35104 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

(ii) Structural which are 

improvements requiring construction or 

installation undertaken to improve the 

range or to facilitate management or to 

control distribution and movement of 

livestock. 

(A) Permanent means range 

improvements installed or constructed 

and become a part of the land such as: 

dams, ponds, pipelines, wells, fences, 

trails, seeding, etc. 

(B) Temporary means short-lived or 

portable improvements that can be 

removed such as: troughs, pumps and 

electric fences, including improvements 

at authorized places of habitation such 

as line camps. 

Suspend means temporary 

withholding of a term grazing permit 

privilege, in whole or in part. 

Term period means the period for 

which term permits are issued, the 

maximum of which is 10 years. 

Transportation livestock means 

livestock used as pack and saddle stock 

for travel on the National Forest System. 

Subpart C—Grazing Fees 

■ 3. The authority citation for subpart C 

continues to read as follows: 

Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 

43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 

FR 5985). 

■ 4. In § 222.50, revise paragraph (h) to 

read as follows: 

§ 222.50 General procedures. 

* * * * * 

(h) The excess and unauthorized 

grazing use rate will be determined by 

establishing a base value without giving 

consideration for those contributions 

normally made by the permittee under 

terms of the grazing permit. This rate is 

charged for unauthorized forage or 

forage in excess of authorized use and 

is separate from any penalties that may 

be assessed for a violation of a 

prohibition issued under 36 CFR part 

261 or from an administrative permit 

action. This rate will apply to, but not 

be limited to, the following 

circumstances: excess number of 

livestock grazed; livestock grazed 

outside the permitted grazing season; 

livestock grazed in areas not authorized 

under a grazing permit and a bill for 

collection; or livestock grazed without a 

permit. Per paragraph (a) of this section, 

a grazing fee shall be charged for each 

head month of livestock grazing or use. 

This includes any excess or 

unauthorized grazing use. The 

authorized officer may then waive 

monetary fees for excess or 

unauthorized grazing use only when all 

three of the following conditions are 

met: 

(1) The excess or unauthorized use 

was a result of unforeseen or 

uncontrollable circumstances on behalf 

of the permittee or non-permittee, and 

the livestock associated with such use 

were removed by the permittee or nonpermittee within the timeframe required 

by the authorized officer; 

(2) The forage consumed by the excess 

or unauthorized use is not significant; 

and 

(3) National Forest System lands have 

not been damaged significantly by the 

excess or unauthorized use. 

* * * * * 

Dated: June 6, 2022. 

Randy Moore, 

Chief, USDA Forest Service. 

[FR Doc. 2022–12453 Filed 6–8–22; 8:45 am] 

BILLING CODE 3411–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2021–0949; FRL–9532–02– 

R5] 

Air Plan Approval; Ohio; 

Redesignation of the Ohio Portion of 

the Cincinnati, Ohio-Kentucky Area to 

Attainment of the 2015 Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) finds that the Cincinnati, 

Ohio-Kentucky area (Area) is attaining 

the 2015 ozone National Ambient Air 

Quality Standard (NAAQS or standard) 

and is acting in accordance with a 

request from the Ohio Environmental 

Protection Agency (OEPA) to 

redesignate the Ohio portion of the Area 

to attainment for the 2015 ozone 

NAAQS because the request meets the 

statutory requirements for redesignation 

under the Clean Air Act (CAA). The 

Area includes Butler, Clermont, 

Hamilton, and Warren Counties in Ohio 

and parts of Boone, Campbell, and 

Kenton Counties in Kentucky. OEPA 

submitted the request for redesignation 

for the Ohio portion of the area (Butler, 

Clermont, Hamilton, and Warren 

Counties) on December 21, 2021. EPA is 

also approving, as a revision to the Ohio 

State Implementation Plan (SIP), the 

state’s plan for maintaining the 2015 

ozone standard through 2035 in the 

Area. Finally, EPA is approving the 

state’s 2026 and 2035 volatile organic 

compound (VOC) and oxides of nitrogen 

(NOX) motor vehicle emission budgets 

for the Ohio portion of the Area for 

transportation conformity purposes. 

EPA received comments on its February 

11, 2022, proposed rule. After 

considering comments received, EPA is 

finalizing this action as proposed. 

DATES: This final rule is effective on 

June 9, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2021–0949. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(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 through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Olivia 

Davidson, Environmental Scientist, at 

(312) 886–0266 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Olivia Davidson, Environmental 

Scientist, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–0266, 

davidson.olivia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background Information 

This rule takes final action on the 

December 21, 2021, submission from 

OEPA requesting redesignation of the 

Ohio portion of the Cincinnati area to 

attainment for the 2015 ozone standard. 

The background for this action is 

discussed in detail in EPA’s Notice of 

Proposed Rulemaking (Proposal), dated 

February 11, 2022 (87 FR 7978). In the 

Proposal, we noted that, under EPA 

regulations at 40 CFR part 50, the 2015 

ozone NAAQS is attained in an area 

when the 3-year average of the annual 

fourth highest daily maximum 8-hour 

average ozone concentration is equal to 

or less than 0.070 parts per million, 

when truncated after the third decimal 

place, at all of the ozone monitoring 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35105 

1The commenter states that it does not support 

EPA’s proposal to redesignate the Area because 

OEPA has failed to demonstrate that CAA section 

107(d)(3)(E)(iii) is met. However, as that statutory 

provision clearly states, the Administrator may not 

promulgate a redesignation of a nonattainment area 

unless ‘‘the Administrator determines that the 

improvement in air quality is due to permanent and 

enforceable reductions in emissions resulting from 

implementation of the applicable implementation 

plan and applicable Federal air pollutant control 

regulations and other permanent and enforceable 

reductions.’’ On its face, the statute permits EPA to 

not only consider Ohio’s submittal and 

demonstration, but also any other information EPA 

has regarding emission reductions in the area. 

2See OEPA’s Redesignation Request and 

Maintenance Plan for the Ohio Portion of the 

Cincinnati, OH-KY 2015 Ozone Nonattainment 

Area, contained in docket EPA–OAR–R05–2021– 

0949 for the proposed rule that published February 

11, 2022 (87 FR 7978) approving the redesignation 

request, page 43. 

sites in the area. (See 40 CFR 50.19 and 

appendix U of part 50.) Under the CAA, 

EPA may redesignate nonattainment 

areas to attainment if sufficient 

complete, quality-assured data are 

available to determine that the area has 

attained the standard and if it meets the 

other CAA redesignation requirements 

in section 107(d)(3)(E). The Proposal 

provides a detailed discussion of how 

Ohio has met these CAA requirements. 

