50814 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: October 17, 2017. 

Robert A. Kaplan, 

Acting Regional Administrator, Region 5. 

40 CFR part 52 is amended 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 § 52.720, the table in paragraph 

(c) is amended under ‘‘Part 211: 

Definitions and General Provisions’’, 

‘‘Subpart B: Definitions’’ by revising the 

entry for 211.7150 ‘‘Volatile Organic 

Material (VOM) or Volatile Organic 

Compound (VOC)’’ to read as follows: 

§ 52.720 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED ILLINOIS REGULATIONS AND STATUTES

Illinois citation Title/subject 

State 

effective 

date 

EPA approval date Comments 

*******

Part 211: Definitions and General Provisions 

*******

Subpart B: Definitions 

*******

211.7150 ...................................... Volatile Organic Material (VOM) 

Or Volatile Organic Compound 

(VOC).

1/23/2017 11/2/2017, [insert Federal Register citation].

*******

* * * * * 

[FR Doc. 2017–23468 Filed 11–1–17; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2016–0638; FRL–9969–93– 

Region 3] 

Determination of Attainment by the 

Attainment Date for the 2008 Ozone 

Standard; Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is making a final 

determination that the PhiladelphiaWilmington-Atlantic City, PA-NJ-MDDE marginal ozone nonattainment area 

(the Philadelphia Area) has attained the 

2008 ozone national ambient air quality 

standard (NAAQS) by the July 20, 2016 

attainment date. This final 

determination is based on complete, 

certified, and quality assured ambient 

air quality monitoring data for the 

Philadelphia Area for the 2013–2015 

monitoring period. The effect of this 

determination of attainment (DOA) is 

that the Philadelphia Area will not be 

bumped up or reclassified as a moderate 

nonattainment area. The determination 

of attainment is not equivalent to a 

redesignation, and the States in the 

Philadelphia Area must still meet the 

statutory requirements for redesignation 

in order to be redesignated to 

attainment. This determination is also 

not a clean data determination. This 

action is being taken under the Clean 

Air Act (CAA). 

DATES: This final rule is effective on 

December 4, 2017. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–R03–OAR–2016–0638. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., 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 through http://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 18, 2017 (82 FR 18268), EPA 

published a notice of proposed 

rulemaking (NPR) for the Philadelphia 

Area. The Philadelphia Area consists of 

Bucks, Chester, Delaware, Montgomery 

and Philadelphia Counties in 

Pennsylvania; Atlantic, Burlington, 

Camden, Cape May, Cumberland, 

Gloucester, Mercer, Ocean and Salem 

Counties in New Jersey; Cecil County, 

Maryland; and New Castle County in 

Delaware. See 40 CFR 81.331, 81.339, 

81.321, and 81.308. In the NPR, EPA 

proposed to determine, in accordance 

with its statutory obligations under 

section 181(b)(2)(A) of the CAA and the 

relevant regulatory provisions (40 CFR 


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1 In a final rulemaking action published on May 

4, 2016, EPA determined that the Philadelphia Area 

did not attain the 2008 ozone NAAQS by its July 

20, 2015 attainment date, based on ambient air 

quality monitoring data for the 2012–2014 

monitoring period. EPA determined that the 

Philadelphia Area qualified for a 1-year extension 

of its attainment date, as provided in section 

181(a)(5) of the CAA and interpreted by regulation 

at 40 CFR 51.1107, and granted that extension. EPA 

established a new attainment date of July 20, 2016, 

with attainment to be based on ambient air quality 

monitoring data for the 2013–2015 monitoring 

period. See 81 FR 26697. (May 4, 2016). EPA’s 

decision to extend the attainment date has been 

challenged by the State of Delaware in Delaware v. 

EPA, No. 16–1230 (D.C. Cir.). That case is currently 

pending before the Court and has not been decided. 

51.1103), that the Philadelphia Area 

attained the 2008 ozone NAAQS by the 

applicable extended attainment date of 

July 20, 2016.1

II. EPA’s Evaluation 

Section 181(b)(2)(A) of the CAA 

requires that EPA determine whether an 

area has attained the NAAQS by its 

attainment date based on complete and 

certified air quality data from the three 

full calendar years preceding an area’s 

attainment date. The 2008 ozone 

NAAQS is 0.075 parts per million 

(ppm). Consistent with the requirements 

contained in 40 CFR part 50, Appendix 

P, which set forth how to compute 

whether monitoring sites and 

nonattainment areas are attaining the 

ozone NAAQS, EPA reviewed the ozone 

ambient air quality monitoring data for 

the monitoring period from 2013 

through 2015 for the Philadelphia Area, 

as recorded in the air quality system 

(AQS) database. State and local agencies 

responsible for ozone air monitoring 

networks supplied and quality assured 

the data. EPA determined that the 

monitoring sites with valid data had 

design values equal to or less than 0.075 

ppm based on the 2013–2015 

monitoring period. Therefore, based on 

2013–2015 certified air quality data, 

EPA concludes that the Philadelphia 

Area has attained the 2008 ozone 

NAAQS. 

