Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 36163 

property passing to the QDOT, and H’s estate 

is allowed a marital deduction of $2,000,000 

under section 2056(d) for the value of that 

property. H’s taxable estate is $1,000,000. On 

H’s estate tax return, H’s executor computes 

H’s preliminary DSUE amount to be 

$4,000,000. No taxable events within the 

meaning of section 2056A occur during W’s 

lifetime with respect to the QDOT. W makes 

a taxable gift of $1,000,000 to X in December 

2011 and a taxable gift of $1,000,000 to Y in 

January 2012. W dies in September 2012, not 

having married again, when the value of the 

assets of the QDOT is $2,200,000. 

(ii) Application. H’s DSUE amount is 

redetermined to be $1,800,000 (the lesser of 

the $5,000,000 basic exclusion amount in 

2011, or the excess of H’s $5,000,000 

applicable exclusion amount over $3,200,000 

(the sum of the $1,000,000 taxable estate 

augmented by the $2,200,000 of QDOT 

assets)). On W’s gift tax return filed for 2011, 

W cannot apply any DSUE amount to the gift 

made to X. However, because W’s gift to Y 

was made in the year that W died, W’s 

executor will apply $1,000,000 of H’s 

redetermined DSUE amount to the gift on 

W’s gift tax return filed for 2012. The 

remaining $800,000 of H’s redetermined 

DSUE amount is included in W’s applicable 

exclusion amount to be used in computing 

W’s estate tax liability. 

(e) Authority to examine returns of 

deceased spouses. For the purpose of 

determining the DSUE amount to be 

included in the applicable exclusion 

amount of the surviving spouse, the 

Internal Revenue Service (IRS) may 

examine returns of each of the surviving 

spouse’s deceased spouses whose DSUE 

amount is claimed to be included in the 

surviving spouse’s applicable exclusion 

amount, regardless of whether the 

period of limitations on assessment has 

expired for any such return. The IRS’s 

authority to examine returns of a 

deceased spouse applies with respect to 

each transfer by the surviving spouse to 

which a DSUE amount is or has been 

applied. Upon examination, the IRS 

may adjust or eliminate the DSUE 

amount reported on such a return; 

however, the IRS may assess additional 

tax on that return only if that tax is 

assessed within the period of limitations 

on assessment under section 6501 

applicable to the tax shown on that 

return. See also section 7602 for the 

IRS’s authority, when ascertaining the 

correctness of any return, to examine 

any returns that may be relevant or 

material to such inquiry. 

(f) Availability of DSUE amount for 

nonresidents who are not citizens. A 

nonresident surviving spouse who was 

not a citizen of the United States at the 

time of making a transfer subject to tax 

under chapter 12 of the Internal 

Revenue Code shall not take into 

account the DSUE amount of any 

deceased spouse except to the extent 

allowed under any applicable treaty 

obligation of the United States. See 

section 2102(b)(3). 

(g) Effective/applicability date. This 

section applies to gifts made in calendar 

year 2011 or in a subsequent year in 

which the applicable exclusion amount 

is determined under section 2010(c) of 

the Code by adding the basic exclusion 

amount and, in the case of a surviving 

spouse, the DSUE amount. 

(h) Expiration date. The applicability 

of this section expires on or before June 

15, 2015. 

PART 602—OMB CONTROL NUMBERS 

UNDER THE PAPERWORK 

REDUCTION ACT 

■ Par. 11. The authority citation for part 

602 continues to read as follows: 

Authority: 26 U.S.C. 7805. 

■ Par. 12. In § 602.101, paragraph (b) is 

amended by adding the following entry 

in numerical order to the table to read 

as follows: 

§ 602.101 OMB Control numbers. 

* * * * * 

(b) * * * 

CFR Part or section where 

identified and described 

Current OMB 

Control No. 

* * * * * 

20.2010–2T ........................... 1545–0015 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: June 12, 2012. 

Emily S. McMahon, 

Acting Assistant Secretary of Treasury (Tax 

Policy). 

[FR Doc. 2012–14781 Filed 6–15–12; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2011–0956; FRL–9682–7] 

Determinations of Failure To Attain the 

One-Hour Ozone Standard by 2007, 

Current Attainment of the One-Hour 

Ozone Standard, and Attainment of the 

1997 Eight-Hour Ozone Standards for 

the New York-Northern New JerseyLong Island Nonattainment Area in 

Connecticut, New Jersey and New 

York 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing four separate 

and independent determinations related 

to the New York-Northern New JerseyLong Island (NY-NJ-CT) one-hour and 

1997 eight-hour ozone nonattainment 

areas. The boundaries of the one-hour 

and eight-hour ozone nonattainment 

areas differ slightly. With respect to the 

NY-NJ-CT one-hour nonattainment area, 

EPA is determining that the area 

previously failed to attain the one-hour 

ozone National Ambient Air Quality 

Standard (NAAQS) by its applicable 

attainment deadline of November 15, 

2007 (based on complete, qualityassured and certified ozone monitoring 

data for 2005–2007), and EPA is also 

determining that the area is currently 

attaining the now revoked one-hour 

ozone standard based on complete, 

quality-assured and certified ozone 

monitoring data for 2008–2010. 

Quality-assured ozone monitoring 

data in the Air Quality System for 2011 

indicate the area continues to attain the 

revoked one-hour ozone standard. With 

respect to the NY-NJ-CT 1997 eight-hour 

ozone nonattainment area, EPA is 

determining that the area attained the 

1997 eight-hour ozone standard by the 

applicable deadline, June 15, 2010, 

based on complete, quality-assured and 

certified ozone monitoring data for 

2007–2009. EPA is also determining that 

the area is currently attaining the 1997 

eight-hour ozone standard based on 

complete, quality-assured and certified 

ozone monitoring data for 2008–2010. 

Quality-assured ozone monitoring data 

for 2011 indicate that the area continues 

to attain the 1997 eight-hour ozone 

standard. 

EPA’s ozone implementation 

regulation for the 1997 eight-hour ozone 

standard provides that the requirements 

for the States to submit certain 

reasonable further progress plans, 

attainment demonstrations, contingency 

measures and any other planning 

requirements of the Clean Air Act 

related to attainment of that ozone 

standard shall be suspended for as long 

as the area continues to attain the 

standard. A determination of attainment 

does not constitute a redesignation to 

attainment. Redesignation requires the 

states to meet a number of additional 

criteria, including EPA approval of a 

state plan to maintain the air quality 

standard for ten years after 

redesignation. 

