Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8197 

solvency issue, an abundance of caution 

dictates that the Board review the 

Fund’s status next year. The Board 

recommended that an updated actuarial 

study be prepared in conjunction with 

the biennial report due to the Governor 

in 2013. In 2009, the Board asked 

DMRM to provide an analysis of 

Alternative Bonding Systems (ABS) 

conducted in other coal mining states. 

With the assistance of Pinnacle studying 

ABS systems in West Virginia and 

Kentucky, the Board believes that 

Ohio’s ABS is at least as effective as 

those systems; the Board believes that a 

reasonable timeframe to reclaim 

forfeited sites is in the range of three to 

five years; should one of the largest five 

permit holders become insolvent, the 

Fund would likely be inadequate to 

allow reclamation within the 3 to 5-year 

range; and the Board will continue to 

study the model prepared by Pinnacle to 

refine, improve, and monitor this model 

of the Fund’s inadequacy. 

The full text of the program 

amendment is available for you to read 

at the locations listed above under 

ADDRESSES. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the submission 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Ohio program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed regulations, 

and explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on the final regulations will be those 

that either involve personal experience 

or include citations to and analyses of 

SMCRA, its legislative history, its 

implementing regulations, case law, 

other pertinent state or Federal laws or 

regulations, technical literature, or other 

relevant publications. We cannot ensure 

that comments received after the close 

of the comment period (see DATES) or 

sent to an address other than those 

listed above (see ADDRESSES) will be 

included in the docket for this 

rulemaking and considered. 

Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. We will not consider anonymous 

comments. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., local time February 29, 2012. If 

you are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is only limited interest in 

participating in a public hearing, we 

may hold a public meeting rather than 

a public hearing. If you wish to meet 

with us to discuss the submission, 

please request a meeting by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. Procedural Determinations 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Other Laws and Executive Orders 

Affecting Rulemaking 

When a State submits a program 

amendment to OSM for review, our 

regulations at 30 CFR 732.17(h) require 

us to publish a notice in the Federal 

Register indicating receipt of the 

proposed amendment, its text or a 

summary of its terms, and an 

opportunity for public comment. We 

conclude our review of the proposed 

amendment after the close of the public 

comment period and determine whether 

the amendment should be approved, 

approved in part, or not approved. At 

that time, we will also make the 

determinations and certifications 

required by the various laws and 

executive orders governing the 

rulemaking process and include them in 

the final rule. 

List of Subjects in 30 CFR Part 935 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: November 23, 2011. 

Thomas D. Shope, 

Regional Director, Appalachian Region. 

[FR Doc. 2012–3424 Filed 2–13–12; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2010–0885, FRL–9630–6] 

RIN 2060–AR32 

Implementation of the 2008 National 

Ambient Air Quality Standards for 

Ozone: Nonattainment Area 

Classifications Approach, Attainment 

Deadlines and Revocation of the 1997 

Ozone Standards for Transportation 

Conformity Purposes 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 

thresholds for classifying nonattainment 

areas for the 2008 ozone National 

Ambient Air Quality Standards 

(NAAQS) (the ‘‘2008 ozone NAAQS’’) 

promulgated by the EPA on March 12, 

2008. This proposal also addresses the 

timing of attainment dates for each 

classification. Finally, we are proposing 

to revoke the 1997 ozone NAAQS 1 year 

after the effective date of designations 

for the 2008 ozone NAAQS for 

transportation conformity purposes 

only. 

DATES: Comments must be received on 

or before March 15, 2012. Please refer to 

SUPPLEMENTARY INFORMATION for 

additional information on the comment 

period. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0885, by one of the 

following methods: 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

8198 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov 

• Mail: Air and Radiation Docket and 

Information Center, Attention Docket ID 

No. EPA–HQ–OAR–2010–0885, 

Environmental Protection Agency, 1301 

Constitution Ave. NW., Washington, DC 

20460. Mail Code: 2822T. Please 

include two copies if possible. In 

addition, please mail a copy of your 

comments on the information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th St. NW., 

Washington, DC 20503. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, 

Attention Docket ID No. EPA–HQ– 

OAR–2010–0885, Environmental 

Protection Agency in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave. NW., 

Washington, DC. The EPA/DC Public 

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

4:30 p.m. Eastern Standard Time (EST), 

Monday through Friday, Air and 

Radiation Docket and Information 

Center. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0885. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available on-line at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the EPA may not be able to consider 

your comment. Electronic files should 

avoid the use of special characters, any 

form of encryption, and be free of any 

defects or viruses. For additional 

information about the EPA’s public 

docket, visit the EPA Docket Center 

homepage at http://www.epa.gov/ 

epahome/dockets.htm. For additional 

instructions on submitting comments, 

go to the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

further general information on this 

rulemaking, contact Dr. Karl Pepple, 

Office of Air Quality Planning and 

Standards, U.S. Environmental 

Protection Agency (C539–01), Research 

Triangle Park, NC 27711, phone number 

(919) 541–2683, fax number (919) 541– 

0824 or by email at 

pepple.karl@epa.gov, or Mr. Butch 

Stackhouse, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency 

(C539–01), Research Triangle Park, NC 

27711, phone number (919) 541–5208, 

fax number (919) 541–0824 or by email 

at stackhouse.butch@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by the proposed rule for this action 

include state, local, and tribal 

governments. Entities potentially 

affected indirectly by the proposed rule 

include owners and operators of sources 

of emissions [volatile organic 

compounds (VOCs) and nitrogen oxides 

(NOX)] that contribute to ground-level 

ozone concentrations. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to the EPA through 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to the EPA, mark the outside 

of the disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed to be 

CBI must be submitted for inclusion in 

the public docket. Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this notice 

will be posted at http://www.epa.gov/ 

air/ozonepollution/actions.html#impl 

under ‘‘recent actions.’’ 

D. How is this notice organized? 

The information presented in this 

notice is organized as follows: 

I. General Information 

A. Does this action apply to me? 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8199 

1See 73 FR 16436. 

2The secondary ozone standard, designed to 

protect public welfare, was set at the same level and 

with the same averaging time as the primary 

standard. 

3For a detailed explanation of the calculation of 

the 3-year 8-hour average, see 40 CFR part 50, 

Appendix I. 

4Memorandum from Cass R. Sunstein to 

Administrator Lisa Jackson, dated September 2, 

2011. 

5The 2008 ozone NAAQS was promulgated on 

March 12, 2008. By the 2-year designation 

requirement found in CAA § 107(d)(1), the deadline 

for designating areas was March 12, 2010. The EPA 

determined that due to the reconsideration there 

was insufficient information to designate areas, and 

invoked the additional year for designations as 

allowed under CAA § 107(d)(1)(B). 

6The air quality design value for the 8-hour O3

NAAQS is the 3-year average of the annual 4th 

highest daily maximum 8-hour average ozone 

concentrations. 

B. What should I consider as I prepare my 

comments for EPA? 

C. Where can I get a copy of this document 

and other related information? 

D. How is this notice organized? 

II. Background for Proposal 

A. Overview 

B. History of Nonattainment Area 

Classification Systems for the Ozone 

NAAQS 

C. Initial Area Designations for the 2008 

Ozone NAAQS 

D. Transportation Conformity and the 1997 

Ozone NAAQS 

III. What are the proposed classification 

thresholds for nonattainment areas for 

the 2008 ozone NAAQS? 

A. Proposed Classification Thresholds 

B. Reclassification of Nonattainment Areas 

That Have Voluntarily Requested Higher 

Classifications 

C. What are we proposing as the attainment 

deadlines for nonattainment areas in 

each classification of the 2008 ozone 

NAAQS? 

IV. What is the EPA proposing regarding 

revocation of the 1997 ozone NAAQS at 

this time? 

A. What is the background for our 

proposal? 

B. What is the rationale for our proposal? 

C. Why is it necessary to revoke the 1997 

ozone NAAQS now for transportation 

conformity purposes? 

D. Is the EPA proposing to revoke the 1997 

ozone NAAQS for other purposes as part 

of this rulemaking? 

V. What does this rulemaking not address? 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

VII. Statutory Authority 

II. Background for Proposal 

A. Overview 

On March 12, 2008,1 the EPA revised 

the primary National Ambient Air 

Quality Standards (NAAQS) for ozone 

to a level of 0.075 parts per million 

(ppm) (annual fourth-highest daily 

maximum 8-hour concentration, 

averaged over 3 years).2 3 On July 16, 

2009, the EPA announced that it would 

initiate a rulemaking to reconsider the 

standard for various reasons, including 

the fact the 0.075 ppm level fell outside 

of the range recommended by the Clean 

Air Scientific Advisory Committee. 