As discussed in the Proposal, qualityassured and certified monitoring data 

for 2019–2021 show that the Area has 

attained the 2015 ozone standard. In the 

maintenance plan submitted for the 

Area, Ohio has demonstrated that the 

ozone standard will be maintained in 

the Area through 2035. Finally, Ohio 

has adopted 2026 and 2035 VOC and 

NOX motor vehicle emission budgets for 

the Area that are supported by Ohio’s 

maintenance demonstration, which EPA 

is also approving in this action. 

II. Public Comments 

EPA provided a 30-day review and 

comment period for this action in the 

Proposal. The comment period ended 

on March 14, 2022. EPA received 

adverse comments, which are 

summarized and addressed below. 

Comment: The commenter contends 

that EPA has not adequately 

demonstrated that the observed decrease 

in emissions is attributable to 

enforceable emission reductions. The 

commenter argues that some of the 

emission reduction measures that EPA 

relies on were in place well before 2019, 

i.e., that the measures themselves were 

insufficient to get the area to attainment 

because even after implementation of 

those measures in 2014 and 2017, the 

area continued to violate the NAAQS, 

and did not come into attainment until 

the 2019–2021 time period. The 

commenter cites the Cross State Air 

Pollution Rule (CSAPR) Update, Tier 3 

Emission Standards, Category 3 Marine 

Diesel Engine Standards, and, more 

generally, several mobile source control 

measures that were ‘‘fully 

implemented’’ prior to 2014. 

Response: EPA disagrees with the 

commenter’s contention that EPA has 

not adequately demonstrated that the 

observed decrease in emissions is 

attributable to permanent and 

enforceable reductions in emissions, per 

CAA section 107(d)(3)(E)(iii).1 As stated 

in EPA’s long-standing guidance on 

redesignations (see ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992), we interpret this 

provision to mean that ‘‘[a]ttainment 

resulting from temporary reductions in 

emission rates (e.g., reduced production 

or shutdown due to temporary adverse 

economic conditions) or unusually 

favorable meteorology would not qualify 

as an air quality improvement due to 

permanent and enforceable emission 

reductions.’’ Calcagni Memo at 4. EPA’s 

guidance instructs that the showing 

under CAA section 107(d)(3)(E)(iii) 

‘‘should estimate the percent reduction 

. . . achieved from Federal measures 

. . . as well as control measures that 

have been adopted and implemented by 

the State,’’ and that overall, we must be 

able to ‘‘reasonably attribute the 

improvement in air quality to emission 

reductions which are permanent and 

enforceable.’’ Id. EPA’s correlation of 

improvements in air quality with an 

identification of permanent and 

enforceable state and Federal measures, 

along with the estimated reductions in 

precursor emissions that cause ozone 

pollution which are attributable to each 

measure over the relevant time period, 

has long been one methodology to 

demonstrate compliance with CAA 

section 107(d)(3)(E)(iii) and has been 

upheld in court. See Sierra Club v. EPA, 

774 F.3d 383, 393–95 (7th Cir. 2014). As 

noted by the court in Sierra Club, ‘‘the 

CAA does not require EPA to prove 

causation to an absolute certainty. 

Rather in accord with its own internal 

guidance . . . EPA had to ‘reasonably 

attribute’ the drops in ozone to 

permanent and enforceable measures. 

Only if EPA’s path cannot ‘be 

reasonably discerned,’ or if EPA relied 

on factors ‘that Congress did not intend 

it to consider’ or ‘fail[ed] to consider an 

important aspect of the problem,’ will 

we conclude that EPA acted arbitrarily 

or capriciously.’’ Id. at 396. 

The commenter is correct that some of 

the measures cited by EPA as 

contributing to the area’s attainment, 

including the CSAPR Update, Tier 3 

Emissions Standards, and Category 3 

Marine Diesel Engine Standards, were 

in place prior the area’s attainment. 

However, that does not mean that these 

control measures did not contribute to 

and were not reasonably attributable to 

the area’s attainment. Control measures 

do not achieve all emission reductions 

in the first year that those measures are 

implemented. State and Federal 

emission reduction requirements 

continue to apply well past the initial 

implementation year and continue to 

achieve reductions that contribute to 

improving, and in this case, attaining, 

air quality. Some mobile source 

measures in particular will continue to 

achieve cumulative emission reductions 

well past the initial implementation 

date because they achieve additional 

reductions with fleet turnover, i.e., as 

older on-road vehicles and non-road 

engines are replaced with newer ones 

that meet more stringent emission 

standards. 

On September 7, 2016, EPA finalized 

an update to CSAPR requiring further 

reductions in NOX emissions from 

electric generating units (EGUs) 

beginning in May 2017. This final rule 

was projected to result in a 20% 

reduction in ozone season NOX

emissions from EGUs in the eastern 

United States, a reduction of 80,000 tons 

in 2017 compared to 2015 levels, with 

continued EGU reductions each year. 

Emissions of NOX from EGUs in Ohio 

have reflected the continued emission 

reductions measures, as NOX emissions 

from EGUs in Ohio have been reduced 

by 29 percent statewide from 2016 

through 2020. The continued 

application of these reductions in Ohio 

and upwind states was a key contributor 

to improved and attaining air quality in 

Cincinnati. In addition, EPA finalized 

the revised CSAPR Update on April 30, 

2021 (86 FR 23054), and that rule 

required additional reductions of almost 

10,000 tons of ozone season NOX in 

Ohio,2 equivalent to a 50% reduction in 

EGU emissions, effective by the 2021 

ozone season, i.e., one of the years in the 

design value period that shows 

attainment. 

With respect to the mobile sources 

measures cited by the commenter, the 

commenter incorrectly states that the 

Tier 3 Emission Standards for Vehicles 

were fully implemented by 2017. In fact, 

the standards, which are expected to 

reduce NOX and VOC emissions by 

80%, first took effect in 2017, and will 

continue to be phased in through 2025, 

after which additional reductions will 

continue to be achieved through fleet 


lotter on DSK11XQN23PROD with RULES1
35106 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

3See https://www.epa.gov/air-emissionsinventories/emissions-inventory-system-eisgateway, last accessed 3/24/2022. 

