[Federal Register Volume 70, Number 101 (Thursday, May 26, 2005)]
[Rules and Regulations]
[Pages 30592-30604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10580]



[[Page 30591]]

-----------------------------------------------------------------------

Part IV





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 51



Implementation of the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1: Reconsideration; Final Rule

  Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules 
and Regulations  

[[Page 30592]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[OAR 2003-0079, FRL-7918-6]
RIN 2060-AJ99


Implementation of the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1: Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is taking final action on two issues raised in a 
petition for reconsideration of EPA's rule to implement the 8-hour 
ozone national ambient air quality standard (NAAQS or standard). In 
addition, EPA is taking final action to clarify two aspects of that 
implementation rule. On April 30, 2004, EPA issued a final rule 
addressing key elements of the program to implement the 8-hour ozone 
NAAQS (Phase 1 Rule). Subsequently, on June 29, 2004, and September 24, 
2004, three different parties each filed a petition for reconsideration 
of certain specified aspects of the final rule. By letter dated 
September 23, 2004, EPA granted reconsideration of three issues raised 
in the petition for reconsideration filed by Earthjustice on behalf of 
several environmental organizations. On February 3, 2005, we proposed 
action on two of the issues and today we are taking final action on 
these two issues: The applicability of the section 185 fee provisions 
once the 1-hour NAAQS is revoked, and the timing for determining what 
is an ``applicable requirement'' for purposes of anti-backsliding once 
the 1-hour NAAQS is revoked. On April 4, 2005, we issued a separate 
proposed rule on new source review (NSR) anti-backsliding, the third 
issue on which we granted reconsideration, and we plan to issue a final 
rule by June 30, 2005.
    In the February 3, 2005 proposal, we also proposed to revise the 
Phase 1 Rule in two respects. Today, we are taking final action on 
these two issues. First, we have determined that contingency measures 
for failure to make reasonable further progress (RFP) or attain by the 
applicable attainment date for the 1-hour ozone standard are no longer 
required as part of the State implementation plan (SIP) for as part of 
the SIP for an area after revocation of that standard. Second, we are 
adding the requirement to submit attainment demonstrations to the 
definition of ``applicable requirements'' in Sec.  51.900.

DATES: This final action will be effective on June 27, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2003-0079. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. 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 materials, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in EDOCKET or in hard copy at the EPA 
Docket Center, EPA West (Air Docket), Attention E-Docket No. OAR-2003-
0079, Environmental Protection Agency, 1301 Constitution Avenue, NW., 
Room B102, Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
fax number is (202) 566-1749.

FOR FURTHER INFORMATION CONTACT: Ms. Denise M. Gerth, Office of Air 
Quality Planning and Standards, Environmental Protection Agency, Mail 
Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-
5550 or by e-mail at [email protected] or Mr. John J. Silvasi, 
Office of Air Quality Planning and Standards, Environmental Protection 
Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone 
number (919) 541-5666 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

    This action does not directly regulate emissions sources. Instead 
it addresses how States should continue to plan to meet the ozone 
standard as we transition from the 1-hour to the 8-hour ozone NAAQS.

Outline

I. General Information
II. Background
III. Today's Action
    A. Reconsideration of the Portion of the Phase 1 Rule Addressing 
the Continued Applicability of the Section 185 Fee Provision for 
Areas that Fail to Attain the 1-Hour NAAQS
    B. Reconsideration of the Portion of the Phase 1 Rule 
Establishing the Time for Determining Which 1-Hour Obligations 
Remain Applicable Requirements
    C. Contingency Measures in SIPs for the 1-Hour Ozone Standard
    D. Adding Attainment Demonstration to the List of ``Applicable 
Requirements'' in Sec.  51.900(f)
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review
    M. Determination Under Section 307(d)

II. Background

    On June 2, 2003 (68 FR 32802) we proposed a rule to govern the 
transition from the 1-hour to the 8-hour NAAQS and implementation of 
the 8-hour ozone NAAQS. On April 30, 2004 (69 FR 23951), we issued a 
final rule (Phase 1 Rule), which covered some, but not all, of the 
program elements in the proposed rule. The Phase 1 Rule covered the 
following key implementation issues: Classifications for the 8-hour 
NAAQS; revocation of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will 
no longer apply); how anti-backsliding principles will ensure continued 
progress in achieving ozone reductions as areas transition to 
implementation of the 8-hour ozone NAAQS; attainment dates for the 8-
hour ozone NAAQS; and the timing of emissions reductions needed for 
attainment of the 8-hour ozone NAAQS. The EPA plans to issue a final 
rule this summer addressing the remaining issues from the June 2003 
proposal (Phase 2 Rule).
    Following publication of the Phase 1 Rule, the Administrator 
received three petitions, pursuant to section 307(d)(7)(B) of the Clean 
Air Act (CAA) requesting reconsideration of a number of aspects of the 
final rule.\1\ On September 23, 2004, we granted reconsideration of 
three issues raised in the Earthjustice Petition. On February 3,

[[Page 30593]]

2005 (70 FR 5593), we issued a proposed rule seeking comment on two of 
the three issues raised in the Petition and proposed two other 
revisions to the Phase 1 Rule. The purpose of today's action is to take 
final action on the four issues which were addressed in the February 3, 
2005 proposal. First, we are determining that section 185 fees are no 
longer required in SIPs for a failure to attain the 1-hour NAAQS once 
the 1-hour NAAQS is revoked. Second, we are determining that the timing 
for the determination of what is an ``applicable requirement'' once the 
1-hour NAAQS is revoked is June 15, 2004. Third, we are finding that 
contingency measures are no longer required in SIPs for a failure to 
make RFP toward the 1-hour standard or attain that standard by the 
applicable attainment date for the 1-hour standard. Fourth, we are 
adding the requirement to submit an ``attainment demonstration'' to the 
list of applicable requirements. On April 4, 2005 (63 FR 17018), we 
proposed action on a third issue on which we granted reconsideration 
concerning the continued applicability of the 1-hour NSR program. We 
intend to take final action on that issue no later than June 30, 2005.
---------------------------------------------------------------------------

    \1\ The petitions for reconsideration of the Phase 1 Rule were 
filed by: (1) Earthjustice on behalf of the American Lung 
Association, Environmental Defense, Natural Resources Defense 
Council, Sierra Club, Clean Air Task Force, Conservation Law 
Foundation, and Southern Alliance for Clean Energy; (2) the National 
Petrochemical and Refiners Association and the National Association 
of Manufacturers; and (3) the American Petroleum Institute, American 
Chemistry Council, American Iron and Steel Institute, National 
Association of Manufacturers and the U.S. Chamber of Commerce.
---------------------------------------------------------------------------

    On January 10, 2005, we granted reconsideration of one other issue 
raised by Earthjustice in their Petition--the overwhelming transport 
classification for certain areas subject only to subpart 1 of Part D of 
the CAA. We plan to issue a proposal on this issue this summer. At the 
same time, we denied reconsideration of the remaining two issues they 
raised in their Petition concerning the applicability of reformulated 
gasoline when the 1-hour NAAQS is revoked and whether EPA had removed 
authority for future redesignations to nonattainment for the 8-hour 
ozone NAAQS.
    We are continuing to review the issues raised in the National 
Petrochemical and Refiners Association, et al., and American Petroleum 
Institute, et al., Petitions. Copies of the Petitions for 
Reconsideration and actions EPA has taken regarding the Petitions may 
be found at: www.epa.gov/ttn/naaqs/ozone/o3imp8hr and in Air Docket, ID 
No. OAR-2003-0079. For more detailed background information, the reader 
should refer to the Phase 1 Rule (April 30, 2004; 69 FR 23956) and the 
reconsideration proposal (February 3, 2005; 70 FR 5593).

III. Today's Action

A. Reconsideration of the Portion of the Phase 1 Rule Addressing the 
Continued Applicability of the Section 185 Fee Provision for Areas That 
Fail To Attain the 1-Hour NAAQS

