozone National Ambient AirQuality Standard
§51.900 Definitions.

The following definitions apply for purposes ofthis subpart. Any term not defined herein shall have the meaning

as defined in 40 CFR 51.100.

(a) 1-hourNAAQS means the 1-hour

ozone national ambient air quality standards codified at40 CFR 50.9.

(b) 8-hourNAAQS means the 8-hour

ozone national ambient air quality standards codified at40 CFR 50.10.

(c) 1-hourozone design value is the 1- hour ozone concentration calculated according to 40 CFRpart 50, Appendix H and the interpretation methodology issued by the Administrator most recently before the date ofthe enactment ofthe CAA Amendments of 1990.

(d) 8-Hourozone designvalue is the 8-hour ozone concentration calculated according to 40 CFRpart 50, appendix I. (e) CAA means the Clean Air Act as codified at42 U.S.C. 7401-7671q (2003).

(f)Applicable requirementsmeans for

an area the followingrequirements 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:

(1) Reasonably available control technology (RACT).

(2) Inspection and maintenance programs (I/M).

(3) Major source applicability cut-offs for purposes ofRACT.

(4) Rate ofProgress (ROP)reductions. (5) Stage II vaporrecovery. (6) Clean fuels fleet program under section 183(c)(4) ofthe CAA.

(7) Clean fuels for boilers under section 182(e)(3) ofthe CAA.

(8) Transportation Control Measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) ofthe CAA. (9) Enhanced (ambient)monitoring under section 182(c)(1) ofthe CAA. (10) Transportation controls under section 182(c)(5) ofthe CAA.

(11) Vehicle miles traveled provisions ofsection 182(d)(1) ofthe CAA. (12) NOxrequirements under section 182(f) ofthe CAA.

(g)Attainmentyearozone season shall mean the ozone season immediately preceding anonattainment area's attainment date.

(h)Designation forthe 8-hourNAA QS shall mean the effective date ofthe 8- hour designation for an area. (i) Higherclassification/lower classification.For purposes of determining whether a classification is higher or lower, classifications are ranked from lowest to highest as follows: classification under subpart 1 ofthe CAA; marginal; moderate; serious; severe-15; severe-17; and extreme.



### (j)Initiallydesignatedmeans the first designation that becomes effective for

an area for the 8-hourNAAQS and does
not include aredesignation to attainment or nonattainment for that standard.

(k)Maintenancearea forthe]-hour NAAQS means an area that was designated nonattainment for the 1-hour NAAQS on or after November 15, 1990 and was redesignated to attainment for the 1-hour NAAQS subject to a maintenance plan as required by section 175A ofthe CAA.

(1)Nitrogen Oxides (NOx)means the

sum ofnitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide. (m)NOx SIPCallmeans the rules codified at 40CFR 51.121 and 51.122. (n) Ozoneseason means for each State, the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 2.5 for that State.

(o) Ozone transportregionmeans the



### area established by section 184(a) ofthe CAA or any other area established by the Administrator pursuant to section 

### 176A ofthe CAA for purposes ofozone.

(p)Reasonable further progress(RFP)

means for the purposes ofthe 8-hour NAAQS, theprogress reductions 

### required under section 172(c)(2) and section 182(b)(1) and (c)(2)(B) and (c)(2)(C)oftheCAA.

(q) Rateof progress(ROP)means 

### for purposes ofthe 1-hour NAAQS, the
progress reductions required under 

### section 172(c)(2) and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) ofthe CAA.

(r)Revocation ofthe 1-hourNAAQS


### means the time at which the 1-hour NAAQS no longer apply to an area 

### pursuant to40 CFR50.9(b). (s) Subpart1 (CAA) means subpart 1 ofpart D oftitle I ofthe CAA. (t) Subpart2 (CAA) means subpart 2 ofpart D oftitle I ofthe CAA.

(u)AttainmentAreameans, unless otherwise indicated, an area designated

as either attainment, unclassifiable, or attainment/unclassifiable.
§51.901 Applicabilityof part51.

The provisions in subparts A through W ofpart 51 apply to areas for purposes ofthe 8-hourNAAQS to the extent they

are not inconsistent with the provisions ofthis subpart.
§51.902 Which classificationand nonattainment area planning provisionsof the CAAshall applytoareas designated nonattainment forthe 8-hour NAAQS?

(a) Classificationundersubpart2 (CAA). An area designated nonattainment for the 8-hour NAAQS with a 1-hour ozone design value equal
to or greater than 0.121 ppm at the time the Administrator signs afinal rule designating orredesignating the area as nonattainment for the 8-hour NAAQS willbe classified in accordance with section 181 ofthe CAA, as interpreted in §51.903(a), for purposes ofthe 8-hour NAAQS, and will be subject to the requirements ofsubpart 2 that apply for that classification.

