The EPA Regional Administrator, Jared Blumenfeld, signed the following final rule on 04/26/2012, and EPA is submitting it for publication in 

the Federal Register (FR). While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the 

rule. Please refer to the official version in a forthcoming FR publication, which will appear on the Government Printing Office's FDsys website 

(http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket No. EPA-R09-OAR-2012-0249. 

Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the 

official version.

Billing Code: 6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 81 

[EPA-R09-OAR-2012-0249; FRL- ] 

Designation of Areas for Air Quality Planning Purposes; 

California; Western Mojave Desert Ozone Nonattainment Area; 

Reclassification to Severe 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Under the Clean Air Act (CAA or Act), EPA is granting 

a request from the State of California to reclassify the Western 

Mojave Desert ozone nonattainment area from “Moderate” to 

“Severe-15” for the 1997 8-hour ozone National Ambient Air 

Quality Standards (NAAQS). EPA is also reclassifying Indian 

country under the jurisdiction of the Twenty-Nine Palms Band of 

Mission Indians of California located within the boundaries of 

the Western Mojave Desert area in the same manner, following 

consultation with the Tribe, to maintain consistency with the 

classification of the surrounding areas under State 

jurisdiction. 

EFFECTIVE DATE: This rule is effective on [Insert date 30 days 

from the date of publication in the Federal Register]. 

ADDRESSES: EPA has established docket number, EPA-R09-OAR-2012-

0249, for this action. Generally, documents in the docket for 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

2 

this action are available electronically at www.regulations.gov

and in hard copy at EPA Region IX, 75 Hawthorne Street, San 

Francisco, California. While all documents in the docket are 

listed at www.regulations.gov, some information may be publicly 

available only at the hard copy location (e.g., copyrighted 

material, large maps), and some may not be publicly available in 

either location (e.g., CBI). To inspect the hard copy 

materials, please schedule an appointment during normal business 

hours with the contact listed in the FOR FURTHER INFORMATION 

CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Doris Lo, Air Planning Office 

(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 

972-3959, lo.doris@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” and “our” refer to EPA. 

I. Reclassification of Western Mojave Desert to Severe-15 

Ozone Nonattainment 

Effective June 15, 2004, EPA designated and classified the 

“Los Angeles and San Bernardino Counties (Western Mojave 

Desert)” area in California (Western Mojave Desert) under the 

CAA as “Subpart 2/Moderate” nonattainment for the 1997 8-hour 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

3 

ozone NAAQS.1 See 69 FR 23858, at 23884 (April 30, 2004) and 40 

CFR 81.305. Our classification of the Western Mojave Desert 

area as a “Moderate” ozone nonattainment area established a 

requirement that the area attain the 1997 8-hour ozone NAAQS as 

expeditiously as practicable, but no later than six years from 

the date of designation as nonattainment, i.e., June 15, 2010. 

On February 14, 2008, the California Air Resources Board 

(CARB) submitted a request that EPA reclassify three California 

areas (including the Western Mojave Desert area) designated 

nonattainment for the 1997 8-hour ozone standard.2 For the 

Western Mojave Desert ozone nonattainment area, CARB requested 

reclassification from “Moderate” to “Severe-17.”3 On March 14, 

2012, CARB submitted a clarification requesting that EPA 

reclassify the Western Mojave Desert area from “Moderate” to 

 

1 This action applies only to the classification of this ozone nonattainment 

area for purposes of the 1997 8-hour ozone NAAQS. EPA intends to take 

separate actions to designate and classify areas of the nation that meet or 

do not meet the 2008 8-hour ozone NAAQS. 

2 See February 14, 2008 letter from James N. Goldstene, Executive Officer, 

CARB, to Wayne Nastri, Regional Administrator, U.S. Environmental Protection 

Agency, Region 9. In addition to the Western Mojave Desert area, CARB 

requested that EPA reclassify the Ventura County and Sacramento Metro ozone 

nonattainment areas under CAA section 181(b)(3) to higher classifications for 

the 1997 8-hour ozone NAAQS. Pursuant to this request, EPA reclassified the 

Ventura County area from “Moderate” to “Serious” nonattainment effective June 

19, 2008 (73 FR 29073, May 20, 2008), and reclassified the Sacramento Metro 

area from “Serious” to “Severe-15” nonattainment effective June 4, 2010 (75 

FR 24409, May 5, 2010). 

3 CARB subsequently submitted a SIP revision for this area to address the 

attainment demonstration and related requirements for severe-17 ozone 

nonattainment areas. See July 22, 2008 letter and enclosures from James N. 