Other specific requirements of this 

determination of attainment by the 

attainment date and the rationale for 

EPA’s final action are explained in the 

NPR and will not be restated here. EPA 

received comments that are addressed 

in Section III of this rulemaking action. 

III. Public Comments and EPA’s 

Responses 

EPA received adverse comments from 

the Center for Biological Diversity 

(Center), Sierra Club, and Delaware 

Department of Natural Resources and 

Environmental Control (Delaware). The 

comments are excerpted and/or 

summarized and addressed in this 

section: 

Comment 1: EPA’s regression 

approach is inconsistent with EPA’s 

Appendix P regulations, and EPA’s 

reliance on the regression analysis is 

unlawful and arbitrary. For one of the 

two monitors (Brandywine), EPA relies 

on a regression analysis to predict the 

missing ozone concentration 

measurements and, as a result, 

purportedly achieves the requisite data 

completeness at that monitor. See U.S. 

EPA Region 3, Delaware Brandywine/ 

Martin Luther King Monitors Data 

Substitution Analysis TSD 2013–2015 

Ozone (Dec. 2016) (TSD), at p. 7. 

Appendix P is quite clear, however, that 

‘‘[w]hen computing whether the 

minimum data completeness 

requirements have been met, 

meteorological or ambient data may be 

sufficient to demonstrate that 

meteorological conditions on missing 

days were not conducive to 

concentrations above the level of the 

standard.’’ 40 CFR part 50, Appendix P 

section 2.3(b) (emphasis added). EPA’s 

regression analysis does not purport to 

make any demonstrations regarding 

meteorological conditions, nor can it, as 

the analysis is based purely on ozone 

monitor readings. 

Response 1: Commenters read 40 CFR 

part 50, Appendix P, section 2.3(b) too 

narrowly, and ignore the last sentence of 

that section, which states that ‘‘Missing 

days assumed less then [sic] the level of 

the standard are counted for the purpose 

of meeting the data completeness 

requirement.’’ EPA interprets this 

regulation to allow for reasonable, 

rational assumptions using available 

data, whether meteorological or 

ambient, to determine whether, on days 

where an ozone monitor is missing data, 

it is unlikely that the actual ozone levels 

would exceed the NAAQS. For this 

determination, EPA used three different 

methods to determine whether data 

from days that the relevant ozone 

monitors were missing data were 

rationally assumed to be less than the 

level of the NAAQS, and therefore could 

be counted toward the data 

completeness requirement. These 

methods are: (1) Analysis of 

temperature; (2) regression analysis; and 

(3) data substitution. First, EPA 

conducted an analysis that compared 

temperature (a meteorological 

condition) at the Wilmington Delaware 

National Airport (ILG) to measured 

ozone readings from 2010 through 2015 

at the 18 ozone monitors in the 

Philadelphia Area (See Table 4 of the 

technical support document (TSD) at 

page 4). The highest daily 8-hour ozone 

readings from those 18 Philadelphia 

Area ozone monitors on all days (not 

just missing days) was compared to the 

maximum daily temperatures at the 

Wilmington Airport on the 

corresponding days. The results of this 

analysis, presented in Figure 1 on page 

6 of the TSD, shows that from 2010 

through 2015, none of the 18 monitors 

recorded an 8-hour ozone level above 

0.075 ppm when the temperature at 

Wilmington Airport was at or below 77 

degrees Fahrenheit (°F). This analysis 

identified 18 days in 2013, 30 days in 

2014, and 27 days in 2015 with missing 

ozone readings that could reasonably be 

assumed to be below the 0.075 ppm 

threshold at the Martin Luther King 

(MLK) monitor (AQS ID 10–003–2004) 

in Delaware. The temperature-based 

analysis alone added enough complete 

days to the MLK monitor to meet the 

data completeness threshold. For the 

Brandywine monitor (AQS ID 10–003– 

1010), the temperature-based analysis 

identified 22 days during 2013, 9 days 

during 2014, and 8 days during 2015 

that could reasonably be assumed to be 

below a 0.075 ppm ozone reading. 

However, the temperature analysis did 

not add enough complete days to the 

Brandywine monitor to meet the 

Appendix P data completeness level 

because there was an insufficient 

number of days below 77 °F at the 

Wilmington Airport in which the 

Brandywine monitor was missing data. 

Therefore, EPA performed a regression 

analysis in order to fill in the remaining 

data gap as well as to validate the data 

results (for both monitors) obtained 

from the analysis of temperature 

method. 

