[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Proposed Rules]
[Pages 2936-2945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-806]



[[Page 2936]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2007-0956, FRL-8762-5]
RIN 2060-AO96


Proposed Rule To Implement the 1997 8-Hour Ozone National Ambient 
Air Quality Standard: Revision on Subpart 1 Area Reclassification and 
Anti-Backsliding Provisions Under Former 1-Hour Ozone Standard; 
Proposed Deletion of Obsolete 1-Hour Ozone Standard Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to revise the rule for implementing the 1997 
8-hour ozone national ambient air quality standard (NAAQS) for several 
of the limited portions of the rule vacated by the U.S. Circuit Court 
of Appeals for the District of Columbia. The proposal addresses the 
classification system for the subset of initial 8-hour ozone 
nonattainment areas that the implementation rule originally covered 
under Clean Air Act (CAA or Act) title I, part D, subpart 1. The 
proposal also addresses how 1-hour ozone contingency measures that 
apply for failure to attain or make reasonable progress toward 
attainment of the 1-hour standard should apply under the anti-
backsliding provisions of the implementation rule. In addition, the 
proposal removes language relating to the vacated provisions of the 
rule that provided exemptions from the requirements of nonattainment 
new source review (NSR) and CAA section 185 penalty fees under the 1-
hour standard. The EPA plans to issue a separate proposed rule 
providing additional guidance as to how these two requirements (185 
fees and NSR) now apply.
    In addition, this proposal includes the deletion of an obsolete 
provision in the 1-hour ozone standard itself.

DATES: Comments. Comments must be received on or before February 17, 
2009.
    Public Hearing. If anyone contacts us requesting a public hearing 
by January 26, 2009, we will hold a public hearing approximately 30 
days after publication in the Federal Register. Additional information 
about the hearing would be published in a subsequent Federal Register 
notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0956, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2007-0956, Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code: 
2822T. Please include two copies if possible.
     Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2007-0956, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation will 
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through 
Friday, Air and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0956. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
on-line at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov, 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to 
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in 
www.regulations.gov. Although listed in the index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in www.regulations.gov or in hard copy 
at the Air and Radiation Docket and Information Center in the EPA 
Headquarters Library, Room Number 3334 in the EPA West Building, 
located at 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744.
    Public Hearing: If a hearing is held, it will be held at the U.S. 
Environmental Protection Agency, 109 TW Alexander Drive, Research 
Triangle Park, North Carolina 27709, Building C.

FOR FURTHER INFORMATION CONTACT: For further general information or 
information on the issue of reclassification of subpart 1 areas, 
contact Mr. John Silvasi, Office of Air Quality Planning and Standards, 
U.S. Environmental Protection Agency, (C539-01), Research Triangle 
Park, NC 27711, phone number (919) 541-5666, fax number (919) 541-0824 
or by e-mail at [email protected]. For information on the 1-hour 
contingency measures issue discussed in this notice, contact Ms. Denise 
Gerth, Office of Air Quality Planning and Standards, (C504-03), U.S. 
EPA, Research Triangle Park, North Carolina 27711, phone number (919) 
541-5550 or by e-mail at [email protected], fax number (919) 541-
0824. To request a public hearing, contact Mrs. Pamela Long, Office of 
Air Quality Planning and Standards, (C504-03), U.S. EPA, Research 
Triangle Park, North Carolina 27711, telephone number (919) 541-0641 or 
by e-mail at [email protected], fax number (919) 541-5509.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected directly by the subject rule for this 
action include state, local, and Tribal governments. Entities 
potentially

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affected indirectly by this action include owners and operators of 
sources of emissions (volatile organic compounds (VOCs) and nitrogen 
oxides (NOX)) that contribute to ground-level ozone 
concentrations.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information on a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

    In addition to being available in the docket, an electronic copy of 
this notice is also available on the World Wide Web. A copy of this 
notice will be posted at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.

D. What Information Should I Know About the Public Hearing?

    EPA will hold a hearing only if a party notifies EPA by January 26, 
2009, expressing its interest in presenting oral testimony on issues 
addressed in this notice. Any person may request a hearing by calling 
Mrs. Pamela Long at (919) 541-0641 before 5 p.m. by January 26, 2009. 
Persons interested in presenting oral testimony should contact Mrs. 
Pamela Long at (919) 541-0641. Any person who plans to attend the 
hearing should also contact Mrs. Pamela S. Long at (919) 541-0641 or 
visit the EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/ and to learn if a hearing will be held.
    If a public hearing is held on this notice, it will be held at the 
EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, NC 
27709. Because the hearing will be held at a U.S. Government facility, 
everyone planning to attend should be prepared to show valid picture 
identification to the security staff in order to gain access to the 
meeting room. Please check our Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/ for information and updates concerning the public 
hearing.
    If held, the public hearing will begin at 10 a.m. and end 1 hour 
after the last registered speaker has spoken. The hearing will be 
limited to the subject matter of this document. Oral testimony will be 
limited to 5 minutes. The EPA encourages commenters to provide written 
versions of their oral testimony either electronically (on computer 
disk or CD-ROM) or in paper copy. The list of speakers will be posted 
on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/. 
Verbatim transcripts and written statements will be included in the 
rulemaking docket.
    A public hearing would provide interested parties the opportunity 
to present data, views, or arguments concerning issues addressed in 
this notice. The EPA may ask clarifying questions during the oral 
presentations, but would not respond to the presentations or comments 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
any oral comments and supporting information presented at a public 
hearing.