Goldstene, Executive Officer, CARB, to Wayne Nastri, Regional Administrator, 

U.S. Environmental Protection Agency, Region 9.
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ensure the accuracy of this version, but it is not the official version. 

4 

“Severe.”4 Consistent with section 181(b)(3) of the CAA, we are 

granting the State’s request and reclassifying the Western 

Mojave Desert area from “Moderate” to “Severe-15” nonattainment 

for the 1997 8-hour ozone NAAQS.5 We are not establishing a 

schedule for plan submissions at this time and intend to do so 

in a subsequent action, if necessary. 

Because the State of California does not have jurisdiction 

over Indian country located within its borders, CARB’s request 

to reclassify the Western Mojave Desert area does not apply to 

Indian country under the jurisdiction of the Twenty-Nine Palms 

Band of Mission Indians of California, which is located within 

the boundaries of the Western Mojave Desert nonattainment area. 

EPA implements federal Clean Air Act programs, including 

reclassifications, in this area of Indian country consistent 

with our discretionary authority under sections 301(a) and 

301(d)(4) of the Clean Air Act. EPA has consulted with the 

Twenty-Nine Palms Band of Mission Indians of California 

regarding CARB’s request and the Tribe has agreed to 

reclassification of its tribal land within the Western Mojave 

 

4 See March 14, 2012 letter from James N. Goldstene, Executive Director, CARB, 

to Jared Blumenfeld, Regional Administrator, U.S. Environmental Protection 

Agency, Region 9. 

5 Section 181(b) of the CAA does not authorize EPA to grant a request for 

reclassification of a “Moderate” ozone nonattainment area to “Severe-17.” 

See, e.g., EPA’s final rule reclassifying the San Joaquin Valley ozone 

nonattainment area, 66 FR 56476 at 56478 (November 8, 2001). 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

5 

Desert nonattainment area consistent with the surrounding areas 

under State jurisdiction.6 Accordingly, we are reclassifying the 

entire Western Mojave Desert nonattainment area (both the 

portion under State jurisdiction and the portion under the 

Tribe’s jurisdiction) from “Moderate” to “Severe-15” for the 

1997 8-hour ozone NAAQS. 

We are approving CARB’s reclassification request under 

section 181(b)(3) of the Act, which provides for “voluntary 

reclassification” and states: “The Administrator shall grant 

the request of any State to reclassify a nonattainment area in 

that State in accordance with table 1 of subsection (a) of this 

section to a higher classification. The Administrator shall 

publish a notice in the Federal Register of any such request and 

of action by the Administrator granting the request.” The 

provision for voluntary reclassification has been brought 

forward as part of the transition from the 1-hour ozone standard 

to the 1997 8-hour ozone standard. See 40 CFR 51.903(b) (“A 

State may request a higher classification for any reason in 

accordance with section 181(b)(3) of the CAA”) and 40 CFR 

51.903(a), Table 1. Because the plain language of section 

181(b)(3) mandates that we approve such a request, EPA is 

 

6 See e-mail dated April 11, 2012 from Marshall Cheung, Tribal EPA Director, 

Twenty-Nine Palms Band of Mission Indians of California, to Colleen 

McKaughan, Associate Director, EPA Region IX Air Division, Re: West Mojave 

Desert Reclassification or "Bump-up.” 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

6 

granting CARB’s request for voluntary reclassification under 

section 181(b)(3) for the Western Mojave Desert ozone 

nonattainment area, and EPA is reclassifying the area from 

“Moderate” to “Severe-15” for the 1997 8-hour ozone NAAQS. With 

respect to that portion of the Western Mojave Desert area that 

is under the jurisdiction of the Twenty-Nine Palms Band of 

Mission Indians of California, EPA has consulted with the Tribe 

and the Tribe has agreed to reclassification of the area from 

“Moderate” to “Severe-15” consistent with the surrounding areas 

under State jurisdiction. As a result of this action, Western 

Mojave Desert must now attain the 1997 8-hour ozone NAAQS as 

expeditiously as practicable, but no later than fifteen years 

from the date of designation as nonattainment, i.e., June 15, 

2019. EPA will address in future rulemaking actions, as 

necessary, any issues relating to timing and content of plan 

submissions under this new classification. 

EPA has determined that today’s action falls under the 

“good cause” exemption in section 553(b)(3)(B) of the 

Administrative Procedure Act (APA) which, upon finding “good 

cause,” authorizes agencies to dispense with public 

participation where public notice and comment procedures are 

“impracticable, unnecessary or contrary to the public interest.” 