This regression analysis relied on 

ambient data—measured ozone levels at 

a nearby certified ozone monitor—to 

predict ozone levels at monitors with 

missing data. This type of analysis is 

only appropriate where readings from a 

nearby certified ozone monitor closely 

correlate with readings from the 

monitors with missing data. In this case, 

EPA examined the two other air quality 

monitors located in the same county as 

the Brandywine and MLK monitors, 

compared recorded ozone readings of all 

four monitors on days and found that 

the Bellefonte2 monitor (AQS ID 10– 

003–1013), which is located five miles 

from both Brandywine and MLK, 

correlated most closely with those 

monitors. As explained in more detail in 

the TSD, the Bellefonte2 monitor is 

strongly correlated with both the 

Brandywine and MLK monitors (TSD at 

pp. 8–10). Using this information, EPA 

determined a separate linear regression 

equation for each of the Brandywine 

and MLK monitors. These two equations 

allowed calculation of predicted ozone 


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readings for the Brandywine or MLK 

monitor on days when those monitors 

were missing data by using actual ozone 

readings from the Bellefonte2 monitor 

(TSD at p.11) in the equation. The 

values calculated using the linear 

regression equations for the MLK and 

Brandywine monitors are shaded green 

in Table 6 of the TSD on pages 11–16. 

EPA took a conservative approach and 

added, as complete days, only those 

days at the Brandywine monitor where 

the predicted ozone value was less than 

0.060 ppm. That is, EPA only employed 

the regression analysis method to add 

days toward the data completeness 

requirement for the Brandywine 

monitor where EPA’s predicted ozone 

value was well below the level of the 

NAAQS. The days added as ‘‘complete’’ 

days to the Brandywine monitor via this 

method (linear regression equation 

showing less than 0.060 ppm ozone) are 

represented by the numeral ‘‘2’’ in Table 

9 of the TSD. The regression analysis 

added 8 complete days in 2013 and 16 

complete days in 2014 to the 

Brandywine monitor (TSD, p.16) and 

also validated and confirmed EPA’s 

conclusions from its temperature 

method analysis at this monitor. Since 

the analysis of temperature method 

provided sufficient complete data for 

the MLK monitor, EPA performed a 

similar regression analysis for the MLK 

monitor only for the purpose of 

confirming and validating its 

conclusions drawn from the 

temperature analysis. Both the 

temperature analysis and regression 

methods produced the same results at 

the MLK monitor. 

EPA also used a third method—a data 

substitution analysis—as a further check 

on the validity of the first two methods 

on the Brandywine and MLK monitors. 

When any of the four monitors in New 

Castle County, Delaware, was missing a 

valid day of data during the 2013–2015 

ozone seasons, EPA looked at ambient 

data in the form of actual recorded 

ozone values at the other New Castle 

County monitors and substituted the 

highest recorded ozone value for the 

missing value(s) at the other monitor(s). 

After adding these substituted data 

values, a 2013–2015 ‘‘test design value’’ 

was calculated for all four monitors. 

None of the four monitors’ calculated 

test design values, including 

Brandywine and MLK, exceeded the 

ozone standard of 75 ppb. See Table 8, 

TSD at p. 17. 

Comment 2: The monitor data relied 

upon by EPA do not actually 

demonstrate that exceedances of the 

NAAQS will not occur at temperatures 

below 78 degrees. (Sierra Club, p. 2). For 

both of the monitors (Brandywine and 

MLK), EPA relies heavily on a simplistic 

comparison of monitored ozone values 

at monitors within the Philadelphia 

Nonattainment Area and daily high 

temperature data from the Wilmington 

Delaware National Airport to 

purportedly show that meteorological 

conditions on days with high 

temperatures of 77 °F or below are not 

conducive to ozone formation. TSD at p. 

3. But EPA’s conclusion regarding the 

77 °F temperature threshold is not 

supported by data upon which EPA 

relies and is inconsistent with prior 

statements by the agency regarding the 

parameters that influence ozone 

formation. With regard to the data, 

EPA’s sample of monitor-days is far too 

small a data set from which to conclude 

that 77 °F represents a magical limit 

below which ozone concentrations are 

assured to be below the NAAQS. 

Indeed, Figure 1 of the TSD shows that 

at 78 °F—just one degree above the level 

at which EPA expresses confidence that 

no NAAQS violations will occur—the 

maximum monitored ozone level in the 

Philadelphia Nonattainment Area was 

close to 85 parts per billion, well above 

the 75 part per billion (ppb) NAAQS. 

Moreover, Figure 1 also shows that at 

68 °F—nine degrees below the 

temperature threshold identified by 

EPA—maximum monitored ozone levels 

in the Philadelphia Nonattainment Area 

were within one part per billion of the 

NAAQS. 

Response 2: It is not necessary to 

demonstrate that exceedances of the 

NAAQS would never occur at 

temperatures below 78 °F, nor was the 

purpose of the analysis of temperature 

method to do so. The methods used to 

determine data completeness are 

consistent with 40 CFR part 50, 

Appendix P, Section 2.3(b) and are 

grounded in science. As an example, 

EPA approved a similar demonstration 

from Delaware in 2010 for the same 

Brandywine ozone monitoring site 

which relied on a similar ozone and 

temperature comparison. This 

demonstration was referenced in a clean 

data determination, which is a different 

type of rulemaking action that also 

relies on air quality data, for the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-DE-MD nonattainment area for 

the 1997 ozone NAAQS which was 

finalized in 2012 (77 FR 17341–17343). 