E. How Is This Document Organized?

    The Information Presented in This Document is Organized as Follows

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Get a Copy of This Document and Other Related 
Information?
    D. What Information Should I Know About the Public Hearing?
    E. How Is This Document Organized?
II. What Is the Background for This Proposal?
    A. Litigation on EPA's 8-Hour Ozone NAAQS Implementation Rule 
(40 CFR Part 51, Sections 51.900 Through 51.918 (Collectively 
Subpart X))
    B. Obsolete Provision in 1-Hour Ozone Standard (40 CFR Part 50)
III. This Action
    A. Reclassification of Subpart 1 8-Hour Ozone Nonattainment 
Areas
    1. Current Rule
    2. Effect of Court Ruling
    3. Proposed Rule
    4. Consequences of Proposed Rule
    B. Anti-Backsliding Under 1-Hour Ozone Standard--In General 
(Also Discussing NSR and Section 185 Penalty Fees)
    C. Contingency Measures
    1. Phase 1 Rule
    2. Effect of Court Ruling
    3. Proposed Rule
    D. Deletion of Obsolete 1-Hour Ozone Standard Provision
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. Determination Under Section 307(d)
    Appendix A to Preamble. Application of the Proposed 
Classification Scheme

II. What Is the Background for This Proposal?

A. Litigation on EPA's 8-Hour Ozone NAAQS Implementation Rule (40 CFR 
Part 51, Sections 51.900 Through 51.918 (Collectively Subpart X))

    On April 30, 2004 (69 FR 23951), EPA published Phase 1 of a final 
rule that addressed the following key elements for implementing the 
1997 8-hour ozone NAAQS: Classifications for the 1997 8-hour NAAQS; 
revocation of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no 
longer apply); anti-backsliding principles for 1-hour ozone

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requirements to ensure continued progress toward attainment of the 1997 
8-hour ozone NAAQS; attainment dates; and the timing of emissions 
reductions needed for attainment.
    Following publication of the April 30, 2004 final Phase 1 Rule, the 
Administrator received three petitions, pursuant to section 
307(b)(7)(B) of the CAA requesting reconsideration of a number of 
aspects of the final rule.\1\ In final rulemaking on one of these 
petitions, EPA further clarified the implementation rule in two 
respects: (a) Section 185 penalty fees under the 1-hour standard would 
no longer be applicable after revocation of the 1-hour standard, and 
(b) the effective date of designations under the 1997 8-hour standard 
(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.\2\ Additionally, EPA clarified that the 
requirement to have 1-hour contingency measures for failure to make 
progress or failure to attain would no longer apply once the 1-hour 
standard was revoked. On April 4, 2005 (70 FR 17018), we published a 
proposed rule to take comment on the issue of whether we should 
interpret the Act to require areas to retain major NSR requirements 
that apply to certain 1-hour ozone nonattainment areas in implementing 
the 1997 8-hour standard. We took final action on the NSR issues on 
June 30, 2005 (70 FR 39413; July 8, 2005), to interpret the CAA to not 
require NSR under the 1-hour standard once the 1-hour standard was 
revoked.
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    \1\ Three 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.
    \2\ 70 FR 30592 (May 26, 2005).
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    Several parties challenged EPA's Phase 1 Rule and the two 
reconsideration rules, and on December 22, 2006, the Court upheld 
certain challenges and rejected others, but purported to vacate the 
Phase 1 Implementation Rule in its entirety. South Coast Air Quality 
Management District, et al., v. EPA, 472 F.3d 882 (D.C. Cir. 2006) 
reh'g denied 489 F.3d 1245 (clarifying that the vacatur was limited to 
the issues on which the court granted the petitions for review).
    The EPA requested rehearing and clarification of the ruling and on 
June 8, 2007, the Court clarified that it was vacating the rule only to 
the extent that it had upheld petitioners' challenges. Thus, the 
following provisions of the Phase 1 rule were vacated:
     The provisions that placed 8-hour ozone nonattainment 
areas under subpart 1, part D, title I of the CAA instead of subpart 2.
     The provisions that waived obligations under the revoked 
1-hour standard for NSR, section 185 penalty fees, and contingency 
measures for failure to attain or to make reasonable progress toward 
attainment of the 1-hour standard.\3\
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    \3\ The Court's June clarification confirmed that the December 
2006 decision was not intended to establish a requirement that areas 
continue to demonstrate conformity for the 1-hour ozone standard for 
anti-backsliding purposes.
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B. Obsolete Provision in 1-Hour Ozone Standard (40 CFR Part 50)

    When EPA promulgated the 8-hour ozone standard on July 18, 1997 (62 
FR 38856), EPA initially revised 40 CFR 50.9 to revoke the 1-hour ozone 
standard once EPA determined that an area had air quality meeting the 
1-hour standard. Subsequently, because the pending litigation over the 
8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and our 
implementation strategy, we revised 40 CFR 50.9 to place two 
limitations on our authority to apply the revocation rule: (1) The 8-
hour NAAQS must no longer be subject to legal challenge, and (2) it 
must be fully enforceable.\4\ (65 FR 45182, July 20, 2000). These 
limitations were codified as Sec.  50.9(c). In the final Phase 1 Rule, 
we again revised Sec.  50.9, this time to revise Sec.  50.9(b) to 
provide for revocation of the 1-hour standard one year after 
designation of areas under the 1997 8-hour ozone standard. However, we 
neglected to remove paragraph (c) which was no longer necessary as the 
8-hour standard was no longer subject to legal challenge and the 
standard had been upheld and was enforceable. American Trucking Assoc. 
v. EPA 283 F.3d 355 (DC Cir. 2002) (resolving all remaining legal 
challenges to the 8-hour ozone standard and upholding EPA's rule 
establishing that standard.)
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    \4\ In addition, in June 2003, we stayed our authority to apply 
the revocation rule pending our reconsideration in this rulemaking 
of the basis for revocation. (68 FR 38160, June 26, 2003).
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III. This Action