    1. Background. In the Phase 1 Rule we stated that upon revocation 
of the 1-hour NAAQS: (1) EPA will no longer make findings of failure to 
attain the 1-hour NAAQS; (2) EPA will no longer reclassify areas to a 
higher classification for the 1-hour NAAQS based on a finding of 
failure to attain; and (3) States are no longer obligated to impose 
fees under sections 181(b)(4) and 185 of the CAA (``Fee Provisions'') 
in severe or extreme ozone nonattainment areas that fail to attain the 
1-hour standard by the area's 1-hour attainment date (69 FR 23984). In 
the reconsideration proposal (70 FR 5596), we stated that we continued 
to believe that there is no basis for determining whether an area has 
met the 1-hour NAAQS once the 1-hour NAAQS has been revoked. 
Consequently, we stated that since there will no longer be an 
applicable classification or attainment date, there cannot be a failure 
to meet such a date, i.e., the Fee Provisions could not be triggered 
for 1-hour nonattainment areas.
    2. Summary of Final Rule. For the reasons stated in the proposal 
and in the response to comments, we are adopting the approach we 
included in the proposal which is that once the 1-hour standard is 
revoked for an area, the fee provisions in SIPs will not be triggered 
for a failure of an area to attain the 1-hour NAAQS by its 1-hour 
attainment date and States will not be required to adopt fee provisions 
for the 1-hour standard.
    3. Comments and Responses. Comment: Several commenters questioned 
EPA's authority to waive the section 185 fee requirements. Some 
commenters claimed that such action is contrary to the anti-backsliding 
provisions of section 172(e) of the CAA which provides that if EPA 
relaxes a NAAQS, it must provide for controls which are not less 
stringent than the controls required before such relaxation. One 
commenter noted that EPA interprets this provision to apply with equal 
force when a NAAQS is strengthened. Several commenters stated that the 
proposed waiver is also inconsistent with other rationales offered by 
EPA for anti-backsliding, i.e., that ozone nonattainment areas are 
designated and classified by operation of law; that allowing relaxation 
of controls mandated by subpart 2 would render those controls 
``prematurely obsolete'' in contravention of the Supreme Court's 
decision regarding the implementation of the 8-hour NAAQS; and that 
section 175A(d) of the CAA provides that areas redesignated to 
attainment can, at most, move mandated measures to be contingency 
measures, and that this rationale precludes relaxation of the fee 
provisions after revocation. Another commenter stated that the CAA does 
not explicitly delegate to EPA the authority to remove provisions 
enacted by Congress nor does it impliedly authorize it to remove them; 
consequently the section 185 fee provisions should remain in effect. 
The commenter stated that EPA's proposal would render ``textually 
explicit'' provisions of part D ``utterly inoperative,'' which was 
prohibited under American Trucking. Another commenter contended the 
language of the CAA is explicit and does not give EPA discretion to 
choose to enforce or not enforce a program and EPA thus has no 
authority to promulgate a rule stating that section 185 is not 
applicable.
    Response: As an initial matter, section 172(e) addresses the 
situation where EPA has promulgated a less stringent NAAQS and does not 
directly apply here, where EPA has promulgated a more stringent NAAQS. 
However, since the statute is silent about what requirements must 
remain when EPA promulgates a more stringent NAAQS, EPA looked to 
section 172(e) (as well as other provisions of the CAA) to discern what 
Congress might have intended in this situation. After reviewing section 
172(e) and other provisions of the statute, EPA concluded that Congress 
would have intended that control obligations that applied for purposes 
of the 1-hour NAAQS should remain in place. As EPA explains in response 
to a similar comment regarding the date for determining ``applicable 
requirements,'' the commenters misconstrue what section 172(e) 
requires. Section 172(e) requires EPA to provide for controls not less 
stringent than those that applied ``before such relaxation [of the 
NAAQS].'' Thus, it does not mandate that controls be as stringent as 
those that could not be required to be imposed until a date after the 
previous NAAQS no longer exists.
    Similarly, our anti-backsliding rule establishes a ``cut-off'' date 
for determining which control obligations will continue to apply. We 
looked at three options for when this ``cut-off'' date should be--the 
date of signature of designation rule, i.e., April 15, 2004; the 
effective date of 8-hour designations, i.e., for most areas June 15, 
2004; and the date the 1-hour standard is revoked, i.e., for most areas 
June 15, 2005. In this

[[Page 30594]]

final rule, we adopt the effective date of designation for the 8-hour 
standard as the relevant cut-off date. The requirement to impose 
section 185 fees cannot exist any earlier than 2006 because the 
earliest 1-hour attainment date for a severe or extreme ozone 
nonattainment is November 15, 2005. Thus, we do not believe that even 
applying 172(e) directly (which is not the case here) would result in 
the fee obligation remaining in place after revision of the NAAQS 
because the requirement to implement the fees does not exist as of the 
effective date of designation for the 8-hour NAAQS. Additionally, upon 
revocation of the 1-hour NAAQS, a State may remove from their SIP the 
provisions for complying with the section 185 fee provision as it 
applies to the 1-hour NAAQS.
    We disagree that this approach is inconsistent with other 
provisions in the statute that we looked to for purposes of 
establishing our anti-backsliding approach. We recognized that Congress 
did not directly speak to the issue of what occurs if a more stringent 
NAAQS is promulgated, but looked to a variety of statutory provisions 
to discern Congressional intent. While we did look at the fact that 
Congress designated and classified areas as a matter of law in 1990, we 
have not taken the position that such action ``codified'' the 1-hour 
standard and left it in place indefinitely. Rather, we believe that 
under this provision Congress intended the areas classified in 1990 to 
implement the required controls until such areas attained the ozone 
standard necessary to protect public health. The 8-hour standard has 
replaced the 1-hour standard as the ozone standard necessary to protect 
public health. We believe that Congress intended these areas to 
continue to implement mandated control measures but not that they 
provide for programs keyed to a finding of failure to attain the old 
standard after that standard no longer applies.
    As to the U.S. Supreme Court decision, we first note that in making 
the quoted statement, the Supreme Court was addressing EPA's 
determination that no areas would be classified under subpart 2 for 
purposes of the 8-hour NAAQS and thus that the subpart 2 control 
requirements would not apply at all for purposes of implementing the 8-
hour NAAQS. While the classification scheme we established in our Phase 
1 rule for the 8-hour NAAQS is the primary method for addressing the 
concern that no areas would be subject to subpart 2 for purposes of 
implementing the 8-hour NAAQS, we agree that the statement carries some 
weight for purposes of anti-backsliding, particularly where the 
classification scheme for the 8-hour standard results in many areas 
being placed in lower classifications than their classifications for 
purposes of the 1-hour standard. As we stated in the preamble to the 
Phase 1 Rule, we believe that Congress intended areas with significant 
pollution problems to retain Congressionally-mandated pollution 
programs until such time as they attain the ozone NAAQS necessary to 
protect public health, which is now the 8-hour standard.
    Our Phase 1 Rule does not render the subpart 2 provisions 
``prematurely obsolete'' or ``utterly inoperative.'' Rather, they 
continue to have meaning in two ways. First, the applicable subpart 2 
control requirements that were required to be imposed for purposes of 
the 1-hour standard at the time an area was designated nonattainment 
for the 8-hour standard continue to apply until the area attains the 8-
hour NAAQS. Second, many areas will be classified under subpart 2 for 
purposes of the 8-hour standard and will be subject to the subpart 2 
requirements for purposes of implementing the 8-hour standard. We do 
not read the Supreme Court decision (or any of the provisions of the 
CAA that we examined) to mean that Congress intended areas designated 
nonattainment for the 1-hour standard to remain fully subject to that 
pre-existing NAAQS, including future requirements whose implementation 
is dependent on a future determination that the area had not met a 
revoked standard, even after they begin programs to comply with the 
revised NAAQS, which is the NAAQS now determined to be necessary to 
protect public health. Similarly, we don't think that section 175A(d) 
indicates any Congressional intent to retain the section 185 fee 
obligation for a failure to attain the 1-hour NAAQS after that standard 
has been revoked. Because this provision is linked to whether an area 
attains by its severe or extreme area attainment date, it would have no 
meaning for an area redesignated to attainment and thus would not need 
to be retained as a contingency measure for purposes of a 1-hour ozone 
maintenance plan under section 175A(d). Because this obligation would 
not need to be retained as part of a section 175A(d) maintenance plan, 
we don't believe this provision indicates Congressional intent that the 
fee obligation be retained once the 1-hour standard is revoked.
    Comment: One commenter questioned EPA's statement that because 
section 185 fees ``operate in lieu of reclassification'' they should no 
longer apply since reclassifications will no longer be required. The 
commenter contended this statement is incorrect because the CAA does 
not require SIPs to contain provisions for imposition of the section 
185 fees in lieu of reclassification for severe and extreme ozone 
nonattainment areas.
    Response: While we disagree with the commenter regarding whether 
the fees are imposed ``in lieu'' of reclassification, we need not 
resolve that issue here. For the same reasons we concluded that areas 
are not subject to reclassification for the 1-hour standard once it is 
revoked, we believe that areas should no longer be subject to the 
section 185 fees provision for failure to meet that standard once it is 
revoked. Like reclassification, the section 185 fees are triggered by a 
failure to attain the standard. Once the 1-hour standard no longer 
applies (i.e., is no longer the health-based NAAQS), areas are not 
obligated to meet it and neither the States nor EPA are obligated to 
conclude whether the area has met it by the attainment date that also 
no longer applies. Therefore, findings of nonattainment of the 1-hour 
standard will no longer be made and the 185 fee program would no longer 
be required.
    Comment: One commenter disagreed with EPA's assertion that the fee 
provisions are linked to whether or not an area has met the 1-hour 
NAAQS which EPA has determined is no longer needed to protect public 
health. The commenter stated that regardless of whether the 1-hour 
NAAQS is still needed to protect public health, the CAA requires that 
controls required for the 1-hour NAAQS must not be relaxed.
    Response: As discussed above, we do not believe the timing 
provision of section 172(e) would mandate retention of the section 185 
fee obligation where EPA has promulgated a less stringent NAAQS.
    Comment: Several commenters disagreed with EPA's assertion that 
section 185 fees are no longer needed because States should focus their 
resources on the 8-hour NAAQS and it would be counterproductive to 
continue efforts linked to the 1-hour NAAQS.
    Response: We believe that imposition of the section 185 fees would 
be counterproductive because instead of focusing limited resources on 
attainment of the 8-hour NAAQS as expeditiously as practicable, States 
would need to divert some of those resources to monitoring compliance 
with a standard that is no longer needed to protect public health. If 
fees were to be triggered, States would have to devote resources to the 
further