The Delaware demonstration relied on 

ambient ozone and temperature data for 

years 1997–2009, and reached a similar 

conclusion that ozone levels did not 

exceed 0.075 ppm in the Philadelphia 

area on any days where the daily 

maximum temperature was less than 

77 °F. While not necessary for the data 

completeness determination for this 

Philadelphia determination of 

attainment, this example is provided to 

demonstrate that data completeness 

procedures conducted by Delaware in 

the past have arrived at the same 

conclusion with regard to the use of 

temperature data thresholds. Thus, EPA 

does not agree that the 77 °F 

temperature threshold below which no 

ozone exceedances have occurred in the 

Philadelphia Area is not supported by 

the evidence. The fact that sometimes 

very high levels of ozone occur at 78 

degrees or that sometimes high levels of 

ozone (yet still below 0.075 ppm) occur 

at much lower temperatures does not 

invalidate the 77 °F threshold in this 

instance. Also, one measured ozone 

value above 0.075 ppm does not equal 

a NAAQS exceedance because of the 

definition of design value, which is a 

statistically-based measure of the 4th 

high over a 3-year period. Regarding the 

sample size, EPA notes that Delaware’s 

analysis of temperature versus ozone 

concentrations for the period of 1997 to 

2009, when combined with EPA’s 

analysis of temperature versus ozone 

concentrations for the period of 2010 

through 2015, provides nineteen years 

of data supporting the temperature 

analysis conclusion. The following 

sources further discuss the importance 

of the relationship between temperature 

and ozone formation as established by 

both EPA and the scientific literature for 

decades: 

(1) Camalier, L., Cox, W., and 

Dolwick, P. (2007). The effects of 

meteorology in urban areas and their 

use in assessing ozone trends. 

Atmospheric Environment, Volume 41, 

Issue 33, pages 7127–7137; (2) Cox, W. 

and Chu, S (1996). Assessment of 

interannual ozone variation in urban 

areas from a climatological perspective. 

Atmospheric Environment, Volume 30, 

Issue 14, pages 2615–2615; (3) U.S. EPA 

(2016). Trends in Ozone Concentrations 

Adjusted for Weather Conditions. 

https://www.epa.gov/air-trends/trendsozone-adjusted-weather-conditions; 

and; (4) Walcek, C. and Yuan, H. (1995). 

Calculated influence of temperaturerelated factors on ozone formation rates 

in the Lower Troposphere. Journal of 

Applied Meteorology, Volume 34, pages 

1056–1069. 

Comment 3: EPA’s proposed 

attainment determination is not 

protective of public health because 

monitoring data from the 2016 ozone 

season no longer supports a finding that 

the Philadelphia Area is meeting the 

2008 ozone NAAQS. 

Response 3: To determine whether an 

area attained by the 2008 ozone NAAQS 

attainment date of July 20, 2016, EPA is 


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2The comment incorrectly cites July 18, 2012 as 

the Federal Register date for this final 

determination. The correct date is June 18, 2012. 

See 77 FR 36163. 

required to rely on the three previous 

full years of data, which is 2013–2015. 

CAA section 181(b)(2)(A); 40 CFR part 

50, Appendix P, section 2.3(b). Any data 

occurring in calendar year 2016 cannot 

be used in this determination because 

July 20, 2016 is in the middle of the 

2016 ozone season and would produce 

only incomplete non-quality assured, 

and uncertified data, as of the July 2016 

attainment date. The statutory provision 

governing the type of determination of 

attainment EPA is finalizing today is 

very clear: ‘‘the Administrator shall 

determine, based on the area’s design 

value (as of the attainment date), 

whether the area attained the standard 

by that date.’’ CAA section 181(b)(2)(A) 

(emphasis added). When making 

determinations of attainment by the 

attainment deadline, EPA has 

consistently applied this unambiguous 

language as restricting its analysis to the 

years of data that constitute the basis for 

an area’s design value as of the specific 

attainment deadline. EPA’s regulations 

at 40 CFR part 50, Appendix P further 

clarify that the design value be derived 

from ‘‘three consecutive, complete 

calendar years of air quality monitoring 

data.’’ 40 CFR part 50, Appendix P, 

section 2.3(b) (emphasis added). The 

commenter’s request that EPA use nonquality assured, uncertified, incomplete 

calendar year 2016 data for this section 

181(b)(2) determination is not permitted 

under the statute and regulations. 

Comment 4: EPA illegally extended 

the attainment date deadline. 

Response 4: As noted in the proposed 

rule (82 FR 18269, fn 2), the issue of 

whether EPA ‘‘illegally’’ extended the 

attainment date deadline from July 20, 

2015 to July 20, 2016 is the subject of 

a petition for review filed by the State 

of Delaware on July 5, 2016 in the U.S. 

Court of Appeals for the District of 

Columbia Circuit. The petition has been 

fully briefed, and oral argument was 

held on October 5, 2017. State of 

Delaware Department of Natural 

Resources & Environmental Control v. 

U.S. Environmental Protection Agency, 

No. 16–1230. The final rule extending 

the Philadelphia Area’s attainment date 

is therefore legally effective at this time 

and outside the scope of this 

rulemaking. 

Comment 5: The CAA requires that a 

finding of attainment be made only 

when all measures needed for 

attainment have been implemented, and 

the current air quality meets the 

standard. 