Pending the outcome of that 

reconsideration, the EPA suspended 

further work on designating areas, 

including developing a classification 

approach for areas that would be 

designated nonattainment. In September 

2011, the Office of Management and 

Budget (OMB) returned for further 

consideration the EPA’s draft 

rulemaking to reconsider the 2008 

ozone NAAQS.4 The current NAAQS for 

ozone thus remains at 0.075 ppm, as 

established in 2008. The 2008 NAAQS 

retains the same general form and 

averaging time as the 0.08 ppm NAAQS 

set in 1997 but is set at a more stringent 

level. 

While the 2008 NAAQS was being 

reconsidered, the EPA deferred initial 

designation of areas as attainment or 

nonattainment with respect to that 

standard until March 12, 2011.5 (See 75 

FR 2936.) Since this deadline has 

passed and the EPA’s draft rulemaking 

to reconsider the 2008 ozone NAAQS 

has been returned by OMB for further 

consideration, the EPA is now 

proceeding with certain activities to 

implement the 2008 ozone NAAQS. In 

a separate action, the EPA will propose 

a rule to address the steps states will 

take to implement the NAAQS and the 

timing of those steps. In this action, we 

address the system for classifying 

nonattainment areas and a limited set of 

additional implementation issues. 

A key first step after promulgating a 

new or revised NAAQS is for the EPA 

to issue initial area designations. Area 

designations establish which areas are 

meeting the NAAQS (attainment/ 

unclassifiable) and which areas are not 

meeting the NAAQS (nonattainment), 

and the boundaries for those areas. 

Following the schedule provided in 

Clean Air Act (CAA) section 107(d), 

states were required to submit 

designation recommendations for every 

area of each state to the EPA by March 

12, 2009, which was 1 year after the 

promulgation date of the 2008 ozone 

NAAQS. The EPA has received these 

recommendations and has proceeded 

with the designations process based on 

these recommendations. 

In accordance with CAA section 

181(a)(1), each area designated as 

nonattainment for the 2008 ozone 

NAAQS will be classified by operation 

of law at the same time as the area is 

designated by the EPA. Therefore, the 

EPA intends to finalize classification 

thresholds on or before the date that 

initial area designations are issued by 

the Administrator. The planning and 

emission reduction requirements as well 

as the maximum attainment date for 

each area are based on that area’s 

classification. Areas classified as 

marginal are subject to the least 

stringent planning and control 

requirements and shortest attainment 

period and those classified as severe are 

subject to the most stringent 

requirements and longest attainment 

period. 

Under Subpart 2 of part D of title I of 

the CAA, state planning and emissions 

control requirements for ozone are 

determined, in part, by a nonattainment 

area’s classification. In 1990, Congress 

amended part D of title I of the CAA by 

adding several new subparts, including 

subpart 2, which specifies 

implementation requirements for ozone 

nonattainment areas. These 

requirements apply in addition to the 

general State Implementation Plan (SIP) 

planning requirements applicable to all 

nonattainment areas under subpart 1 of 

part D. Under subpart 2, ozone 

nonattainment areas are classified based 

on the severity of their ozone levels (as 

determined based on the area’s ‘‘design 

value,’’ which represents the most 

recent 3-year average of the air quality 

in the area).6 Nonattainment areas with 

a ‘‘lower’’ classification have ozone 

levels that are closer to the standard 

than areas with a ‘‘higher’’ 

classification. The subpart 2 

classification section provides an 

increasing amount of time from the date 

of designation to attain the standards for 

the progressively higher classifications: 

Marginal (3 years), Moderate (6 years), 

Serious (9 years), Severe-15 (15 years), 

Severe-17 (17 years), and Extreme (20 

years). 

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8200 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

7For additional detail on the 1-hour ozone 

NAAQS, see 56 FR 56694. 

8See 40 CFR Appendix I. 

9Referred to as the Phase 1 Rule, see 40 CFR part 

51, subpart X at 51.903. 

10While CAA section 107, which governs the 

process for initial area designations, specifically 

addresses states, the EPA intends to follow the same 

process for tribes to the extent practicable, pursuant 

to section 301(d) of the CAA regarding tribal 

authority and the Tribal Authority Rule (63 FR 

7254; February 12, 1998). The EPA is working with 

the tribes and tribal organizations regarding their 

participation in the designations process. 

11When EPA revises a NAAQS, the prior NAAQS 

is not automatically revoked. Accordingly, both the 

1997 ozone NAAQS and the more stringent 2008 

ozone NAAQS are active standards unless and until 

EPA takes action to revoke the previous 1997 

standard. 

Areas in the lower classification 

levels have fewer and/or less stringent 

mandatory air quality planning and 

control requirements than those in 

higher classifications. For instance, 

Marginal areas are exempt from the 

requirement to prepare an attainment 

demonstration and associated 

contingency measures, although such 

areas are required to adopt an emissions 

statement rule for stationary sources, 

submit a baseline emissions inventory, 

and implement a nonattainment area 

preconstruction permit program. A 

Moderate area needs to comply with the 

Marginal area requirements; in addition 

the state must submit a demonstration 

that the area will attain within 6 years 

after designation, and it must adopt (and 

submit for EPA approval) certain 

emissions control requirements, such as 

reasonably available control technology, 

a basic vehicle inspection and 

maintenance program if the area meets 

the applicable population thresholds, 

and provisions for increased offsets for 

new or modified sources under the 

state’s new source review (NSR) 

program. The higher classifications 

similarly require additional emissions 

controls and stricter NSR offset 

requirements beyond those required for 

a Moderate area. In addition, under the 

higher classifications, smaller sources 

are considered ‘‘major sources’’ for 

permitting and other requirements. 

B. History of Nonattainment Area 

Classification Systems for the Ozone 

NAAQS 

The CAA was amended in 1990 to 

add specific provisions that apply to 

ozone nonattainment areas. These 

include timelines for both planning and 

implementation, and requirements for 

specific programs to reduce emissions 

that vary based on an area’s 

classification. The ozone standard that 

was in effect at the time of the 1990 

CAA amendments was a 1-hour 

exceedance-based standard of 0.12 

ppm.7 Accordingly, the classification 

provisions in Table 1 in section 181 of 

subpart 2 of the CAA (also referred to 

herein as the ‘‘subpart 2 classification 

table’’) are specific to that 1-hour 

standard. In 1997, the EPA revised both 

the form and level of the ozone NAAQS 

to a 3-year average of the 4th highest 

daily maximum 8-hour averages.8 In a 

subsequent rulemaking, the EPA 

adapted the CAA’s 1-hour classification 

thresholds to the new 8-hour standard 9

and used the new 8-hour threshold 

values to classify certain areas 

designated nonattainment for the 1997 

8-hour NAAQS. This approach for 

translating the CAA’s 1-hour threshold 

values to 8-hour threshold values was 

challenged in litigation and was upheld 

by the court. See South Coast Air 

Quality Management District v. 

Environmental Protection Agency, 472 

F.3d at 896–898. 

C. Initial Area Designations for the 2008 

Ozone NAAQS 

Under CAA § 107(d), initial area 

designations are required when a 

NAAQS is revised. The process involves 

interaction between the EPA and states, 

starting with states preparing 

recommendations and submitting them 

to the EPA for review. If the EPA 

intends to modify a state’s 

recommendation, the EPA must notify 

the state of such modification by letter 

no later than 120 days (‘‘120 day 

letters’’) prior to making a final 

decision.10 For the 2008 ozone NAAQS, 

most states submitted designation 

recommendations to the EPA as 

required under section 107(d) in March 

2009, 1 year after the 2008 NAAQS was 

promulgated. States also had the 

opportunity to update these 

recommendations in the fall of 2011, 

based on ambient air quality monitoring 

data for the years 2008–2010, which 

were (and still are) the most recent 

monitoring data available. Areas could 

elect to early certify their 2009–2011 

data by February 29, 2012 for EPA to 

consider in the designation process. 

The EPA plans to consider the state 

recommendations received in 2009 and 

any updates provided by the states 

based on current monitoring data in 

deciding whether to modify any 

recommendations. In the event that the 

EPA intends to modify a state’s 

recommendation, the EPA will notify 

the state 120 days prior to issuing 

designations. The EPA’s goal is to 

finalize designations by mid-2012. 