A. Reclassification of Subpart 1 8-Hour Ozone Nonattainment Areas

1. Current Rule
    In the Phase 1 implementation rule, EPA established which planning 
requirements of part D of title I of the Act would apply to areas for 
purposes of implementing the 8-hour ozone standard. 40 CFR 51.902. 
(``Which classification and nonattainment area planning provisions of 
the CAA shall apply to areas designated nonattainment for the 8-hour 
NAAQS?'') Paragraph (a) provided that areas with a 1-hour ozone design 
value equal to or greater than 0.121 parts per million (ppm) at the 
time of 8-hour NAAQS nonattainment designation (April 2004) would be 
classified in accordance with CAA title I, part D, section 181 of the 
CAA as interpreted in 40 CFR 51.903(a) for purposes of the 8-hour 
NAAQS, and would be subject to the requirements of CAA title I, part D, 
subpart 2 that apply for the area's classification. 40 CFR 51.903(a) 
set forth a translation into 8-hour design values of the CAA section 
181 classification table, which is written in terms of 1-hour ozone 
design values. The preamble to the Phase 1 Rule provides the rationale 
and procedure for that translation. (See 69 FR 23958 et seq.) Section 
181 in subpart 2 provides for specific classifications of each area by 
the magnitude of the ozone problem, providing shorter time periods for 
attainment for lower classifications and longer time periods for higher 
classifications. Higher classified areas also face additional specified 
control requirements than lower classified areas. A summary listing of 
the subpart 2 requirements by classification compared to subpart 1 
requirements appeared in the proposed 8-hour ozone implementation rule. 
(See 68 FR 32864, Appendix A; June 2, 2003.)
    Paragraph (b) of Sec.  51.902 provided that 1997 8-hour ozone 
nonattainment areas with a 1-hour design value less than 0.121 ppm at 
the time of 8-hour NAAQS nonattainment designation would be covered 
under section 172(a)(1) of the CAA and would be subject to the 
requirements of CAA title I, part D, subpart 1 and not those of subpart 
2.
    The EPA designated areas for the 1997 8-hour standard on April 30, 
2004 (69 FR 23858), and in accordance with section 181(a), the areas 
subject to subpart 2 under the Phase 1 Rule were classified by 
operation of law at that time. Of the 126 areas designated 
nonattainment, 84 were classified as under subpart 1, and the remaining 
42 as under subpart 2.\5\
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    \5\ 13 of the 84 subpart 1 areas and one subpart 2 area were 
designated as ``Early Action Compact Areas'' with a deferred 
effective date for their nonattainment designation.

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2. Effect of Court Ruling
    In its decisions on the Phase 1 rule, the Court vacated the 
provisions that subjected any 8-hour ozone nonattainment areas to 
coverage under subpart 1. As the basis for its decision, the Court 
first agreed that Congress mandated that certain areas be subject to 
subpart 2, but ruled that our use of 0.121 ppm 1-hour design value as a 
dividing line was incorrect, holding that the Supreme Court had 
required use of 0.09 ppm on the 8-hour scale as the level for 
determining which areas Congress mandated would be subject to subpart 
2.\6\ Furthermore, although recognizing that Congress did not mandate 
that areas with an 8-hour design value be subject to subpart 2, the 
Court rejected as unreasonable our rationale for placing certain areas 
in subpart 1 instead of subpart 2. The Court vacated the Phase 1 rule 
to the extent it placed certain areas solely under the implementation 
provisions of subpart 1. Thus, a rule revision is necessary to address 
which provisions of the Act--only subpart 1 or subpart 2 \7\--should 
apply to those areas that were placed solely under subpart 1 in the 
Phase 1 Rule.
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    \6\ ``* * * the gap identified in Whitman affords EPA discretion 
only to the extent that an area is nonattaining but its air quality 
is not as dangerous as the level addressed by the 1990 Amendments, 
which now translates to 0.09 ppm on the 8 hour scale. Thus, the gap 
extends only to the extent that the standard was strengthened and 
not to the extent that the measurement technique merely changed * * 
* We therefore hold that the 2004 Rule violates the Act insofar as 
it subjects areas with 8-hour ozone in excess of 0.09 ppm to Subpart 
1. We further hold that EPA's interpretation of the Act in a manner 
to maximize its own discretion is unreasonable because the clear 
intent of Congress in enacting the 1990 Amendments was to the 
contrary.''
    \7\ We note that areas subject to subpart 2 are also subject to 
subpart 1 to the extent subpart 1 specifies requirements that are 
not superseded by more specific obligations under subpart 2.
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3. Proposed Rule
    We are proposing that all areas designated nonattainment for the 
1997 8-hour ozone standard will be classified under and subject to the 
nonattainment planning requirements of subpart 2. We would modify the 
regulatory text to remove current Sec.  51.902(b) (which was vacated by 
the Court), which placed certain areas only under subpart 1. We 
considered the possibility of proposing to place areas with design 
values below 0.09 ppm 8-hour design value under subpart 1, but are not 
proposing this option in the interest of not further delaying 
implementation of the 8-hour ozone NAAQS that was established over 10 
years ago.\8\ However, we solicit comment on this part of this 
proposal.
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    \8\ As the court made clear in its decision on rehearing, the 
CAA does not mandate coverage under subpart 2 of all areas 
designated nonattainment for an ozone NAAQS. As EPA moves forward to 
develop an implementation strategy for the new 2007 ozone NAAQS, we 
will consider whether subpart 1 alone might apply in some areas for 
purposes of implementing that NAAQS.
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    Because these are the initial classifications for these areas for 
the 1997 ozone standard, the EPA further proposes to use the 8-hour 
ozone design values (from 2001-2003 air quality data) that were used to 
designate these areas nonattainment initially as the basis for 
classification and that the classification table in 40 CFR 51.903 
(established by the Phase 1 Rule) be used for the classification. CAA 
section 181(a) provides that ``at the time'' areas are designated for a 
NAAQS, they will be classified ``by operation of law'' based on the 
``design value'' of the areas and in accordance with table 1 of that 
section. Thus, this language specifies that the area will be classified 
based on the design value that existed for the area ``at the time'' of 
designation. Areas were designated nonattainment in 2004, based on 
design values derived from data from 2001-2003. We are soliciting 
comment on the approach of classifying these areas based on the same 
data that was used for designation.
    Also, since the classification under this proposal would be the 
initial one under the 1997 8-hour standard for these areas after court 
vacatur of the method EPA used to treat these areas under subpart 1 
only, EPA proposes that the provision of CAA section 181(a)(4) would 
apply to these areas, which would allow the Administrator in his 
discretion to adjust the classification--within 90 days after the 
initial classification--to a higher or lower classification ``* * * if 
the design value were 5 percent greater or 5 percent less than the 
level on which such classification was based.'' The EPA proposes to 
address requests for such classification adjustments for the newly-
classified areas that were originally covered under subpart 1 in a 
manner similar to the way described for the original round of subpart 2 
classifications.\9\ This process is described at 69 FR 23863 et seq. 
(April 30, 2004).
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    \9\ Note, however, that if a State requests a reclassification 
from moderate to marginal and the attainment date for marginal areas 
has passed and the area is violating the standard, EPA would not 
grant the request for the reclassification.
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    Of the original 84 subpart 1 areas designated in the April 30, 2004 
rulemaking, 13 areas successfully completed participation in the Early 
Action Compacts (EAC) program. As a result, these areas received 
deferred designations and classifications for as long as they continued 
to meet program requirements. These requirements were designed to 
ensure early reductions of ozone and progress toward attainment of the 
1997 NAAQS. At the completion of the program, these areas were 
designated attainment for the 8-hour ozone NAAQS effective April 15, 
2008.\10\
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    \10\ One area (Denver, CO) that was originally part of the EAC 
program did not successfully complete all milestones and was 
subsequently designated nonattainment under subpart 1. Thus, this 
area would be treated the same as all areas classified under subpart 
1 under the original provisions of the Phase 1 Rule.
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    Despite the proposal to implement the 1997 8-hour standard by 
classifying nonattainment areas under title I, part D, subpart 2 at 
this time, EPA reserves the right to propose to cover future ozone 
nonattainment areas under title I, part D, subpart 1, in accordance 
with the constraints outlined in the Court's rulings. The EPA may in 
the future examine the appropriate role for subpart 1 in classifying 
nonattainment areas and in flexible, efficient, enforceable 
implementation of an ozone NAAQS.
    Note that CAA section 182(h) (``Rural Transport Areas'') would be 
available for any nonattainment area that qualifies as a rural 
transport area under that section. A Rural Transport Area would have to 
only meet requirements of a marginal area.
4. Consequences of Proposed Rule
    Areas originally covered under subpart 1 that have already been 
redesignated to attainment will not be affected by this rule, including 
the 13 EAC areas noted above.\11\ Appendix A provides a listing of the 
former subpart 1 areas that are still designated nonattainment and that 
would be classified under subpart 2 under this proposed rule and 
provides the subpart 2 classification for the area based on the air 
quality data initially used to designate the area in the 2004 
designation rule. All of these areas would be classified as either 
marginal or moderate.\12\ The classification table of 40 CFR 51.903 
provides an outside attainment date based on a number of years after 
the effective date of the