4The data was acquired by the Ohio Department 

of Transportation (ODOT) Statewide Traffic 

Analysis website, see https://app.powerbigov.us/ 

view?r=eyJrIjoiZDRjZWRiNTktZGI2

Ny00MzdjLTk1ZTYtNjAwNjUzZThlYjBlIiwidCI6Ij

UwZjhmY2M0LTk0ZDgtNGYwNy04NGVi

LTM2ZWQ1N2M3YzhhMiJ9. 

turnover. Similarly, the Category 3 

Marine Diesel Engine Standards, which 

will reduce NOX emissions from new 

engines by 80%, began in 2016, and 

emission reductions will continue to 

occur at least through 2030 as older 

engines are replaced. These standards, 

in conjunction with rules reducing 

emissions from international and in-use 

vessels covered by MARPOL Annex VI, 

are estimated to result in NOX emissions 

reductions in the United States of 1.2 

million tons per year (tpy). Reductions 

from both Tier 3 Emissions Standards 

and Category 3 Marine Diesel Engine 

Standards first took effect between the 

nonattainment period and the 

attainment period but have been 

achieving emission reductions every 

year since they were first implemented. 

EPA reasonably attributed the improved 

air quality in the Cincinnati area to 

these significant control measures, even 

if those measures did not immediately 

and independently cause the Area to 

attain the 2015 ozone NAAQS. 

In addition, there are numerous other 

permanent and enforceable control 

measures that resulted in emission 

reductions that contributed to and are 

reasonably attributable for the Area’s 

attainment. These include the New 

Source Performance Standards (NSPS) 

for Residential Wood Heaters, of which 

Phase 2 began in 2020 and is projected 

by EPA to achieve 9,265 tons of VOC 

reductions annually when fully 

implemented; the Control of Hazardous 

Air Pollutants from Mobile Sources, 

which EPA estimates will reduce VOC 

emissions by over 1 million tons by 

2030; and the Emissions Standards for 

Locomotives and Marine CompressionIgnition Engines, first promulgated in 

2008, which EPA projected to reduce 

NOX emissions by 800,000 tons in 2030 

which will continue to increase in later 

years as fleet turnover is completed. 

None of these control programs which 

rely upon the replacement of older, 

more polluting technology with newer 

technology that meets more stringent 

emissions standards can be considered 

fully implemented upon initial adoption 

of the emission standard. The rules are 

considered fully implemented when the 

fleet has turned over and the new 

technology is in widespread use. 

Additional reductions from these 

programs continue to be generated 

throughout the implementation period 

as newer units replace older, more 

polluting units. 

In reviewing Ohio’s request, EPA 

applied the same methodology as it has 

for the many redesignated areas across 

the country over the last three decades. 

The Proposal discussed at length the 

various state and Federal promulgated 

measures and the estimated precursor 

emission reductions impacts 

attributable to each of those measures. 

The commenter does not dispute the 

permanence or enforceability of any of 

the measures listed by EPA, nor does 

the commenter refute that the measures 

obtained the estimated reductions cited 

by EPA. 

Comment: The commenter argues that 

EPA’s determination that improved air 

quality during 2019–2021 was caused 

by permanent and enforceable 

emissions reductions program is 

unlawful, arbitrary, and capricious 

because EPA did not evaluate whether 

decreased economic activity from the 

COVID–19 pandemic caused improved 

air quality in the Area. The commenter 

contends that EPA should not rely 

solely on data from 2019, 2020 and 2021 

when the Area came into attainment, 

due to COVID–19 effects on power plant 

emissions and automobile travel being 

the likely cause of the reductions rather 

than the cited enforceable reduction 

measures. Further, the commenter 

argues that the fact that EPA considered 

the impact of the pandemic in the 

Agency’s proposal to redesignate 

Detroit, Michigan demonstrates that it 

was unreasonable for EPA to ignore the 

potential impact of the pandemic on 

Cincinnati’s attainment. 

Response: EPA does not agree that our 

determination that the Area’s attainment 

is due to permanent and enforceable 

reductions is arbitrary and capricious. 

As previously discussed, we think that 

OEPA’s submission and the rationale 

provided in EPA’s Proposal establishes 

that the Area’s attainment is due to the 

cited permanent and enforceable 

reductions. However, in response to this 

comment, EPA has performed an 

additional analysis focused on emission 

trends in point sources and mobile 

sources in the Cincinnati area. That 

analysis, discussed in detail below, 

confirms our determination. 

The commenter highlighted 

nationally decreased power plant 

emissions during the COVID–19 

pandemic recession beginning in 2020. 

Therefore, EPA evaluated the point 

source emissions from Butler, Clermont, 

Hamilton, and Warren Counties in Ohio, 

the counties that make up the Ohio 

portion of the Area, based on data from 

EPA’s Emissions Inventory System 

(EIS) 3 Gateway. The point source 

reductions achieved from the 

nonattainment year 2014 through the 

attainment year of 2019 show NOX and 

VOC emission reductions of 22 and 12 

percent, respectively. Between 2019 

(pre-pandemic) and 2020 (pandemic), 

NOX point source emission were 

reduced by 0.4 percent. The vast 

majority of the emission reductions did 

not occur as a result of the pandemic. 

EPA also analyzed the pandemic’s 

impact on passenger and truck traffic in 

response to the commenter’s assertion 

that automobile travel ‘‘plunged’’ in 

2020 as a result of the pandemic. We 

found that, consistent with statewide 

trends, car traffic did decrease during 

the pandemic, but truck traffic 

increased. From mid-March 2019 to 

mid-March 2020, passenger and truck 

traffic in Hamilton County, the county 

which contains the Cincinnati city 

limits, were down 12 percent and 4 

percent, respectively.4 From mid-March 

2019 to mid-March 2021, passenger 

traffic was down 19 percent, while truck 

traffic was up by 5 percent. Expanding 

this further, from mid-March 2019 to 

mid-March 2022, passenger traffic was 

down 12 percent while truck traffic was 

up by 9 percent. This pattern highlights 

several components of the United 

States’ ‘new normal’ since the arrival of 

the COVID–19 pandemic. An Ohio 

statewide analysis by the OhioKentucky-Indiana Regional Council of 

Governments (OKI) assesses the ‘new 

normal’ including monthly traffic 

impacts after the state of emergency was 

lifted on June 6, 2021, concluded overall 

traffic conditions in 2021 were 

decreased by a range of 3 to 7 percent, 

from June 2021 through January 2022, 

considering a monthly average. 