D. Transportation Conformity and the 

1997 Ozone NAAQS 

In this rulemaking, the EPA is 

proposing to revoke the 1997 ozone 

NAAQS for transportation conformity 

purposes only.11 The revocation of the 

1997 ozone standard for this limited 

purpose would occur 1 year after the 

effective date of initial area designations 

for the 2008 ozone NAAQS. We believe 

this approach is the most logical 

because it would result in only one 

ozone NAAQS—the more protective 

2008 ozone NAAQS—applying for 

purposes of transportation conformity, 

after the end of the 1-year transportation 

conformity grace period that applies to 

newly designated nonattainment areas 

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

ozone NAAQS were to remain in place 

after conformity applies for the 2008 

ozone NAAQS, areas currently in 

nonattainment or maintenance for the 

1997 ozone NAAQS that are designated 

nonattainment for the 2008 ozone 

NAAQS would be required to 

implement the transportation 

conformity program for both ozone 

NAAQS concurrently. The EPA is 

proposing to revoke the 1997 ozone 

NAAQS for purposes of transportation 

conformity in an attempt to avoid this 

overlap of NAAQS for conformity 

requirements. The EPA intends to 

discuss potential revocation of the 1997 

NAAQS for all other purposes in a 

future, separate rulemaking. 

III. What are the proposed 

classification thresholds for 

nonattainment areas for the 2008 ozone 

NAAQS? 

A. Proposed Classification Thresholds 

1. Background 

The subpart 2 classification table 

includes the classification thresholds for 

areas designated as nonattainment for 

the 1-hour ozone NAAQS. The subpart 

2 classification table is based on 1-hour 

ozone nonattainment area design values 

(DVs) (i.e., beginning at a level of 0.121 

ppm) because it was designed for 

implementation of the 0.12 ppm 1-hour 

standard, which was the effective ozone 

standard when Congress added the table 

to the CAA in 1990. Because the table 

is based on DVs for a 0.12 ppm 1-hour 

standard, we recognized in the 

rulemaking to implement the 1997 

NAAQS that it did not make sense to 

apply the thresholds listed in the table 

for implementing the 1997 0.08 ppm 8- 

hour standard. The EPA believed that 

using 8-hour DVs to classify areas for 

the 8-hour standard would reflect the 

magnitude of the 8-hour ozone problem 

more accurately than would using the 1- 

hour DVs in the subpart 2 classification 

table. In addition, many of the areas that 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8201 

12The upper thresholds of the Marginal, 

Moderate, Serious, and Severe classifications are 

precise percentages or fractions above the level of 

the standard, namely 15 percent (3/20ths more than 

the standard), 33.33 percent (one-third more than 

the standard), 50 percent (one-half more than the 

standard), and 133.3 percent (one and one-third 

more than the standard). 

13Background Information Document: 

Development of Hypothetical Nonattainment Areas 

for Illustrating Proposed Classification Thresholds 

for Areas Designated Nonattainment for the 2008 

0.075 PPM 8-Hour Ozone National Ambient Air 

Quality Standard. January 2012. 

14Background Information Document: Additional 

Options Considered for Classification of 

Nonattainment Areas under the 2008 Ozone 

NAAQS. January 2012. 

15Background Information Document: 

Development of Hypothetical Nonattainment Areas 

for Illustrating Proposed Classification Thresholds 

Continued 

were nonattainment for the 1997 8-hour 

NAAQS had 1-hour DVs less than 0.121 

ppm and would not have been covered 

by the subpart 2 classification table at 

all. 

We adopted by regulation a modified 

version of the subpart 2 classification 

table for the 1997 8-hour ozone standard 

which contains 8-hour DV thresholds 

for each classification, rather than the 

statutory 1-hour DV thresholds. We 

translated the classification thresholds 

in the subpart 2 classification table from 

1-hour DVs to 8-hour DVs based on the 

percentage by which each classification 

threshold in the table exceeds the 1- 

hour ozone NAAQS. We noted that 

these percentages, as established by 

Congress in 1990, set the classification 

thresholds at certain percentages or 

fractions above the level of the 

standard.12 We refer to this method as 

the ‘‘percent-above-the-standard’’ 

method. We are proposing to take the 

same approach for the 2008 ozone 

NAAQS. As we did for the 1997 8-hour 

NAAQS, we are proposing to establish 

by regulation a modified version of this 

classification table to account for the 

new level of 0.075 ppm as compared to 

the level of 0.08 ppm used to establish 

the classification table for the 1997 

ozone NAAQS. 

As we did for the 1997 NAAQS, the 

EPA analyzed various alternative 

options for establishing thresholds for 

classifications for the 2008 ozone 

NAAQS. However, we are proposing to 

use the same ‘‘percent-above-thestandard’’ methodology as was used for 

the 1997 ozone standard.13 Options that 

were evaluated other than the one we 

are proposing are discussed in more 

detail in a background information 

document 14 in the docket to this 

rulemaking. While the EPA believes the 

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

appropriate for designating areas for the 

2008 NAAQS, alternative methods may 

be appropriate to consider in developing 

classification thresholds for any future 

revisions to the ozone standards. 

The percent-above-the-standard 

method is a simple and straightforward 

method for establishing classification 

thresholds that is based on principles 

inherent in the subpart 2 classification 

table itself. The principles include the 

following: 

• Areas are grouped by the severity of 

their air quality problem as 

characterized by the degree of 

nonattainment based on their DV. 

• Classification would occur ‘‘by 

operation of law’’ without relying on 

EPA exercising discretion for individual 

situations (prior to any application of 

the 5 percent adjustment provision 

under section 181(a)(4)). See section 

III.B of this rule for additional details on 

how EPA intends to address previous 

requests for voluntary bump-ups for the 

1997 ozone NAAQS. 

• Classification thresholds are 

derived from the structure or logic of the 

CAA’s nonattainment area planning and 

control requirements, including the 

subpart 2 classification table, and 

consistent with the overall goal of 

subpart 2 of attaining the standards as 

expeditiously as practicable. 

2. Proposed Classification Threshold 

Method—Percent-Above-the-Standard 

Method 

In this section, we describe the EPA’s 

proposed methodology for establishing 

classification thresholds for purposes of 

classifying ozone nonattainment areas 

with respect to the 2008 ozone NAAQS. 

Using this approach for the 2008 

NAAQS, the classification thresholds in 

the subpart 2 classification table would 

be translated into a corresponding set of 

8-hour DVs by setting threshold DVs in 

the new table at the same percentages 

above the 2008 ozone NAAQS as the DV 

levels in the subpart 2 classification 

table are above the 1-hour ozone 

NAAQS. For example, the threshold 

separating the Marginal and Moderate 

classifications in the subpart 2 

classification table (0.138 ppm) is 15 

percent above the 1-hour ozone NAAQS 

(0.12 ppm). Thus, under this approach, 

the threshold separating the Marginal 

and Moderate classifications for the 

2008 ozone NAAQS would be 0.075 

ppm plus 15 percent, or 0.086 ppm. 

Table 1, below, depicts this proposed 

translation for classifications as it would 

apply for the 2008 ozone NAAQS. 

TABLE 1—SUBPART 2 1-HOUR OZONE DESIGN VALUE CLASSIFICATION TABLE TRANSLATION TO 8-HOUR DESIGN VALUES

FOR THE 2008 OZONE NAAQS OF 0.075 PPM 

Area class 1-hour design 

value (ppm) 

Percent above 1- 

hour ozone 

NAAQS 

8-hr ozone design 

value (ppm) 

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

up to 1 .................................................... 0.138 15 0.086 

Moderate ................................................ From ...................................................... 0.138 15 0.086 

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

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

up to 1 .................................................... 0.180 50 0.113 

Severe-15 ............................................... From ...................................................... 0.180 50 0.113 

up to 1 .................................................... 0.190 58.333 0.119 

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

up to 1 .................................................... 0.280 133.333 0.175 

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

Note 1: But not including. 

Based on our analysis of air quality 

information from 2008–2010, we 

estimate that approximately 52 areas 

had ambient ozone concentrations 

exceeding the 2008 ozone NAAQS. We 

use these 52 ‘‘hypothetical 

nonattainment areas’’ for purposes of 

the following discussion.15 These 

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for Areas Designated Nonattainment for the 2008 

0.075 PPM 8-Hour Ozone National Ambient Air 

Quality Standard. January 2012. Most hypothetical 

nonattainment areas include multiple counties, 

based on the existing 1997 8-hour ozone 

nonattainment areas, Combined Statistical Area, or 

Core Based Statistical Area boundary associated 

with a violating monitor. Note that these areas are 

used for analytical purposes only. Actual 

nonattainment areas and boundaries will be 

determined through the designations process. 