[[Page 2940]]

nonattainment designation (3 years for marginal and 6 years for 
moderate). For all areas other than Denver, the effective date of 
designation for the 8-hour standard was June 15, 2004. Thus, marginal 
nonattainment areas would have a maximum statutory attainment date of 
June 15, 2007 and moderate areas a maximum date of June 15, 2010. Since 
the marginal area attainment date has passed, EPA proposes that any 
area that would be classified under the proposal as marginal, and that 
did not attain by June 15, 2007, or that does not meet the criteria for 
an attainment date extension under CAA section 181(a)(5)(B) and 40 CFR 
51.907, would be reclassified immediately as moderate under this rule.
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    \11\ See, e.g., 73 FR 11558 (col. 2) (March 4, 2008), together 
with e.g., 73 FR 1166 (col 3) (January 8, 2008).
    \12\ Note that Essex Co (the top of Whiteface Mtn), NY, and Door 
County, WI would be eligible for consideration under CAA section 
182(h) as a Rural Transport Area. This is based on the 1999 
definition of Metropolitan Statistical Areas; neither of the above 
two areas is in or adjacent to an MSA as defined by the Office of 
Management and Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548).
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    Areas classified marginal or moderate would be required to meet the 
marginal or moderate area requirements of CAA section 182(a) and/or 
(b). Moderate area requirements include the requirements for the 
marginal classification. Briefly, these requirements are depicted in 
Table 1:

                                 Table 1
------------------------------------------------------------------------
                                              Subpart 2 \a\
            Element            -----------------------------------------
                                  Classification        Requirement
------------------------------------------------------------------------
Attainment Dates..............  Marginal.........  3 years from CAA
For all areas, attainment                           Amendments
 should occur as expeditiously                      enactment.
 as practicable, but no later
 than specified timeframe.
                                Moderate.........  6 years from CAA
                                                    Amendments
                                                    enactment.
Reasonable Further Progress     Marginal.........  None.
 (RFP).
                                Moderate.........  15% VOC reduction
                                                    from baseline within
                                                    6 years of
                                                    enactment.
Attainment demonstration        Marginal.........  None.
 submission.
                                Moderate.........  Due 3 years after CAA
                                                    Amendments
                                                    enactment.
NSR and Reasonable Achievable   Marginal.........  100 tons per year
 Technology (RACT) major                            (TPY).
 source applicability.
                                Moderate.........  100 TPY.
NSR offsets...................  Marginal.........  1.1 to 1.
                                Moderate.........  1.15 to 1.
Bump-up to higher               All except severe  Required to bump up
 classification.                 & extreme.         to higher
                                                    classification if
                                                    area doesn't meet
                                                    attainment date.
NOX control for RACT..........  Moderate & above;  Requirements under
                                 all areas in       this subpart for
                                 Ozone Transport    major stationary VOC
                                 Commission.        sources (NSR & RACT)
                                                    also apply to all
                                                    major NOX sources,
                                                    unless EPA approves
                                                    NOX waiver.
Emission inventory............  All..............  Comprehensive
                                                    emissions inventory
                                                    within 2 years of
                                                    enactment; update
                                                    every 3 years (until
                                                    area attains).
                                                    Provision for
                                                    submission to state
                                                    of annual emissions
                                                    statements from VOC
                                                    and NOX stationary
                                                    sources.
RACT..........................  Marginal & above.  Pre-1990 RACT fix-up.
                                Moderate & above.  RACT for all Control
                                                    Techniques
                                                    Guidelines sources
                                                    and all other major
                                                    sources.
Inspection and Maintenance (I/  Marginal.........  Pre-1990 corrections
 M).                                                to previously
                                                    required I&M
                                                    programs.
                                Moderate.........  Basic I/M.
Consequences of failure to      Marginal,          Bump-up for failure
 attain.                         moderate.          to attain.
Contingency measures..........  All..............  Required for failure
                                                    to meet the Rate of
                                                    Progress milestones
                                                    or attain.
------------------------------------------------------------------------
\a\ Note that subpart 1 requirements also apply to subpart 2 areas to
  the extent that the CAA does not provide an exemption (e.g., 182(a)
  (last paragraph, which exempts marginal areas from the requirement to
  submit an attainment demonstration)) or such requirements are not
  superseded by more specific obligations under subpart 2 (e.g., where
  subpart 2 specifies specific increments of progress for moderate and
  above areas in place of the more general requirement for ``reasonable
  further progress'' under subpart 1). Subpart 1 requirements that are
  also applicable to subpart 2 areas (but that are not addressed in
  subpart 2) include reasonably available control measures (RACM)
  requirement and transportation and general conformity requirements.

    With respect to transportation conformity requirements, current 
transportation plan and transportation improvement program conformity 
determinations for the 1997 8-hour ozone standard will remain valid, 
and are not impacted by this action. Areas that would be reclassified 
under subpart 2 are already satisfying the applicable CAA section 
176(c) conformity requirements for the 1997 8-hour ozone standard. In 
addition, no new conformity deadline would be triggered in the subject 
areas after their classification under subpart 2. Nonattainment areas 
that are classified as marginal or moderate under Subpart 2 would 
continue to make future conformity determinations according to the 
applicable requirements of 40 CFR 93.109(d) and (e). EPA notes that any 
new moderate areas that continue to be required to use the interim 
emissions tests will be required to meet additional test requirements 
that do not apply to marginal areas (40 CFR 93.119(b)(1)).
    The Phase 1 Rule provided that states must submit the major SIP 
elements for the subpart 1 areas no later than June 15, 2007. For areas 
classified as moderate, EPA also provided a submission date of June 15, 
2007 for most requirements, but required states to submit the 
reasonably available control technology requirement (RACT) SIP by 
September 15, 2006. The EPA proposes to require states to submit all 
required SIP elements for the areas' marginal or moderate 
classification one year after the effective date of a final rule 
classifying the areas. The EPA believes this is an appropriate and 
reasonable amount of time given the attainment dates that will apply to 
these areas and the fact that the areas should have made significant 
progress toward meeting these requirements based on the obligations 
that applied before the

[[Page 2941]]

subpart 1 classification provision of the Phase 1 rule was vacated. As 
subpart 1 areas, these areas should have been well along the path to 
developing SIPs at the time the Court issued its decision in December 
2006. We believe states have already had ample opportunity to complete 
the technical work to support development of these major SIP elements 
prior to now. Also, EPA has encouraged states to continue planning for 
clean air in the prior subpart 1 areas.\13\ Therefore, EPA believes one 
year from the date of final rule should be sufficient time for states 
to submit these SIPs. However, EPA solicits comment on this aspect of 
the proposal.
---------------------------------------------------------------------------

    \13\ Memorandum of March 19, 2007 from William L. Wehrum to EPA 
Regional Administrators, re: ``Impacts of the Court Decision on the 
Phase 1 Ozone Implementation Rule'' (response to Question 2) and 
memorandum of June 15, 2007 from Robert J. Meyers to Regional 
Administrators re: ``Decision of the U.S. Court of Appeals for the 
District of Columbia Circuit on our Petition for Rehearing of the 
Phase 1 Rule to Implement the 8-Hour Ozone NAAQS'' (Implications for 
Subpart 1 Areas).
---------------------------------------------------------------------------

B. Anti-Backsliding Under 1-Hour Ozone Standard--In General (Also 
Discussing NSR and Section 185 Penalty Fees)

    The EPA codified the anti-backsliding provisions governing the 
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone 
NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained 
most of the 1-hour ozone requirements as ``applicable requirements'' 
(defined in 40 CFR 51.900(f)). The requirements that are retained are 
those that applied in an area based on the area's 1-hour ozone 
designation and classification as of the effective date of its 8-hour 
designation (for most areas, June 15, 2004).
    Section 51.905(b) provides that a state remains subject to the 
listed 1-hour standard obligations until the area attains the 8-hour 
NAAQS. Furthermore, Sec.  51.905(b) provides that such obligations 
cannot be removed from a SIP, even if the area is redesignated to 
attainment for the 8-hour NAAQS, but must remain in the SIP as 
applicable requirements or as contingency measures, as appropriate.
    Section 51.905(e), as promulgated in 2004, indicated that certain 
1-hour standard requirements are not part of the list of anti-
backsliding requirements. These include 1-hour NSR, section 185 penalty 
fees, and 1-hour contingency measures for failure to attain or make 
reasonable progress toward attainment of the 1-hour NAAQS.\14\ The 
Court vacated these exemption provisions, and accordingly EPA is 
proposing to delete these exemptions from the rule. Thus, this proposal 
would remove language relating to the vacated provisions of the rule 
that provided exemptions from the requirements of nonattainment NSR and 
CAA section 185 penalty fees under the 1-hour standard in addition to 
the provision for contingency measures. The EPA plans to issue a 
separate proposed rule providing further guidance on how the section 
185 fee provisions and the 1-hour NSR requirements apply as a result of 
the Court's vacatur.\15\
---------------------------------------------------------------------------