Separating between car and truck traffic, 

over the same time period, car traffic 

was decreased ranging from 5 to 9 

percent, while truck traffic was 

increased from June 2021 through 

January 2022, ranging from 9 to 14 

percent. In EPA’s 2017 National 

Emissions Inventory (NEI), there were 

31,762 tpy of NOX attributed to heavy 

duty vehicles (HDV) in Clermont, 

Butler, Hamilton, and Warren counties 

and 38,564 tpy of NOX attributed to 

light duty vehicles (LDV). Thus a 10% 

decrease in LDV Vehicle Miles 

Travelled (VMT) and a 10% increase in 

HDV VMT would be expected to lead to 

a small net decrease in onroad NOX

emissions for these counties of less than 

1,000 tpy and corresponding to a change 

of less than 1 percent. Thus, assuming 

that vehicle traffic scales linearly with 

NOX emissions, decreases in LDV VMT 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35107 

5See https://www.epa.gov/outdoor-air-qualitydata/air-data-ozone-exceedances, last accessed 3/ 

29/2022. 

6See OEPA’s December 21, 2021, submittal 

contained in the docket for this action. 

7The proposed approval to redesignate the 

Detroit, Michigan area to attainment of the 2015 

Ozone Standards published on March 14, 2022 (87 

FR 14210). 

8See www.bls.gov/cew/. Last accessed March 22, 

2022. 

of between 3 and 19% paired with 

changes in truck VMT ranging from a 

4% decrease to a 14% increase could 

lead to net NOX change ranging from a 

decrease of approximately 8,600 tpy to 

an increase of approximately 3,300 tpy 

corresponding to a 12% decrease and a 

5% increase respectively. As a result of 

these light duty and heavy duty VMT 

trends in opposite directions in the 

Cincinnati area it is not clear whether 

the COVID–19 lockdowns led to any 

significant net mobile NOX reductions 

in this nonattainment area. 

A similar analysis by OKI of the Ohio 

counties in the Area (Clermont, Butler, 

Hamilton, and Warren) included 

average weekday daily traffic in the OKI 

region from 2019 to 2021, from 20 

(directional) Ohio Department of 

Transportation (ODOT) permanent 

traffic count stations (Table 1). The 

results highlight 2021 car traffic levels 

higher than 2020, but remaining 

approximately 7 percent below 2019 

traffic levels, while truck traffic 

increased by 13 percent from 2019 to 

2021, which OKI characterizes as the 

‘new normal’. Truck traffic did not 

experience the marked decrease 

beginning in March of 2020 at the 

outbreak of COVID–19 to the degree car 

traffic experienced, and by late June of 

2020, truck traffic counts equaled June 

2019 truck traffic counts, and exceeded 

them throughout the rest of 2020. This 

distinction is pertinent because EPA has 

found that in the upper Midwest, the 

majority of ozone exceedances occur in 

late May though late July. In the Area in 

particular, through the 2011–2021 time 

period, as ozone design values have 

decreased, ozone exceedances are more 

likely to occur later in the ozone season, 

and most likely in the months of June 

or July.5 This time period would be 

within the same time frame that 2020 

truck traffic returned to and exceeded 

2019 truck traffic and hence, would 

have entered the ‘new normal’ 

conditions by the time the Area 

experiences its highest ozone values. 

TABLE 1—AVERAGE WEEKDAY DAILY TRAFFIC COUNTS IN CLERMONT, BUTLER, HAMILTON, AND WARREN COUNTIES, 

2019–2021 

Vehicle type 

2019 Average 

weekday daily 

traffic 

2020 Average 

weekday daily 

traffic 

2021 Average 

weekday daily 

traffic 

Car ......................................................................................................................................... 526,880 440,190 487,522 

Truck ...................................................................................................................................... 54,429 56,461 61,560 

An analysis performed by OKI 

showed that VMT values are projected 

to increase throughout the maintenance 

period in the Area.6 While EPA 

recognizes COVID–19 led to decreases 

in traffic and mobile source emissions, 

EPA would like to emphasize that the 

Area has continued to model decreases 

in on-road emissions despite modeled 

VMT increases, leaving the Area with an 

even larger margin when comparing onroad emissions in 2019 and emissions in 

2026 and 2035 if the ‘new normal’ 

conditions prove to be temporary and 

traffic again rises beyond what is 

forecast in the maintenance plan. 

Additionally, NEI trends data shows 

consistent decreases in both NOX and 

VOC emissions in Ohio from highway 

vehicles since 2011, and off-highway 

NOX and VOC emissions since 2002. 

With the many mobile source reduction 

measures in place in Ohio, EPA has no 

reason to believe that the reductions 

achieved are based on a brief period of 

decreased VMT in 2020 due to the 

COVID–19 pandemic. 

As suggested by the commenter, EPA 

also performed an analysis similar to the 

one performed by Michigan’s 

Environment, Great Lakes and Energy 

agency in their submittal requesting 

redesignation of the Detroit area for the 

2015 ozone standard,7 to evaluate 

whether the improvement in air quality 

was caused by temporary adverse 

economic conditions, especially the 

economic conditions associated with 

the COVID–19 pandemic which first 

impacted Ohio in 2020. EPA first 

considered point source reduction 

trends, noting that between 2005 and 

2017, OEPA provided that Ohio’s NOX

and VOC emissions decreased by 57 

percent and 33 percent, respectively. 

Further, EPA compared the maximum 8- 

hour ozone concentrations against VMT 

and employment from 2014 through 

2021. This highlighted that while 

employment levels were affected by 

COVID–19 and saw a decrease of 

employed individuals of almost 12,000 

comparatively from the average 2019 

levels to April of 2020, employment 

returned to 2019 levels by July 2020, 

according to Bureau of Labor and 

Statistics (BLS) Quarterly Census of 

Employment and Wages.8 Employment 

levels continued to increase through 

2021, and while the analysis showed a 

correlation between VMT and 

employment in the Area, no direct 

correlation between these economic 

indicators and the high ozone values 

was identified. The VMT and emissions 

values generated by OKI using EPA’s 

MOVES3 model indicate increasing 

VMT and decreasing emissions from the 

nonattainment year of 2014, through the 

attainment year of 2019, the interim 

year of 2026, and the end year of 2035. 

Further, under section 176(c) of the 

CAA, new transportation plans, 

programs, or projects that receive 

Federal funding or support, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the SIP. Conformity to the SIP means 

that transportation activities will not 

cause or contribute to any new air 

quality violations, increase the 

frequency or severity of any existing air 

quality problems, or delay timely 

attainment or any required interim 

emissions reductions or any other 

milestones. 

Ohio’s maintenance plan includes 

NOX and VOC motor vehicle emissions 

budgets (budgets) for the Area for 2026, 

the interim year, and 2035, the last year 

of the maintenance period (Table 2). 