Response 5: Commenters are incorrect 

regarding the CAA’s requirements for a 

section 181(b)(2) determination of 

attainment by the attainment date. 

Nowhere in that provision does the 

CAA require that such a finding can 

only be made ‘‘when all measures 

needed for attainment have been 

implemented’’ and ‘‘current air quality 

meets the standard.’’ Demonstrations of 

attainment of the 2008 ozone NAAQS 

by the attainment date require using the 

three calendar years of certified air 

quality data preceding the attainment 

date, which is 2013–2015. 

Comment 6: Section 181(b)(2) does 

not restrict EPA to considering only 

fully certified, quality assured and 

complete data from 2013–2015, and the 

resulting 3-year design values calculated 

from those data. EPA should consider 

the preliminary 2016 data, and has 

considered data other than the three 

years of data prior to the attainment date 

in past rulemakings, including: 

(1) The January 25, 2012 proposed 

determination of attainment and clean 

data determination for the 1997 ozone 

NAAQS for the New York-New JerseyConnecticut Nonattainment Area (NYNJ-CT NAA) at 77 FR 3720; and 

(2) The July 18, 2012 final 

determination of attainment and clean 

data determination for the NY-NJ-CT 

NAA at 77 FR 36163; and 

(3) The May 15, 2014 proposal to 

rescind the clean data determination for 

the NY-NJ-CT NAA at 79 FR 27830. 

The commenter asserts that these 

actions ‘‘. . . prove[ ] that EPA has 

considered uncertified data in proposals 

involving findings of attainment/clean 

data determinations.’’ 

Response 6: All of the EPA actions 

cited by the Commenter support EPA’s 

use of only the three years of complete, 

quality-assured and certified ozone 

monitoring data preceding the 

attainment date when making this 

section 181(b)(2) determination of 

attainment by the attainment date. EPA 

often makes 181(b)(2) determinations of 

attainment by the attainment date in the 

same actions as clean data 

determinations, but these are two 

distinct actions with different statutory 

and regulatory requirements and 

consequences. Therefore, it is 

reasonable for EPA to consider air 

quality monitoring data differently for 

these two types of actions. EPA’s 

regulations governing clean data 

determinations for the various 

pollutants, including ozone, interpret 

the CAA as suspending attainment 

planning requirements for only as long 

as the area continues to attain the 

standard. See, e.g., 40 CFR 51.1118. 

Thus, for a CDD, EPA requires an 

attaining design value based on three 

full years of data, and also may consider 

any additional preliminary data as well. 

Because the regulatory consequences of 

a clean data determination depend on 

continued attaining air quality, review 

of data until the final rulemaking as 

well as post-rulemaking review of data 

is appropriate. By contrast, section 

181(b)(2) has the specific statutory 

consequence of deciding whether or not 

an area is reclassified to a higher 

classification. Under the CAA, if an area 

attains the NAAQS by its statutory 

attainment date, it cannot be ‘‘bumped 

up’’ or reclassified, even if it later 

violates the standard after that date. The 

Act therefore instructs the EPA to make 

a determination of an area’s air quality 

attainment status as of a date certain— 

the area’s attainment deadline. 

The January 25, 2012 proposal cited 

by Commenter contains both a 

determination of attainment by the 

attainment date and a clean data 

determination. The 2012 proposal 

specifically states that ‘‘EPA proposes to 

determine, in accordance with section 

181(b)(2), that the NY-NJ-CT area 

attained the 1997 eight-hour ozone 

standard by the applicable deadline for 

that standard, June 15, 2010. This 

proposed determination is based on 

complete, quality-assured and certified 

data for 2007–2009.’’ 77 FR 3720, 3722. 

In the next paragraph, the proposal 

states ‘‘[i]n addition, EPA is separately 

and independently proposing to 

determine that the NY-NJ-CT area is 

currently attaining the 1997 eight-hour 

ozone standard, based on complete, 

quality-assured and certified data for 

2008–2010 and preliminary data for 

2011 that indicate continued 

attainment.’’ Id. This second paragraph 

describes EPA’s clean data 

determination (CDD), and therefore may 

consider all data up to the point of the 

rulemaking, including preliminary data. 

In this action, EPA is only making a 

section 181(b)(2) determination of 

attainment by the attainment date for 

the Philadelphia Area. If EPA were 

making a clean data determination for 

the Philadelphia Area, the preliminary 

2016 data could be considered as a 

supplement. 

Similarly, the June 18, 2012 2 final 

action for the NY-NJ-CT NAA uses only 

complete, quality-assured and certified 

2007–2009 data for the determination of 

attainment by the June 15, 2010 

attainment date, while using complete, 

quality-assured and certified 2008–2010 

data and preliminary 2011 ozone data in 

making its clean data determination. See 

77 FR 36163 (June 18, 2012). EPA’s 2014 

action proposing to rescind the 2012 


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clean data determination for the NY-NJCT NAA followed the same practice of 

considering all recent data. See 79 FR 

27830, 27832 (May 15, 2014). Thus, 

these previous actions cited by the 

comment do not show that EPA uses or 

considers incomplete, uncertified and 

preliminary data when making a section 

181(b)(2) determinations of attainment 

by the attainment date. Today’s action is 

therefore consistent with the other 

actions cited by the Commenter. 