    \14\ Note that if the area is nonattainment for the 1997 8-hour 
standard, it is subject to nonattainment NSR, contingency measures 
and (if severe or extreme) the section 185 penalty fee provision for 
that 1997 NAAQS.
    \15\ As noted above in a previous footnote, the Court's June 
2007 clarification confirms that the December 2006 decision was not 
intended to establish a requirement that areas continue to 
demonstrate conformity under the 1-hour ozone standard for anti-
backsliding purposes. Therefore, no revisions are necessary to 40 
CFR 51.905(e)(3) of the Phase 1 implementation rule. Section 40 CFR 
51.905(e)(3) establishes that conformity determinations for the 1-
hour standard are not required beginning 1 year after the effective 
date of the revocation of the 1-hour standard and any state 
conformity provisions in an applicable SIP that require 1-hour ozone 
conformity determinations are no longer federally enforceable. This 
provision does not require revision in light of the Court's decision 
and clarification, because the Court did not require conformity 
determinations for the 1-hour standard, and existing regulations 
already implement the Court's holding that 8-hour ozone 
nonattainment and maintenance areas must use 1-hour ozone budgets to 
determine conformity to the 1997 8-hour standard until such time as 
8-hour ozone budgets are approved or found adequate for the area. 
Therefore, current transportation conformity-related regulations set 
forth in 40 CFR part 93 and 40 CFR 51.905(e)(3), and the general 
conformity regulations in 40 CFR part 93 are consistent with the 
Court's decision and clarification on the Phase 1 8-hour ozone 
implementation rule and do not require revision.
---------------------------------------------------------------------------

    In the following section, in response to the Court vacatur, EPA 
proposes the manner in which the 1-hour NAAQS contingency measure 
requirement applies as an anti-backsliding requirement.

C. Contingency Measures

1. Phase 1 Rule
    The Phase 1 Rule did not address anti-backsliding provisions 
related to sections 172(c)(9) and 182(c)(9) of the CAA, which require 
nonattainment area SIPs to contain contingency measures that would be 
implemented if an areas fails to attain or fails to make RFP toward 
attainment of the 1-hour NAAQS. In the Reconsideration Rule published 
on May 26, 2005 (70 FR 30592), we determined that these 1-hour 
contingency measures would no longer be considered required SIP 
measures once the 1-hour standard was revoked. This meant that after 
the 1-hour standard was revoked, areas that had not submitted 1-hour 
attainment demonstrations or a specific 1-hour RFP SIP would no longer 
be required to submit contingency measures in conjunction with those 
SIPs. Also, the reconsideration rule stated that areas with approved 
section 172 and 182 contingency measures in the adopted SIP could 
submit a revision to remove them from their SIP when the 1-hour 
standard was revoked.
2. Effect of Court Ruling
    The Court concluded that EPA improperly waived the CAA requirements 
for contingency measures that would apply based on the failure of an 
area to meet a 1-hour RFP milestone or 1-hour attainment date. The 
Court vacated the provision of the Phase 1 Rule that waived this 
requirement for areas once the 1-hour standard was revoked. 
Consequently, areas remain subject to the obligation to have 
contingency measures for failure to attain the 1-hour NAAQS or make RFP 
toward attainment of the 1-hour NAAQS and cannot remove section 172 or 
182 contingency measures from their SIPs based on revocation of the 1-
hour standard.
3. Proposed Rule
    The EPA is proposing that states be required to retain contingency 
measures in their SIPs that would apply based on a failure to meet a 1-
hour RFP milestone or upon a failure to attain the 1-hour standard by 
the area's attainment date. Consistent with the Court's vacatur of 
Sec.  51.905(e)(2)(iii), which waived this requirement once the 1-hour 
standard was revoked, EPA proposes to remove this provision from the 
regulations. Furthermore, consistent with EPA's proposal to retain 
these 1-hour contingency measure requirements as anti-backsliding 
measures, we also propose to list contingency measures under sections 
172(c)(9) and 182(c)(9) of the CAA as applicable requirements under 
Sec.  51.900(f).
    In situations where an area attains the 1-hour NAAQS by its 
applicable attainment date, the area is not subject to the requirement 
to implement contingency measures for failure to attain the standard by 
its attainment date. As a result, any area that meets or has met its 
attainment deadline, even if the area subsequently lapses into 
nonattainment, would not be required to implement the contingency 
measures for failure to attain the standard by its attainment date for 
purposes of anti-backsliding.
    In situations where a 1-hour ozone nonattainment area is in 
attainment based on current air quality (e.g., after the area's 
attainment date), EPA can

[[Page 2942]]

propose to make a finding of attainment.\16\ This finding would be 
pursuant to the interpretation set forth in the May 10, 1995 memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone Ambient Air Quality Standard'' (Clean Data Policy). 
Under this policy, if EPA determines through rulemaking that the area 
is meeting the 1-hour ozone standard, the requirements for the state to 
submit an attainment demonstration and related components such as 
reasonably available control measures (RACM), RFP demonstration, 
contingency measures for failure to attain or make reasonable further 
progress and the section 185 fees program are suspended as long as the 
area continues to attain the 1-hour ozone NAAQS. If the area 
subsequently violates the ozone NAAQS, EPA would initiate notice-and-
comment rulemaking to withdraw the determination of attainment, which 
would result in reinstatement of the requirement for the state to 
submit such plans.
---------------------------------------------------------------------------

    \16\ This applies even if the area did not attain by its 
attainment date; however, the CAA requires EPA in these cases to 
make a finding of failure to attain by the attainment date and 
either reclassify the area or apply other requirements (such as 
section 185) as specified for the area's classification.
---------------------------------------------------------------------------