[[Page 30595]]

development of plans focused on meeting the 1-hour standard based on a 
determination that an area had failed to achieve a non-existent NAAQS. 
We believe this is an unwise use of resources when the 1-hour standard 
no longer applies.
    A determination of failure to attain in the future, accompanied by 
additional planning obligations focused on attaining a standard that no 
longer applies, would detract from efforts to plan for and implement 
the new health-based standard. Once controls are adopted for the 8-hour 
NAAQS, additional 1-hour planning would be redundant, at a minimum, and 
could result in efforts beyond those necessary to meet the applicable 
health-based standard.
    Comment: Several commenters disagreed with EPA's assertion that the 
CAA requires a finding of failure to attain before the fee provisions 
are triggered. The commenters stated that the fees are based on whether 
an area has attained, which can be determined by comparing monitored 
air quality data with the standard for the relevant time period. One 
commenter noted that for areas that will be submitting an outstanding 
1-hour attainment demonstration, EPA can and must determine whether the 
demonstration shows attainment with the 1-hour NAAQS.
    Response: Whether or not the fees provision is triggered by a 
finding of failure to attain or simply through an examination of 
monitoring data, is not a decisive factor for determining whether the 
fee obligation should be retained under the anti-backsliding 
provisions. As provided above, we do not believe there is any 
Congressional intent that this obligation remain in place.
    While we retained the obligation to submit outstanding 1-hour 
attainment demonstrations, we did so primarily for the purpose of 
ensuring that as areas began the transition to implementation of the 8-
hour NAAQS, the areas achieved the emissions reductions that Congress 
contemplated they would make on a specific near-term schedule. A 
determination that a specific mix of control measures demonstrates 
attainment at a future date is not the same as a reviewing monitoring 
data after the attainment date to determine whether an area in fact 
attained. The purpose of retaining the outstanding 1-hour attainment 
demonstration obligation is to ensure that in the short-term, prior to 
submission of 8-hour SIPs, areas continue to make progress in cleaning 
their air.
    Comment: Several commenters urged EPA to retain the section 185 fee 
provisions to provide incentives for businesses in the worst 
nonattainment areas to reduce emissions in order to attain or make RFP 
toward the NAAQS. One commenter disagreed with EPA's argument that it 
would be counterproductive to continue efforts linked to whether or not 
an area met the 1-hour NAAQS. Further, the commenter stated that the 
fee provisions provide an economic incentive for major sources to 
achieve 20 percent reductions in emissions in areas that are violating 
the NAAQS. Another commenter stated that the section 185 fees should be 
retained because they create a strong incentive for major sources to 
reduce emissions and ensure that local areas and States take actions to 
reduce emissions and improve air quality. The commenter stated the 
section 185 fees create tremendous benefits at the SIP development 
stage since major sources can and have become forceful advocates for 
emissions reductions from other sources based on an economic interest 
in avoiding this charge to pollute. One commenter disagreed with EPA's 
assertion that areas should focus their resources on the 8-hour NAAQS 
rather than the 1-hour NAAQS because they believe that Congress' intent 
was to impose fees as incentives while still requiring emissions 
reductions regardless of whether the reductions are to achieve the 8-
hour or 1-hour NAAQS. Some commenters noted that the fees would 
generate additional resources for planning and control efforts and 
would discourage emissions of ozone precursors. Finally, one commenter 
stated that the section 185 fees would provide substantial resources to 
States with difficult air pollution problems.
    Response: As stated above, EPA does not believe that Congress 
directly spoke to which obligations must remain where EPA promulgates a 
more stringent standard. Furthermore, we do not believe that Congress 
intended the fee obligation to continue for a failure to meet a 
standard once that standard has been replaced. Because the section 185 
fees that would apply for failure to attain the 1-hour NAAQS are linked 
to whether an area has attained the 1-hour standard, any efforts to 
eliminate fees imposed for a failure to attain the 1-hour standard 
would be focused on attainment of the 1-hour standard not the 8-hour 
standard, which is the standard necessary to protect public health. 
Thus, if we retained the fee provisions for purposes of failure to 
attain the 1-hour standard, States would divert resources from planning 
for the 8-hour standard to planning efforts for the 1-hour standard 
based on a future determination that the area had not met a revoked 
standard.
    The incentives for major sources to reduce emissions remain. The 
section 185 fee provisions remain in place for purposes of the 8-hour 
standard, and thus sources will have an incentive to reduce emissions 
to ensure areas meet the 8-hour standard. We note that it is 
speculative to assume that States would use fees generated under this 
provision for purposes of planning and control efforts beyond those 
already funded by the State. In any event, we see no Congressional 
intent to impose these fees for that purpose. That reason, absent a 
compelling reason related to attaining the 8-hour NAAQS, is not a 
sufficient basis to retain the requirement.
    Comment: One commenter also stated that EPA did not provide support 
in the record for its decisions on how to implement the 8-hour 
standard, rendering its decision arbitrary and capricious. In 
particular, the commenter claimed EPA provided no support for its 
decision to eliminate the fee provisions nor showed that it would be 
counterproductive to retain the fee obligation for severe and extreme 
1-hour nonattainment areas that fail to attain the 1-hour standard by 
their attainment date.
    Response: This commenter, as well as others, contend that retention 
of the fee provisions for failure to attain the 1-hour standard would 
be beneficial because their existence would spur stationary sources to 
advocate tighter controls in order to avoid the repercussions of a 
failure to attain. It is logical to assume that these same fee 
provisions, if triggered, would spur stationary sources to pressure 
areas to focus on attainment of the 1-hour standard (to relieve the 
sources of the fee obligation). Planning activities for attaining a 
standard take a commitment of time and money. While reductions for 
purposes of the 8-hour standard may result in benefits for the pre-
existing 1-hour standard (and vice versa), other activities, such as 
modeling for attainment, will not. Time and resources spent modeling 
and planning for attainment of the 1-hour standard will detract from 
planning efforts for the 8-hour standard.

B. Reconsideration of the Portion of the Phase 1 Rule Establishing the 
Time for Determining Which 1-Hour Obligations Remain Applicable 
Requirements

    1. Background. The Phase 1 Rule provided that the ``applicable 
requirements'' would be those 1-hour

[[Page 30596]]

control measures that applied in an area as of the date of signature of 
the Phase 1 Rule (i.e., April 15, 2004).\2\ In the June 2003 proposal 
(68 FR 32821), EPA had proposed that the applicable requirements would 
be those that applied as of the effective date of the 8-hour 
designations (i.e., for almost all areas, June 15, 2004). The draft 
regulatory text released for public comment in August 2003 defined the 
applicable requirements as those 1-hour requirements that applied as of 
the date of revocation of the 1-hour NAAQS (i.e., for almost all areas, 
June 15, 2005). (See e.g., 51.905(a) of Draft Regulatory Text.) In the 
reconsideration proposal, we proposed June 15, 2004 as the date for 
determining which 1-hour control measures continue to apply in an area 
once the 1-hour standard is revoked, which was consistent with our June 
2, 2003 proposal.
---------------------------------------------------------------------------

    \2\ The Phase 1 Rule provides in Sec.  51.900(f) that: 
``Applicable requirements means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the area's classification under section 181(a)(1) of the 
CAA for the 1-hour NAAQS at the time the Administrator signs a final 
rule designating the area for the 8-hour standard as nonattainment, 
attainment or unclassifiable * * *'' (69 FR 23997). Phase 1 of the 
final rule to implement the 8-hour ozone NAAQS was signed by the 
Administrator on April 15, 2004.
---------------------------------------------------------------------------