Comment 7: DNREC objects to EPA 

performing the data substitution 

analysis for the two Delaware monitors 

without notifying Delaware and giving 

Delaware an opportunity to review prior 

to publication. 

Response 7: EPA is required to make 

this determination of attainment by the 

attainment date. This determination of 

attainment cannot be made without 

complete air quality data for 2013–2015. 

Because DNREC did not submit a data 

substitution analysis for the two 

Delaware monitors with incomplete 

data, EPA was required to perform this 

analysis. 

Comment 8: Early 2017 ozone season 

data show that the Philadelphia Area 

has already experienced two episodes of 

nonattaining air quality based on 

preliminary maximum ozone 

concentrations of 79 ppb in Delaware 

and 86 ppb in Philadelphia. 

Response 8: EPA’s determination of 

attainment for the 2008 ozone NAAQS 

for the Philadelphia Area is based on 

complete, quality assured, and certified 

data for the 2013–2015 ozone seasons in 

accordance with section 181(b)(2) of the 

Act and 40 CFR parts 50, 51 and 58. 

Comment 9: EPA’s notice did not 

explain the implications of a finding of 

attainment in its proposal, and Delaware 

believes that a finalization of this 

finding will suspend CAA obligations 

for the area. Therefore, if EPA makes a 

final determination of attainment based 

on the 2013–2015 data, it must 

immediately make a finding of 

nonattainment using 2014–2016 data. 

Response 9: EPA’s notice did not 

explain in detail all the implications of 

the section 181(b)(2) determination of 

attainment by the attainment date. One 

consequence of the determination of 

attainment by the extended attainment 

date is that the Philadelphia Area will 

not be reclassified as a Moderate 

nonattainment area. See CAA section 

181(b)(2)(A). However, although the 

Philadelphia Area will remain a 

Marginal nonattainment area, since it is 

part of the ozone transport region (OTR) 

it will need to continue to comply with 

the additional requirements applicable 

to OTR states, including moderate area 

requirements. Furthermore, EPA clearly 

stated in the Summary section of the 

NPR that this action was not a 

redesignation of the Philadelphia Area 

to attainment. EPA also reiterates that 

this action is also not a clean data 

determination under 40 CFR 51.1118. A 

clean data determination, if it were to 

occur at some future time, would have 

the effect of suspending any attainment 

planning requirements. Regarding the 

commenter’s statement that EPA must 

immediately make a finding of 

nonattainment (or a nonattainment 

designation) using the 2014–2016 ozone 

data, such a finding would be 

meaningless in this context. The 

Philadelphia Area continues to be 

designated nonattainment for the 2008 

ozone NAAQS, and EPA is not, in this 

notice, issuing a clean data 

determination such that the Agency 

would need to rescind such 

determination based on more recent air 

quality data. Given that today’s action is 

not changing the Philadelphia Area’s 

marginal nonattainment designation, the 

suggestion that the Agency issue a 

nonattainment designation is 

inappropriate. If certified air quality 

data indicates issues with continuing 

attainment of the 2008 ozone NAAQS, 

the EPA will work with the relevant 

states in the Philadelphia Area and, to 

the extent necessary, use appropriate 

CAA authorities to address those air 

quality issues. 

Comment 10: EPA should not make a 

determination of attainment for the 2008 

ozone NAAQS when data shows that 

the 2015 ozone NAAQS of 70 ppm is 

not currently being met. 

Response 10: EPA’s determination of 

attainment for the 2008 ozone NAAQS 

by the attainment date of July 20, 2016, 

is statutorily required by section 

181(b)(2), and requires that EPA use 

2013–2015 ozone air quality data in 

determining whether the 2008 NAAQS 

has been met, as of the July 20, 2016 

attainment date for the 2008 ozone 

NAAQS. The 2015 ozone NAAQS is not 

germane to the specific question of 

whether the area attained the 2008 

ozone NAAQS by the attainment date. 

Comment 11: Delaying the 

determination of nonattainment for the 

Philadelphia Area will only delay 

adoption of needed SIP measures to 

bring the area into attainment. 

Response 11: The determination of 

attainment by the attainment date under 

181(b)(2) does not suspend any state 

planning requirements that are in place 

for the 2008 ozone NAAQS. The effect 

of this action will result in the 

Philadelphia Area remaining as a 

marginal nonattainment area for the 

2008 ozone NAAQS, and keeping all 

currently applicable planning 

requirements in place, including OTR 

requirements. 

Comment 12: The commenter objects 

to efforts by Pennsylvania Department 

of Environmental Protection (PADEP) to 

remove 2016 ozone data based on 

‘‘exceptional events,’’ especially if the 

exceptional event is an increasing 

number of heat waves caused by global 

warning. 