DATES: Effective Date: This rule is 

effective on July 18, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R02–OAR–2011–0956. All 


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36164 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 

1CFR refers to the Code of Federal Regulations, 

in this case Title 40 part 51. 

2 Greenwich Point Park, Connecticut (AQS 

090010017) an ozone monitor in the New YorkNorthern New Jersey-Long Island one-hour and 

1997 eight-hour ozone nonattainment areas was 

taken out of service on August 28, 2011 in an 

attempt to protect the site from the prediction of the 

landfall of Hurricane Irene, at or near New York 

City, New York. In the end, the Hurricane storm 

surge and/or storm driven waves did submerge an 

electric meter box, servicing the ozone monitor. The 

meter box was replaced and power was restored by 

January 4, 2012. The result of this power outage was 

the loss of ozone data from August 28 to September 

30, 2011. As a result of this loss of data, the 

Greenwich Point Park ozone monitor fell just short 

of 75 percent data completeness required. 

Nevertheless, all available 2011 ozone data indicate 

New York-Northern New Jersey-Long Island onehour and 1997 eight-hour ozone nonattainment 

areas continue in attainment for both the 1-hour 

and 8-hour ozone standards in 2011. Monitoring 

data for all other monitors in the area for the states 

of New York and Connecticut are certified as 

complete and indicated attainment of both 

standards. The ozone data for New Jersey is in AQS, 

is quality assured, and is complete, but as of May 

4, 2012 the NJ ozone data have not yet been 

certified. 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., 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 through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. This Docket 

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

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 212–637–4249. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning EPA’s 

action related to New Jersey or New 

York, please contact Paul Truchan, Air 

Programs Branch, Environmental 

Protection Agency, 290 Broadway, 25th 

floor, New York, New York 10008–1866, 

telephone number (212) 637–4249. If 

you have questions concerning EPA’s 

action related to Connecticut, please 

contact Richard Burkhart, Air Quality 

Planning Unit, Environmental 

Protection Agency, EPA New England 

Regional Office, 5 Post Office Square— 

Suite 100, Mail Code OEP05–02, Boston, 

MA 02109–3912, telephone number 

(617) 918–1664, fax number (617) 918– 

0664, email burkhart.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What are the actions EPA is taking? 

II. What is the background for these actions? 

III. What comments were received on these 

actions and what are EPA’s responses? 

IV. Final Actions 

V. Statutory and Executive Order Reviews 

I. What are the actions EPA is taking? 

EPA is finalizing four separate and 

independent determinations for the 

New York-Northern New Jersey-Long 

Island (NY-NJ-CT) ozone nonattainment 

area (hereafter, ‘‘the NY-NJ-CT area’’). 

A. Determination of Failure To Attain 

the One-Hour Ozone Standard by 

Applicable Attainment Date 

EPA is determining that the NY-NJ-CT 

one-hour ozone nonattainment area 

previously failed to attain the one-hour 

ozone National Ambient Air Quality 

Standard (NAAQS) by its applicable 

attainment deadline of November 15, 

2007 (based on complete, qualityassured and certified ozone monitoring 

data for 2005–2007). 

B. Determination of Current Attainment 

of the One-Hour Ozone Standard 

EPA is determining that the NY-NJ-CT 

one-hour ozone nonattainment area is 

currently attaining the one-hour ozone 

standard based on complete, qualityassured and certified ozone monitoring 

data for 2008–2010. Quality-assured 

ozone monitoring data for 2011 in the 

Air Quality System (AQS) indicate the 

area continues to attain the one-hour 

ozone standard. 

C. Determination of Attainment of the 

1997 Eight-Hour Ozone Standard by 

Applicable Attainment Date 

EPA is determining that the NY-NJ-CT 

eight-hour ozone nonattainment area 

attained the 1997 eight-hour standard by 

the applicable deadline, June 15, 2010, 

based on complete, quality-assured and 

certified ozone monitoring data for 

2007–2009. 

D. Determination of Continued 

Attainment of the 1997 Eight-Hour 

Ozone Standard 

EPA is determining that the area is 

currently attaining the 1997 eight-hour 

ozone standard based on complete, 

quality-assured and certified ozone 

monitoring data for 2008–2010. Qualityassured data available in the AQS for 

2011 indicate that the area continues to 

attain the 1997 eight-hour ozone 

standard. Based on the determination 

that the area is currently attaining the 

1997 eight-hour standard, 40 CFR 

51.918 1 of EPA’s ozone implementation 

rule for the 1997 eight-hour ozone 

standard provides that the requirements 

for the States to submit certain 

reasonable further progress plans, 

attainment demonstrations, contingency 

measures and any other planning 

requirements of the Clean Air Act 

related to attainment of that standard 

shall be suspended for as long as the 

area continues to attain the standard. 

Quality-assured ozone monitoring data 

for 2011 in AQS indicate the area 

continues to attain the 1997 eight-hour 

ozone standard.2

In addition, EPA is withdrawing 

EPA’s proposed disapprovals of 

Connecticut’s and New Jersey’s 1997 

eight-hour ozone attainment 

demonstrations, which were previously 

published in the Federal Register on 

May 8, 2009 (74 FR 21568 and 74 FR 

21578). 

In order to determine the areas’ air 

quality status for purposes of this 

action, EPA reviewed ozone monitoring 

air quality data from the States, in 

accordance with 40 CFR 50.9, 40 CFR 

part 50 appendix H and appendix I, and 

EPA policy and guidance, as well as 

data processing, data rounding and data 

completeness requirements. EPA’s 

review of the air quality data and related 

rationale for these determinations are 

explained in the Notice of Proposed 

Rulemaking (NPR) published in the 

Federal Register on January 25, 2012 

(77 FR 3720) and will not be restated 

here. 

II. What is the background for these 

actions? 

The boundaries for the NY-NJ-CT onehour and the eight-hour ozone 

nonattainment areas are slightly 

different. For the one-hour ozone 

NAAQS of 0.12 parts per million (ppm), 

the area is composed of: Bergen, Essex, 

Hudson, Hunterdon, Middlesex, 

Monmouth, Morris, Ocean, Passaic, 

Somerset, Sussex, and Union Counties 

in New Jersey; Bronx, Kings, Nassau, 

New York, Queens, Richmond, 

Rockland, Suffolk, Westchester Counties 

and part of Orange County in New York; 

and parts of Fairfield and Litchfield 

Counties in Connecticut. The 1997 

eight-hour ozone nonattainment area is 

composed of many of the same counties 

as the one-hour ozone nonattainment 

area but does not include Ocean County 

in New Jersey, any part of Orange 

County in New York or any part of 

Litchfield County in Connecticut, and 

does include Warren County in New 

Jersey, and all of Fairfield, New Haven 

and Middlesex Counties in Connecticut. 