    2. Summary of Final Rule. We are adopting the approach that we 
proposed, which is that the effective date of the 8-hour designations 
(i.e., for almost all areas, June 15, 2004) is the date for determining 
which 1-hour control measures continue to apply in an area once the 1-
hour standard is revoked. An area's 1-hour designation and 
classification as of June 15, 2004 would dictate what 1-hour 
obligations remain ``applicable requirements'' under the anti-
backsliding provisions of the Phase 1 Rule. We believe this date is 
consistent with the trigger date for other obligations for 
implementation of the 8-hour ozone NAAQS, such as the attainment date 
provisions of the Phase 1 Rule and the date for submission of planning 
SIPs as proposed in the June 2003 proposal.
    The final introductory regulatory text for Sec.  51.900(f) has been 
revised from the proposal to use the defined term ``designation for the 
8-hour NAAQS'' (see Sec.  51.900(h)) to refer to the effective date of 
designation for an area.
    3. Comments and Responses. Comment: One commenter stated that the 
proposed revocation of the 1-hour NAAQS violates the CAA and will be 
invalidated on remand. The commenter further stated that the entire 
``applicable requirements'' rubric stands with no legal basis.
    Response: We are not reconsidering in this action our revocation of 
the 1-hour standard or the applicable requirements ``rubric.'' 
Therefore, we do not respond to comments on these issues.
    Comment: One commenter noted that any cutoff date for anti-
backsliding protection violates section 172(e) of the CAA that provides 
that EPA's rules must provide for controls which are not less stringent 
than the controls applicable to such areas designated nonattainment 
before relaxing (or strengthening) a NAAQS. The commenter stated that 
section 172(e) requires that any area designated nonattainment for the 
1-hour NAAQS before relaxation (or here, revocation) of that standard 
must be subject to controls at least as stringent as those that would 
apply to the area under the 1-hour NAAQS. Thus, the commenter stated 
that such areas must continue to adopt and implement the level of 
controls mandated by the CAA for 1-hour nonattainment areas as they 
would in the absence of revocation. The commenter stated that this 
means that areas are subject to additional requirements in the case of 
a bump up to a higher classification, whether the bump up occurred 
before or after the revocation. The commenter stated that the proposal 
is also inconsistent with other rationales offered by EPA for anti-
backsliding, i.e., that ozone nonattainment areas are designated and 
classified by operation of law, and that allowing relaxation of 
controls mandated by subpart 2 would render those controls 
``prematurely obsolete'' in contravention of the Supreme Court's 
decision inWhitman v. American Trucking Assoc. 531 U.S. 427 (2001).
    Response: Initially, section 172(e) does not apply by its own terms 
where, as here, EPA has adopted a new, more stringent NAAQS. Congress 
did not directly address how areas should transition to a more 
stringent NAAQS. However, as we stated in the preamble to the Phase 1 
Rule, we looked to section 172(e) of the CAA, as well as other 
statutory provisions and the Supreme Court decision in Whitman v. 
American Trucking Assoc., 531 U.S. 427 (2001) to determine how we 
thought Congress intended such a transition should occur. We concluded 
that, where we have adopted a more stringent NAAQS, Congress would not 
have intended areas to be able to loosen applicable control 
requirements as they transition to implementation of that more 
stringent NAAQS. This conclusion was the basis for our anti-backsliding 
approach.
    We note that contrary to the statements of the commenter, section 
172(e) does provide a cut-off date. It provides that control 
requirements should not be less stringent than the controls that 
applied ``before such relaxation.'' This timing provision places a 
limit on which controls should be considered. This phrase could 
possibly be interpreted in several ways--e.g., the time the relaxed 
standard is promulgated, the time areas must begin to implement the 
revised standard, or the time the more stringent standard no longer 
applies. However, we do not believe that it means that all requirements 
that could ever be triggered for such a standard remain permanently in 
place. That position is tantamount to saying that by this provision 
Congress intended to retain the standard itself. We do not be believe 
that Congress would have done so in such an oblique manner. In this 
case, we took comment in the June 2, 2003 proposal and the draft 
regulatory text that we made available on August 6, 2003 on several 
options for what the timing for determining applicable requirements 
should be. We have concluded that the control obligations that should 
remain in place are those that applied as of the effective date of the 
8-hour designation for an area. Furthermore, for the same reasons we 
stated in response to comments on the section 185 fee issues, we do not 
believe our interpretation is inconsistent with our analysis of the 
other statutory provisions that we looked to for guidance on what 
Congress may have intended.
    Comment: A few commenters stated that the date for determining 
``applicable requirements'' should be June 15, 2005. One commenter 
stated that June 15, 2005 would contain the most recent control 
measures and reduce the extent of backsliding that will occur due to 
revocation of the 1-hour standard. The commenter further stated that 
the measures that should apply for purposes of anti-backsliding should 
include all measures that were submitted to EPA for review as of June 
15, 2005. Another commenter who voiced support for June 15, 2005 as the 
most appropriate date for determining applicable requirements noted 
that choosing an earlier date would provide a ``benefit'' to those 
communities that have gamed the SIP process to the detriment of those 
communities who took their responsibilities earnestly. Further, the 
commenter stated that the earlier date provides a potential future 
incentive for States to delay the SIP process as long as possible with 
hopes for future loopholes that would make such actions unnecessary.

[[Page 30597]]

    Response: We disagree with the commenter that adopting June 15, 
2005 as the date for determining ``applicable requirements'' would 
ensure that the most recent control measures would apply. In fact, we 
believe that there will be no substantive difference between the 
selection of June 15, 2004 and June 15, 2005 because no areas have been 
reclassified in that 1-year period. Under our anti-backsliding rule, 
States remain obligated to adopt and implement any control obligations 
that applied for the area's 1-hour classification as of the effective 
date of designations for the 8-hour NAAQS. Thus, each area's control 
requirements are dependent on the area's 1-hour classification as of 
the date for determining the area's applicable requirements. Areas must 
retain control obligations applicable on that date whether or not the 
area had satisfied the obligation by that date. It appears that the 
commenter misinterprets the Phase 1 Rule to allow areas that have not 
yet adopted control obligations to be relieved of the obligation to 
adopt such controls, which is not the case (69 FR 23972).
    We note that an area's applicable requirements are also related to 
the area's 1-hour designation as of the date for determining applicable 
requirements. And, while EPA has proposed to redesignate several areas 
(Atlanta, Cincinnati, Phoenix) from nonattainment to attainment for 
purposes of the 1-hour standard, there is only one substantive 
difference between the ``applicable requirements'' that would apply to 
an area designated nonattainment for the 1-hour standard and 1-hour 
attainment areas subject to a section 175A maintenance plan. That 
difference is that a maintenance area that has moved an ``applicable 
requirement'' to its contingency plan prior to the date for determining 
the ``applicable requirements'' may leave that obligation in its 
contingency plan and need not begin to implement the program if the 
program is not required based on the area's 8-hour classification.\3\ 
For such an area, the selection of June 15, 2005 would provide 
additional time for areas to move measures that are currently being 
implemented to the area's contingency plan. Thus, if any argument could 
be made, it would be that the selection of June 15, 2005 would provide 
1-hour ozone nonattainment areas that achieve the 1-hour standard more 
time to be eligible for redesignation to attainment. This could result 
in less stringent controls being implemented because areas redesignated 
to attainment are able to stop implementation of one or more control 
measures and move those measures to the contingency plan.
---------------------------------------------------------------------------

    \3\ See memorandum dated May 12, 2004, entitled ``1-Hour Ozone 
Maintenance Plans Containing Basic I/M Programs'' from Tom Helms and 
Leila H. Cook.
---------------------------------------------------------------------------

    Comment: A number of commenters disagreed with making June 15, 
2004, rather than April 15, 2004, the date for determining which 
``applicable requirements'' apply to an area. One commenter stated that 
April 15, 2004 represents the point in time when States were on notice 
that they needed to shift their efforts and adopt measures to attain 
the 8-hour not the 1-hour NAAQS. The commenter further stated that the 
responsibility and timelines for implementing 8-hour nonattainment 
measures were triggered for purposes of the new standard on April 15, 
2004, in accordance with settlement agreements with environmental 
groups in the American Lung Association litigation over the issue 
(American Lung Association v. EPA (D.D.C. No. 1:02CV02239).
    Response: States have been aware since July 1997, when the 8-hour 
NAAQS was promulgated, that they needed to begin to consider programs 
to meet that standard. While April 15, 2004 is the date that the final 
Phase 1 and designation rules were signed, we do not believe that the 
date of signature is more meaningful than the effective date of the 
rulemaking action. For the reasons provided in the reconsideration 
proposal, we believe that the effective date of designation is more 
consistent with other obligations under the Phase 1 Rule and is, 
therefore, more consistent and appropriate. We note that the settlement 
referenced by the commenter only established an obligation for EPA to 
sign no later than April 15, 2004, a final rule designating areas for 
the 8-hour standard. That settlement did not address the timelines and 
responsibilities for implementing the 8-hour ozone NAAQS.
    Comment: One commenter stated that although the date change from 
April 15, 2004 to June 15, 2004 represents only a couple of months, the 
implications are significant for two areas that were placed in a more 
stringent classification during that time frame. The commenter stated 
that subpart 2's planning and implementation burdens fall 
disproportionately on stationary sources whether or not stationary 
sources are the primary contributor to nonattainment, without moving 
either of the two areas impacted by the date change (i.e., Beaumont/
Port Arthur and the San Joaquin Valley) any closer to attaining either 
the 1-hour or 8-hour NAAQS. The commenter further stated that Beaumont/
Port Arthur's nonattainment issues stem from ozone transport from the 
Houston/Galveston nonattainment area, and that mobile sources comprise 
as much as 60 percent of the emissions inventory in the San Joaquin 
Valley.
    Response: We agree that shifting the date from April 15, 2004 to 
June 15, 2004 has implications for both the Beaumont/Port Arthur and 
the San Joaquin Valley nonattainment areas which were classified 
between those two dates. For the Beaumont/Port Arthur area, the 
reclassification has resulted in a number of new requirements. Only the 
new reasonably available control technology (RACT) requirements, which 
must now apply to smaller sources with a potential to emit 50 tons/year 
or more down from 100 tons/year, directly impact industrial sources. 
Other new requirements, such as the clean fuel fleets requirement, 
instead impact emissions from mobile sources. Thus, we do not believe 
the requirements that were triggered by reclassification 
disproportionately apply to stationary sources.
    We note, however, that approximately 59 percent of the Beaumont/
Port Arthur area's NOX emissions and 55 percent of the 
area's VOC emissions come from local stationary sources.\4\ 
Consequently, any attainment plan for the Beaumont/Port Arthur area 
would have to include stationary source controls.
---------------------------------------------------------------------------