The budgets are the portion of the total 

allowable emissions that are allocated to 

highway and transit vehicle use that, 

together with emissions from other 

sources in the Area, will provide for 

attainment or maintenance. These 

budgets represent the projected 2026 

and 2035 on-road emissions plus a 

safety margin and are consistent with 

maintenance of the 2015 ozone NAAQS, 

which is described below. Detailed 

information on the transportation 


lotter on DSK11XQN23PROD with RULES1
35108 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

conformity program can be found in our 

Proposal. 

TABLE 2—2026 AND 2035 BUDGETS

FOR THE OHIO PORTION FOR THE

2015 OZONE NAAQS MAINTENANCE

AREA

[Tons per summer day, TPSD] 

Pollutant 2026 

Budget 

2035 

Budget 

NOX ................................... 14.15 10.58 

VOC .................................. 25.30 18.98 

A ‘‘safety margin’’ is the difference 

between the attainment level of 

emissions (from all sources) and the 

projected level of emissions (from all 

sources) in the maintenance plan. 

Further, the transportation conformity 

regulations allow states to allocate all or 

a portion of a documented safety margin 

to the motor vehicle emissions budgets 

for an area (40 CFR 93.124(a)). Ohio is 

allocating a portion of that safety margin 

to the mobile source sector. Specifically, 

in 2026, Ohio is allocating 1.85 TPSD 

and 3.30 TPSD of the VOC and NOX

safety margins, respectively. In 2035, 

Ohio is allocating 1.38 TPSD and 2.48 

TPSD of the VOC and NOX safety 

margins, respectively. Since only a part 

of the safety margin is being used, 

maintenance requirements are still 

easily met. Once allocated to on-road 

mobile sources, these safety margins 

will not be available for use by other 

sources. 

EPA recognizes the difficulties in 

assessing the impacts of the COVID–19 

pandemic on ozone precursor emissions 

and ozone design values and the 

economic disparities from the COVID– 

19 pandemic, but we do not agree that 

the Area’s attainment is due to a 

temporary economic downturn 

associated with the COVID–19 

pandemic. To the contrary, our analysis 

of the available data regarding point 

source emissions in the Cincinnati area 

and trends in vehicular traffic do not 

indicate that the Area’s attainment was 

driven by temporary conditions. The 

effect of the pandemic on point source 

emissions in the Area was insignificant 

in comparison to the effect of 

enforceable control measures, and the 

decrease in passenger vehicle VMT 

during the pandemic is not only largely 

offset by an increase in truck traffic but 

likely does not have a strong correlation 

with maximum ozone design values. 

OKI’s mobile source modeling 

performed for the Area indicates that 

vehicular emission control measures 

will continue to drive emissions down 

even as VMT is projected to increase. 

Comment: The commenter asserts that 

ozone concentrations from the design 

value period 2017–2019 (i.e., before the 

COVID–19 pandemic) undermines 

EPA’s finding that the reduced ambient 

ozone concentrations observed in 2019– 

2021 are in fact attributable to 

permanent and enforceable regulations 

that took effect between 2004 and 2017. 

The commenter points out that during 

the 2017–2019 time period, several 

monitors in the Area recorded annual 

4th high daily maximum 8-hour ozone 

concentrations that exceeded the level 

of the NAAQS. The commenter 

contends that EPA’s failure to consider 

this earlier period (i.e., 2017–2019) as a 

relevant set of data for assessing the 

relative impact of enforceable emission 

reductions and the impact of the 

COVID–19 pandemic on reduced ozone 

levels in 2020–2021 was arbitrary and 

capricious and calls into question the 

reasonableness of EPA’s proposed 

redesignation to attainment. The 

commenter also notes that EPA looked 

at precursor emissions from 2014 and 

2019 but only analyzed ozone 

concentrations during the 2019–2021 

period. 

Response: EPA disagrees with the 

commenter’s suggestion that the fact 

that the Cincinnati area was not 

attaining the 2015 ozone NAAQS in 

2017–2019 (i.e., before the COVID–19 

pandemic) undermines our conclusion 

that the Area has attained due to 

permanent and enforceable measures, as 

opposed to decreases in emissions 

associated with the pandemic. As 

discussed in the previous comment 

responses, many of the permanent and 

enforceable measures applicable to the 

sources in the Area or to sources 

upwind of the Area impose continued, 

and in some cases additional, emission 

reductions with each year of 

implementation (e.g., phased-in mobile 

source standards in addition to fleet 

turnover). Control measures do not 

obtain all emission reductions in the 

first year of their implementation, and 

not all impacts from a control measure 

are necessarily reflected in ozone 

concentrations in that year. Ozone 

formation and measured concentrations 

are dependent on a host of factors, 

including emissions and meteorology, 

and the continued application of many 

control measures across many source 

categories over a period of time has a 

significant impact on decreasing ozone 

concentration trends. 

We therefore do not think that 

violating data from 2017–2019 

necessarily means that attaining data 

from 2019–2021 was caused by a 

reduction in emissions due to the 

pandemic. However, in response to the 

commenter’s suggestion, we analyzed 

emissions information for point sources 

in the Area and for mobile sources in 

the Area during pre-pandemic periods 

and from the years 2020 and 2021 (i.e., 

during the pandemic). Our conclusion, 

discussed in the comment response 

above, is that while the pandemic likely 

had some impact on emissions in the 

Area, that impact does not appear to 

have been the primary driver of 

decreased ozone concentrations in the 

Area. 

To further support OEPA’s 

demonstration that the improvement in 

air quality between the year violations 

occurred and the year attainment was 

achieved, is due to permanent and 

enforceable emission reductions and not 

on favorable meteorology, the state 

included a classification and regression 

tree (CART) analysis to demonstrate that 

the improvement in air quality was not 

due to unusually favorable meteorology, 

which was performed by the Lake 

Michigan Air Directors Consortium 

(LADCO). The goal of the analysis was 

to determine the meteorological and air 

quality conditions associated with 

ozone episodes, and construct trends for 

the days identified as sharing similar 

meteorological conditions in ozone 

nonattainment areas in the LADCO 

region. Regression trees were developed 

for the Cincinnati area ozone data to 

classify each summer day by its ozone 

concentration and associated 

meteorological conditions. By grouping 

days with similar meteorology, the 

influence of meteorological variability 

on the underlying trend in ozone 

concentrations is partially removed and 

the remaining trend is presumed to be 

due to trends in precursor emissions or 

other non-meteorological influences. 