The one-hour ozone standard 

designations were established by EPA 

following the enactment of the Clean 

Air Act (CAA) Amendments in 1990. 

See 56 FR 56694 (November 6, 1991). 

Each area of the country that was 


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Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 36165 

3Final Rule to Implement The 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 1, 

69 FR 23951 (April 30, 2004). 

designated nonattainment for the onehour ozone NAAQS was classified by 

operation of law as marginal, moderate, 

serious, severe, or extreme depending 

on the severity of the area’s air quality 

problem. See CAA sections 107(d)(1)(C) 

and 181(a). The NY-NJ-CT one-hour 

ozone nonattainment area was 

designated nonattainment and classified 

as severe-17, with an attainment 

deadline of November 15, 2007. 

On July 18, 1997, (62 FR 38856), EPA 

promulgated a new, more protective 

standard for ozone based on eight-hour 

average concentrations (the ‘‘1997 eighthour ozone NAAQS’’). EPA designated 

and classified most areas of the country 

under the eight-hour ozone NAAQS in 

an April 30, 2004 final rule (69 FR 

23858). The NY-NJ-CT 1997 eight-hour 

ozone nonattainment area was 

designated nonattainment and classified 

as moderate with an attainment 

deadline of June 15, 2010. 

On April 30, 2004, EPA also issued a 

final rule (69 FR 23951) entitled ‘‘Final 

Rule To Implement The 8-hour Ozone 

National Ambient Air Quality 

Standard—Phase 1,’’ referred to as the 

Phase 1 Rule. Among other matters, this 

rule revoked the one-hour ozone 

NAAQS in most areas of the country, 

effective June 15, 2005. See, 40 CFR 

50.9(b); 69 FR 23996; and 70 FR 44470 

(August 3, 2005). The Phase 1 Rule also 

set forth how anti-backsliding principles 

will ensure continued progress toward 

attainment of the eight-hour ozone 

NAAQS by identifying which one-hour 

ozone requirements remain applicable 

in an area after revocation of the onehour ozone NAAQS. 

Although EPA revoked the one-hour 

ozone standard (effective June 15, 2005), 

eight-hour ozone nonattainment areas 

remain subject to certain one-hour antibacksliding requirements based on their 

one-hour ozone classification. Initially, 

EPA’s rules to address the transition 

from the one-hour to the eight-hour 

ozone standard did not include onehour nonattainment area contingency 

measures or major source penalty fee 

programs among the measures retained 

as one-hour ozone anti-backsliding 

requirements.3 However, on December 

23, 2006, the United States Court of 

Appeals for the District of Columbia 

Circuit determined that EPA should not 

have excluded these requirements (and 

certain others not relevant here) from its 

anti-backsliding requirements. South 

Coast Air Quality Management District 

v. EPA, 472 F.3d 882 (D.C. Cir. 2006) 

reh’g denied 489 F.3d 1245 (clarifying 

that the vacatur was limited to the 

issues on which the court granted the 

petitions for review). Thus, the Court 

vacated the provisions that excluded 

these requirements. As a result, states 

must continue to meet the obligations 

for one-hour ozone NAAQS contingency 

measures. EPA has issued a rule that, 

among other things, removed the 

vacated provisions of 40 CFR 51.905(e), 

and addressed the anti-backsliding 

requirement for contingency measures 

for failure to attain or make reasonable 

further progress toward attainment of 

the one-hour standard. See 74 FR 2936 

(January 16, 2009) (proposed rule); 74 

FR 7027 (February 12, 2009) (notice of 

public hearing and extension of 

comment period), and 77 FR 28424 

(May 14, 2012) (final rule). 

III. What comments were received on 

these actions and what are EPA’s 

responses? 

EPA received six distinct comments 

from three parties: the New Jersey 

Department of Environmental Protection 

(NJDEP), Public Service Enterprise 

Group, Inc. (PSEG) and Sierra Club. No 

adverse comments were directed at 

EPA’s monitoring data-based air quality 

determinations, in and of themselves. 

One commenter (Sierra Club) submitted 

adverse comments concerning EPA’s 

discussion of certain regulatory effects 

and consequences of these 

determinations. Below, EPA 

summarizes those comments and sets 

forth EPA’s responses. 

1. Two commenters (NJDEP and 

PSEG) urged EPA to determine that the 

section 185 fee requirement under the 

one-hour standard for the NY-NJ-CT 

nonattainment area is no longer 

applicable to the nonattainment area 

because the area attained the one-hour 

standard. One commenter (PSEG) 

alternatively suggested EPA issue a 

Termination Determination for the 

section 185 fee requirement based upon 

the complete, quality-assured 

monitoring data showing attainment 

with the one-hour ozone NAAQS in the 

area due to permanent and enforceable 

emission reductions implemented in the 

area. The commenter contended that 

such a Termination Determination 

would not be dependent upon the 

Agency’s previous section 185 fee 

guidance, which was vacated by the 

D.C. Circuit Court, but would instead be 

consistent with the statutory objectives 

of section 185 and the reasoning of the 

Court in South Coast Air Quality 

Management District v. EPA, 472 F.3d 

882 (D.C. Cir. 2006) (South Coast). 

Sierra Club, in its comments, requested 

that EPA apply section 185 

requirements for the period from 2007– 

2010. 

Response: On January 29, 2011, April 

29, 2011 and June 16, 2011, the 

Departments of Environmental 

Protection for the States of New Jersey, 

Connecticut and New York, 

respectively, requested that EPA make a 

determination that the NY-NJ-CT area 

has attained the 1-hour ozone standard 

due to permanent and enforceable 

emissions reductions, and that therefore 

the States should be relieved of any 

obligation to implement the penalty fees 

for that area under section 185. EPA is 

considering these requests and will take 

separate notice and comment 

rulemaking shortly to address them. 

EPA has not yet proposed any action on 

these requests and thus cannot take any 

final action with respect to them in this 

rulemaking. 