(b) Coveredundersubpart ] (CAA). An area designated nonattainment for the 8-hour ozone NAAQS with a 1-hour design value less than 0.121 ppm atthe timethe Administrator signs a final rule designating orredesignating the area as nonattainment for the 8-hour NAAQS willbe covered under section 172(a)(1) ofthe CAA and will be subject to the requirements ofsubpart 1. 

### §51.903 How dotheclassificationand attainment date provisionsinsection181 of subpart2 ofthe CAAapplytoareas subject to§51.902(a)?
(a) In accordance with section 181(a)(1) ofthe CAA, each area subject
to §51.902(a) shall be classified by operation oflaw at the time of designation. However, the classification shall be based on the 8-hour design value forthe area, in accordance with Table 1below, or such higher or lower classification as the State may request as provided in paragraphs (b) and (c) of this section. The 8-hour design value for the area shall be calculated using the three most recent years ofair quality data. Foreach area classified under this section, theprimary NAAQS attainment date forthe 8-hour NAAQS shall be as expeditious aspracticable but not later than the date provided in the following Table 1. 

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TABLE 1.- CLASSIFICATION FOR 8-HOUR OZONE 

### NAAQS FOR AREAS SUBJECT TO 

### §51.902(A)

Maximum periodfor at8-hour tainment dates in state plans (years after effecArea class design value tive date of nonattain- (ppm ozone) ment designation for 8- hour NAAQS)

M

arginal

................................................................ from
... . . ....................................... 0.085 3
upto 1

........................ . .... ..... ..... .... .... ..... .... ..... .... .. 0.092 M

oderate

............................................................... from
... . . ....................................... 0.092 6

upto 1

........................ . .... ..... ..... .... .... ..... .... ..... .... .. 0.1 07 Serious

.................................................................. from

...................................................................... 0.107 9

upto1

........................ . .... ..... ..... ... ..... ..... .... ..... ... ... 0.1 20 Severe-15

............................................................. from
... . . ....................................... 0.120 15

upto1

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

...... . ... ..... ..... .... ..... ... ... 0.1 27 Severe-17

............................................................. from
... . . ....................................... 0.127 17

upto1

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

...... . ... ..... ..... .... ..... ... ... 0.1 87 Extreme

................................................................ equalto

......... . . .................................. 0.187 20
orabove
............................................................... but not including.

(b) A State may request ahigher classification for any reason in accordance with section 181(b)(3) ofthe CAA.

(c) A State may request a lower classification in accordance with section 181(a)(4) ofthe CAA. 

### §51.904 Howdothe classificationand attainment date provisionsinsection172(a) ofsubpart 1oftheCAAapplytoareas subjectto§51.902(b)?

(a) Classification.The Administrator may classify an area subject to §51.902(b) as an overwhelming transport area if:

(1) The area meets the criteria as specified for rural transport areas under section 182(h) ofthe CAA;

(2) Transport ofozone and/or precursors into the area is so overwhelming that the contribution of local emissions to observed 8-hour

ozone concentration above the level of the NAAQS is relatively minor; and

(3) The Administrator finds that

sources ofVOC (and, where the Administrator determines relevant, NOx) emissions within the area do not make a significant contribution to the

ozone concentrations measured in other

areas.

(b)Attainmentdates.For an area subject to §51.902(b), the Administrator will approve an attainment date consistent with the attainment date timingprovision ofsection 172(a)(2)(A) ofthe CAA at the time the Administrator approves an attainment demonstration for the area. 

### §51.905 Howdoareas transitionfromthe 1-hour NAAQStothe8-hour NAAQSand what aretheanti-backslidingprovisions?

(a) What requirementsthatappliedin

an areaforthe1-hourNAAQS continue
to applyafterrevocationofthe 1-hour NAA QSforthatarea?(1) 8-Hour NAA QS Nonattainm entl-Hour NAA QS Nonattainment.The following requirements apply to an area designated nonattainment for the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS at the time of designation for the 8-hourNAAQS for that area. (i) The area remains subject to the obligation to adopt and implement the applicable requirements as defined in §51.900(f), except as provided in paragraph (a)(1)(iii) ofthis section, and except as provided in paragraph (b) of this section. (ii) Ifthe area has not met its obligation to have a fully-approved attainment demonstration SIP for the 1- hour NAAQS, the State must comply with one ofthe following: (A) Submit a 1-hour attainment demonstration no later than 1 year after designation; (B) Submit aRFP plan for the 8-hour NAAQS no later than 1-year following designations for the 8-hour NAAQS providing a5 percent increment of emissions reduction from the area's 2002 emissions baseline, which mustbe in addition to measures (orenforceable commitments to measures) in the SIP at the time ofthe effective date of designation and in addition to national

or regional measures and must be achieved no later than 2 years after the required date for submission (3 years after designation).