The CART analysis showed the 

resulting trends in ozone concentrations 

declining over the period examined, 

2005 through 2020, supporting the 

conclusion that the improvement in air 

quality was not due to unusually 

favorable meteorology. 

The CART analysis shows that ozone 

concentrations for all five high-ozone 

day types have decreased over the last 

16 years, demonstrating that on days 

with similar meteorology, ozone 

concentrations on high-ozone days at 

Cincinnati monitors have decreased 

substantially since 2005. Overall, OEPA 

concluded that average summer 

temperatures have remained steady and 

average ozone concentrations have 

decreased from 2005 through 2021, 

providing a strong basis to conclude that 

reductions in precursors are responsible 

for the reductions in elevated ozone 

concentrations in the Area, and that 

these emission reductions were not 


lotter on DSK11XQN23PROD with RULES1

I I 
Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35109 

9See documentation on EPA’s Environmental 

Justice Screening and Mapping Tool at https://

www.epa.gov/ejscreen, last accessed 5/2/2022. 

10EPA, ‘‘Technical Guidance for Assessing 

Environmental Justice in Regulatory Analysis,’’ 

section 4 (June 2016). 

11EPA, ‘‘EJSCREEN Technical Documentation,’’ 

appendix H (September 2019). 

solely or primarily driven by a 

pandemic-related decrease in emissions 

or unusually favorable meteorology, but 

rather by the host of permanent and 

enforceable state and federal measures 

that have been applied and will 

continue to apply over time. 

Further, we find no fault with Ohio’s 

examination of 2019 emissions within 

the nonattainment area (i.e., the 

attainment inventory) for purposes of 

illustrating the reduction in emissions 

in the Area over time (from 2014 to 

2019). To the extent that commenter is 

suggesting Ohio also should have 

provided emission inventories for years 

2020 and 2021, we do not agree that 

information was necessary to evaluate 

emission trends. The State’s selection of 

one year of emissions during a design 

value period indicating nonattainment 

and one year of emissions during a 

design value period indicating 

attainment was sufficient to show that 

emissions had decreased substantially 

within the Area during that time period. 

Moreover, even though the state did not 

supply full emission inventories for 

years 2020 and 2021 (which they were 

not required to do), EPA performed 

additional analysis of the potential 

COVID–19 effects on the Area in 

response to the commenter’s suggestion. 

As discussed in the previous comment 

responses, that analysis showed that 

point source precursor emissions of 

NOX and VOC in the Area did not 

decrease substantially from the prepandemic year of 2019 to 2020. 

Likewise, the Ohio state-wide analysis 

by OKI concluded that overall traffic 

conditions in 2021 were decreased by a 

range of 3 to 7 percent compared to 

2019, from June 2021 through January 

2022, while truck traffic increased over 

the same time period. The overall 

mobile source modeling indicated that 

an increase in VMT does not necessarily 

correspond to an increase in emissions, 

because of the impact of mobile source 

standards. 

We therefore do not agree that it is 

unreasonable to redesignate the Ohio 

portion of the Cincinnati area to 

attainment of the 2015 ozone NAAQS. 

Comment: The commenter argues that 

this action affects an Environmental 

Justice (EJ) Community. Specifically, the 

commenter points out that Black 

Americans make up more than 40% of 

Cincinnati’s residents, and that 

according to the U.S. Census, Cincinnati 

has twice the poverty rate of the United 

States as a whole. The commenter 

therefore argues that it is particularly 

incumbent upon EPA to thoroughly 

consider the monitoring time period of 

2017–2019 and not the pandemic years 

of 2020 and 2021, to ensure that any 

redesignation to attainment consider the 

‘‘longstanding excessive burden 

experienced by Black and low-income 

communities in southwestern Ohio.’’ 

Response: EPA sets the NAAQS at a 

level to protect the public health, with 

an adequate margin of safety, including 

the health of at-risk populations, and 

protect the public welfare from adverse 

effects. The criteria set forth in 40 CFR 

50.19 and appendix U of part 50 to 

attain the 2015 ozone NAAQS 

establishes that the 3-year average of the 

annual fourth-highest daily maximum 8- 

hour average ozone concentration must 

be less than or equal to 0.070 ppm, 

which is true of the Area. While EPA 

recognizes the importance of assessing 

impacts of our actions on potentially 

overburdened communities, we believe 

that our approval of Ohio’s 

redesignation request for the 2015 ozone 

NAAQS would not exacerbate existing 

pollution exposure or burdens for 

populations in the Cincinnati area. 

Even so, Executive Order 12898 (59 

FR 7629, February 16, 1994) requires 

that Federal agencies, to the greatest 

extent practicable and permitted by law, 

identify and address disproportionately 

high and adverse human health or 

environmental effects of their actions on 

minority and low-income populations. 

Additionally, Executive Order 13985 (86 

FR 7009, January 25, 2021) directs 

Federal Government agencies to assess 

whether, and to what extent, their 

programs and policies perpetuate 

systemic barriers to opportunities and 

benefits for people of color and other 

underserved groups, and Executive 

Order 14008 (86 FR 7619, February 1, 

2021) directs Federal agencies to 

develop programs, policies, and 

activities to address the 

disproportionate health, environmental, 

economic, and climate impacts on 

disadvantaged communities. To identify 

environmental burdens and susceptible 

populations in communities in the Area, 

EPA performed a screening-level 

analysis using EPA’s EJ screening and 

mapping tool (‘‘EJSCREEN’’).9 EPA 

utilized the EJSCREEN tool to evaluate 

environmental and demographic 

indicators at the county level for each 

county within the Area (Butler, 

Clermont, Hamilton and Warren). 

Additional indicators of overall 

pollution burden include estimates of 

ambient particulate matter (PM2.5) 

concentration, a score for traffic 

proximity and volume, percentage of 

pre-1960 housing units (lead paint 

indicator), and scores for proximity to 

Superfund sites, risk management plan 

(RMP) sites, and hazardous waste 

facilities. EPA’s screening-level analysis 

indicates that communities in the Area 

affected by this action score below the 

national average for the EJSCREEN 

‘‘Demographic Index’’, which is the 

average of an area’s percent minority 

and percent low income populations, 

i.e., the two demographic indicators 

explicitly named in Executive Order 

12898. As discussed in the EPA’s EJ 

technical guidance, people of color and 

low-income populations often 

experience greater exposure and disease 

burdens than the general population, 

which can increase their susceptibility 

to adverse health effects from 

environmental stressors.10 Additionally, 

EPA has provided that if any of the EJ 

indexes for the areas under 

consideration are at or above the 80th 

percentile nationally, then further 

review may be appropriate.11 The 

results indicate that these areas score 

below the 80th percentile (in 

comparison to the nation as a whole) in 

the twelve EJ Indexes established by 

EPA, which include a combination of 

environmental and demographic 

information, with one exception. In 

Hamilton county, the EJ Index for Risk 

Management Plan (RMP) Facility 

Proximity scored at the 81st percentile. 

