[Federal Register Volume 77, Number 89 (Tuesday, May 8, 2012)]
[Rules and Regulations]
[Pages 26950-26953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11076]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2012-0249; FRL-9669-7]


Designation of Areas for Air Quality Planning Purposes; 
California; Western Mojave Desert Ozone Nonattainment Area; 
Reclassification to Severe

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Under the Clean Air Act (CAA or Act), EPA is granting a 
request from the State of California to reclassify the Western Mojave 
Desert ozone nonattainment area from ``Moderate'' to ``Severe-15'' for 
the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS). 
EPA is also reclassifying Indian country under the jurisdiction of the 
Twenty-Nine Palms Band of Mission Indians of California located within 
the boundaries of the Western Mojave Desert area in the same manner, 
following consultation with the Tribe, to maintain consistency with the 
classification of the surrounding areas under State jurisdiction.

DATES: Effective Date: This rule is effective on June 7, 2012.

ADDRESSES: EPA has established docket number, EPA-R09-OAR-2012-0249, 
for this action. Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), and some may not be publicly 
available in either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Doris Lo, Air Planning Office (AIR-2), 
U.S. Environmental Protection Agency, Region IX, (415) 972-3959, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

I. Reclassification of Western Mojave Desert to Severe-15 Ozone 
Nonattainment

    Effective June 15, 2004, EPA designated and classified the ``Los

[[Page 26951]]