EPA in this rulemaking is finalizing 

its determination that the area has 

attained the 1-hour ozone standard 

based on certified air quality data for 

2008–2010, and continuing through 

2011. No commenter has requested that 

EPA require the States to implement the 

section 185 penalty fee program in this 

area in the period subsequent to the 

area’s attainment of the 1-hour standard 

in 2010. Below, EPA addresses one 

commenter’s (Sierra Club) contentions 

with respect to requiring penalty fees for 

the period prior to 2010. EPA will be 

addressing any remaining issues with 

respect to terminating one-hour ozone 

section 185 penalty fee requirements in 

this area in future rulemaking actions. 

2. A commenter (Sierra Club) 

contends that EPA has no authority to 

withdraw its proposed disapprovals of 

the 1997 eight-hour ozone attainment 

demonstration for the NY-NJ-CT eighthour nonattainment area. The 

commenter cites 42 U.S.C. 7410(k)(2) 

and (3) as requiring EPA to act within 

12 months of a finding of completeness. 

Also, commenter asserts that a 

determination of attainment (Clean Data 

Determination) does not and cannot 

suspend EPA’s obligation to approve or 

disapprove a SIP submission after it has 

been submitted to EPA. 

Response: Assuming that, in a 

situation where EPA has already 

conducted notice and comment 

rulemaking to determine that an area is 

in attainment of the standard, the 

Agency is nevertheless obliged to 

conduct additional rulemaking on a 

plan to accomplish what has been done, 

under section 110(k)(2), EPA is not 

obligated to finalize a prior version of a 

proposed rulemaking on the plan after 

circumstances have changed. In this 

case, EPA’s determination, after notice 

and comment rulemaking, that the area 


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36166 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 

4As explained above and elsewhere in our 

response to comments, EPA disagrees with Sierra 

Club’s contentions regarding retroactive collection 

of fees. As a technical point, however, we note that 

under section 185, the earliest year for which fees 

could ever have been required to be paid is the 

calendar year following the attainment date, 

November 15, 2007. Thus, it is clear that under no 

circumstances would fees be due for 2007. 

5Moreover, as EPA explained above, those issues 

are ancillary to the determination of failure to attain 

the one-hour ozone standard that EPA is finalizing 

in this rulemaking. 

6Sierra Club v. Whitman was discussed and 

distinguished in a recent D.C. Circuit decision that 

addressed retroactivity in a quite different context, 

where, unlike the situation here, EPA sought to give 

its regulations retroactive effect. National 

Petrochemical and Refiners Ass’n v. EPA. 630 F.3d 

145, 163 (D.C. Cir. 2010), rehearing denied 643 F.3d 

958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 

(2011). 

7 In this case, also Sierra Club. 

attained the 1997 eight-hour ozone 

NAAQS by its attainment date, 

eliminates the basis for the prior 

proposed disapproval. Under these 

circumstances, it is reasonable, proper 

and correct for EPA to withdraw the 

proposed disapproval. EPA may then 

proceed to take into account the 

determination that the area has attained, 

in a subsequent proposed action to 

approve the submitted attainment 

demonstration SIPs. Alternatively, in 

view of EPA’s final determination of 

attainment for the area, the States of 

Connecticut and New Jersey may choose 

to withdraw their attainment 

demonstrations. Thus, the commenter’s 

concerns are misplaced. Withdrawal of 

the proposed disapprovals is consistent 

with, and in no way prohibits further 

action with respect to the attainment 

demonstrations in accordance with the 

EPA’s determination that the monitoring 

data show the area has attained the 1997 

eight-hour standard since 2009. 

3. A commenter (Sierra Club) argues 

that the NY-NJ-CT area’s failure to attain 

the one-hour ozone NAAQS by its 

deadline of November 15, 2007 triggers 

penalty fees for 2007–2010 and 

contingency plan requirements under 

the Clean Air Act. 

A. Sierra Club states that the NY-NJCT nonattainment area did not attain by 

its November 15, 2007 attainment date, 

and cites South Coast, 472 F.3d at 903, 

in support of its position that EPA must 

enforce certain anti-backsliding 

requirements, including section 185 

fees. The commenter complains that 

EPA in its proposed determination of 

nonattainment for the NY-NJ-CT area 

(see 77 FR 3724) did not require 

payment of fees for 2007–2010. 

Response: First, we wish to 

emphasize, as EPA stated in its 

proposal, that the purpose of this 

rulemaking action is to make four 

specific air quality determinations 

regarding whether the NY-NJ-CT area 

attained the one-hour and 1997 eighthour ozone standards. While EPA’s 

proposal noted that these 

determinations bear on one-hour antibacksliding requirements for 

contingency measures and section 185 

penalty fees, this action does not 

attempt to address or resolve all the 

implementation issues regarding those 

requirements. Thus at the outset, Sierra 

Club’s position that EPA’s specific 

rulemakings on air quality 

determinations must also include 

resolutions of all anti-backsliding 

implementation issues that may flow 

from them is incorrect. While EPA 

recognizes that the anti-backsliding 

requirement for the one-hour 

contingency measures and section 185 

fees are linked to the determination of 

failure to meet the attainment deadline 

for that standard, EPA’s rulemakings 

here regarding those determinations do 

not, and are not required to, dispose of 

all implementation issues for those 

requirements or for others, such as those 

raised in Sierra Club’s comments 

regarding milestones and additional 

planning. 

In its comments, Sierra Club argues 

that EPA’s determination that the NYNJ-CT area failed to attain by its onehour ozone attainment deadline also 

requires EPA to decide here that it must 

retroactively collect penalties under 

section 185 for the period before EPA 

made its determination.4 We disagree. 

Neither EPA’s determination, nor the 

South Coast case, compels EPA to reach 

this conclusion or even to decide that 

issue here. EPA intends to address 

issues regarding one-hour antibacksliding requirements in future 

rulemakings on implementation of the 

section 185 requirements for the NY-NJCT area. Nevertheless, we wish to state 

our preliminary views on Sierra Club’s 

comments below. EPA’s preliminary 

views are set forth in the remainder of 

the response below, and are not 

necessary to and are independent of its 

air quality determinations of attainment 

contained in this final rulemaking. 