16As indicated elsewhere in this preamble, the 

EPA intends to designate areas for the 2008 

standard by mid-2012. Thus, a 3-year attainment 

deadline would be in 2015. 

17Federal Implementation Plans: Interstate 

Transport of Fine Particulate Matter and Ozone and 

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

48208. 18Technical note to docket # EPA–HQ–OAR– 

2010–0885, February 2012. ‘‘The Hypothetical 

Nonattainment Area Projections of 2008–2010 

Design Values to 2015.’’ 19Background Information Document: Additional 

Options Considered for Classification of 

Nonattainment Areas under the Proposed 2008 

Ozone NAAQS. January 2012. 20This CAA provision also provides the same 

authority for reclassifying areas to a lower 

classification, an approach that may not be relevant 

where the area in question is unlikely to attain by 

the attainment date for the classification it receives 

at the time of designation. 

21 Ventura County, CA was reclassified from 

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

Page 29073, Effective: 06/19/2008). HoustonGalveston-Brazoria, TX was reclassified from 

Moderate to Severe-15 (Approved 10/01/2008, 73 

FR Page 56983, Effective: 10/31/2008). 

Reclassification of the Los Angeles-South Coast, 

San Joaquin Valley, Riverside County, and 

Sacramento Metro areas (May 5, 2010, 75 FR 24409) 

became effective June 4, 2010. The requested 

voluntary reclassification of West Mojave Desert, 

CA from Moderate to Severe-17 is still pending with 

the EPA. 

hypothetical areas are intended to 

illustrate the distribution of areas into 

the proposed classifications. The actual 

number of total nonattainment areas and 

the classification of each area will 

depend on decisions made in the 

separate designations process under 

section 107(d). If we were to use the 

proposed thresholds in Table 1, above, 

as the basis for classifying 

nonattainment areas with respect to the 

2008 ozone NAAQS, the 52 hypothetical 

nonattainment areas based on 2008– 

2010 air quality data would be 

distributed in each classification as 

shown in Table 2. 

TABLE 2—NUMBER OF HYPOTHETICAL

NONATTAINMENT AREAS IN EACH

CLASSIFICATION UNDER THE 2008 

OZONE NAAQS: PERCENT-ABOVETHE-STANDARD METHOD

Classification 

2008 O3 NAAQS 

(hypothetical 

areas) 

Marginal ............................ 43 

Moderate ........................... 6 

Serious .............................. 3 

Severe .............................. 0 

Extreme ............................ 0 

Total ........................... 52 

The proposed classification method 

would result in the vast majority of 

nonattainment areas being classified as 

Marginal. It is possible that a few areas 

would have a later maximum statutory 

attainment date for their existing 

classification under the 1997 ozone 

NAAQS than they would have for their 

new classification under the 2008 

NAAQS. For example, an area that 

would be classified Marginal for the 

more stringent 2008 ozone NAAQS 

(with an anticipated maximum statutory 

attainment date in 2015), may have been 

classified as Severe for the less-stringent 

1997 ozone NAAQS (with a later 

maximum statutory attainment date in 

2019).16 This issue did not arise when 

we promulgated the classification 

structure for the 1997 NAAQS. (See 

section III.B of this rule for additional 

details on how EPA intends to address 

previous requests for voluntary bumpups for the 1997 ozone NAAQS.) 

Many Marginal areas are expected to 

attain the 2008 NAAQS within 3 years 

of designation (e.g., in 2015) due to 

reductions of ozone precursors resulting 

from a number of federal and state 

emission reduction programs that have 

already been adopted. Such programs 

include more stringent emission 

standards for onroad and nonroad 

vehicles and equipment (with 

associated fleet turnover), regional 

reductions in power plant emissions to 

address interstate transport,17 and 

potential future programs such as the 

boiler maximum achievable control 

technology standards. The EPA 

estimates that in about half of the 

Marginal areas, these reductions in 

conjunction with other ongoing state 

and federal controls should be sufficient 

to bring about attainment.18 In other 

areas, additional control measures may 

be needed for timely attainment. 

3. Other Classification Methods 

Considered 

A number of interested parties have 

recommended to the EPA other options 

for classification of ozone 

nonattainment areas. The EPA evaluated 

many other methods but we are not 

proposing them or soliciting comment 

on them because we did not find them 

as compelling for application to the 

2008 ozone NAAQS as the option 

discussed in this proposal. We have 

included in the docket all written 

recommendations we have received in 

recent years regarding classification 

approaches. Other options that we 

considered but are not proposing are 

also summarized in the docket.19

B. Reclassification of Nonattainment 

Areas that Have Voluntarily Requested 

Higher Classifications 

The CAA provides three mechanisms 

for addressing nonattainment areas that 

may not be able to attain by the 

attainment date provided for their 

classification. First, section 181(a)(4) 

provides that within 90 days of 

designation and classification, the 

Administrator may exercise discretion 

to reclassify an area to a higher (or 

lower) classification if its DV is within 

5 percent of the DV range of the higher 

(or lower) classification.20 Any state 

interested in taking advantage of this 

flexibility should submit a request to the 

EPA in sufficient time for the 

Administrator to make a determination 

within the 90 days provided. 

The second mechanism, provided in 

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

be reclassified to the next higher 

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

determines that the area has failed to 

attain the standard by the attainment 

date and does not qualify for the first of 

two possible 1-year attainment date 

extensions allowed under the CAA 

(excluding Severe to Extreme 

reclassification). 

The third mechanism, provided in 

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

voluntarily request that the EPA 

reclassify the area to a higher 

classification. The EPA has no 

discretion to deny such requests. Once 

an area is reclassified to a higher 

classification, it becomes subject to the 

associated additional planning and 

control requirements for that higher 

classification as well and must attain 

the standard no later than the later 

maximum attainment date for that 

classification. 

There are seven areas for which states 

requested a voluntary reclassification 

with respect to the 1997 NAAQS. If 

these areas were classified based on 

2008–2010 air quality data and pursuant 

to the classification structure proposed 

here, it is likely that they would have a 

lower classification and an earlier 

maximum attainment date for the 2008 

NAAQS than such areas have for the 

1997 ozone NAAQS. EPA has granted 

voluntary reclassification requests for 

six of these areas; the request for one 

area is still pending.21

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22Texas also requested voluntary reclassification 

for the Houston-Galveston-Brazoria nonattainment 

area for the 1997 ozone NAAQS. Texas has already 

indicated that they do not wish for that request to 

apply to the 2008 ozone NAAQS. 

23 69 FR 23951. 

24The ozone season for each state is defined in 

40 CFR part 58, Appendix D, and, for most areas, 

runs from April to October. See also the July 16, 

2009, Proposed Monitoring Rule (74 FR 34525). 

25Except in the case of a leap year, where the year 

would be a rolling 366 day period. 

TABLE 3—AREAS FOR WHICH THE STATE REQUESTED A VOLUNTARY RECLASSIFICATION UNDER THE 1997 NAAQS 

Nonattainment Area State Original 1997 NAAQS 

classification Voluntary reclassification Potential classification under 2008 NAAQS1

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

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

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

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

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

Western Mojave 2 ................................................... CA .......... Moderate ........................ Severe ............................ Moderate. 

Note 1: Based on thresholds proposed in this notice and 2008–2010 design values. 

Note 2: This request for a reclassification is still pending. 

The EPA is proposing that the 

approved prior voluntary 

reclassification requests for the 1997 

ozone NAAQS would also apply for the 

more stringent 2008 ozone NAAQS 

unless the state explicitly requests 

otherwise. The areas to which this 

would apply are listed in Table 3.22 We 

believe this is an appropriate 

mechanism to address the limited 

situation where an area that was 

voluntarily reclassified for the 1997 

ozone NAAQS would have an 

attainment date for the more stringent 

2008 ozone NAAQS that is earlier than 

the area’s attainment date for the less 

stringent 1997 NAAQS. Based on 

discussions with affected areas, we also 

believe it is reasonable to expect that the 

areas listed in Table 3 that requested a 

voluntary reclassification under the less 

stringent 1997 NAAQS would make the 

same request for the 2008 NAAQS. The 

EPA is proposing this approach in order 

to minimize burden on states and 

obviate the need to go through the 

voluntary reclassification process again. 

C. What are we proposing as the 

attainment deadlines for nonattainment 

areas in each classification of the 2008 

ozone NAAQS? 