    \4\ Texas SIP revision that was submitted on November 16, 2004, 
see pages 2-5.
---------------------------------------------------------------------------

    While we agree that the Beaumont/Port Arthur area is sometimes 
affected by emissions transported from Houston, at other times the 
Beaumont/Port Arthur area ozone problem is primarily the result of 
locally-generated emissions. In Texas' latest proposed revision to the 
SIP for the Beaumont/Port Arthur area, Texas estimated that more than 
half of the 1-hour exceedence days were influenced significantly by 
local emissions.\5\ This is not surprising since Beaumont/Port Arthur 
is home to a large number of petrochemical manufacturers. Thus, we do 
not agree that the additional local control obligations that would 
apply based on a serious vs. moderate classification would not result 
in reductions that will improve air quality in the Beaumont/Port Arthur 
area.
---------------------------------------------------------------------------

    \5\ Texas SIP revision that was submitted on November 16, 2004, 
see pages 4-5.
---------------------------------------------------------------------------

    In the San Joaquin Valley, shifting the date means that 
``applicable requirements'' for the San Joaquin Valley ozone 
nonattainment area are the ``extreme'' 1-hour ozone nonattainment 
requirements as opposed to the

[[Page 30598]]

requirements that applied based on a ``severe'' 1-hour classification. 
Although EPA generally agrees with the comment that mobile sources 
contribute approximately 60 percent towards the ozone problem in the 
Valley,\6\ we do not agree that requiring San Joaquin to adopt and 
implement the 1-hour extreme control requirements places a new 
disproportionate burden on stationary sources located in the Valley. 
While the contribution of emissions from stationary sources to the 
overall emissions in the San Joaquin Valley is less than that for 
mobile sources,\7\ stationary sources remain a critical part of the 
overall air pollution control strategy needed by the State and the San 
Joaquin Valley Unified Air Pollution Control District to achieve 
attainment.
---------------------------------------------------------------------------

    \6\ Calculated from typical summertime day mobile source 
NOX and VOC emissions inventory for 2000 as a percent of 
the total 2000 NOX and VOC emissions. Extreme Ozone 
Attainment Demonstration Plan, San Joaquin Valley Air Basin (October 
2004), Section 3. Available at http://www.valleyair.org/.
    \7\ Id. at p. 3-11, Table 3-1.
---------------------------------------------------------------------------

    Section 182(e)(4) of the CAA allows SIPs for areas classified 
extreme to adopt traffic controls during heavy traffic hours to reduce 
the use of high polluting vehicles or heavy-duty vehicles, 
notwithstanding any other provisions of the CAA. Furthermore, on-road 
mobile source emission standards continue to improve through EPA and 
State regulations, and will result in emissions reductions over time as 
newer vehicles replace older vehicles. Additionally, new fuel and 
emission standard requirements for nonroad diesel engines were 
finalized by EPA last year and will achieve substantial reductions 
through time from the non-road diesel engine sector. Reducing VOC 
emissions from the large number of area sources is also an important 
part of the overall ozone control strategy for the San Joaquin 
Valley.\8\
---------------------------------------------------------------------------

    \8\ Id. at p. 3-9, Table 3-1.
---------------------------------------------------------------------------

    Comment: One commenter stated that EPA should apply anti-
backsliding measures only where they will assist an area in attaining 
or maintaining the 8-hour NAAQS.
    Response: The EPA established its general anti-backsliding approach 
in the Phase 1 Rule and is not reconsidering here and therefore not 
responding to comments on the general issues raised by the commenter.
    Comment: One commenter stated that since San Joaquin's attainment 
date under the 8-hour NAAQS is now 2013, there is no longer any reason 
to require imposition of the control measures required for the extreme 
classification contained in the approved bump up SIP for the 1-hour 
NAAQS by 2010. The commenter stated that retaining these requirements 
will unnecessarily restrict business operations in the area without 
providing commensurate environmental benefit. Several commenters 
asserted that retaining the April 15, 2004 date would be consistent 
with the unique circumstances in the San Joaquin Valley. They claimed 
that San Joaquin's 2005 emissions inventories for NOX and 
reactive organic gases are mainly comprised of mobile source emissions 
and that these emissions were a key reason the area was unable to 
demonstrate attainment of the 1-hour ozone NAAQS by the 2005 deadline. 
The commenters believe that continued implementation of the 1-hour 
severe area requirements in addition to various mobile source emission 
control measures which San Joaquin has adopted will satisfy EPA's 
objective that they make expeditious progress toward attainment of the 
8-hour NAAQS.
    Response: At the State's request, EPA recently reclassified the San 
Joaquin area to extreme. The EPA disagrees with the commenter that 
because San Joaquin now has a later attainment date (2013 for the 8-
hour standard compared with a 1-hour extreme area attainment date of 
2010), there is no longer a need to require the extreme area 
requirements. We do not view the longer attainment period for the 8-
hour standard as a basis for delaying emission reductions that were 
required for purposes of the 1-hour standard. The State's request for a 
voluntary bump up to extreme was based on the area's inability to 
demonstrate attainment of the 1-hour standard by 2007. Ozone is a 
persistent problem in the San Joaquin Valley where, over the past 30 
years, monitors in the San Joaquin Valley have measured exceedences of 
the 8-hour standard level between approximately 90 and 140 days per 
year.\9\ This serious and persistent ozone problem in the area supports 
continuing to require the area to implement the more stringent 
obligations that apply under the area's extreme classification for the 
1-hour standard. In another response to comment, we provide more detail 
regarding the extreme areas requirements and the ``circumstances'' of 
the San Joaquin area, specifically responding to the commenters' 
allegations relating to mobile source emissions. As stated in our 
proposed reconsideration notice, EPA believes that implementing the 
additional 1-hour requirements of the higher (extreme) classification 
serves to ensure continued progress toward reducing ambient ozone 
levels and meeting the 8-hour ozone standard.
---------------------------------------------------------------------------

    \9\ See California Air Resources Board's 8-Hour Ozone Trends 
Summary for the San Joaquin Valley Air Basin at: http://www.arb.ca.gov/adam/cgi-bin/db2www/polltrendsb.d2w/Branch.
---------------------------------------------------------------------------

    Comment: One commenter disagreed with EPA's statement that June 15, 
2004 is more consistent with the other aspects of the Phase 1 Rule that 
are keyed to the effective date of the designations rule rather than 
the signature date. The commenter stated that nothing about EPA's use 
of the phrase ``time of designation'' suggests that it was intended to 
mean the effective date of designations. The commenter agreed with 
EPA's statement that it is important for areas to know ``early in the 
process'' which 1-hour requirements will remain in place for 
implementation of the 8-hour NAAQS, and claimed that changing the 
cutoff date now will impede the San Joaquin Valley Air Pollution 
Control District's progress toward developing an attainment plan. 
Another commenter stated that EPA's use of the date of signing of 
designations is consistent with dates used elsewhere in the Phase 1 
Rule and should be retained.
    Response: The phrase ``designation for the 8-hour NAAQS'' is 
defined in Sec.  51.900(h) of the Phase 1 Rule to mean ``the effective 
date of the 8-hour designation for an area.'' We are aware of only one 
purpose for which the date of signature of the designation rule is used 
in the Phase 1 Rule. Section 51.902 indicates that an area's 1-hour 
design value as of the date of signature of the designation rule will 
govern whether the area is subject to the classification provisions of 
subpart 2 of part D of title I of the CAA, or whether it is subject 
only to the obligations under subpart 1. Since an area's classification 
occurs ``by operation of law'' at the time of designation and because 
such classification is included in the tables promulgated in the 
designation rule, we could not use a date later than the date of 
signature of the designation rule as the date for determining whether 
an area would be classified under subpart 2. The ``effective date of 
designation'' is used (i.e., the phrase ``designation for the 8-hour 
standard'') for purposes of determining an area's attainment date. In 
addition, our proposed rule concerning planning obligations for the 8-
hour standard (the regulatory text which was released for comment at 
the same as the regulatory text for the Phase 1 Rule), linked SIP 
submission obligations to the effective date of designation for the 8-
hour NAAQS.