(C) Submit an 8-hour ozone attainment demonstration no later than 1 year following designations that demonstrates attainment ofthe 8-hour NAAQS by the area's attainment date; provides for 8-hour RFP for the area out to the attainment date; and for the initial period ofRFP for the area (between 2003-2008), achieve the emission reductions byDecember 31, 2007. (iii)Ifthe area has an outstanding obligation for an approved 1-hour ROP SIP, it must develop and submit to EPA all outstanding 1-hour ROP plans; where a 1-hour obligation overlaps with

an 8-hour RFP requirement, the State's 8-hour RFP plan can be used to satisfy the 1-hour ROP obligation ifthe 8-hour RFP plan has an emission target at least

as stringent as the 1-hour ROP emission target in each ofthe 1-hour ROP target years for which the 1-hour ROP obligation exists.

(2) 8-HourNAAQSNonattainment/lHourNAA QSMaintenance.An area designated nonattainment forthe 8-hour NAAQS that is amaintenance area for the 1-hour NAAQS at the time of designation for the 8-hourNAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in §51.900 (f) to the extent such obligations are required by the approved SIP, except as provided in paragraph (b) ofthis section. Applicable measures in the SIP
must continue to be implemented; however, if these measures were shifted
to contingency measures prior to designation for the 8-hourNAAQS for the area, they may remain as contingency measures, unless the

measures arerequired to be implemented bythe CAA by virtue of the area's requirements under the 8- hour NAAQS. The State may not

remove such measures from the SIP. (3) 8-HourNAAQSAttainment/lHourNAA QSNonattainment-(i) Obligationsinan approvedSIP.For an
area that is 8-hour NAAQS attainment/ 1-hour NAAQS nonattainment, the State mayrequest that obligations under the applicable requirements of§51.900(f)be shifted to contingency measures, consistent with sections 110(1) and 193

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ofthe CAA, after revocation ofthe 1- hour NAAQS; however, the State cannot

remove the obligations from the SIP. For such areas, the State mayrequest that the nonattainment NSRprovisions be removed from the SIP on or after the date ofrevocation ofthe 1-hour NAAQS and need not be shifted to contingency

measures subject to paragraph (e)(4) of this section.

(ii) A ttainmentdemonstrationand ROPplans.(A) To the extent an 8-hour 

### NAAQS attainment/ -hourNAAQS nonattainment area does not have an approved attainment demonstration or ROP plan that was required for the 1- hour NAAQS under the CAA, the obligation to submit such an attainment demonstration or ROPplan

(1) Is deferred for so longas the area continues to maintain the 8-hour NAAQS; and

(2) No longer applies once the area has an approved maintenance plan pursuant to paragraph (a)(3)(iii) ofthis section.

(B) For an 8-hourNAAQS attainment/ 1-hour NAAQS nonattainment area that violates the 8-hourNAAQS, prior to having an approved maintenance plan for the 8-hourNAAQS asprovided under paragraph (a)(3)(iii) ofthis section, paragraphs (a)(3)(ii)(B)(1), (2), and (3) ofthis section shall apply.

(1) In lieu ofany outstanding obligation to submit an attainment demonstration, within 1 year after the date on which EPA publishes a determination that a violation ofthe 8- hour NAAQS has occurred, the State
must submit (or revise a submitted) maintenance plan for the 8-hour NAAQS, as provided under paragraph (a)(3)(iii) ofthis section, to-

(i) Address the violation byrelying on modeling that meets EPA guidance for purposes ofdemonstrating maintenance ofthe NAAQS; or

(ii) Submit a SIP providing for a 3 percent increment ofemissions reductions from the area's 2002 emissions baseline; thesereductions must be in addition to measures (or enforceable commitments to measures) in the SIP at the time ofthe effective date ofdesignation and in addition to national orregional measures.

(2) The plan required under paragraph (a)(3)(ii)(B)(1) ofthis section must provide for the emission reductions required within 3 years after the date on which EPA publishes a determination that a violation ofthe 8-hour NAAQS has occurred.