Response 12: This comment is not 

germane to this determination of 

attainment because EPA did not rely on 

any Pennsylvania ozone monitoring 

data from 2016 in making its 

determination of attainment. As 

required by the CAA and EPA 

regulations regarding determinations of 

attainment by the attainment date, EPA 

used only complete, quality-assured and 

certified ozone data from calendar years 

2013–2015. 

Comment 13: The Center has further 

concerns about EPA’s approach for 

meeting data completeness 

requirements, especially given the 

exceedances of the 2008 and 2015 

NAAQS as noted above. The proposed 

rule notes that EPA was able to ‘‘add’’ 

missing data from the Brandywine and 

MLK monitors by conducting ‘‘an 

analysis of the meteorological data and 

a regression analysis’’ and performed a 

‘‘substitution analysis as a check on the 

validity’’ of that analysis. See, 82 FR 

18270 (April 18, 2017). It would be 

more appropriate to require redundancy 

at monitoring stations prone to 

malfunctioning as opposed to relying on 

data substitutions in areas suffering 

from ozone levels at or above the 

NAAQS to assure that the most accurate 

data is collected. 

Response 13: Please see the responses 

to comments 1 and 2 above with regard 

to the adequacy of the methods used to 

meet the minimum data completeness 

requirements at the MLK and 

Brandywine monitors. As to requiring 

redundant monitors, the Philadelphia 

Metropolitan Statistical Area (MSA) is 

currently meeting monitoring 

requirements specified in 40 CFR part 

58 Appendix D. Appendix D does not 

require redundant monitoring for ozone. 

EPA has made recommendations to 

Delaware Department of Natural 

Resources and Environmental Control 

(DNREC) to try to reduce the data loss 

at the Brandywine air monitoring site. 

EPA is required to perform technical 

systems audits on each primary quality 

assurance organization at a frequency of 

once every three years. DNREC was 

audited by EPA Region 3 on May 10–12, 

2016. One of the major findings of this 

audit was the incompleteness issues at 

the Brandywine site. EPA recommended 

as corrective action to mitigate potential 


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Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Rules and Regulations 50819 

data loss due to down power lines that 

DNREC do preemptive tree trimming 

each year. In addition, EPA 

recommended having a backup power 

source at the site. DNREC’s response to 

EPA’s recommendation was that a backup power source is not feasible. DNREC 

will consider purchasing a batteryoperated FEM monitor as a back-up in 

case of sustained power loss at the site, 

if resources are available. 

Comment 14: EPA also received 

comments that were not germane to this 

final ruling but referred generally to the 

support of continuing implementation 

of air quality standards and regulations. 

The comments included support of 

keeping EPA regulations in place to 

protect human health and the 

environment. 

Response 14: EPA appreciates the 

supportive comments, and notes that 

ozone air quality monitoring will 

continue and existing air quality 

standards and regulations will remain in 

place. This determination of attainment 

by the attainment date does not reduce 

or revoke any existing ozone monitoring 

or control requirements. 

IV. Final Action 

EPA is making a final determination, 

in accordance with its obligations under 

section 181(b)(2)(A) of the CAA and 40 

CFR 51.1103, that the Philadelphia Area 

attained the 2008 ozone NAAQS by the 

applicable attainment date of July 20, 

2016. This determination of attainment 

does not constitute a redesignation to 

attainment, and is also not a clean data 

determination. 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

This rulemaking action finalizes a 

determination of attainment for the 2008 

ozone NAAQS based on air quality and 

does not impose additional 

requirements. For that reason, this 

determination of attainment: 

• 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); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866. 

• 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 

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. 

B. Submission to Congress and the 

Comptroller General 

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 

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). 

C. Petitions for Judicial Review 

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 January 2, 2018. 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 

determining that the Philadelphia Area 

attained the 2008 ozone NAAQS by its 

July 20, 2016 attainment date 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, Incorporation by 

reference, Ozone, Reporting and 

recordkeeping requirements. 

Dated: October 11, 2017. 

Cecil Rodrigues, 

Acting Regional Administrator, Region III. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Ozone, Reporting and 

recordkeeping requirements. 

Dated: October 6, 2017. 

Catherine R. McCabe, 

Acting Regional Administrator, Region 2. 

40 CFR part 52 is amended 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. 

Subpart I—Delaware 

■ 2. In § 52.425, paragraph (d) is added 

to read as follows: 

§ 52.425 Determinations of attainment. 

* * * * * 

(d) Based upon EPA’s review of the 

air quality data for the 3-year period 

2013 to 2015, Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE marginal 

ozone nonattainment area has attained 

the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) by the 

applicable attainment date of July 20, 

2016. Therefore, EPA has met the 

requirement pursuant to CAA section 

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

area’s air quality as of the attainment 

date, whether the area attained the 

standard. EPA also determined that the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-MD-DE marginal ozone 

nonattainment area will not be 

reclassified for failure to attain by its 


nlaroche on DSK9F9SC42PROD with RULES
50820 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Rules and Regulations 

applicable attainment date pursuant to 

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

Subpart V—Maryland 

■ 3. In § 52.1082, paragraph (j) is added 

to read as follows: 

§ 52.1082 Determinations of attainment. 