    The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings 
applying the Clean Data Policy. See Sierra Club v. EPA, 99 F. 3d 1551 
(10th Cir. 1996); Sierra Club v. EPA. 375 F.3d 537 (7th Cir. 2004) and 
Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 
2005) memorandum opinion.\17\ See also the discussion and rulemakings 
cited in EPA's Phase 2, 8-Hour Ozone Implementation Rulemaking, 70 FR 
71644-71646 (November 29, 2005), which codified the policy for the 8-
hour NAAQS.
---------------------------------------------------------------------------

    \17\ The Clean Data Policy, as it is embodied in 40 CFR. 51.918, 
is being challenged in the context of the 8-hour ozone standard in 
the Phase 2 Rule ozone litigation pending in the DC Circuit, NRDC v. 
EPA, No. 06-1045 (DC Cir.).
---------------------------------------------------------------------------

    Thus if EPA makes a determination of attainment under the Clean 
Data Policy, EPA would find that the requirement to submit section 172 
and 182 contingency measures under the 1-hour anti-backsliding 
provisions (40 CFR 51.905) would be suspended for so long as the area 
continues to attain the 1-hour standard.
    Under 40 CFR 51.905(b), states remain subject to the obligations 
under Sec.  51.905(a)(1)(i) and (a)(2) until the area attains the 8-
hour NAAQS for purposes of anti-backsliding. After the area attains the 
8-hour NAAQS, states may request that these obligations be shifted to 
contingency measures, consistent with sections 110(l) and 193 of the 
CAA; however, the state cannot remove the obligations from the SIP.

D. Deletion of Obsolete 1-Hour Ozone Standard Provision

    For the reasons stated above in the background section concerning 
the obsolete nature of 40 CFR 50.9(c), we are proposing to delete that 
paragraph. This will have no effect on the status of the 1-hour ozone 
standard,\18\ or on the anti-backsliding provisions which set forth how 
areas must meet 1-hour requirements that applied to the area at the 
time the area was designated for the 8-hour standard.
---------------------------------------------------------------------------

    \18\ The 1-hour standard was revoked for most areas on June 15, 
2005, the date one-year after the effective date of designation. For 
the 13 EAC areas designated attainment with an effective date of 
April 15, 2008, the 1-hour standard will be revoked April 15, 2009, 
and for the Denver EAC area, which was designated nonattainment 
effective November 20, 2007, the 1-hour standard will be revoked 
November 20, 2008.
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    A. Executive Order 12866: Regulatory Planning and Review
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a significant regulatory action because it raises novel legal 
or policy issues arising out of legal mandates. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action sets forth EPA's proposed rule for addressing portions of 
the partial vacatur of EPA's Phase 1 rule for implementation of the 
1997 8-hour ozone NAAQS. However, the Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing Phase 1 Rule (April 30, 2004; 69 FR 23951) 
and the Phase 2 Rule (November 29, 2005; 70 FR 71612) regulations and 
has been assigned OMB Control Number 2060-0594. 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 (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any regulation 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 these proposed regulations 
revisions 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 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 impact of these proposed revisions 
to the regulations on small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. This proposal will not impose any requirements on small 
entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The EPA has 
determined that these proposed regulation revisions contain no 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments because these regulations 
affect Federal agencies only.

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

[[Page 2943]]

and local officials in the development of regulatory policies that have 
Federalism implications.'' Policies that have ``Federalism 
implications'' are 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 action 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 proposed rule, if made final, 
would restore provisions that existed under the 1-hour ozone standard 
and that would have continued under the 1-hour standard had not EPA 
issued a revised ozone standard. Those provisions were revoked when EPA 
revoked the 1-hour standard itself. Although a court upheld EPA's right 
to revoke the 1-hour standard, the court ruled that EPA erroneously 
revoked several 1-hour NAAQS provisions and vacated those portion of 
EPA's rule. Thus, the court's own ruling restored the former 1-hour 
NAAQS provisions. This proposed rule merely proposes a corrective 
regulatory mechanism for restoring the 1-hour contingency measure 
provision that the court had already restored. Thus, Executive Order 
13132 does not apply to these proposed regulation revisions.
    In the spirit of Executive Order 13121 and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA is soliciting comments on this proposal from state and 
local officials.

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

    This action does not have Tribal implications as specified in 
Executive Order 13175. They do not have a substantial direct effect on 
one or more Indian Tribes, since no Tribe has to develop a SIP under 
these proposed regulatory revisions. Furthermore, these proposed 
regulation revisions do not affect the relationship or distribution of 
power and responsibilities between the Federal government and Indian 
Tribes. The CAA and the Tribal Air Rule establish the relationship of 
the Federal government and Tribes in developing plans to attain the 
NAAQS, and these revisions to the regulations do nothing to modify that 
relationship. Thus, Executive Order 13175 does not apply.
    EPA specifically solicits additional comment on the proposed 
revisions to the regulations from Tribal officials.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because these proposed rule revisions address whether a SIP will 
adequately attain and maintain the NAAQS and meet the obligations of 
the CAA. The NAAQS are promulgated to protect the health and welfare of 
sensitive population, including children. However, EPA solicits 
comments on whether the proposed action would result in an adverse 
environmental effect that would have a disproportionate effect on 
children.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards 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 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The proposed revisions to the regulations would, if 
promulgated revise procedures for states to follow in developing SIPs 
to attain the NAAQS, which are designed to protect all segments of the 
general populations. As such, they do not adversely affect the health 
or safety of minority or low income populations and are designed to 
protect and enhance the health and safety of these and other 
populations.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

Appendix A to Preamble. Application of the Proposed Classification 
Scheme

    This appendix lists the proposed new subpart 2 classifications for 
the areas that were originally covered under subpart 1 in the phase 1 
rule (April 30, 2004) and that are currently still designated 
nonattainment. The geographic boundaries of these nonattainment areas 
are provided in 40 CFR Part 81, Subpart C.