(3) The State shall submit an ROP plan to achieve any outstanding ROP reductions that were required for the

area for the 1-hour NAAQS, and the 3- year period orperiods for achieving the ROP reductions will begin January 1of the year following the 3-yearperiod on which EPAbases its determination that

aviolation ofthe 8-hourNAAQS occurred. (iii)Maintenance plans forthe 8-hour NAA QS. For areas initially designated attainment forthe 8-hour NAAQS, and designated nonattainment for the 1-hour NAAQS atthe time ofdesignation for the 8-hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8-hour NAAQS, a maintenance plan for the 8- hour NAAQS in accordance with section 110(a)(1) ofthe CAA. The maintenance plan must provide for continued maintenance ofthe 8-hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areasredesignated from nonattainment to attainment for the 8-hour NAAQS pursuant to CAA section 107(d)(3); such areas are subject
to the maintenance plan requirement in section 175A ofthe CAA.

(4)8-HourNAAQSAttainment/lHourNAA QSMaintenance-(i) Obligationsinan approvedSIP.For an 8-hourNAAQS attainment/i -hour NAAQS maintenance area, the State may request that obligations under the applicable requirements of§51.900(f)be shifted to contingency measures, consistent with sections 110(1) and 193 ofthe CAA, afterrevocation ofthe 1- hour NAAQS; however, the State cannot

remove the obligations from the SIP. (ii) MaintenancePlans forthe 8-hour NAA QS. For areas initially designated attainment forthe 8-hour NAAQS and subject to the maintenance plan for the 1-hour NAAQS atthe time of designation for the 8-hourNAAQS, the State shall submit no later than 3 years afterthe area's designation for the 8- hour NAAQS, a maintenance plan for the 8-hour NAAQS in accordance with section 110(a)(1) ofthe CAA. The maintenance plan must provide for continued maintenance ofthe 8-hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areasredesignated from nonattainment to attainment for the 8-hour NAAQS pursuant to section 107(d)(3); such areas are subject to the maintenance plan requirement in section 175A ofthe CAA.

(b) Doesattainmentofthe ozone NAA QS affectthe obligationsunder paragraph (a)ofthissection?A State remains subject to the obligations under paragraphs (a)(1)(i) and (a)(2) ofthis section until the area attains the 8-hour NAAQS. After the area attains the 8- hour NAAQS, the State may request such obligations be shifted to contingency measures, consistent with sections 110(1) and 193 ofthe CAA; however, the State cannot remove the obligations from the SIP.

(c) Whichportionsofan area designatedforthe8-hourNAA QS remainsubjectto the obligations identifiedinparagraph (a) ofthis 

### section?(1)Except asprovided in paragraph (c)(2) ofthis section, only the portion ofthe designated area for the 8- hour NAAQS that was required to adopt the applicable requirements in §51.900(f) for purposes ofthe 1-hour NAAQS is subject to the obligations identified in paragraph (a) ofthis section, including the requirement to submit a maintenance plan for purposes ofparagraph (a)(3)(iii) ofthis section. 40 CFR Part 81, Subpart E identifies the boundaries ofareas and the area designations and classifications for the 1-hour NAAQS atthe time the 1-hour NAAQS no longer applied to each area. (2) Forpurposes ofparagraph (a)(1)(ii)(B) and (C) ofthis section, the requirement to achieve emission reductions applies to the entire area designated nonattainment forthe 8-hour

ozone NAAQS.

(d) [Reserved] (e) Whatobligationsthatapplied for the 1-hourNAAQS willno longerapply afterrevocationofthe 1-hourNAAQS foranarea?-(1)Maintenance plans. Upon revocation ofthe 1-hour NAAQS,

an area with an approved 1-hour maintenance plan under section 175A of the CAA maymodify the maintenance plan: To remove the obligation to submit a maintenance plan for the 1- hour NAAQS 8 years after approval of the initial 1-hour maintenance plan; and
to remove the obligation to implement contingency measures upon aviolation ofthe 1-hour NAAQS. However, such requirements will remain enforceable as part ofthe approved SIP until such time

asEPA approves a SIP revision removing such obligations. The EPA shall not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8-hour NAAQS for an area initially designated nonattainment for the 8-hour ozone NAAQS or a maintenance SIP for the 8- hour NAAQS for an area initially designated attainment for the 8-hour NAAQS. Any revision to such SIP must meet the requirements ofsection 110(1) and 193 ofthe CAA.

(2) Findingsoffailuretoattainthe 1- hourNAAQS. (i) Upon revocation ofthe 1-hour NAAQS for an area, EPA is no longer obligated-

(A) To determine pursuant to section 181(b)(2) or section 179(c) ofthe CAA 

### 23999

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### Federal Register/Vol. 69, No. 84/Friday, April 30, 2004/Rules and Regulations

whether an area attained the 1-hour NAAQS by that area's attainment date for the 1-hour NAAQS; or

(B) Toreclassify an area to a higher classification for the 1-hour NAAQS based upon adetermination that the

area failed to attain the 1-hour NAAQS by the area's attainment date forthe 1- hour NAAQS.