* * * * * 

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

quality data for the 3-year period 2013 

to 2015, Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE marginal 

ozone nonattainment area has attained 

the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) by the 

applicable attainment date of July 20, 

2016. Therefore, EPA has met the 

requirement pursuant to CAA section 

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

area’s air quality as of the attainment 

date, whether the area attained the 

standard. EPA also determined that the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-MD-DE marginal ozone 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date pursuant to 

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

Subpart FF—New Jersey 

■ 4. In § 52.1576, paragraph (d) is added 

to read as follows: 

§ 52.1576 Determinations of attainment. 

* * * * * 

(d) Based upon EPA’s review of the 

air quality data for the 3-year period 

2013 to 2015, Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE marginal 

ozone nonattainment area has attained 

the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) by the 

applicable attainment date of July 20, 

2016. Therefore, EPA has met the 

requirement pursuant to CAA section 

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

area’s air quality as of the attainment 

date, whether the area attained the 

standard. EPA also determined that the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-MD-DE marginal ozone 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date pursuant to 

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

Subpart NN—Pennsylvania 

■ 5. In § 52.2056, paragraph (o) is added 

to read as follows: 

§ 52.2056 Determinations of attainment. 

* * * * * 

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

quality data for the 3-year period 2013 

to 2015, Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE marginal 

ozone nonattainment area has attained 

the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) by the 

applicable attainment date of July 20, 

2016. Therefore, EPA has met the 

requirement pursuant to CAA section 

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

area’s air quality as of the attainment 

date, whether the area attained the 

standard. EPA also determined that the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-MD-DE marginal ozone 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date pursuant to 

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

[FR Doc. 2017–23226 Filed 11–1–17; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2, 15, 18, 73, 74, 78, 80, 

87, 90, and 101 

[ET Docket No. 15–170; FCC 17–93] 

Authorization of Radiofrequency 

Equipment 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Communications 

Commission (Commission) amends its 

equipment authorization regulations, 

increasing the Commission’s agility to 

respond to changes in technology and 

industry standards. This rule 

consolidates, simplifies, and streamlines 

certain procedures, and removes the 

requirement to file the import 

declaration FCC Form 740 under certain 

circumstances. 

DATES: Effective November 2, 2017. 

The incorporation by reference listed 

in the rule was approved by the Director 

of the Federal Register as of November 

2, 2017. 

ADDRESSES: FCC Reference Information 

Center, Portals II, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554 

for full text of ‘‘First Report and Order, 

FCC 17–93’’ (also at https://

apps.fcc.gov/edocs_public/attachmatch/ 

FCC-17-93A1.docx) and inspection of 

material incorporated by reference. See 

SUPPLEMENTARY INFORMATION for details. 

FOR FURTHER INFORMATION CONTACT: 

Brian Butler, Office of Engineering and 

Technology, (202) 418–2702, email: 

Brian.Butler@fcc.gov, TTY (202) 418– 

2989. For additional information 

concerning the Paperwork Reduction 

Act information collection requirements 

contained in this document, contact 

Nicole Ongele, OMD/PERM, (202) 418– 

2991, or send an email to 

Nicole.Ongele@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s First 

Report and Order (R&O), ET Docket No. 

15–170, FCC 17–93, adopted July 13, 

2017, and released July 14, 2017. The 

full text of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Center (Room CY–A257), 445 12th 

Street SW., Washington, DC 20554, or 

by downloading the text from the 

Commission’s Web site at [http://

transition.fcc.gov/Daily_Releases/Daily_

Business/2017/db1003/FCC-17- 

93A1.pdf]. Alternative formats are 

available for people with disabilities 

(Braille, large print, electronic files, 

audio format) by sending an email to 

fcc504@fcc.gov or calling the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Synopsis 

I. First Report and Order 

1. On July 17, 2015, the Commission 

adopted a Notice of Proposed 

Rulemaking (NPRM) in this proceeding. 

80 FR 46900, August 6, 2015. In the 

First Report and Order, the Commission 

amended parts 0, 1, 2, 15, and 18 of its 

rules to update and improve its 

equipment authorization program. 

Section 302 of the Communications Act 

of 1934, as amended (the Act), 

authorizes the Commission to make 

reasonable regulations governing the 

interference potential of devices that 

emit RF energy and such devices must 

demonstrate compliance with the 

Commission’s technical and equipment 

authorization requirements before they 

can be imported to or marketed in the 

United States. The Office of Engineering 

and Technology (OET) administers the 

day-to-day operation of the equipment 

authorization program, providing 

supplemental guidance that is available 

via public notices and in its online 

Knowledge Database (KDB). The 

Commission’s actions are described in 

greater detail below. 

2. Supplier’s Declaration of 

Conformity. The Commission adopted 

its proposal to replace two of the 

existing equipment authorization 

procedures (Declaration of Conformity 

(DoC) and verification) with a single 

process—‘‘Supplier’s Declaration of 

Conformity’’ (SDoC). Verification and 

DoC are both self-approval processes 

under which the party responsible for 

the compliance of the RF device has 

been required to take the necessary 

steps (testing or analysis) to ensure that 


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