1. Background 

The CAA provides that the primary 

NAAQS attainment dates for areas 

subject to subpart 2 must be as 

expeditious as practicable but no later 

than the deadlines provided in the 

subpart 2 classification table. The 

deadlines for attainment in the subpart 

2 classification table are specified in 

terms of a certain number of years from 

the date of enactment of the 1990 

Amendments to the CAA (i.e., 

November 15, 1990). For instance, the 

attainment date for Moderate areas is 

expressed as ‘‘6 years after November 

15, 1990.’’ Because these time periods 

are clearly inappropriate for a new 

standard promulgated in 2008, we must 

interpret the attainment deadlines in the 

subpart 2 classification table as they 

would apply to the 2008 NAAQS. 

In the Phase 1 rule for 

implementation of the 1997 ozone 

NAAQS,23 we interpreted these 

timeframes to run from the date that 

area designations and nonattainment 

classifications (by operation of law) 

became effective. We explained in the 

proposed and final rules for 

implementation of the 1997 ozone 

NAAQS that it was reasonable for these 

dates to run from the date of designation 

because other provisions of the CAA 

established the attainment date as a set 

period of time after designation. See 69 

FR 23966–67; 68 FR 32817. As 

discussed below, we are proposing this 

same approach for the 2008 NAAQS and 

also proposing an alternate approach 

where the attainment dates would be at 

the end of the calendar year. We are 

proposing an alternate approach 

because we anticipate that designations 

for the 2008 NAAQS will be effective 

some time after the start of the 2012 

ozone season 24 for most areas and 

possibly well into the summer. As 

explained in more detail below, the 

alternative approach would allow 

Marginal areas 3 full years to attain, 

Moderate areas 6 full years to attain, etc. 

2. Proposal 

The EPA is proposing two options for 

establishing the maximum attainment 

dates for areas in each nonattainment 

classification. Under the first option, the 

attainment dates would be the precise 

number of years specified in Table 1 

with such time period running from the 

effective date of designation. Under the 

second option, the attainment dates 

would be December 31 of the year that 

is the specified number of years in Table 

1 after designation. In order to fully 

evaluate the two options, we note that 

the EPA intends to complete initial area 

designations for the 2008 ozone NAAQS 

no later than May 31, 2012. We 

anticipate the designations will be 

effective 60 days following publication 

in the Federal Register and that it will 

take approximately 2 weeks for the 

designations notice to be published. 

Under this scenario, designations would 

be effective by approximately midAugust 2012. 

For the first option, we are proposing 

that the deadlines in the subpart 2 

classification table would be specified 

in terms of a certain number of years 

from the effective date of designation for 

the 2008 standard. This is the same 

approach we took for the 1997 NAAQS. 

In this case, we would interpret ‘‘year’’ 

in the subpart 2 classification table to 

mean consecutive 365-day periods,25

and we would substitute ‘‘after the 

effective date of designation’’ for the 

CAA’s ‘‘after November 15, 1990’’ 

language in the subpart 2 classification 

table. Under this approach the 

attainment deadline would fall a precise 

number of years after the effective date 

of designation. As an example, if the 

Administrator issued designations for 

the 2008 NAAQS on May 31, 2012, and 

the designations became effective on 

August 15, 2012, the attainment dates 

would run from August 15, 2012, such 

that a Marginal area would be required 

to attain the 2008 ozone standard by 

August 15, 2015. 

For the second and the EPA’s 

preferred option, the attainment date 

would be specified as a certain number 

of years from the end of the calendar 

year in which an area’s nonattainment 

designation is effective. In other words, 

if the effective date of designations for 

the 2008 ozone NAAQS is August 15, 

2012, the 3-year attainment deadline for 

Marginal areas would be December 31, 

2015. 

We are proposing this option as our 

preferred option for the 2008 ozone 

NAAQS because, as explained above, 

we believe it is likely that designations 

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26Transportation conformity is required under 

CAA section 176(c) to ensure that transportation 

plans, transportation improvement programs (TIPs) 

and federally supported highway and transit 

projects are consistent with (‘‘conform to’’) the 

purpose of the SIP. Conformity to the purpose of 

the SIP means that transportation activities will not 

cause new air quality violations, worsen existing 

violations, or delay timely attainment of the 

relevant NAAQS or interim reductions and 

milestones. The EPA’s Transportation Conformity 

Rule (40 CFR 51.390 and Part 93, subpart A) 

establishes the criteria and procedures for 

determining whether transportation activities 

conform to the SIP. 

27A motor vehicle emissions budget is that 

portion of the total allowable emissions defined in 

the submitted or approved control strategy 

implementation plan revision or maintenance plan 

for a certain date for the purpose of meeting 

reasonable further progress milestones or 

demonstrating attainment or maintenance of the 

NAAQS, for any criteria pollutant or its precursors, 

allocated to highway and transit vehicle use and 

emissions. 

will be effective in August 2012, which 

is late in the ozone season. Where the 

designation is effective late in the ozone 

season, under the first option a Marginal 

area effectively would have only two 

ozone seasons following designation to 

improve its air quality in order to attain 

by its attainment date. This is because 

compliance with the standard is based 

on air quality during the most recent 

three full consecutive ozone seasons, 

and the most recent 3 full ozone seasons 

preceding the attainment deadline in 

this case would run through the end of 

the previous year’s ozone season. 

Because attainment is based on three 

full ozone seasons of air quality data, in 

order to attain ‘‘by’’ its attainment date, 

the area could not consider air quality 

for an ozone season during which the 

attainment date falls. For example, in 

the case of the 1997 ozone NAAQS, 

designations became effective on June 

15, 2004, and areas had an attainment 

date of June 15 of the year falling 3, 6, 

etc. years after designation. Thus, in 

order for a Marginal area to attain by 

June 15, 2007, it could not consider air 

quality data from the 2007 ozone 

season, but instead was required to 

demonstrate attainment based on the 3 

years of air quality data from 2004– 

2006. In this situation, the area’s 

attainment date effectively was 

December 31, 2006. 

Because we anticipate designations 

will be effective late in the ozone season 

for the 2008 NAAQS, we are concerned 

that if a Marginal area is required to 

attain in August 2015, the area would 

effectively have only two ozone seasons 

(the 2013 and 2014 ozone seasons) from 

the date of designation to improve its air 

quality for the purpose of showing 

attainment. Accordingly, the state 

would need to both plan for and achieve 

all emission reductions necessary for 

the area to attain by the beginning of the 

2014 ozone season, so that those 

reductions would be reflected in the air 

quality data considered for determining 

whether the area attained by its 

attainment date (i.e., attainment would 

be based on air quality data from 2012– 

2014). Similarly, a Moderate area would 

need to implement measures to attain by 

the beginning of the 2017 ozone season 

in order for those reductions to be 

reflected in the air quality data 

considered for purposes of determining 

whether the area attained (data from 

2015–2017) by August 2018. 

We believe this second option is 

consistent with the time periods 

provided for attainment of the 1-hour 

ozone NAAQS at the time the CAA was 

amended. The CAA Amendments were 

enacted on November 15, 1990, after the 

end of the ozone season for virtually all 

areas, and for the few areas that had 

year-round ozone seasons, EPA 

interpreted the Act to allow 

consideration of air quality in the 

attainment year even though the 

attainment date fell on November 15. 

Thus, when the CAA was amended in 

mid-November 1990, 1-hour Marginal 

areas had three full ozone seasons to 

achieve any reductions necessary for 

attainment, and Moderate areas had six 

full ozone seasons, because the 

attainment deadline was the anniversary 

of the enactment of the 1990 CAA 

(November 15). Table 4 summarizes for 

each proposed option how we would 

interpret the maximum attainment dates 

for areas in each classification under the 

2008 NAAQS, using an example where 

the effective date of designations is 

August 15, 2012. 

TABLE 4—EXAMPLE OF PROPOSED ATTAINMENT DATES FOR THE 2008 STANDARD IF NONATTAINMENT DESIGNATIONS ARE

EFFECTIVE AUGUST 15, 2012 

Classification Option 1 Option 2 

Marginal ...................................................... August 15, 2015 ........................................................................... December 31, 2015. 

Moderate ..................................................... August 15, 2018 ........................................................................... December 31, 2018. 

Serious ........................................................ August 15, 2021 ........................................................................... December 31, 2021. 

Severe ........................................................ August 15, 2027 or 2029 .............................................................. December 31, 2027 or 2029. 

Extreme ...................................................... August 15, 2032 ........................................................................... December 31, 2032. 

