[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Proposed Rules]
[Pages 8197-8209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3284]


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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.

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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:

[[Page 8198]]

    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#41206c202f256c336c252e222a2435012431206f262e37"><span class="__cf_email__" data-cfemail="3a5b175b545e1748175e5559515f4e7a5f4a5b145d554c">[email protected]</span></a>
    <bullet> 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.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#5a2a3f2a2a363f74313b28361a3f2a3b743d352c"><span class="__cf_email__" data-cfemail="a7d7c2d7d7cbc289ccc6d5cbe7c2d7c689c0c8d1">[email protected]</span></a>, 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 <a href="/cdn-cgi/l/email-protection#77040316141c1f1802041259150203141f3712071659101801"><span class="__cf_email__" data-cfemail="6b181f0a080003041e180e45091e1f08032b0e1b0a450c041d">[email protected]</span></a>.

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 (NO<INF>X</INF>)] 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:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> 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.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> 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?

[[Page 8199]]

    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).<SUP>2 3</SUP> 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.
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    \1\ See 73 FR 16436.
    \2\ The secondary ozone standard, designed to protect public 
welfare, was set at the same level and with the same averaging time 
as the primary standard.
    \3\ For a detailed explanation of the calculation of the 3-year 
8-hour average, see 40 CFR part 50, Appendix I.
    \4\ Memorandum from Cass R. Sunstein to Administrator Lisa 
Jackson, dated September 2, 2011.
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    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.
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    \5\ The 2008 ozone NAAQS was promulgated on March 12, 2008. By 
the 2-year designation requirement found in CAA Sec.  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 Sec.  107(d)(1)(B).
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    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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    \6\ The air quality design value for the 8-hour O<INF>3</INF> 
NAAQS is the 3-year average of the annual 4th highest daily maximum 
8-hour average ozone concentrations.

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[[Page 8200]]

    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.
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    \7\ For additional detail on the 1-hour ozone NAAQS, see 56 FR 
56694.
    \8\ See 40 CFR Appendix I.
    \9\ Referred to as the Phase 1 Rule, see 40 CFR part 51, subpart 
X at 51.903.
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C. Initial Area Designations for the 2008 Ozone NAAQS

    Under CAA Sec.  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.
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    \10\ While 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.
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    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.
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    \11\ When 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.
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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

[[Page 8201]]

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.
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    \12\ The 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).
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    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-
the-standard'' 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.
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    \13\ Background 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.
    \14\ Background Information Document: Additional Options 
Considered for Classification of Nonattainment Areas under the 2008 
Ozone NAAQS. January 2012.
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    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:
    <bullet> Areas are grouped by the severity of their air quality 
problem as characterized by the degree of nonattainment based on their 
DV.
    <bullet> 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.
    <bullet> 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
----------------------------------------------------------------------------------------------------------------
                                                           1-hour design     Percent above 1-  8-hr ozone design
            Area class                                      value (ppm)      hour ozone NAAQS     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

[[Page 8202]]

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.
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    \15\ Background 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. 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.

       Table 2--Number of Hypothetical Nonattainment Areas in Each
  Classification Under the 2008 Ozone NAAQS: Percent-Above-the-Standard
                                 Method
------------------------------------------------------------------------
                                                          2008 O3 NAAQS
                    Classification                        (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 bump-ups for the 1997 ozone 
NAAQS.)
---------------------------------------------------------------------------

    \16\ As 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \17\ Federal Implementation Plans: Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals. August 
8, 2011; 76 FR 48208.
    \18\ Technical note to docket <greek-i> EPA-HQ-OAR-2010-0885, 
February 2012. ``The Hypothetical Nonattainment Area Projections of 
2008-2010 Design Values to 2015.''
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \19\ Background Information Document: Additional Options 
Considered for Classification of Nonattainment Areas under the 
Proposed 2008 Ozone NAAQS. January 2012.
---------------------------------------------------------------------------

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.
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    \20\ This 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \21\ Ventura County, CA was reclassified from Moderate to 
Serious (Approved 05/20/2008, 73 FR Page 29073, Effective: 06/19/
2008). Houston-Galveston-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.

[[Page 8203]]



         Table 3--Areas for Which the State Requested a Voluntary Reclassification Under the 1997 NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                                                   Potential
                                                    Original 1997 NAAQS       Voluntary         classification
       Nonattainment Area               State          classification      reclassification    under 2008 NAAQS
                                                                                                      \1\
----------------------------------------------------------------------------------------------------------------
Los Angeles-South Coast Air       CA..............  Severe.............  Extreme............  Serious.
 Basin.
San Joaquin Valley..............  CA..............  Serious............  Extreme............  Serious.
Riverside County (Coachella       CA..............  Serious............  Severe.............  Moderate.
 Valley).
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.
---------------------------------------------------------------------------

    \22\ Texas 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \23\ 69 FR 23951.
    \24\ The 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).
---------------------------------------------------------------------------

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 mid-August 
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.
---------------------------------------------------------------------------

    \25\ Except in the case of a leap year, where the year would be 
a rolling 366 day period.
---------------------------------------------------------------------------

    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

[[Page 8204]]

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.
---------------------------------------------------------------------------

    \26\ Transportation conformity is required under CAA section 
176(c) to ensure that transportation plans, transportation 
improvement programs (TIPs) and federally supported highway and 
transit projects are consistent with (``conform to'') the purpose of 
the SIP. Conformity to the purpose of the SIP means that 
transportation activities will not cause new air quality violations, 
worsen existing violations, or delay timely attainment of the 
relevant NAAQS or interim reductions and milestones. The EPA's 
Transportation Conformity Rule (40 CFR 51.390 and Part 93, subpart 
A) establishes the criteria and procedures for determining whether 
transportation activities conform to the SIP.
    \27\ A 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.
---------------------------------------------------------------------------

A. What is the background for our proposal?

    At the time the EPA promulgated the 2008 NAAQS, the Administrator

[[Page 8205]]

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\
---------------------------------------------------------------------------

    \28\ Areas 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    By determining conformity for the 2008 standard, which is the more 
health and welfare protective standard, the EPA is both:
    <bullet> 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
    <bullet> 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

[[Page 8206]]

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 not-for-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

[[Page 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.


[[Page 8208]]


    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:


Sec.  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 Sec.  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 Sec.  
51.1102(a).

Subpart AA--Provisions for Implementation of the 2008 Ozone 
National Ambient Air Quality Standards.


Sec.  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 (NO<INF>X</INF>) 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.


Sec.  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.


Sec.  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 Sec.  
51.1103(a), and will be subject to the requirements of subpart 2 that 
apply for that classification.


Sec.  51.1103  Application of classification and attainment date 
provisions in section 181 of subpart 2 of the CAA areas subject to 
Sec.  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)
----------------------------------------------------------------------------------------------------------------
                                                                                              Primary standard
                                                                                               attainment date
               Area class                                              8-Hour design value      (years after
                                                                           (ppm ozone)      designation for 2008
                                                                                              primary NAAQS) **
----------------------------------------------------------------------------------------------------------------
Marginal................................  from......................                 0.076                     3

[[Page 8209]]

 
                                          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 Angeles-South 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


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