With respect to that portion of the Western Mojave Desert area 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

7 

that is under State jurisdiction, public notice and opportunity 

for comment prior to today’s action are unnecessary because 

EPA’s reclassification of the Western Mojave Desert area to 

“Severe-15” is mandated by the CAA and does not involve any 

exercise of discretion. Public notice and comment are also 

unnecessary with respect to our reclassification of Indian 

country under the jurisdiction of the Twenty-Nine Palms Band of 

Mission Indians of California located within the Western Mojave 

Desert area, because the Tribe has agreed to reclassification of 

these tribal lands consistent with the surrounding State lands. 

II. Statutory and Executive Order Reviews 

 Under Executive Order 12866 (58 FR 51735, October 4, 

1993), this action is not a "significant regulatory action" and 

therefore is not subject to review by the Office of Management 

and Budget. With respect to lands under State jurisdiction, 

voluntary reclassifications under section 181(b)(3) of the CAA 

are based solely upon requests by the State and EPA is required 

under the CAA to grant them. These actions do not, in and of 

themselves, impose any new requirements on any sector of the 

economy. In addition, because the statutory requirements are 

clearly defined with respect to the differently classified 

areas, and because those requirements are automatically 

triggered by classification, reclassification does not impose a 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

8 

materially adverse impact under Executive Order 12866. With 

respect to Indian country, reclassifications do not establish 

deadlines for air quality plans or plan revisions. For these 

reasons, this action is also not subject to Executive Order 

13211, "Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 

2001). 

In addition, I certify that this rule will not have a 

significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 

seq.). This action does not contain any unfunded mandate or 

significantly or uniquely affect small governments, as described 

in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4), 

because EPA is required to grant requests by States for 

voluntary reclassifications and such reclassifications in and of 

themselves do not impose any federal intergovernmental mandate, 

and because tribes are not subject to implementation plan 

submittal deadlines that apply to states as a result of 

reclassifications. 

Executive Order 13175 (65 FR 67249, November 9, 2000) 

requires EPA to develop an accountable process to ensure 

“meaningful and timely input by tribal officials in the 

development of regulatory policies that have tribal 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

9 

implications.” “Policies that have tribal implications” is 

defined in the Executive Order to include regulations that have 

“substantial direct effects on one or more Indian tribes, on the 

relationship between the Federal government and Indian tribes, 

or on the distribution of power and responsibilities between the 

Federal government and Indian tribes.” One Indian tribe (the 

Twenty-Nine Palms Band of Mission Indians of California) has 

jurisdiction over Indian country located within the boundaries 

of the Western Mojave Desert area. EPA implements federal Clean 

Air Act programs, including reclassifications, in this area of 

Indian country consistent with our discretionary authority under 

sections 301(a) and 301(d)(4) of the Clean Air Act. EPA has 

concluded that this final rule might have tribal implications 

for the purposes of Executive Order 13175 but will not impose 

substantial direct costs upon the Tribe, nor does it preempt 

Tribal law. This final rule does not affect implementation of 

new source review for new or modified stationary sources 

proposed in Indian country within the boundaries of the Western 

Mojave Desert area because such sources are already subject to 

the permitting requirements that apply in “Severe” nonattainment 

areas for purposes of the 1-hour ozone NAAQS. This 

reclassification might affect projects proposed in this area of 

Indian country that require Federal permits, approvals, or 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

10 

funding under EPA’s General Conformity rule because of the lower 

de minimis thresholds triggered by reclassification (25 tons per 

year for volatile organic compounds or oxides of nitrogen). 

Given the potential implications, EPA contacted tribal officials 

to provide an opportunity for meaningful and timely input into 

this action. As discussed in section I of this document, on 

April 11, 2012, the Tribe agreed to the reclassification of its 

tribal lands within the Western Mojave Desert area consistent 

with the surrounding State lands. 

This action also does not have Federalism implications 

because it does 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 (64 FR 43255, August 10, 1999). This 

action does not alter the relationship or the distribution of 

power and responsibilities established in the Clean Air Act. 

This rule also is not subject to Executive Order 13045, 

“Protection of Children from Environmental Health Risks and 

Safety Risks” (62 FR 19885, April 23, 1997), because EPA 

interprets Executive Order 13045 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 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

11 

Order has the potential to influence the regulation. 

Reclassification actions do not involve technical standards 

and thus, the requirements of section 12(d) of the National 

Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 

note) do not apply. This rule does not impose an information 

collection burden under the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 

Executive Order 12898 (59 FR 7629, February 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. This reclassification action relates to 

ozone, a pollutant that is regional in nature, and is not the 

type of action that could result in the types of local impacts 

addressed in Executive Order 12898. 