IV. What is the EPA proposing 

regarding revocation of the 1997 ozone 

NAAQS at this time? 

At this time, the EPA is proposing to 

revoke the 1997 ozone NAAQS 1 year 

after the effective date of designations 

for the 2008 ozone NAAQS for 

transportation conformity purposes 

only.26 Revoking the 1997 ozone 

NAAQS for transportation conformity 

purposes, as described below, will bring 

certainty to the transportation planning 

process in ozone nonattainment and 

maintenance areas. It will also ensure 

that backsliding does not occur for 

purposes of transportation conformity as 

areas designated nonattainment for the 

2008 ozone NAAQS will be required to 

use adequate or approved SIP motor 

vehicle emissions budgets for the 1997 

ozone NAAQS or 1-hour ozone NAAQS, 

if the area has such SIP budgets for one 

of these ozone NAAQS, until SIP 

budgets are found adequate or are 

approved for the 2008 ozone NAAQS as 

required by recent court decisions 

discussed below and as required by 

CAA 176(c)(1).27 Specifically, CAA 

section 176(c)(1) states, in part, ‘‘No 

metropolitan planning organization 

designated under section 134 of Title 23 

shall give its approval to any project, 

program, or plan which does not 

conform to an implementation plan 

approved or promulgated under section 

7410 of this title.’’ In other words, 

adequate or approved motor vehicle 

emissions budgets for a prior NAAQS 

must be used in transportation 

conformity determinations for a revised 

NAAQS until such time that budgets for 

the revised NAAQS are either found 

adequate or are approved. The EPA is 

proposing this limited revocation of the 

1997 ozone NAAQS at this time to 

provide certainty to the transportation 

planning process. In a subsequent 

rulemaking, the EPA will consider 

whether to also revoke the 1997 NAAQS 

for other purposes. 

A. What is the background for our 

proposal? 

At the time the EPA promulgated the 

2008 NAAQS, the Administrator 

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28Areas without adequate or approved SIP 

budgets for either the 1997 ozone NAAQS or the 1- 

hour ozone NAAQS are required to demonstrate 

conformity using one or both of the interim 

emissions tests depending on their classification as 

required by 40 CFR 93.119. 

29 During a lapse, an area can proceed with only 

a limited amount of transportation projects 

including projects that are exempt from conformity, 

projects and project phases that had previously 

been approved and transportation control measures 

included in an approved SIP. 

determined that the 1997 ozone NAAQS 

was no longer sufficient to protect 

public health and the environment with 

an adequate margin of safety and that it 

was therefore necessary to establish a 

more stringent standard. 73 FR 16436 

(Mar. 27, 2008). In determining how to 

transition from the 1997 NAAQS to the 

more stringent 2008 NAAQS, the EPA is 

now presented with the same situation 

that we faced with the transition from 

the 1-hour ozone NAAQS to the more 

stringent 1997 ozone NAAQS. For that 

transition, our Phase 1 implementation 

rule for the 1997 ozone NAAQS revoked 

the 1-hour ozone NAAQS for all 

purposes 1 year after the effective date 

of the initial area designations for the 

1997 ozone NAAQS. (See 69 FR 23954). 

The Phase 1 rule also established 

comprehensive anti-backsliding 

provisions to ensure that requirements 

for the 1-hour ozone NAAQS would 

continue in place as areas transitioned 

to implementing the more stringent 

1997 ozone standard. 

The revocation of the 1-hour standard 

and the associated anti-backsliding 

provisions were the subject of litigation. 

In its December 2006 decision on that 

challenge, as modified following 

rehearing, the Court held with respect to 

the anti-backsliding approach for 

transportation conformity that 1-hour 

motor vehicle emissions budgets must 

be used where such budgets have been 

found adequate or approved, as part of 

8-hour conformity determinations until 

8-hour motor vehicle emissions budgets 

are available. (South Coast Air Quality 

Management District v. EPA, 472 F.3d 

at 882). In addition, the Court affirmed 

more broadly that in order for 

transportation conformity 

determinations to fulfill the 

requirements of CAA section 176(c)(1), 

motor vehicle emissions budgets for a 

prior NAAQS must be used in 

transportation conformity 

determinations under a revised NAAQS 

until emissions budgets for the revised 

NAAQS are either found adequate or are 

approved. Therefore, areas designated 

nonattainment for the 2008 ozone 

NAAQS that have adequate or approved 

SIP budgets for either the 1997 ozone 

NAAQS or the 1-hour ozone NAAQS 

must continue to use such budgets in 

transportation conformity 

determinations until budgets for the 

2008 ozone NAAQS are found adequate 

or are approved.28

B. What is the rationale for our 

proposal? 

At this time, we are proposing to 

revoke the 1997 ozone NAAQS for 

transportation conformity purposes 

only. The revocation of the 1997 ozone 

NAAQS for this limited purpose would 

occur 1 year after the effective date of 

initial area designations for the 2008 

ozone NAAQS. Similar to our rationale 

in the Phase 1 rule for implementation 

of the 1997 ozone NAAQS, we believe 

this approach makes the most sense 

because it would result in only one 

ozone NAAQS—the 2008 ozone 

NAAQS—applying for purposes of 

transportation conformity, after the end 

of the one-year transportation 

conformity grace period that applies to 

newly designated nonattainment areas. 

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

ozone NAAQS were to remain in place 

after conformity applies for the 2008 

ozone NAAQS, metropolitan planning 

organizations and other state, local, and 

federal transportation and air quality 

agencies in areas that are currently 

nonattainment or maintenance for the 

1997 ozone NAAQS and will be 

designated nonattainment for the 2008 

ozone NAAQS would be required to 

implement the transportation 

conformity program for both ozone 

NAAQS concurrently. This could lead 

to unnecessary complexity for 

conformity determinations, especially if 

an area’s boundaries for the two ozone 

NAAQS differ from one another and the 

same test of conformity cannot be used 

for both ozone NAAQS. Even where an 

area’s boundaries are unchanged, 

different analysis years under the 

conformity rules may be required for 

each ozone NAAQS. Furthermore, we 

believe that it is more important to 

determine conformity for the new 2008 

ozone NAAQS that is more protective of 

health and welfare. 

For transportation conformity 

purposes, this proposal would provide a 

seamless transition from demonstrating 

conformity for the 1997 ozone NAAQS 

to demonstrating conformity for the 

2008 ozone NAAQS. Revoking the 1997 

ozone NAAQS 1 year after the effective 

date of designations for the limited 

purpose of transportation conformity 

would leave no gap in conformity’s 

application in any 2008 ozone 

nonattainment areas. 

C. Why is it necessary to revoke the 1997 

ozone NAAQS now for transportation 

conformity purposes? 

The EPA has determined that it is 

necessary to establish the date for the 

revocation of the 1997 ozone NAAQS as 

it applies for transportation conformity 

purposes now in order to provide state 

and local transportation and air quality 

agencies with certainty as to what 

conformity requirements will apply 

after designations are finalized for the 

2008 ozone NAAQS. Areas designated 

nonattainment for the 2008 ozone 

NAAQS will have 1 year after the 

effective date of the designation to 

complete a conformity determination for 

the 2008 ozone NAAQS. If an area does 

not complete the required conformity 

determination by the end of the 1-year 

grace period, the area will enter a 

conformity lapse until the required 

determination is completed.29 Based on 

2008–2010 air quality monitoring data, 

and as discussed elsewhere in today’s 

notice, we anticipate that 52 areas 

would be designated as nonattainment 

areas and 44 of these areas are either 

nonattainment or maintenance for the 

1997 ozone NAAQS. Areas designated 

nonattainment for the 2008 NAAQS will 

likely need the full 1-year grace period 

provided in CAA section 176(c)(6) to 

complete the required initial conformity 

determination. Those areas that are 

designated as either nonattainment or 

maintenance for the 1997 ozone NAAQS 

at the time they are designated as 

nonattainment for the 2008 ozone 

NAAQS will need certainty as to the 

specific requirements for that 

conformity determination. For example, 

they need to know what analysis years 

must be addressed and, if the 

boundaries for the two ozone NAAQS 

are different, they need to know 

whether to address conformity for both 

areas and which test or tests would 

apply. 

By determining conformity for the 

2008 standard, which is the more health 

and welfare protective standard, the 

EPA is both: 

• Fulfilling the CAA’s requirements 

for transportation conformity which 

include preventing new air quality 

violations, not making existing 

violations worse and not delaying any 

interim milestones; and 

• Making the most efficient use of 

state and local resources in fulfilling 

those requirements. 