This EJ index considers the count of 

RMP (potential chemical accident 

management plan) facilities within 5 km 

(or nearest one beyond 5 km), each 

divided by distance in kilometers. 

Considering these results, EPA further 

considered forthcoming and existing 

emission reduction measures that may 

help to mitigate existing pollution 

issues in the Area. The Area’s 

redesignation to attainment will include 

the continued application of the 

Prevention of Significant Deterioration 

(PSD) permitting requirements 

including installation of the Best 

Available Control Technology (BACT), 

air quality analysis, additional impacts 

analysis, and public involvement for 

new and modified sources. The Federal 

mobile source and point source 

emission reduction programs and NOX

cap and trade programs through CSAPR, 

identified as the permanent and 

enforceable regulations which led to the 

Area’s attainment, remain in place and 

will continue to achieve reductions. 

Further, Ohio has submitted a 

maintenance plan that shows 

continuing reductions in NOX and VOC 


lotter on DSK11XQN23PROD with RULES1
35110 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

12See https://epa.ohio.gov/divisions-and-offices/ 

air-pollution-control/regulations/effective-rules/ 

dapc-effective-rules, last accessed 5/20/2022. 

13See https://www.govinfo.gov/content/pkg/ 

USCODE-2020-title5/pdf/USCODE-2020-title5- 

partI-chap5-subchapII-sec553.pdf, last accessed 3/ 

16/2022. 

emissions through 2035 and includes 

contingency measure provisions to 

address any possible future violation of 

the NAAQS. 

Additionally, Ohio has adopted 

regulations to address the NOX and VOC 

Reasonably Available Control 

Technology (RACT) requirements that 

apply to moderate areas. Despite 

Cincinnati’s current marginal ozone 

classification, Ohio voluntarily adopted 

these RACT rules for the Area after 

planning efforts were underway for 

moderate RACT requirements for the 

2015 ozone standard in Cleveland. The 

NOX RACT Rule 3745–110 of the Ohio 

Administrative Code (OAC), which 

became effective March 25, 2022, 

applies to existing boilers, stationary 

combustion turbines, stationary internal 

combustion engines, reheat furnaces, or 

sources located at a facility that emits or 

has the potential to emit a total of more 

than 100 tpy of NOX emissions and 

specifically states applicability to 

sources located in Butler, Clermont, 

Hamilton or Warren county.12 Similarly, 

VOC RACT Rule 3745–21 of the OAC, 

effective March 27, 2022, is applicable 

to various source categories in Butler, 

Clermont, Hamilton and Warren 

counties to facilities that have a total 

uncontrolled potential to emit for VOC 

emissions of 100 tpy. OEPA has 

submitted the VOC RACT rules that 

cover both Cleveland and Cincinnati for 

approval into the Ohio SIP and have 

submitted the NOX RACT rules that 

apply to Cleveland for approval into the 

Ohio SIP. Hence, they will be 

implementing NOX RACT in both 

Cleveland and Cincinnati, and NOX

RACT will be federally enforceable in 

Cleveland. These rules will be SIP 

strengthening and go beyond what is 

required in the Area at the Federal level 

and are expected to achieve additional 

emission reductions and contribute to 

maintenance of the ozone standard in 

the Area. 

EPA acknowledges that ozone 

problems may not be solved through 

redesignations, that regional solutions 

are required, and that coordinated 

cooperation between stakeholders may 

lead to improved air quality. As 

previously noted, OEPA has established 

a maintenance plan containing 

contingency measures as a safeguard 

designed to ensure compliance with the 

NAAQS going forward. EPA also 

continues to implement programs 

addressing regional and interstate 

transport of NOX, such as the Revised 

CSAPR Update. Finally, EPA 

encourages the commenter to remain 

engaged with stakeholders in the effort 

to protect human health and the 

environment. 

III. Final Action 

In accordance with Ohio’s December 

21, 2021, request, EPA is redesignating 

the Cincinnati Ohio-Kentucky 

nonattainment area from nonattainment 

to attainment of the 2015 ozone 

NAAQS. EPA finds that the Area is 

attaining the 2015 ozone NAAQS and 

meets the statutory requirements for 

redesignation under the CAA. EPA is 

also approving Ohio’s maintenance 

plan, which is designed to ensure that 

the Area will continue to maintain the 

ozone NAAQS through 2035. Lastly, 

EPA is approving the state’s 2026 and 

2035 NOX and VOC motor vehicle 

emission budgets for the Ohio portion of 

the Area. 

In accordance with 5 U.S.C. 553(d) of 

the Administrative Procedure Act 

(APA), EPA finds there is good cause for 

this action to become effective 

immediately upon publication. The 

immediate effective date for this action 

is authorized under both 5 U.S.C. 

553(d)(1).13

Section 553(d)(1) of the APA provides 

that final rules shall not become 

effective until 30 days after publication 

in the Federal Register ‘‘except . . . a 

substantive rule which grants or 

recognizes an exemption or relieves a 

restriction.’’ The purpose of this 

provision is to ‘‘give affected parties a 

reasonable time to adjust their behavior 

before the final rule takes effect.’’ 

Omnipoint Corp. v. Fed. Commc’n 

Comm’n, 78 F.3d 620, 630 (D.C. Cir. 

1996); see also United States v. 

Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 

1977) (quoting legislative history). 

However, when the agency grants or 

recognizes an exemption or relieves a 

restriction, affected parties do not need 

a reasonable time to adjust because the 

effect is not adverse. EPA has 

determined that this rule relieves a 

restriction because this rule relieves 

sources in the area of Nonattainment 

New Source Review (NNSR) permitting 

requirements; instead, upon the 

effective date of this action, sources will 

be subject to less restrictive PSD 

permitting requirements. For this 

reason, EPA finds good cause under 5 

U.S.C. 553(d)(1) for this action to 

become effective on the date of 

publication of this action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For these 

reasons, this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is 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.); 

• Does 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); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is 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 CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35111 

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, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

This action is subject to the 

Congressional Review Act, and EPA will 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. This action 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 8, 2022. 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 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: June 2, 2022. 

Debra Shore, 

Regional Administrator, Region 5. 