[[Page 30599]]

C. Contingency Measures in SIPs for the 1-Hour Ozone Standard

    1. Background. Sections 172(c)(9) and 182(c)(9) of the CAA require 
that nonattainment area SIPs contain contingency measures that would be 
implemented if an area fails to attain the NAAQS or fails to make RFP 
toward attainment. In the reconsideration proposal, EPA recognized that 
it had not addressed the continued application of 1-hour section 
172(c)(9) contingency measures in the Phase 1 Rule. We proposed that 
once the 1-hour standard is revoked contingency measures for the 1-hour 
standard will no longer be required (e.g., if the State had not yet 
submitted them) and contingency measures for the 1-hour standard that 
had been approved in the SIP may be removed.
    2. Summary of Final Rule. We are adopting the approach that we 
proposed, which is that contingency measures under sections 172(c)(9) 
and 182(c)(9), which are triggered upon a failure to attain the 1-hour 
standard or to meet reasonable progress milestones for the 1-hour 
standard, will no longer be required as part of the SIP once the 1-hour 
NAAQS is revoked. This means that after revocation of the 1-hour 
standard, an area that has not yet submitted a 1-hour attainment 
demonstration or a specific 1-hour RFP SIP would no longer be required 
to submit contingency measures in conjunction with those SIPs. Also, 
areas with approved section 172 and 182 contingency measures could 
remove them from their SIP.
    3. Comments and Responses. Comment: Several commenters claimed that 
dropping the requirement for contingency measures for failure to attain 
or make progress toward attainment of the 1-hour ozone NAAQS is 
unlawful, arbitrary and capricious and violates the anti-backsliding 
provisions of section 172(e) by relaxing explicit control requirements 
for pre-existing 1-hour nonattainment areas. Additionally, several 
commenters claimed the proposal illegally abrogates subpart 2's 
contingency measure requirements imposed on such areas ``as a matter of 
law'' and renders those requirements ``prematurely obsolete'' in 
opposition to the Supreme Court ruling in Whitman v. American Trucking 
Assoc., 531 U.S. 427 (2001).
    Response: As noted in response to other comments, section 172(e) 
does not explicitly apply where EPA has promulgated a more stringent 
NAAQS. Furthermore, section 172(e) contemplates that there is a cut-off 
regarding which control obligations should continue after revision of a 
NAAQS. Where contingency measures have not yet been triggered, we 
believe it is consistent with Congressional intent to allow areas to 
remove those measures (or to modify the trigger for such measures to 
reflect the 8-hour standard). Furthermore, since EPA will no longer 
make findings of failure to attain or make progress with respect to the 
1-hour NAAQS, the obligation to trigger future contingency measures for 
such 1-hour failures would never occur. With respect to the ``as a 
matter of law'' argument and the commenters'' reliance on the Supreme 
Court's ruling in Whitman, we refer to our response to comments on this 
similar issue regarding the section 185 fees.
    Comment: Several commenters claimed the proposal violates section 
110(l) by interfering with applicable requirements for attainment and 
RFP and without a showing that such measures are not needed for timely 
attainment and progress toward attainment.
    Response: As we have clarified in the regulatory text, States will 
need to submit SIP revisions to remove the contingency measures from 
their SIPs or to revise a trigger that is linked to a violation of the 
1-hour NAAQS. In doing so, the State would need to demonstrate that the 
modification would not interfere with attainment, reasonable progress 
or any other applicable requirement for purposes of the 8-hour NAAQS. 
However, since any future contingency measures will never be triggered, 
EPA does not believe such SIP revisions would interfere with any 
applicable requirements.
    Comment: One commenter contended that because the proposal allows 
the dropping of 1-hour contingency measures, this may imply that 
contingency measures that have been implemented could be dropped.
    Response: If a State has already implemented a contingency measure, 
and such measure was considered a ``discretionary control measure'' 
after implementation under the Phase 1 Rule (i.e., is not an 
``applicable requirement''), the State could modify its SIP to remove 
such measure (as it could for any ``discretionary control measure''), 
but would need to make a demonstration under 110(l) that the 
modification would not interfere with attainment, reasonable progress 
or any other applicable requirement for purposes of the 8-hour NAAQS. 
EPA intends to issue guidance for States to follow to ensure that SIP 
revisions are consistent with section 110(l).
    Comment: Several commenters argued that the proposal is 
inconsistent with EPA's decision to retain requirements for the 1-hour 
attainment and rate of progress (ROP) plans and the rationale for that 
decision (``because the ROP obligation results in control obligations, 
we believe areas should remain obligated to adopt outstanding ROP 
obligations to ensure that the ROP milestones are met''). One commenter 
contended that contingency measures are an integral part of the 
attainment demonstration and the ROP plan and, therefore, if the States 
must meet the attainment demonstration and ROP plan obligations, they 
must also satisfy contingency measure requirements.
    Response: As we stated in the preamble to the final Phase 1 Rule, 
we felt that Congress intended that areas continue to implement 
mandatory control measures but that Congress' intent with regard to 
planning SIPs was not as clear (69 FR 23874-75). As a policy matter, we 
concluded that it made sense to require areas to continue to meet 1-
hour ROP obligations because we believed the obligation did not create 
a significant burden on areas and it made sense that areas that had not 
met this obligation were not relieved from achieving ROP reductions and 
thus were treated the same as areas that had fulfilled their statutory 
obligation. We reached a slightly different result for purposes of 
outstanding 1-hour attainment demonstrations--providing States with 
flexibility to adopt alternatives--but relied on the same rationale for 
retaining the obligation. Additionally, we noted that one of the 
primary focuses of the anti-backsliding provisions is to keep areas on 
track for making reductions as they develop SIPs to meet the 8-hour 
standard. For all of these reasons, we don't believe that areas are 
obligated to retain the contingency measure obligation. The adoption 
and implementation of the 1-hour ROP and attainment demonstrations (or 
an alternative under 51.905(a)(1)(ii)) will ensure that progress is 
made while areas transition. Once plans are adopted and approved for 
purposes of the 8-hour standard, including 8-hour contingency measures, 
those plans by definition will be what is necessary to protect public 
health and the environment and 1-hour contingency measures that kick in 
at some future date for the 1-hour standard will not be necessary to 
achieve that goal (however, contingency measures are required for 
purposes of the 8-hour standard). Furthermore, this approach is 
consistent with our goal of shifting our focus to the 8-hour standard 
and not continuing efforts to monitor

[[Page 30600]]