In addition, a large number of areas 

that are currently required to determine 

conformity for the 1997 ozone NAAQS 

are attaining the 2008 ozone NAAQS 

based on 2008–2010 air quality data. If 

these areas are designated as attainment 

areas for the 2008 ozone NAAQS, they 

would not be required to demonstrate 

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8206 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

conformity for the 1997 ozone NAAQS, 

as of the effective date of the revocation 

of the 1997 ozone NAAQS. These areas 

would no longer have to expend 

resources to make conformity 

determinations for the 1997 ozone 

NAAQS. 

D. Is the EPA proposing to revoke the 

1997 ozone NAAQS for other purposes 

as part of this rulemaking? 

As part of this rule, the EPA is not 

proposing to revoke the 1997 ozone 

NAAQS for purposes other than 

transportation conformity. Because of 

the necessity to quickly finalize a rule 

addressing nonattainment area 

classifications, we are not including a 

broad proposal here regarding 

revocation of the 1997 NAAQS and how 

anti-backsliding requirements might 

apply if the 1997 standard is revoked for 

purposes other than transportation 

conformity. We are developing a 

separate proposed rule that will address 

those issues and we expect to issue that 

proposed rule in the spring of 2012. We 

plan to address any comments on the 

issue of revocation and anti-backsliding 

for all requirements other than 

transportation conformity in the context 

of that future, separate rulemaking. 

V. What does this rulemaking not 

address? 

This proposed rulemaking does not 

propose to establish attainment or 

nonattainment designations for specific 

areas nor does it address the principles 

that will be considered in the 

designation process. Because the 

designations are not the subject of this 

proposed rule, we do not intend to 

respond to comments concerning 

designations in the context of this 

rulemaking. 

In addition, this proposed rule does 

not address any specific SIP 

requirements associated with different 

classification categories. This proposed 

rule also does not address revocation of 

the 1997 ozone NAAQS for purposes 

other than transportation conformity. 

Similarly, anti-backsliding issues are 

not addressed in this rule. The 

remaining implementation requirements 

for the 2008 NAAQS will be addressed 

in a separate rulemaking. We do not 

intend to respond in the context of this 

rulemaking to comments pertaining to 

implementation issues that will be 

addressed by a future rulemaking. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues 

arising out of legal mandates. 

Accordingly, EPA submitted this action 

to OMB for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

defined at 5 CFR 1320.3(b). 

The EPA is proposing this 

Classifications Rule for the 2008 ozone 

NAAQS so that areas may be classified 

by operation of law at the time of 

designation as provided in section 

181(a) of the CAA. This proposed rule 

would also revoke the 1997 ozone 

NAAQS for transportation conformity 

purposes only. The EPA is proposing 

this limited revocation in order to bring 

certainty to the transportation 

conformity process consistent with prior 

court decisions and CAA section 176(c). 

This rule, in conjunction with another 

implementation rule we plan to propose 

in the future, will help states identify 

planning requirements that apply for 

purposes of attaining and maintaining 

the 2008 ozone NAAQS. No new 

information needs to be collected from 

the states as a result of this proposed 

rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of these proposed regulations on small 

entities, small entity is defined as: (1) A 

small business as defined in the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and 

(3) a small organization that is any notfor-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

The CAA requires the EPA to 

designate areas and provides for 

nonattainment areas to be classified by 

operation of law at the time of 

designation. This rule provides a 

method for establishing these 

classifications and interpreting the 

associated attainment deadlines. The 

CAA also requires that nonattainment 

and maintenance areas make 

transportation conformity 

determinations. This rule proposes to 

revoke the 1997 ozone NAAQS 1 year 

after the effective date of designations so 

that areas designated nonattainment for 

the 2008 ozone NAAQS are required to 

address conformity requirements for 

only the more protective 2008 ozone 

NAAQS. 

After considering the economic 

impacts of this proposed rule on small 

entities, the EPA certifies that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. This proposed 

rule will not impose any requirements 

on small entities. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 

state, local, and tribal governments, in 

the aggregate, or the private sector. This 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

section 202 and 205 of the UMRA. 

This action is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8207 

requirement to designate and classify 

nonattainment areas is imposed by the 

CAA as are the requirements for 

nonattainment and maintenance areas to 

make transportation conformity 

determinations. This proposed rule, if 

made final, would interpret how the 

classification provisions in section 

181(a) will apply for purposes of the 

2008 8-hour ozone NAAQS that was 

finalized on March 27, 2008. (See 73 FR 

16436). It also proposes to revoke the 

1997 ozone NAAQS 1 year after the 

effective date of designations for the 

2008 ozone NAAQS for transportation 

conformity purposes only. Thus, 

Executive Order 13132 does not apply 

to these proposed regulations. 

Although this action does not have 

federalism implications as defined in 

Executive Order 13132, the EPA 

recognizes that the adoption in 2008 of 

the more health-protective ozone 

standards will result in additional effort 

by state agencies responsible for 

managing air quality programs. Under 

the CAA, achieving these health benefits 

requires the combined efforts of the 

federal, state, and local governments, 

each accomplishing the tasks for which 

they are best suited. In the spirit of 

Executive Order 13121 and consistent 

with EPA policy to promote 

communications between the EPA and 

state and local governments, the EPA is 

soliciting comments on this proposal 

from state and local officials. 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). The proposed rules do not have 

a substantial direct effect on one or 

more Indian tribes, since no tribe has to 

develop classification recommendations 

under these proposed regulatory 

revisions. This proposal revokes the 

1997 ozone NAAQS for transportation 

and does not significantly or uniquely 

affect the communities of Indian tribal 

governments, as the CAA requires 

transportation conformity to apply in 

any area that is designated 

nonattainment or maintenance by the 

EPA. Furthermore, these proposed 

regulation revisions do not affect the 

relationship or distribution of power 

and responsibilities between the federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the federal government 

and tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. These proposed 

regulations revisions do not have tribal 

implications. Thus, Executive Order 

13175 does not apply to this action. 

The EPA specifically solicits 

additional comment on this proposed 

action from tribal officials. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action would establish 

classifications for areas that do not 

attain the 2008 ozone standard. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law 104–113, 

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

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. The voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

These proposed revisions to the 

regulations do not involve technical 

standards. Therefore, the EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed 

regulations would, if promulgated, 

establish classification thresholds for 

designated nonattainment areas for the 

2008 ozone NAAQS, which are 

designed to protect all segments of the 

general populations. As such, they do 

not adversely affect the health or safety 

of minority or low-income populations 

and are designed to protect and enhance 

the health and safety of these and other 

populations. Today’s action also 

proposes to revoke the 1997 ozone 

NAAQS for transportation conformity 

purposes only. Such a revocation would 

not lead to disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations as the CAA requires 

transportation conformity to apply in 

any area that is designated 

nonattainment or maintenance by the 

EPA. This proposed rule ensures that 

transportation conformity is 

demonstrated in all areas that are 

designated nonattainment for the more 

protective 2008 ozone NAAQS. 

VII. Statutory Authority 

The statutory authority for this action 

is provided by sections 110; 176; 181; 

and 301(a)(1) of the CAA, as amended 

(42 U.S.C. 7409; 42 U.S.C. 7506; 42 

U.S.C. 7511; 42 U.S.C. 7601(a)(1)). 

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

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8208 Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 

Dated: February 7, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, Chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 50—NATIONAL PRIMARY AND 

SECONDARY AMBIENT AIR QUALITY 

STANDARDS 

1. The authority citation for Part 50 

continues to read as follows: 

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

2. Section 50.10 is amended by 

adding a paragraph (c) to read as 

follows: 

§ 50.10 National 8-hour primary and 

secondary ambient air quality standards for 

ozone. 

* * * * * 

(c) The 1997 ozone NAAQS set forth 

in paragraph (a) of this section will no 

longer apply to an area for 

transportation conformity purposes 1 

year after the effective date of the 

designation of the area for the 2008 

ozone NAAQS pursuant to section 107 

of the CAA. The 1997 ozone NAAQS set 

forth in this section will continue to 

remain applicable to all areas for all 

other purposes notwithstanding the 

promulgation of the 2008 ozone NAAQS 

under § 50.15 or the designation of areas 

for the 2008 ozone NAAQS. Area 

designations and classifications with 

respect to the 1997 ozone NAAQS are 

codified in 40 CFR part 81. 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

3. The authority citation for Part 51 

continues to read as follows: 

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

7671q. 

4. Part 51 is amended by adding a 

new subpart AA to read as follows: 

Subpart AA—Provisions for Implementation 

of the 2008 Ozone National Ambient Air 

Quality Standards 

Sec. 