For the reasons stated in the 

preamble, EPA amends 40 CFR parts 52 

and 81 as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. In § 52.1870, the table in paragraph 

(e) is amended under ‘‘Summary of 

Criteria Pollutant Maintenance Plan’’ by 

adding an entry for ‘‘Ozone (8-Hour, 

2015)’’ before the entry for ‘‘PM–10’’ to 

read as follows: 

§ 52.1870 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED OHIO NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title 

Applicable 

geographical or 

non-attainment area 

State date EPA approval Comments 

*******

Summary of Criteria Pollutant Maintenance Plan 

*******

Ozone (8-Hour, 

2015).

Cincinnati (Butler, 

Clermont, Hamilton, 

and Warren Counties).

12/21/2021 6/9/2022, [INSERT 

FEDERAL REGISTER CITATION].

EPA is approving the following elements: a determination 

that the Cincinnati area has attained the 2015 8-Hour 

ozone standard, a maintenance plan for the 2015 a8- 

Hour ozone NAAQS, 2026 and 2035 VOC and NOX

motor vehicle emission budgets for the Cincinnati area. 

* * * * * * * 

* * * * * 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.336 is amended in the 

table entitled ‘‘Ohio-2015 8-Hour Ozone 

NAAQS [Primary and Secondary]’’ by 

revising the entry for ‘‘Cincinnati, OH– 

KY’’ to read as follows: 

§ 81.336 Ohio. 

* * * * * 

OHIO—2015 8-HOUR OZONE NAAQS 

[Primary and secondary] 

Designated area 1

Designation Classification 

Date 2 Type Date 2 Type 

*******

Cincinnati, OH-KY ................................................................................ June 9, 2022 .... Attainment ........ ........................... Marginal. 

Butler County. 

Clermont County. 

Hamilton County. 


lotter on DSK11XQN23PROD with RULES1
35112 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

OHIO—2015 8-HOUR OZONE NAAQS—Continued 

[Primary and secondary] 

Designated area 1

Designation Classification 

Date 2 Type Date 2 Type 

Warren County. 

* * * * * * * 

1 Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian 

country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country. 2This date is August 3, 2018, unless otherwise noted. 

* * * * * 

[FR Doc. 2022–12318 Filed 6–8–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 220602–0129] 

RIN 0648–BL20 

Fisheries of the Northeastern United 

States; Recreational Management 

Measures for the Summer Flounder, 

Scup, and Black Sea Bass Fisheries; 

Fishing Year 2022 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS announces 

management measures for the 2022 

summer flounder, scup, and black sea 

bass recreational fisheries. The 

implementing regulations for these 

fisheries require NMFS to publish 

recreational measures for the fishing 

year. The intent of this action is to set 

management measures that allow the 

recreational fisheries to achieve, but not 

exceed, the recreational harvest limits 

and thereby prevent overfishing of the 

summer flounder, scup, and black sea 

bass stocks. 

DATES: This rule is effective June 9, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Emily Keiley, Fishery Policy Analyst, 

(978) 281–9116. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council and the Atlantic 

States Marine Fisheries Commission 

cooperatively manage summer flounder, 

scup, and black sea bass. The Council 

and the Commission’s Management 

Boards meet jointly each year to 

recommend recreational management 

measures. Recreational management 

measures are required to be set so that 

recreational harvest achieves, but does 

not exceed, the recreational harvest 

limit (RHL). 

In this final rule, NMFS is 

implementing conservation equivalency 

to manage the 2022 summer flounder 

and black sea bass recreational fisheries, 

as proposed on April 18, 2022 (87 FR 

22863). The approval of conservation 

equivalency means that we are waiving 

Federal summer flounder and black sea 

bass recreational measures in Federal 

waters, and for all federally permitted 

party/charter vessels, regardless of 

where they fish. States, through the 

Commission, are collectively 

implementing measures designed to 

constrain landings to the 2022 

recreational harvest limits. Vessels 

fishing in Federal waters and Federal 

party/charter vessels are subject to the 

regulations in the state in which they 

land. These measures are consistent 

with the recommendations of the 

Council and the Commission. 

Additional information on the 

development of these measures is 

provided in the proposed rule and not 

repeated here. 

For scup, we are implementing a 

1-inch (2.54-cm) increase to the 

minimum size, consistent with the 

recommendation of the Council and 

Board. We are not implementing a 

closure of the recreational scup fishery 

in Federal waters as originally 

proposed. The rationale for this change 

is provided below. 

Scup Recreational Management 

Measures 

We have decided not to close the 

Federal recreational scup fishery as 

proposed on April 18, 2022; 87 FR 

22863. Instead, we are implementing a 

1-inch (2.54-cm) increase to the scup 

recreational minimum size in Federal 

waters. In Federal waters, this results in 

a 10-inch (25.4-cm) total length 

minimum size. Combined with the 

1-inch (2.54-cm) size change being 

implemented by the states, an 

approximate 33-percent reduction in 

harvest is expected. 

Our rationale for implementing the 

size limit increase and not the Federal 

closure, is based, in part, on the 

objectives of the Magnuson-Stevens Act. 

Per the National Standards, 

management actions need to prevent 

overfishing while minimizing social and 

economic impacts, considering equity, 

and minimizing discards, among other 

factors. Additionally, we considered 

ongoing actions by the Council and 

Commission to address the factors that 

are considered for recreational 

regulations. Many of the comments 

received on the proposed rule 

highlighted these issues, and these are 

summarized in the comment response 

section. 

The proposed closure would have 

only impacted the Federal recreational 

fishery (recreational scup fishing 

beyond 3 miles from land, or federally 

permitted party/charter scup vessels 

regardless of area fished). The majority 

(about 94 percent) of scup harvest 

comes from state waters. If a closure had 

been implemented, it was expected that 

federally permitted for-hire vessels 

would have dropped their federal 

permit for the fishing year and pursued 

scup in state waters. While this may 

have alleviated some of the anticipated 

economic impacts, it would have also 

likely resulted in increased effort in 

state waters, minimizing the impact of 

the closure on overall scup harvest. 

Additionally, scup is difficult to avoid 

when fishing for other popular 

recreational targets such as black sea 

bass, and because it would have been 

illegal to retain scup in Federal waters, 

we anticipated that scup discards on 

those trips would have increased 

substantially, further limiting the 

reduction in scup harvest. 

Additionally, the commercial fishery 

is not expected to harvest its entire 

quota, and, as in previous years, overall 


lotter on DSK11XQN23PROD with RULES1