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

12 

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of 

this document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not 

affect the finality of this rule for the purposes of judicial 

review nor does it extend the time within which a petition for 

judicial review may be filed, and shall not postpone the 

effectiveness of such rule or action. This action may not be 

challenged later in proceedings to enforce its requirements. 

(See section 307(b)(2).) 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

13 

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, 

Intergovernmental relations, National parks, Ozone, Wilderness 

areas. 

__________________ ________________________ 

Dated: Jared Blumenfeld, 

Regional Administrator, 

Region IX. 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

14 

Part 81, chapter I, title 40 of the Code of Federal 

Regulations is amended as follows: 

PART 81--[AMENDED] 

1. The authority citation for part 81 continues to read as 

follows: 

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

Subpart C – [AMENDED] 

2. Section 81.305 is amended in the table for “California—Ozone 

(1997 8-hour Standard)” by revising the entry for “Los Angeles 

and San Bernardino Counties (Western Mojave Desert), CA” to read 

as follows: 

§81.305 California. 

* * * * * 

California – Ozone (8-Hour Standard) 

Designated Area 

Designationa Classification 

Date1 Type Date1 Type 

 * * * * * * * 

 

Los Angeles and San Bernardino 

Counties (Western Mojave 

Desert), CA: 

 

 Los Angeles County (part) 

That portion of Los 

Angeles County which lies 

north and east of a line 

described as follows: 

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

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

Nonattai

nment 

Nonattai

nment 

[Insert date 

30 days from 

the date of 

publication 

in the 

Federal 

Register] 

[Insert date 

30 days from 

the date of 

publication 

in the 

Federal 

Subpart 

2/Severe

-15. 

Subpart 

2/Severe

-15. 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

15 

Beginning at the Los 

Angeles—San Bernardino 

County boundary and 

running west along the 

Township line common to 

Township 3 North and 

Township 2 North, San 

Bernardino Base and 

Meridian; then north along 

the range line common to 

Range 8 West and Range 9 

West; then west along the 

Township line common to 

Township 4 North and 

Township 3 North; then 

north along the range line 

common to Range 12 West 

and Range 13 West to the 

southeast corner of 

Section 12, Township 5 

North and Range 13 West; 

then west along the south 

boundaries of Sections 12, 

11, 10, 9, 8, and 7, 

Township 5 North and Range 

13 West to the boundary of 

the Angeles National 

Forest which is collinear 

with the range line common 

to Range 13 West and Range 

14 West; then north and 

west along the Angeles 

National Forest boundary 

to the point of 

intersection with the 

Township line common to 

Township 7 North and 

Township 6 North (point is 

at the northwest corner of 

Section 4 in Township 6 

North and Range 14 West); 

then west along the 

Township line common to 

Township 7 North and 

Township 6 North; then 

north along the range line 

common to Range 15 West 

and Range 16 West to the 

southeast corner of 

Section 13, Township 7 

North and Range 16 West; 

then along the south 

boundaries of Sections 13, 

14, 15, 16, 17, and 18, 

Township 7 North and Range 

Register] 
This document is a prepublication version, signed by the EPA Regional Administrator, Jared Blumenfeld, on 04/26/2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

16 

16 West; then north along 

the range line common to 

Range 16 West and Range 17 

West to the north boundary 

of the Angeles National 

Forest (collinear with the 

Township line common to 

Township 8 North and 

Township 7 North); then 

west and north along the 

Angeles National Forest 

boundary to the point of 

intersection with the 

south boundary of the 

Rancho La Liebre Land 

Grant; then west and north 

along this land grant 

boundary to the Los 

Angeles—Kern County 

boundary. 

 San Bernardino County (part) 

That portion of San 

Bernardino County which 

lies north and east of a 

line described as follows: 

Beginning at the San 

Bernardino—Riverside 

County boundary and 

running north along the 

range line common to Range 

3 East and Range 2 East, 

San Bernardino Base and 

Meridian; then west along 

the Township line common 

to Township 3 North and 

Township 2 North to the 

San Bernardino—Los Angeles 

County boundary; And that 

portion of San Bernardino 

County which lies south 

and west of a line 

described as follows: 

latitude 35 degrees, 10 

minutes north and 

longitude 115 degrees, 45 

minutes west. 

.................. Nonattai

nment 

[Insert date 

30 days from 

the date of 

publication 

in the 

Federal 

Register] 

Subpart 

2/Severe

-15. 

 * * * * * * * 

* * * * *