51.1100 Definitions. 

51.1101 Applicability of Part 51. 

51.1102 Classification and nonattainment 

area planning provisions. 

51.1103 Application of classification and 

attainment date provisions in section 181 

of subpart 2 of the CAA to areas subject 

to § 51.1102(a). 

Subpart AA—Provisions for 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards. 

§ 51.1100 Definitions. 

The following definitions apply for 

purposes of this subpart. Any term not 

defined herein shall have the meaning 

as defined in 40 CFR 51.100. 

(a) 1-hour NAAQS means the 1-hour 

primary and secondary ozone national 

ambient air quality standards codified at 

40 CFR 50.9. 

(b) 1997 NAAQS means the 8-hour 

primary and secondary ozone national 

ambient air quality standards codified at 

40 CFR 50.10. 

(c) 2008 NAAQS means the 2008 

primary and secondary ozone NAAQS 

codified at 40 CFR 50.15. 

(d) 1-hour ozone design value is the 

1-hour ozone concentration calculated 

according to 40 CFR part 50, Appendix 

H and the interpretation methodology 

issued by the Administrator most 

recently before the date of the 

enactment of the CAA Amendments of 

1990. 

(e) 8-hour ozone design value is the 8- 

hour ozone concentration calculated 

according to 40 CFR part 50, Appendix 

P. 

(f) CAA means the Clean Air Act as 

codified at 42 U.S.C. 7401–7671q 

(2010). 

(g) Attainment area means, unless 

otherwise indicated, an area designated 

as either attainment, unclassifiable, or 

attainment/unclassifiable. 

(h) Attainment year ozone season 

shall mean the ozone season 

immediately preceding a nonattainment 

area’s maximum attainment date. 

(i) Designation for the 2008 NAAQS 

shall mean the effective date of the 

designation for an area for the 2008 

NAAQS. 

(j) Higher classification/lower 

classification. For purposes of 

determining whether a classification is 

higher or lower, classifications under 

subpart 2 are ranked from lowest to 

highest as follows: Marginal; Moderate; 

Serious; Severe; and Extreme. 

(k) Initially designated means the first 

designation that becomes effective for 

an area for the 2008 NAAQS and does 

not include a redesignation to 

attainment or nonattainment for the 

2008 NAAQS. 

(l) Maintenance area means an area 

that was designated nonattainment for a 

specific NAAQS and was redesignated 

to attainment for that NAAQS subject to 

a maintenance plan as required by CAA 

section 175A. 

(m) Nitrogen Oxides (NOX) means the 

sum of nitric oxide and nitrogen dioxide 

in the flue gas or emission point, 

collectively expressed as nitrogen 

dioxide. 

(n) Ozone season means for each 

state, the ozone monitoring season as 

defined in 40 CFR Part 58, Appendix D, 

section 2.5 for that state. 

§ 51.1101 Applicability of Part 51. 

The provisions in subparts A–X of 

part 51 apply to areas for purposes of 

the 2008 NAAQS to the extent they are 

not inconsistent with the provisions of 

this subpart. 

§ 51.1102 Classification and 

nonattainment area planning provisions. 

An area designated nonattainment for 

the 2008 NAAQS will be classified in 

accordance with CAA section 181, as 

interpreted in § 51.1103(a), and will be 

subject to the requirements of subpart 2 

that apply for that classification. 

§ 51.1103 Application of classification and 

attainment date provisions in section 181 of 

subpart 2 of the CAA areas subject to 

§ 51.1102(a). 

(a) In accordance with CAA section 

181(a)(1), each area designated 

nonattainment for the 2008 ozone 

NAAQS shall be classified by operation 

of law at the time of designation. The 

classification shall be based on the 8- 

hour design value for the area at the 

time of designation, in accordance with 

Table 1. A state may request a higher or 

lower classification as provided in 

paragraphs (b) and (c) of this section. 

For each area classified under this 

section, the attainment date for the 2008 

NAAQS shall be as expeditious as 

practicable but not later than the date 

provided in Table 1 as follows: 

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

51.1102(A) 

Area class 8-Hour design value 

(ppm ozone) 

Primary standard attainment date 

(years after designation for 2008 primary 

NAAQS) ** 

Marginal ............................................................ from .................................................................. 0.076 3 

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Federal Register / Vol. 77, No. 30 / Tuesday, February 14, 2012 / Proposed Rules 8209 

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

51.1102(A)—Continued 

Area class 8-Hour design value 

(ppm ozone) 

Primary standard attainment date 

(years after designation for 2008 primary 

NAAQS) ** 

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

Moderate ........................................................... from .................................................................. 0.086 6 

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

Serious .............................................................. from .................................................................. 0.100 9 

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

Severe-15 ......................................................... from .................................................................. 0.113 15 

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

Severe-17 ......................................................... from .................................................................. 0.119 17 

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

Extreme ............................................................. equal to or above ............................................. 0.175 20 

* But not including. 

** The attainment date is [Option 1: The date that is the specified number of years after the effective date of designations for the primary 

NAAQS. Option 2: December 31 of the calendar year]. 

(b) A state may request, and the 

Administrator must approve, a higher 

classification for any reason in 

accordance with CAA section 181(b)(3). 

(c) A state may request, and the 

Administrator may in the 

Administrator’s discretion approve, a 

higher or lower classification in 

accordance with CAA section 181(a)(4). 

(d) Any area designated 

nonattainment that includes in whole or 

in part the following areas will be 

classified by operation of law for the 

2008 ozone NAAQS in accordance with 

the voluntary classification request 

submitted and approved for each area 

for the 1997 ozone NAAQS: (For 

reference: Ventura Co, CA; Los AngelesSouth Coast, CA; San Joaquin Valley, 

CA; Riverside County, CA; and 

Sacramento Metro, CA.) 

[FR Doc. 2012–3284 Filed 2–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2010–0873; FRL–9630–8] 

RIN 2060–AH23 

Quality Assurance Requirements for 

Continuous Opacity Monitoring 

Systems at Stationary Sources 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

establish quality assurance and quality 

control (QA/QC) procedures for 

continuous opacity monitoring systems 

(COMS) used to demonstrate continuous 

compliance with opacity standards as 

specified in federally enforceable 

regulations. This action is necessary 

because we do not currently have QA/ 

QC procedures for COMS. This action 

would require COMS used to 

demonstrate continuous compliance to 

meet these procedures (referred to as 

Procedure 3). 

DATES: Written comments must be 

received by March 15, 2012. If the EPA 

receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0873 by mail to U.S. 

Environmental Protection Agency, Mail 

Code: 2822T, 1200 Pennsylvania Ave. 

NW., Washington, DC 20460. Please 

include a total of two copies. Comments 

may also be submitted electronically or 

through hand delivery/courier by 

following the detailed instructions in 

the ADDRESSES section of the direct final 

rule located in the rules section of this 

Federal Register. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lula H. Melton, U.S. EPA, Office of Air 

Quality Planning and Standards, Air 

Quality Assessment Division, 

Measurement Technology Group (Mail 

Code: E143–02), Research Triangle Park, 

NC 27711; telephone number: (919) 

541–2910; fax number: (919) 541–0516; 

email address: melton.lula@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Why is the EPA issuing this proposed 

rule? 

This document proposes to add QA/ 

QC procedures for COMS used to 

demonstrate continuous compliance 

with opacity standards as specified in 

federally enforceable regulations. The 

quality assurance requirements will be 

added as Procedure 3 to Appendix F of 

40 CFR part 60. We have published a 

direct final rule adding QA/QC 

procedures for COMS used for 

compliance determination with opacity 

standards in federally enforceable 

standards to the quality assurance 

requirements in Appendix F of 40 CFR 

Part 60 in the ‘‘Rules and Regulations’’ 

section of this Federal Register because 

we view this as a noncontroversial 

action and anticipate no adverse 

comment. We have explained our 

reasons for this action in the preamble 

to the direct final rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. If we receive adverse 

comment, we will withdraw the direct 

final rule, and it will not take effect. We 

would address all public comments in 

any subsequent final rule based on this 

proposed rule. 

We do not intend to institute a second 

comment period on this action. Any 

parties interested in commenting must 

do so at this time. For further 

information, please see the information 

provided in the ADDRESSES section of 

this document. 

II. Does this action apply to me? 

Procedure 3 applies to a COMS used 

to demonstrate continuous compliance 

with opacity standards as specified in 

federally enforceable regulations. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

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