Sierra Club’s comments quote at 

length from South Coast, 472 F.3d at 

902–903. While EPA acknowledges that 

this decision established that section 

185 fee requirements were to be 

included as anti-backsliding measures, 

the Court in that case did not direct any 

specific means of enforcement of these 

requirements, nor the method for 

determining whether an area failed to 

attain by its attainment date. That 

decision established only that the 

section 185 and contingency measure 

requirements were ‘‘applicable.’’ It did 

not establish or even address how those 

requirements were to be implemented.5

The D.C. Circuit, however, has 

previously upheld EPA’s longstanding 

practice of making determinations of an 

area’s failure to meet attainment 

deadlines solely through notice and 

comment rulemaking—Sierra Club v. 

Whitman, 285 F.3d 63 (D.C. Cir. 2002).6

In that case—which similarly arose from 

a determination of failure of a one-hour 

ozone nonattainment area to meet its 

attainment deadline, the D.C. Circuit 

rejected a litigant’s 7 demand to make 

the consequences of that determination 

retroactive to the time period before 

EPA made the determination. In that 

case, Sierra Club similarly argued that 

EPA’s overdue determination that the 

St. Louis one-hour ozone nonattainment 

area failed to attain by its attainment 

deadline should apply retroactively, and 

that the Court should require retroactive 

reclassification of the area. The Court 

rejected Sierra Club’s contention that 

EPA’s rulemaking was not required to 

determine a failure to attain: ‘‘No matter 

what the Sierra Club thinks the Clean 

Air Act or the APA required of EPA, the 

fact remains that ‘EPA’s established 

practice for making a final decision 

concerning nonattainment and 

reclassification is to conduct a 

rulemaking under the APA, not to issue 

a letter, a list, or some other informal 

document.’ * * * [citations omitted.]’’ 

The Court concluded: ‘‘In other words, 

if there has not been a rulemaking there 

has not been an attainment 

determination.’’ 285 F.3d at 66. 

The Court also refused to accept 

Sierra Club’s assertion that the Court 

should compel EPA to give retroactive 

effect to its determination, resulting in 

reclassification as of the area’s 

attainment date. The Court stated: 

‘‘Although EPA failed to make the 

nonattainment determination within the 

statutory time frame, Sierra Club’s 

proposed solution only makes the 

situation worse. Retroactive relief would 

likely impose large costs on the States, 

which would face fines and suits for not 

implementing air pollution prevention 

plans [earlier], even though they were 

not on notice at the time.’’ 285 F.3d at 

68. 

While it is true that the Clean Air Act 

provides that both reclassification and 

penalty fees are consequences of failure 

to attain the ozone standard, the D.C. 

Circuit in Sierra Club recognized that 

these weighty consequences are not 

triggered until EPA makes a 

determination, after notice and 

comment rulemaking, of failure to 

attain. In that case the court also rejects 


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Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 36167 

8Sierra Club appears to recognize this, since it 

does not request EPA to impose penalties for the 

time period after the area attained the standard 

(2010 to the present). 

9Memorandum from John S. Sietz, Director, 

OAQPS, dated May 10, 1995, entitled ‘‘Reasonable 

Further Progress, Attainment Demonstration, and 

Related Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National Ambient Air 

Quality Standard’’ (‘‘Clean Data Policy’’). 

the view that adverse consequences 

from the determination should be 

imposed retroactively, especially if they 

would, as here, subject the States to 

additional burdens caused by 

retroactive requirements that were not 

triggered prior to conclusion of the 

rulemaking process. 

Several features of our rulemaking for 

the NY-NJ-CT area provide additional 

grounds for application of a position 

similar to that which the court took in 

the St. Louis Sierra Club case. In the 

case of St. Louis, when the question of 

retroactive application arose, the area 

remained in nonattainment of the onehour standard, which was also still the 

only standard in effect. Here, unlike St. 

Louis, EPA has determined that the NYNJ-CT area is currently attaining both 

the one-hour and eight-hour standards, 

and thus there is significantly less 

reason to consider imposing retroactive 

penalties that are intended to bring 

about the attainment that has already 

occurred. 

Sierra Club here argues, 

unpersuasively, that the South Coast 

opinion supports retroactive imposition 

of penalties, quoting the Court’s 

statement that, unless section 185 

requirements were applicable, ‘‘a state 

could go unpenalized without ever 

attaining even the original NAAQS 

* * *.’’ 472 F.3d at 903. Here, however, 

this possibility does not exist. EPA’s 

final determinations in this rulemaking 

establish that the NY-NJ-CT area has in 

fact attained not only the original onehour standard, but also the 1997 eighthour NAAQS. 

Sierra Club quotes the Court’s 

statement in South Coast that ‘‘Congress 

set the penalty deadline well into the 

future, giving states and industry ample 

notice and sufficient incentives to avoid 

the penalties.’’ 372 F.3d at 903. Notice 

of the existence of penalty provisions, 

however, is not the same as notice that 

these provisions have been triggered. As 

the D.C. Circuit recognized in Sierra 

Club v. EPA, only when EPA issues a 

final notice determining that an area has 

failed to attain by the attainment date 

can that failure be definitively 

established. The case of the NY-NJ-CT 

area presents a particularly compelling 

context in which to apply this principle. 

The NY-NJ-CT area has been attaining 

the one-hour standard since 2010 and 

the eight-hour standard for the time 

period 2007–2010, and data for 2011 

continues this trend. No incentives— 

and certainly no penalties—are required 

for the area to reach attainment,8 a goal 

that the area has met, preserved and 

exceeded. Under these circumstances, 

and based on the D.C. Circuit’s and 

EPA’s long held position on the issue of 

retroactive consequences of 

determinations of failure to attain, EPA 

cannot see a reason to impose penalties 

on sources in the NY-NJ-CT area. As 

explained above, EPA is determining 

that the area is currently, and has for 

some time been, attaining both the onehour and eight-hour ozone standards. 

Thus no anti-backsliding purpose is 

served by retroactive imposition of fees 

for a failure to meet a deadline for a 

revoked standard—under circumstances 

that existed years ago, which have since 

been eclipsed by continuous attainment. 

EPA believes that compelling the States 

and sources to address old penalties 

now would also divert attention and 

resources from efforts to achieve 

current, forward-looking environmental 

goals, including the stricter 2008 ozone 

standard. In these circumstances, giving 

retroactive effect to EPA’s determination 

of failure to attain the standard here 

would be unreasonable, and it would, as 

the Court held in Sierra Club v. 

Whitman, ‘‘only mak[e] the situation 

worse.’’ 