compliance with the pre-existing 1-hour standard.
    Comment: One commenter argued that under section 172(e), EPA must 
enforce controls no less stringent than the 1-hour ozone standard for 
areas that have never achieved the standard, including section 
182(c)(9) contingency measures. The commenter contends that EPA's 
implementation of the 8-hour standard constitutes a relaxation of the 
standard because (a) certain areas had higher classifications under the 
1-hour standard than they have under the 8-hour standard; and (b) EPA 
policy allows relaxation of offset ratios, major source definitions and 
removal of contingency fees. Thus, they contend that EPA must 
promulgate a set of control measures ``no less restrictive than under 
the old standard.''
    Response: The commenter raises an issue that is not being 
reconsidered in this rulemaking. At the time of promulgation of the 8-
hour NAAQS and consistently since that time, EPA has taken the position 
that the 8-hour NAAQS is a more stringent standard. Thus, although not 
at issue in this rulemaking, we note that the fundamental premise of 
the comment is inaccurate. The stringency of a standard is determined 
by looking at the standard itself, which has three components: (1) The 
averaging time (i.e., 8 hours); (2) level (.08 ppm); and (3) form (the 
3-year average of the fourth-high annual reading at a specific 
monitor). Once a standard is established, areas are required to meet 
that standard and a determination of whether the standard has been met 
is based on air quality monitoring data. How a standard is implemented, 
does not alter the standard in any way although it could have 
implications for whether areas meet their mandated attainment dates. 
The EPA's current rulemaking efforts (based on the June 2003 proposal) 
address how the standard is implemented, and in no way alter the 
requirement that an area monitor attainment of the standard (as 
expeditiously as practicable but no later than specific mandated dates) 
in accordance with the requirements established in the NAAQS rulemaking 
and thus do not affect the stringency of the standard.
    Comment: One commenter recommended that all requirements relating 
to the 1-hour standard should be retained, including those relating to 
contingency measures. They point out that section 172(c)(9) requires 
such measures.
    Response: For the reasons provided above, we have concluded that 
contingency measures related to attainment of the 1-hour NAAQS or 
achievement of ROP milestones for the 1-hour NAAQS need not be 
retained. Elsewhere in this rule, we address our decision to no longer 
require SIPs to contain provisions for the imposition of fees under 
section 185 for purposes of a failure to attain the 1-hour NAAQS. This 
rulemaking did not re-open the issue of whether other 1-hour 
requirements should be retained.
    Comment: One commenter urged that the 1-hour standard should not be 
revoked. They noted that the 1-hour standard is in some cases more 
protective of public health than the 8-hour standard.
    Response: As we noted in the final Phase 1 Rule, we determined in 
the 1997 NAAQS rulemaking that we did not need to retain the 1-hour 
standard to protect public health and that the only issue before us in 
the Phase 1 Rule was the timing for determining when the 1-hour 
standard should no longer apply (69 FR 23969). Neither issue is being 
reconsidered in this rulemaking; thus, we will not address this comment 
here.
    Comment: One commenter suggested that we include in proposed Sec.  
51.905(e)(2)(iii)--after the reference to section 172(c)(9) of the 
CAA--a reference also to section 182(c)(9), as we did in the preamble 
to the proposed rule.
    Response: We agree with the commenter and have included that 
reference in the final regulatory text.
    Comment: One commenter noted that an inconsistency exists between 
Sec.  51.905(e)(1) and proposed Sec.  51.905(e)(2)(iii). Section 
51.905(e)(1) requires that the 1-hour contingency measures approved 
into a SIP remain in force after the 1-hour standard is revoked until 
the State removes them from the SIP; the commenter believes that the 1-
hour contingency measures won't be triggered since the 1-hour standard 
is revoked. The commenter recommended either to revise Sec.  
51.905(e)(1) to conform it with proposed Sec.  51.905(e)(2)(iii) by 
removing the former provision's preconditions to removal of 1-hour 
contingency measures; or to clarify the apparent inconsistency between 
Sec.  51.905(e)(1) and proposed Sec.  51.905(e)(2)(iii).
    Response: We agree that the language is inconsistent and that the 
proposed Sec.  51.905(e)(2)(iii) was poorly drafted. States are 
required to implement provisions in the approved SIP until such time as 
the SIP is revised. We are revising Sec.  51.905(e)(2)(iii) to provide 
that a State is not required to include in its SIP contingency measures 
that are triggered upon a failure to attain the 1-hour ozone standard. 
We note that since EPA will no longer be making determinations of 
whether areas attain the 1-hour standard, contingency measures that 
have such a trigger would never be triggered, even if they remained in 
the SIP. Therefore, we have revised Sec.  51.905(e)(2)(iii) to be 
consistent with Sec.  51.905(e)(ii). Areas must submit SIP revisions to 
remove contingency measures from their SIPs under this provision.
    Comment: One commenter noted that Sec.  51.905(a)(2), addressing 8-
hour nonattainment/1-hour maintenance areas, provides that the State 
may not remove certain 1-hour contingency measures from the maintenance 
SIP and that this is inconsistent with our proposal that States no 
longer need contingency measures that are triggered by a finding of 
failure to attain the 1-hour standard.
    Response: We do not believe this language is inconsistent. Section 
51.905(a)(2) addresses contingency measures that were part of a 1-hour 
maintenance plan and here we are addressing contingency measures 
related to a finding of failure to attain the 1-hour standard or make 
reasonable further progress toward attainment of the 1-hour standard. 
As Sec.  51.905(a)(2) recognizes, an area that was maintenance for the 
1-hour standard may have moved certain ``applicable requirements'' to 
the contingency measures portion of the SIP. This section makes clear 
that the state is no longer obligated to retain the 1-hour trigger for 
such measures, but that these requirements must remain a part of the 
SIP because they are ``applicable requirements.'' Because contingency 
measures related to failure to attain and failure to make RFP are 
typically beyond the reductions achieved through applicable 
requirements, such measures could be removed from the SIP. We note, 
however, that to the extent a contingency measure is also an 
``applicable requirement,'' it cannot be removed from the SIP and we 
have added a sentence to Sec.  51.905(e)(2)(iii) to clarify that point.
    Comment: Sections 51.905(a)(3)(i) and 51.905(a)(4)(i) (addressing 
8-hour attainment areas) both provide that the State may not remove 
obligations from the SIP but may relegate them to contingency measures. 
Also, Sec.  51.905(b) requires that the Sec.  51.900(f) applicable 
requirements may be shifted to contingency measures after the 8-hour 
NAAQS is attained but may not be removed from the SIP. This should be 
clarified to say that these contingency measures are triggered upon a 
violation of the 8-hour standard.

[[Page 30601]]

    Response: The commenter is raising issues outside the context of 
this proposed rulemaking. We believe that while the regulatory text 
could perhaps be more explicit, when read in the context of the entire 
Phase 1 Rule, it is clear that the contingency measures will be linked 
to the 8-hour standard. We note, however, that areas have flexibility 
to identify appropriate triggers. Thus, while they may choose a 
violation of the 8-hour NAAQS as a trigger, a different trigger, such 
as a certain number of exceedences of the 8-hour NAAQS, may also be 
appropriate as the trigger and areas are free to choose such triggers.
    Comment: One commenter suggested that Sec.  51.905(e)(2)(iii) 
should be revised to read (with new language in italics): ``Upon 
revocation of the 1-hour NAAQS for an area, the State is no longer 
required to implement contingency measures under section 172(c)(9) or 
section 182(c)(9) of the CAA based on a failure to attain the 1-hour 
NAAQS or to make reasonable further progress toward attainment of the 
1-hour NAAQS.''
    Response: As provided above, we agree with some of the 
recommendations made by the commenter and disagree with others. We are 
revising the language to include the reference to section 182(c)(9). We 
are also modifying the language to make clear that areas are no longer 
required to include in their SIP, contingency measures that are 
triggered by a failure to attain the 1-hour standard or a failure to 
make RFP and to indicate that control measures that are also applicable 
requirements may not be removed. These modifications make clear that we 
are not suggesting that States are not required to implement approved 
SIPs, but rather that they may revise their SIPs to remove 
discretionary contingency measures linked to these triggers, if they so 
choose.

D. Adding Attainment Demonstration to the List of ``Applicable 
Requirements'' in Sec.  51.900(f)

    1. Background. In the Phase 1 Rule, we provided three options for 
areas that had not met their obligation to have a fully approved 1-hour 
ozone attainment demonstration SIP. Such areas could submit: (1) A 1-
hour attainment demonstration, (2) an early 8-hour attainment 
demonstration, or (3) a RFP plan providing a 5 percent increment of 
progress towards the 8-hour NAAQS. While our intent was that an 
attainment demonstration was an ``applicable requirement'' for purposes 
of anti-backsliding in Sec.  51.905, we neglected to specifically 
include the term ``attainment demonstration'' when we defined 
``applicable requirements'' in Sec.  51.900(f). Our intent in this rule 
is to clarify that an attainment demonstration is an ``applicable 
requirement.''
    2. Summary of Final Rule. We are adopting the approach we proposed, 
which is to add the term ``attainment demonstration'' to Sec.  
51.900(f). The term ``attainment demonstration'' will be included in 
Sec.  51.900(f) as ``(13) Attainment demonstration or an alternative as 
provided under Sec.  51.905(a)(ii).''
    3. Comments and Responses. Comment: Two commenters opposed EPA's 
including the attainment demonstration in the list of applicable 
requirements. One commenter stated that adding attainment demonstration 
to the list of applicable requirements is redundant because the final 
rule already requires nonattainment areas to submit attainment 
demonstrations in Sec.  51.905(a)(1)(ii). The other commenter cross-
referenced their comments on the issue of the date for determining 
which requirements remain applicable requirements once the 1-hour 
standard is revoked, but did not provide any further explanation.
    Response: We agree with the one commenter that it is somewhat 
redundant to identify ``attainment demonstration'' in the list of 
applicable requirements. However, because our rule provides that the 
obligation to submit an attainment demonstration continues to apply 
(i.e., remains applicable), we think it is clearer (and removes any 
possible ambiguity) to include it with the other obligations that 
continue to apply. In addition, we believe that the change is needed to 
ensure that the definition of applicable requirement is consistent with 
the provisions of Sec.  51.905(a) that retain the obligation for the 1-
hour attainment demonstration for certain 1-hour ozone nonattainment 
areas. Regarding the other commenter's opposition based on the same 
reasons as they described with regard to the date for determining what 
requirements are applicable requirements, we did not find this argument 
clear enough for a response. However, to the extent that the 
commenter's arguments regarding the date for determining what 
requirements are applicable requirements are relevant to their 
opposition of listing the attainment demonstration as an applicable 
requirement, we incorporate our responses to those arguments for 
responding to this comment.
    Comment: Two commenters opposed EPA's including the attainment 
demonstration in the list of applicable requirements. One commenter 
stated that adding attainment demonstration to the list of applicable 
requirements is redundant because the final rule already requires 
nonattainment areas to submit attainment demonstrations in Sec.  
51.905(a)(1)(ii). In opposing the inclusion of the attainment 
demonstration in the list of applicable requirements, the other 
commenter referred to reasons they provided regarding the date for 
determining what requirements are applicable requirements.
    Response: We agree with the one commenter that it is somewhat 
redundant to identify ``attainment demonstration'' in the list of 
applicable requirements. However, because our rule provides that the 
obligation to submit an attainment demonstration continues to apply 
(i.e., remains applicable), we think it is clearer (and removes any 
possible ambiguity) to include it with the other obligations that 
continue to apply. In addition, we believe that the change is needed to 
ensure that the definition of applicable requirement is consistent with 
the provisions of Sec.  51.905(a) that retain the obligation for the 1-
hour attainment demonstration for certain 1-hour ozone nonattainment 
areas. Regarding the other commenter's opposition based on the same 
reasons as they described with regard to the date for determining what 
requirements are applicable requirements, we did not find this argument 
clear enough for a response. However, to the extent that the 
commenter's arguments regarding the date for determining what 
requirements are applicable requirements are relevant to their 
opposition of listing the attainment demonstration as an applicable 
requirement, our responses to those arguments above also apply here.
    Comment: One commenter indicated that, while the proposal to add 
attainment demonstration to the list of applicable requirements would 
be more consistent with the remainder of the anti-backsliding rule, the 
commenter recommended that the control strategy that is used to 
demonstrate attainment of the 1-hour standard also be listed as an 
applicable requirement.
    Response: EPA disagrees. A control strategy is part of the 
attainment demonstration that EPA would approve into a SIP and 
therefore does not need to be listed separately in addition to the 
attainment demonstration. Furthermore, the Phase 1 Rule also provided 
alternative means of satisfying the attainment demonstration 
requirement (i.e., an advance increment of progress of 5 percent 
emission reduction or an early 8-hour ozone attainment demonstration). 
Thus, EPA believes areas should have the option under the