(ii) In addition, the State is nolonger required to impose under CAA sections 181(b)(4) and 185 fees on emissions

sources in areas classified as severe or extreme for failure to meetthe 1-hour attainment date.

(3) Conformitydeterminations forthe 1-hourNAAQS. Upon revocation ofthe 1-hour NAAQS for an area, conformity determinations pursuant to section 176(c) ofthe CAA are no longerrequired for the 1-hour NAAQS. At thattime, any provisions ofapplicable SIPs that require conformity determinations in such areas for the 1-hour NAAQS will

no longerbe enforceable pursuant to section 176(c)(5) ofthe CAA.

(4)Nonattainmentareanew source review underthe1-hourNAAQS. (i) Upon revocation ofthe 1-hour ozone NAAQS, for any area thatwas designated nonattainment for the 1-hour

ozone NAAQS, thearea's implementation planprovisions satisfying sections 172(c)(5) and 173 of the CAA (includingprovisions satisfying section 182)based on the area's previous 1-hour ozone NAAQS classification are no longerrequired elements ofan approvable implementation plan. Instead, the area's implementation plan must meetthe requirements contained inparagraphs (e)(4)(ii)through (e)(4)(iv) ofthis section.

(ii) Ifthe area is designated nonattainment for the 8-hour ozone NAAQS, theimplementation plan must include requirements to implement the provisions ofsections 172(c)(5) and 173 ofthe CAA based on the area's 8-hour

ozone NAAQS classification under part 81 ofthis chapter, and the provisions of 

### §51.165.

(iii)Ifthe area is designated attainment or unclassifiable for the 8- hour ozone NAAQS, the area's implementation plan must include provisions to implement the provisions ofsection 165 ofthe CAA, and the provisions of§51.166 ofthis part, unless the provisions of§52.21 ofthis chapter apply in such area. (iv) Ifthe area is designated attainment or unclassifiable but is located in an Ozone Transport Region, the area's implementation plan must include provisions to implement, consistent with the requirements in section 184 ofthe CAA, the requirements ofsections 172(c) and 173 ofthe CAA as ifthe area is classified as moderate nonattainment for the 8-hour

ozone NAAQS. (f) What is the continuedapplicability oftheNOx SIP Call afterrevocation of the 1-hour NAAQS? The NOx SIP Call shall continue to apply afterrevocation ofthe 1-hour NAAQS. Control obligations approved into the SIP pursuant to 40 CFR 51.121 and 51.122 may be modified by the State only if the requirements of §§ 51.121 and 51.122, including the statewide NOx emission budgets, continue to be met and the State makes a showing consistent with section 110(1) ofthe CAA.
§51.906 [Reserved] 

### §51.907 For anarea thatfailstoattainthe 8-hour NAAQS byitsattainment date, how does EPA interpret sections172(a)(2)(C)(ii) and 181(a)(5)(B) oftheCAA?

For purposes of applying sections 172(a)(2)(C) and 181(a)(5) ofthe CAA,

an area will meet the requirement of section 172(a)(2)(C)(ii) or 181(a)(5)(B) of the CAA pertaining to 1-year extensions ofthe attainment dateif:

(a) For the first 1-year extension, the area's 4th highest daily 8-hour average in the attainment year is 0.084 ppm or less.

(b) Forthe second 1-year extension, the area's 4th highest daily 8-hour value, averaged over both the original attainment year and the first extension year, is 0.084ppm or less.

(c) For purposes ofparagraphs (a) and (b) ofthis section, the area's 4th highest daily 8-hour average shall be from the monitor with the highest 4th highest daily 8-hour average ofall the monitors that represent that area. 

### §51.908 What isthe required timeframe forobtaining emission reductionstoensure attainment bytheattainment date?

For each nonattainment area, the State
mustprovide for implementation ofall control measures needed for attainment

no laterthan the beginning ofthe attainment year ozone season. 

### §§51.909-51.916 [Reserved]

PART81-DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

* 5. The authority citation forPart 81 continues to read as follows:

Authority: 42 U.S.C. 7401, etseq. * 6. Part 81 is amended by adding and reserving a new subpart Eto read as follows: 

### Subpart E-Identification ofArea Designations and Classificationsfor the 1-HourOzone NAAQSasofJune 15,2004 [Reserved]
[FR Doc. 04 9153 Filed 4 29 04; 8:45 am]

BILLING CODE 6560-50-P 

## 24000

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