B. Sierra Club asserts that the NY-NJCT nonattainment area is subject to 

contingency plan requirements for 

failure to attain the one-hour standard 

and that EPA failed to impose this 

requirement on the States. Sierra Club 

argues that EPA must ensure that the 

contingency measures approved for 

New York, New Jersey, and Connecticut 

in 67 FR 5170, 67 FR 5152, and 66 FR 

63921 are implemented and enforced, 

and Sierra Club contends that EPA has 

improperly failed to carry out this 

obligation. Sierra Club asserts that 

EPA’s determination that the area has 

attained the one-hour ozone standard 

(Clean Data Determination) does not 

allow removal of these contingency 

measures, which Sierra Club states 

became applicable in 2007 and which 

must remain in place to prevent 

backsliding. 

Response: Contingency measures for 

the one-hour ozone standard were 

previously approved and have been 

implemented in the NY-NJ-CT 

nonattainment area. See for New York: 

67 FR 5170 (February 4, 2002) and 40 

CFR 52.1683(i)(3); for New Jersey: 67 FR 

5152 (February 4, 2002) and 40 CFR 

52.1582(h)(4); for Connecticut: 66 FR 

63921 (December 11,2001) and 40 CFR 

52.377. There is no need for EPA to 

require the states to implement the 

contingency measures, because all the 

identified measures are part of the 

applicable SIP and have already been 

implemented. The States have not 

requested removal of the contingency 

measures from their respective SIPs and 

therefore they continue in effect. EPA 

has never proposed to remove the 

measures approved as contingency 

measures in this area. The States would 

have to request a SIP revision if they 

wanted to remove these measures from 

their applicable SIP and would have to 

demonstrate compliance with section 

110(l). Thus, the measures identified as 

contingency measures continue to 

remain in SIP. Moreover, as explained 

in EPA’s Clean Data Policy,9 the 

purpose of contingency measures for 

failure to attain is linked to attainment. 

EPA in this rulemaking has determined 

that the area has already attained the 

one-hour ozone standard, and therefore 

no additional contingency measures are 

needed. 

C. Sierra Club argues that the NY-NJCT ozone nonattainment area is subject 

to the milestone one-hour ozone antibacksliding requirements of the Act. 

The commenter asserts that EPA errs in 

failing to impose rate of progress (ROP) 

or reasonable further progress (RFP) 

milestones on the nonattainment area. 

The commenter asserts that 42 U.S.C. 

7511(d) requires the states to submit 

revised SIPs that incorporate updated 

ROP plans for the one-hour ozone 

standard. 

Response: As stated in the proposed 

rulemaking, EPA has previously 

approved one-hour RFP and ROP plans 

for the NY-NJ-CT area. See for New 

York: 67 FR 5170 February 4, 2002 and 

40 CFR 52.1683(i)(2); for New Jersey: 67 

FR 5152 February 4, 2002 and 40 CFR 

52.1582(h)(3); for Connecticut: 66 FR 

63921 December 11, 2001 and 40 CFR 

52.377. Nowhere in its January 25, 2012 

proposal (77 FR 3720), did EPA propose 

to remove from the approved SIPs the 

measures that resulted in satisfying the 

ROP or RFP plan requirements for the 

area. Nor have the States requested 

removal of those provisions. 

Sierra Club’s comment relies on 

section 181(b)(4)(A), and quotes 

language providing that, if a severe area 

fails to attain, certain reductions 

continue ’’ until the standard is 

attained.’’ Here, EPA’s determinations 

in this rulemaking establish that the 

area has attained the one-hour ozone 

standard, so any such obligation would 

now be at an end. And, as explained in 


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36168 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 

Comment 3A, no prior failure to attain 

was established until EPA’s final 

determination in this rulemaking (see 

response to Comment 3A above). In this 

rulemaking, EPA is finalizing its 

determinations that the NY-NJ-CT 

nonattainment area is currently 

attaining both the one-hour and eighthour ozone NAAQSs. Under 40 CFR 

51.918 and the interpretation set forth in 

EPA’s longstanding Clean Data Policy, 

these determinations suspend the 

obligations to submit any outstanding 

planning requirements, including ROP. 

Based on the monitoring data that show 

attainment of both ozone standards, 

there is no need to require the States to 

revise or submit new ROP plans or new 

RFP milestones for the one-hour ozone 

SIPs. Additional ozone reductions have 

resulted from implementation of the 

eight-hour ozone standard. EPA has 

approved ROPs for the 1997 ozone 

standard SIPs in Connecticut, New 

Jersey and New York, which function to 

further reduce ozone precursors to a 

greater extent than would be required by 

submission of an additional RFP for the 

one-hour ozone standard. 

4. Sierra Club contends that the NYNJ-CT ozone nonattainment area must 

submit a revised one-hour ozone SIP 

and asserts that EPA’s failure to require 

a new SIP for the NY-NJ-CT area upon 

finalizing its proposed determination of 

nonattainment is improper and contrary 

to law. 

Response: We disagree that EPA’s 

determination here that the NY-NJ-CT 

area failed to attain the one-hour ozone 

standard triggers any CAA section 

179(d) requirement to prepare and 

submit SIP revisions. A new section 

179(d) ozone plan, triggered by section 

179(c) is not an applicable antibacksliding requirement under EPA’s 

anti-backsliding regulations. As EPA has 

explained in other rulemakings, only 

those anti-backsliding requirements that 

were specifically retained are 

applicable, and the requirements of 

section 179(c) and (d) are not included. 

See 76 FR 82133 (December 30, 2011). 

As EPA stated in its proposal, the only 

anti-backsliding measures that pertain 

to this determination of failure to meet 

the one-hour deadline are one-hour 

contingency measures for failure to 

attain and section 185 penalty fees. 

Moreover, under EPA’s Clean Data 

Policy EPA’s determination that the area 

is currently attaining the one-hour 

ozone standard obviates the need for 

submission of any planning 

requirements related to attainment of 

the standard. 

IV. Final Actions 

EPA is making four separate and 

independent determinations related to 

the NY-NJ-CT one-hour and 1997 eighthour ozone nonattainment areas. These 

determinations are based upon 

complete, quality-assured and certified 

ozone monitoring data. First, with 

respect to the one-hour ozone standard, 

and pursuant to EPA’s authority to 

ensure implementation of one-hour 

ozone anti-backsliding requirements 

and CAA section 301, EPA is 

determining that data for 2005–2007 

show that the NY-NJ-CT area previously 

failed to attain the one-hour ozone 

standard by its applicable November 15, 

2007 attainment deadline. Second, and 

more importantly, EPA is determining 

that the NY-NJ-CT area is currently 

attaining the one-hour ozone standard, 

based on more recent complete, qualityassured and certified data for 2008– 

2010. Quality-assured ozone monitoring 

data in the AQS for 2011 indicate the 

area continues to attain the revoked onehour ozone standard. 