[[Page 30602]]

regulation of submitting these alternatives rather than a control 
strategy for the 1-hour NAAQS as an applicable requirement. Finally, if 
we did as the commenter suggested, the effect would be to convert many 
``discretionary'' control measures to applicable requirements. We have 
never suggested (and do not believe it is required) that State 
discretion to substitute for non-mandatory control measures should be 
restricted.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this final rule is not a ``significant regulatory 
action.'' The reconsideration put forth today does not substantially 
change the Phase 1 Rule. With respect to one issue, we are retaining 
the position we adopted in the Phase 1 Rule. As to the second issue, we 
are modifying the date in this rule so that it is consistent with our 
original proposal. Finally, we are promulgating regulatory text to make 
two clarifications to the final rule. We believe that these provisions 
do not substantially modify the intent of the final rule but rather 
merely clarify two issues.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the Agency certifies the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR part 121.); (2) a 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. The Phase 1 
Rule interpreted the obligations required of 1-hour ozone nonattainment 
areas for purposes of anti-backsliding once the 1-hour NAAQS is 
revoked. This final reconsideration addresses two aspects of the Phase 
1 Rule that the Agency was requested to reconsider and clarifies two 
other aspects of the Phase 1 Rule. Since as noted that final rule, the 
Phase 1 Rule does not impose requirements on small entities our further 
action on aspects of that rule also does not impose requirements on 
small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year.
    Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this final rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any 1 year. In promulgating the Phase 1 Rule,

[[Page 30603]]

we concluded that it was not subject to the requirements of sections 
202 and 205 of the UMRA. For those same reasons, our reconsideration 
and clarification of several aspects of that rule is not subject to the 
UMRA.
    The EPA has determined that this final rule contains no regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments. Nonetheless, EPA carried out 
consultations with governmental entities affected by this rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This final reconsideration 
addresses two aspects of the Phase 1 Rule that the Agency was requested 
to reconsider and clarifies two other aspects of the Phase 1 Rule. For 
the same reasons stated in the Phase 1 Rule, Executive Order 13132 does 
not apply to this proposed rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
``Tribal implications'' as specified in Executive Order 13175.
    The purpose of this final rule is taking comment on two issues from 
the Phase 1 Rule that EPA agreed to grant for reconsideration, in 
addition to two other issues from the Phase 1 Rule. These issues 
concern the implementation of the 8-hour ozone standard in areas 
designated nonattainment for that standard. The CAA provides for States 
and Tribes to develop plans to regulate emissions of air pollutants 
within their jurisdictions. The Tribal Authority Rule (TAR) gives 
Tribes the opportunity to develop and implement CAA programs such as 
the 8-hour ozone NAAQS, but it leaves to the discretion of the Tribes 
whether to develop these programs and which programs, or appropriate 
elements of a program, they will adopt.
    For the same reasons stated in the Phase 1 Rule, this final rule 
does not have Tribal implications as defined by Executive Order 13175. 
It does not have a substantial direct effect on one or more Indian 
Tribes, since no Tribe has implemented a CAA program to attain the 8-
hour ozone NAAQS at this time. Furthermore, this final rule does not 
affect the relationship or distribution of power and responsibilities 
between the Federal government and Indian Tribes. The CAA and the TAR 
establish the relationship of the Federal government and Tribes in 
developing plans to attain the NAAQS, and this final rule does nothing 
to modify that relationship. Because this final rule does not have 
Tribal implications, Executive Order 13175 does not apply.
    While the final rule would have Tribal implications upon a Tribe 
that is implementing such a plan, it would not impose substantial 
direct costs upon it nor would it preempt Tribal law.
    Although Executive Order 13175 does not apply to this final rule, 
EPA consulted with Tribal officials in developing this final rule. The 
EPA has supported a national ``Tribal Designations and Implementation 
Work Group'' which provides an open forum for all Tribes to voice 
concerns to EPA about the designation and implementation process for 
the 8-hour ozone standard.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule addresses two aspects of the Phase 1 Rule that the 
Agency was requested to reconsider and clarifies two other aspects of 
the rule. The final rule is not subject to Executive Order 13045 
because the Agency does not have reason to believe the environmental 
health risks or safety risks addressed by this action present a 
disproportionate risk to children. Nonetheless, we have evaluated the 
environmental health or safety effects of the 8-hour ozone NAAQS on 
children. The results of this evaluation are contained in 40 CFR part 
50, National Ambient Air Quality Standards for Ozone, Final Rule (62 FR 
38855-38896; specifically, 62 FR 38854, 62 FR 38860 and 62 FR 38865).

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This final rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions That Significantly Affect Energy 
Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
    Information on the methodology and data regarding the assessment of 
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost, 
Emission Reduction, Energy, and Economic Impact Assessment of the 
Proposed Rule Establishing the Implementation Framework for the 8-Hour, 
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the 
Innovative Strategies and Economics Group, Office of Air Quality 
Planning and Standards, Research Triangle Park, N.C., April 24, 2003.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This final rulemaking does not involve technical standards. 
Therefore,

[[Page 30604]]

EPA is not considering the use of any VCS.
    The EPA will encourage the States and Tribes to consider the use of 
such standards, where appropriate, in the development of the 
implementation plans.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionate high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations.
    The EPA concluded that the Phase 1 Rule should not raise any 
environmental justice issues; for the same reasons, this final rule 
should not raise any environmental justice issues. The health and 
environmental risks associated with ozone were considered in the 
establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is 
designed to be protective with an adequate margin of safety. The final 
rule provides a framework for improving environmental quality and 
reducing health risks for areas that may be designated nonattainment.

K. Congressional Review Act

    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. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 27, 2005.

L. 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 District of Columbia Circuit by July 25, 2005. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See CAA section 307(b)(2).

M. Determination Under Section 307(d)

    Pursuant to section 307(d)(1)(U) of the CAA, the Administrator 
determines that this action is subject to the provisions of section 
307(d). Section 307(d)(1)(U) provides that the provisions of section 
307(d) apply to ``such other actions as the Administrator may 
determine.'' While the Administrator did not make this determination 
earlier, the Administrator believes that all of the procedural 
requirements, e.g., docketing, hearing and comment periods, of section 
307(d) have been complied with during the course of this 
reconsideration rulemaking.

List of Subjects in 40 CFR Part 51

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Particulate matter, Transportation, Volatile organic 
compounds.

    Dated: May 20, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, Title 40, Chapter I of the Code 
of Federal Regulations, is amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart X--Provisions for Implementation of 8-Hour Ozone National 
Ambient Air Quality Standard

0
2. Section 51.900 is amended by revising paragraph (f) introductory 
text and adding paragraph (f)(13) to read as follows:


Sec.  51.900  Definitions.

* * * * *
    (f) Applicable requirements means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the area's classification under section 181(a)(1) of the CAA 
for the 1-hour NAAQS at designation for the 8-hour NAAQS:
* * * * *
    (13) Attainment demonstration or an alternative as provided under 
Sec.  51.905(a)(1)(ii).
* * * * *

0
3. Section 51.905 is amended by revising paragraph (e)(2)(ii) and by 
adding paragraph (e)(2)(iii) as follows:


Sec.  51.905  How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?

* * * * *
    (e) * * *
    (2) * * *
    (ii) Upon revocation of the 1-hour NAAQS for an area, the State is 
no longer required to include in its SIP provisions for CAA section 
181(b)(4) and 185 fees on emissions sources in areas classified as 
severe or extreme based on a failure to meet the 1-hour attainment 
date. Upon revocation of the 1-hour NAAQS in an area, the State may 
remove from the SIP for the area the provisions for complying with the 
section 185 fee provision as it applies to the 1-hour NAAQS.
    (iii) Upon revocation of the 1-hour NAAQS for an area, the State is 
no longer required to include in its SIP contingency measures under CAA 
sections 172(c)(9) and 182(c)(9) that would be triggered based on a 
failure to attain the 1-hour NAAQS or to make reasonable further 
progress toward attainment of the 1-hour NAAQS. A State may not remove 
from the SIP a contingency measure that is an applicable requirement.
* * * * *
[FR Doc. 05-10580 Filed 5-25-05; 8:45 am]
BILLING CODE 6560-50-P