[[Page 2944]]



----------------------------------------------------------------------------------------------------------------
                                   2001-2003  8-                                   2004-2006  8-   2005-2007  8-
 Current nonattainment areas not    hour ozone          Proposed subpart 2          hour ozone      hour ozone
 classified under phase 1 rule,    design value           classification           design value    design value
   as vacated by the court \a\          ppm                                             ppm             ppm
----------------------------------------------------------------------------------------------------------------
Albany-Schenectady-Troy, NY \e\.           0.087  Marginal......................           0.078           0.079
Allegan Co, MI..................           0.097  Moderate......................           0.088           0.093
Amador and Calaveras Cos                   0.091  Moderate......................           0.093           0.090
 (Central Mtn), CA \c\.
Buffalo-Niagara Falls, NY.......           0.099  Moderate......................           0.083           0.086
Chico, CA \e\...................           0.089  Marginal......................           0.084           0.084
Cincinnati-Hamilton, OH-KY-IN...           0.096  Moderate......................           0.086           0.088
Clearfield & Indiana Cos, PA \e\           0.09   Marginal......................           0.077           0.080
Columbus, OH....................           0.095  Moderate......................           0.084           0.087
Denver-Boulder-Greeley-Ft.                 0.087  Marginal......................           0.081           0.085
 Collins-Love, CO \b\.
Door Co, WI \d\.................           0.094  Moderate......................           0.086           0.090
Essex Co (Whiteface Mtn), NY \d\           0.091  Marginal......................             NAV             NAV
Greene Co, PA \e\...............           0.089  Marginal......................           0.079           0.080
Haywood and Swain Cos (Great               0.085  Marginal......................           0.076           0.078
 Smoky NP), NC \e\.
Jamestown, NY...................           0.094  Moderate......................           0.086           0.086
Kern Co (Eastern Kern), CA......           0.098  Moderate......................           0.086           0.085
Knoxville, TN...................           0.092  Moderate......................           0.084           0.088
Las Vegas, NV \e\...............           0.086  Marginal......................           0.083           0.086
Manitowoc Co, WI \e\............           0.09   Marginal......................           0.082           0.086
Mariposa and Tuolumne Cos                  0.091  Moderate......................           0.086           0.085
 (Southern Mtn),CA \c\.
Nevada Co. (Western Part), CA...           0.098  Moderate......................           0.096           0.095
Phoenix-Mesa, AZ \e\............           0.087  Marginal......................           0.083           0.083
Pittsburgh-Beaver Valley, PA....           0.094  Moderate......................           0.083           0.087
Rochester, NY \e\...............           0.088  Marginal......................           0.072           0.080
San Diego, CA...................           0.093  Moderate......................           0.088           0.089
Sutter Co (Sutter Buttes), CA              0.088  Marginal......................           0.082          0.081
 \e\.
----------------------------------------------------------------------------------------------------------------
\a\ A number of areas that were placed in Subpart 1 under the vacated portion of the Phase 1 Rule have since
  attained the 8-hour ozone standard and have been redesignated to attainment. Because these areas are now
  designated attainment for the ozone standard, they are not nonattainment areas subject to classification and
  thus are not included in this table.
\b\ Denver originally participated in the Early Action Compact (EAC) program and was listed in the April 30,
  2004 designation action as a nonattainment area under subpart 1; its nonattainment designation was deferred
  until November 20, 2007, at which time based on a violation of the 1997 8-hour ozone NAAQS, Denver's
  nonattainment designation became effective. Denver has planning requirements as a former EAC area.
\c\ Area would have been marginal but did not have attaining design values by the marginal area attainment date
  (June 15, 2007) (based on 2004-2006 design values).
\d\ Essex Co (the top of Whiteface Mtn), NY, and Door County, WI, would be eligible for consideration under CAA
  section 182(h) as Rural Transport Areas. This is based on the 1999 definition of Metropolitan Statistical
  Areas; neither of the above two areas is in or adjacent to an MSA as defined by the Office of Management and
  Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548). Essex Co does not have a design value for the 2005-2007
  period (indicated by NAV (not available)).
\e\ These areas had attaining design values as of the marginal area attainment date (June 15, 2007) (based on
  2004-2006 design values).

List of Subjects

40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

40 CFR Part 51

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

    Authority: 42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7511-7511f; 
42 U.S.C. 7601(a)(1).

    Dated: January 9, 2009.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY 
STANDARDS

    1. The authority citation for part 50 continues to read as follows:

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


Sec.  50.9  [Amended]

    2. Section 50.9 is amended by removing and reserving paragraph (c).

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    3. 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--[Amended]

    4. Section 51.900 is amended by adding paragraph (f)(14) to read as 
follows:


Sec.  51.900  Definitions.

* * * * *
    (f) * * *
    (14) 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 by the applicable attainment date or to make reasonable 
further progress toward attainment of the 1-hour NAAQS.
* * * * *
    5. Section 51.902 is revised to read as follows:


Sec.  51.902  Which classification and nonattainment area planning 
provisions of the CAA shall apply to areas designated nonattainment for 
the 8-hour NAAQS?

    (a) An area designated nonattainment for the 8-hour NAAQS will be 
classified in accordance with section 181 of the CAA, as interpreted in 
Sec.  51.903(a), for purposes of the 8-hour NAAQS, and will be subject 
to the requirements of subpart 2 that apply for that classification.
    (b) [Reserved]
    6. Section 51.905 is amended as follows:
    a. By adding a sentence to the end of paragraph (b).

[[Page 2945]]

    b. By removing and reserving paragraphs (e)(2)(ii) and (e)(2)(iii).
    c. By removing paragraph (e)(4).


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

* * * * *
    (b) * * * Once an area attains the 1-hour NAAQS, the section 172 
and 182 contingency measures under the 1-hour NAAQS can be shifted to 
contingency measures for the 8-hour ozone NAAQS and must remain in the 
SIP until the area is redesignated to attainment for the 8-hour NAAQS.
* * * * *
 [FR Doc. E9-806 Filed 1-15-09; 8:45 am]
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