Third, with respect to the 1997 eighthour ozone standard, in accordance 

with section 181(b) of the CAA, EPA is 

determining that complete, qualityassured and certified ozone monitoring 

data for 2007–2009 show the NY-NJ-CT 

eight-hour ozone nonattainment area 

attained the 1997 eight-hour ozone 

standard by its June 15, 2010 attainment 

deadline. Fourth, EPA is also 

determining that the NY-NJ-CT eighthour ozone nonattainment area 

currently continues to attain the eighthour ozone NAAQS, based on complete, 

quality-assured and certified data for 

2008–2010. Quality-assured ozone 

monitoring data in the AQS for 2011 

indicate the area continues to attain the 

1997 eight-hour ozone standard. 

As provided in 40 CFR 51.918, EPA’s 

determination that the area has attained 

the eight-hour ozone standard suspends 

the requirements under section 

182(b)(1) for submission of the 

attainment demonstration, reasonable 

further progress plan, contingency 

measures and any other planning SIP 

relating to attainment of the 1997 eighthour NAAQS. This suspension of 

requirements is effective for so long as 

the area continues to attain the 1997 

eight-hour ozone standard. 

For the reasons stated in its proposed 

notice and response to comments here, 

EPA is also withdrawing the May 8, 

2009 proposed disapprovals of 

Connecticut’s and New Jersey’s eighthour ozone attainment demonstrations 

for the NY-NJ-CT eight-hour ozone 

nonattainment area. 

V. Statutory and Executive Order 

Reviews 

These actions, make attainment 

determinations based on air quality and 

result in the suspension of certain 

Federal requirements, will not impose 

additional requirements beyond those 

imposed by state law, or will not impose 

any requirements beyond those required 

by Federal statute. For these reasons, 

these actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

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

• Are not significant regulatory 

actions subject to Executive Order 

13211 (66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 


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Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 36169 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

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 August 17, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action 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).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen oxides, 

Ozone, Volatile organic compounds, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: May 15, 2012. 

Judith A. Enck, 

Regional Administrator, Region 2. 

Dated: May 27, 2012. 

H. Curtis Spalding, 

Regional Administrator, Region 1. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart H—Connecticut 

■ 2. Section 52.377 is amended by 

adding paragraphs (j) and (k) to read as 

follows: 

§ 52.377 Control strategy: Ozone. 

* * * * * 

(j) Determination of Attainment for 

the One-Hour Ozone Standard. Effective 

July 18, 2012, EPA is determining that 

the New York-Northern New JerseyLong Island (NY-NJ-CT) one-hour ozone 

nonattainment area did not meet its 

applicable one-hour ozone attainment 

date of November 15, 2007, based on 

2005–2007 complete, quality-assured 

and certified ozone monitoring data. 

Separate from and independent of this 

determination, EPA is determining that 

the New York-Northern New JerseyLong Island (NY-NJ-CT) one-hour ozone 

nonattainment area has attained the 

one-hour ozone standard, based on 

2008–2010 complete, quality-assured 

and certified ozone monitoring data at 

all monitoring sites in the area and data 

showing the area continued to attain 

through 2011. 

(k) Determination of Attainment for 

the Eight-Hour Ozone Standard. 

Effective July 18, 2012 EPA is 

determining, that complete, qualityassured and certified ozone monitoring 

data for 2007–2009 show the NY-NJ-CT 

eight-hour ozone nonattainment area 

attained the 1997 eight-hour ozone 

standard by its June 15, 2010 attainment 

deadline. Therefore, EPA has met the 

requirement pursuant to CAA section 

181(b)(2)(A) to determine, based on the 

area’s air quality data as of the 

attainment date, whether the area 

attained the standard. EPA also 

determined that the NY-NJ-CT 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date under 

section 181(b)(2)(A). EPA is also 

determining that the NY-NJ-CT eighthour ozone nonattainment area 

currently continues to attain the eighthour ozone NAAQS, based on complete, 

quality-assured and certified data for 

2008–2010 and data through 2011. This 

determination, in accordance with 40 

CFR 51.918, suspends the requirements 

for this area to submit an attainment 

demonstration, associated reasonably 

available control measures, a reasonable 

further progress plan, contingency 

measures, and other planning SIPs 

related to attainment of the standard for 

as long as this area continues to meet 

the 1997 annual eight-hour ozone 

NAAQS. 

Subpart FF—New Jersey 

■ 3. Section 52.1576 is amended by 

designating the existing text as 

paragraph (a), adding and reserving 

paragraph (b), and adding new 

paragraphs (c) and (d) to read as follows: 

§ 52.1576 Determinations of attainment. 

* * * * * 

(c) Based upon EPA’s review of the air 

quality data for the three-year period 

2005 to 2007, EPA determined, as of 

June 18, 2012, that the New YorkNorthern New Jersey-Long Island (NYNJ-CT) one-hour ozone nonattainment 

area did not meet its applicable onehour ozone attainment date of 

November 15, 2007. Separate from and 

independent of this determination, 

based on 2008–2010 complete, qualityassured ozone monitoring data at all 

monitoring sites in the area, and data for 

2011, EPA determined, as of June 18, 

2012, that the NY-NJ-CT one-hour ozone 

nonattainment area has attained the 

one-hour ozone standard. 

(d) Based upon EPA’s review of 

complete, quality-assured and certified 

air quality data for the three-year period 

2007 to 2009, and data for 2011, EPA 

determined, as of June 18, 2012, that the 

New York-Northern New Jersey-Long 

Island (NY-NJ-CT) eight-hour ozone 

moderate nonattainment area attained 

the 1997 eight-hour ozone NAAQS by 

the applicable attainment date of June 

15, 2010. Therefore, EPA has met the 

requirement pursuant to CAA section 

181(b)(2)(A) to determine, based on the 

area’s air quality data as of the 

attainment date, whether the area 

attained the standard. EPA also 

determined that the NY-NJ-CT 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date under 

section 181(b)(2)(A). 

■ 4. Section 52.1582 is amended by 

designating paragraph (n) as paragraph 

(n)(1), and adding new paragraph (n)(2) 

to read as follows: 

§ 52.1582 Control strategy and 

regulations: Ozone. 

* * * * * 

(n) Attainment determination. (1) 

* * * 

(2) EPA has determined, as of June 18, 

2012, that based on 2007 to 2009 

complete, quality-assured and certified 

ambient air quality data, additional data 

showing continued attainment through 

2011, the New York-Northern New 

Jersey-Long Island, NY-NJ-CT, eighthour ozone moderate nonattainment 

area has attained the 1997 eight-hour 

ozone NAAQS. This determination, in 

accordance with 40 CFR 51.918, 

suspends the requirements for this area 

to submit an attainment demonstration, 

associated reasonably available control 

measures, a reasonable further progress 

plan, contingency measures, and other 

planning SIPs related to attainment of 

the standard for as long as this area 

continues to meet the 1997 annual 

eight-hour ozone NAAQS. 

Subpart HH—New York 

■ 5. Section 52.1679 is added to read as 

follows: 


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36170 Federal Register / Vol. 77, No. 117 / Monday, June 18, 2012 / Rules and Regulations 

§ 52.1679 Determinations of attainment. 

(a) Based upon EPA’s review of 

complete, quality-assured air quality 

data for the 3-year period 2005 to 2007, 

EPA determined, as of June 18, 2012, 

that the New York-Northern New JerseyLong Island (NY-NJ-CT) one-hour ozone 

nonattainment area did not meet its 

applicable one-hour ozone attainment 

date of November 15, 2007. Separate 

from and independent of this 

determination, based on 2008–2010 

complete, quality-assured ozone 

monitoring data at all monitoring sites 

in the area, and data for 2011, EPA 

determined, as of June 18, 2012, that the 

NY-NJ-CT one-hour ozone 

nonattainment area met the one-hour 

ozone NAAQS. 

(b) Based upon EPA’s review of 

complete, quality-assured and certified 

air quality data for the 3-year period 

2007 to 2009, and data for 2011, EPA 

determined, as of June 18, 2012, that the 

New York-Northern New Jersey-Long 

Island (NY-NJ-CT) eight-hour ozone 

moderate nonattainment area attained 

the 1997 eight-hour ozone NAAQS by 

the applicable attainment date of June 

15, 2010. Therefore, EPA has met the 

requirement pursuant to CAA section 

181(b)(2)(A) to determine, based on the 

area’s air quality data as of the 

attainment date, whether the area 

attained the standard. EPA also 

determined that the NY-NJ-CT 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date under 

section 181(b)(2)(A). 

■ 6. Section 52.1683 is amended by 

adding new paragraph (f)(2)(viii) to read 

as follows: 

§ 52.1683 Control strategy: Ozone. 

* * * * * 

(f) * * * 

(2) * * * 

(viii) New York-Northern New JerseyLong Island, NY-NJ-CT, eight-hour 

ozone moderate nonattainment area 

(consisting of the Bronx, Kings, Nassau, 

New York, Queens, Richmond, 

Rockland, Suffolk and Westchester 

Counties) as of June 15, 2010 and data 

showing the area continued to attain 

through 2011. 

* * * * * 

[FR Doc. 2012–14716 Filed 6–15–12; 8:45 am] 

BILLING CODE 6560–50–P 

EVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 711 

[EPA–HQ–OPPT–2009–0187; FRL–9353–1] 

RIN 2070–AJ43 

TSCA Inventory Update Reporting 

Modifications; Chemical Data 

Reporting; 2012 Submission Period 

Extension 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is amending the Toxic 

Substances Control Act (TSCA) 

Chemical Data Reporting (CDR) 

regulations by extending the submission 

deadline for 2012 reports from June 30, 

2012 to August 13, 2012. This is a onetime extension for the 2012 submission 

period only. The CDR regulations 

require manufacturers and importers of 

certain chemical substances included on 

the TSCA Chemical Substance 

Inventory (TSCA Inventory) to report 

current data on the manufacturing, 

processing, and use of the chemical 

substances. 

DATES: This final rule is effective June 

18, 2012. 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number (No.) EPA–HQ–OPPT–2009– 

0187, is available either electronically 

through http://www.regulations.gov or 

in hard copy at the Pollution Prevention 

and Toxics (OPPT) Docket, 

Environmental Protection Agency 

Docket Center (EPA/DC), EPA West 

Bldg., Rm. 3334, 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, and the telephone 

number for the OPPT Docket is (202) 

566–0280. Please review the visitor 

instructions and additional information 

about the docket available at http:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Chenise Farquharson, Chemical Control 

Division (7405M), Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001; 

telephone number: (202) 564–7768; fax 

number: (202) 564–4775; email address: 

farquharson.chenise@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Does this action apply to me? 

You may be potentially affected by 

this action if you manufacture 

(including manufacture as a byproduct) 

or import chemical substances listed on 

the TSCA Inventory. Potentially affected 

entities may include, but are not limited 

to: 

• Chemical manufacturers and 

importers (NAICS codes 325 and 

324110, e.g., chemical manufacturing 

and processing and petroleum 

refineries). 

• Chemical users and processors who 

may manufacture a byproduct chemical 

substance (NAICS codes 22, 322, 331, 

and 3344, e.g., utilities, paper 

manufacturing, primary metal 

manufacturing, and semiconductor and 

other electronic component 

manufacturing). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the technical person listed under FOR

FURTHER INFORMATION CONTACT. 

II. Background 

A. What action is the Agency taking? 

In the August 16, 2011, final rule 

entitled, ‘‘TSCA Inventory Update 

Reporting Modifications; Chemical Data 

Reporting’’ (76 FR 50816, August 16, 

2011) (FRL–8872–9), EPA designated 

the 2012 CDR submission period to be 

February 1, 2012 to June 30, 2012. EPA 

is issuing this amendment to extend the 

deadline for 2012 CDR submission 

reports until August 13, 2012. 

The Agency is taking this action in 

response to concerns raised by the 

regulated community about their ability 

to submit the required information 

within the prescribed period. Written 

requests to extend the CDR submission 

period are included in the docket (see 

ADDRESSES). The compelling concerns 

raised by industry include the timing of 

responses to inquiries about regulatory 

interpretations, particularly for 

byproduct chemical substances, and 

issues associated with several aspects of 

electronic reporting. 


srobinson on DSK4SPTVN1PROD with RULES