Angeles and San Bernardino Counties (Western Mojave Desert)'' area in 
California (Western Mojave Desert) under the CAA as ``Subpart 2/
Moderate'' nonattainment for the 1997 8-hour ozone NAAQS.\1\ See 69 FR 
23858, at 23884 (April 30, 2004) and 40 CFR 81.305. Our classification 
of the Western Mojave Desert area as a ``Moderate'' ozone nonattainment 
area established a requirement that the area attain the 1997 8-hour 
ozone NAAQS as expeditiously as practicable, but no later than six 
years from the date of designation as nonattainment, i.e., June 15, 
2010.
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    \1\ This action applies only to the classification of this ozone 
nonattainment area for purposes of the 1997 8-hour ozone NAAQS. EPA 
intends to take separate actions to designate and classify areas of 
the nation that meet or do not meet the 2008 8-hour ozone NAAQS.
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    On February 14, 2008, the California Air Resources Board (CARB) 
submitted a request that EPA reclassify three California areas 
(including the Western Mojave Desert area) designated nonattainment for 
the 1997 8-hour ozone standard.\2\ For the Western Mojave Desert ozone 
nonattainment area, CARB requested reclassification from ``Moderate'' 
to ``Severe-17.'' \3\ On March 14, 2012, CARB submitted a clarification 
requesting that EPA reclassify the Western Mojave Desert area from 
``Moderate'' to ``Severe.'' \4\ Consistent with section 181(b)(3) of 
the CAA, we are granting the State's request and reclassifying the 
Western Mojave Desert area from ``Moderate'' to ``Severe-15'' 
nonattainment for the 1997 8-hour ozone NAAQS.\5\ We are not 
establishing a schedule for plan submissions at this time and intend to 
do so in a subsequent action, if necessary.
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    \2\ See February 14, 2008 letter from James N. Goldstene, 
Executive Officer, CARB, to Wayne Nastri, Regional Administrator, 
U.S. Environmental Protection Agency, Region 9. In addition to the 
Western Mojave Desert area, CARB requested that EPA reclassify the 
Ventura County and Sacramento Metro ozone nonattainment areas under 
CAA section 181(b)(3) to higher classifications for the 1997 8-hour 
ozone NAAQS. Pursuant to this request, EPA reclassified the Ventura 
County area from ``Moderate'' to ``Serious'' nonattainment effective 
June 19, 2008 (73 FR 29073, May 20, 2008), and reclassified the 
Sacramento Metro area from ``Serious'' to ``Severe-15'' 
nonattainment effective June 4, 2010 (75 FR 24409, May 5, 2010).
    \3\ CARB subsequently submitted a SIP revision for this area to 
address the attainment demonstration and related requirements for 
severe-17 ozone nonattainment areas. See July 22, 2008 letter and 
enclosures from James N. Goldstene, Executive Officer, CARB, to 
Wayne Nastri, Regional Administrator, U.S. Environmental Protection 
Agency, Region 9.
    \4\ See March 14, 2012 letter from James N. Goldstene, Executive 
Director, CARB, to Jared Blumenfeld, Regional Administrator, U.S. 
Environmental Protection Agency, Region 9.
    \5\ Section 181(b) of the CAA does not authorize EPA to grant a 
request for reclassification of a ``Moderate'' ozone nonattainment 
area to ``Severe-17.'' See, e.g., EPA's final rule reclassifying the 
San Joaquin Valley ozone nonattainment area, 66 FR 56476 at 56478 
(November 8, 2001).
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    Because the State of California does not have jurisdiction over 
Indian country located within its borders, CARB's request to reclassify 
the Western Mojave Desert area does not apply to Indian country under 
the jurisdiction of the Twenty-Nine Palms Band of Mission Indians of 
California, which is located within the boundaries of the Western 
Mojave Desert nonattainment area. EPA implements federal Clean Air Act 
programs, including reclassifications, in this area of Indian country 
consistent with our discretionary authority under sections 301(a) and 
301(d)(4) of the Clean Air Act. EPA has consulted with the Twenty-Nine 
Palms Band of Mission Indians of California regarding CARB's request 
and the Tribe has agreed to reclassification of its tribal land within 
the Western Mojave Desert nonattainment area consistent with the 
surrounding areas under State jurisdiction.\6\ Accordingly, we are 
reclassifying the entire Western Mojave Desert nonattainment area (both 
the portion under State jurisdiction and the portion under the Tribe's 
jurisdiction) from ``Moderate'' to ``Severe-15'' for the 1997 8-hour 
ozone NAAQS.
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    \6\ See email dated April 11, 2012 from Marshall Cheung, Tribal 
EPA Director, Twenty-Nine Palms Band of Mission Indians of 
California, to Colleen McKaughan, Associate Director, EPA Region IX 
Air Division, Re: West Mojave Desert Reclassification or ``Bump-
up.''
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    We are approving CARB's reclassification request under section 
181(b)(3) of the Act, which provides for ``voluntary reclassification'' 
and states: ``The Administrator shall grant the request of any State to 
reclassify a nonattainment area in that State in accordance with table 
1 of subsection (a) of this section to a higher classification. The 
Administrator shall publish a notice in the Federal Register of any 
such request and of action by the Administrator granting the request.'' 
The provision for voluntary reclassification has been brought forward 
as part of the transition from the 1-hour ozone standard to the 1997 8-
hour ozone standard. See 40 CFR 51.903(b) (``A State may request a 
higher classification for any reason in accordance with section 
181(b)(3) of the CAA'') and 40 CFR 51.903(a), Table 1. Because the 
plain language of section 181(b)(3) mandates that we approve such a 
request, EPA is granting CARB's request for voluntary reclassification 
under section 181(b)(3) for the Western Mojave Desert ozone 
nonattainment area, and EPA is reclassifying the area from ``Moderate'' 
to ``Severe-15'' for the 1997 8-hour ozone NAAQS. With respect to that 
portion of the Western Mojave Desert area that is under the 
jurisdiction of the Twenty-Nine Palms Band of Mission Indians of 
California, EPA has consulted with the Tribe and the Tribe has agreed 
to reclassification of the area from ``Moderate'' to ``Severe-15'' 
consistent with the surrounding areas under State jurisdiction. As a 
result of this action, Western Mojave Desert must now attain the 1997 
8-hour ozone NAAQS as expeditiously as practicable, but no later than 
fifteen years from the date of designation as nonattainment, i.e., June 
15, 2019. EPA will address in future rulemaking actions, as necessary, 
any issues relating to timing and content of plan submissions under 
this new classification.
    EPA has determined that today's action falls under the ``good 
cause'' exemption in section 553(b)(3)(B) of the Administrative 
Procedure Act (APA) which, upon finding ``good cause,'' authorizes 
agencies to dispense with public participation where public notice and 
comment procedures are ``impracticable, unnecessary or contrary to the 
public interest.'' With respect to that portion of the Western Mojave 
Desert area that is under State jurisdiction, public notice and 
opportunity for comment prior to today's action are unnecessary because 
EPA's reclassification of the Western Mojave Desert area to ``Severe-
15'' is mandated by the CAA and does not involve any exercise of 
discretion. Public notice and comment are also unnecessary with respect 
to our reclassification of Indian country under the jurisdiction of the 
Twenty-Nine Palms Band of Mission Indians of California located within 
the Western Mojave Desert area, because the Tribe has agreed to 
reclassification of these tribal lands consistent with the surrounding 
State lands.

II. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. With respect 
to lands under State jurisdiction, voluntary reclassifications under 
section 181(b)(3) of the CAA are based solely upon requests by the 
State and EPA is required under the CAA to grant them. These actions do 
not, in and of themselves, impose any new requirements on any sector of 
the economy. In addition, because the statutory requirements are 
clearly defined with respect to the differently

[[Page 26952]]

classified areas, and because those requirements are automatically 
triggered by classification, reclassification does not impose a 
materially adverse impact under Executive Order 12866. With respect to 
Indian country, reclassifications do not establish deadlines for air 
quality plans or plan revisions. For these reasons, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001).
    In addition, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This action does not 
contain any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), because EPA is required to grant requests by States 
for voluntary reclassifications and such reclassifications in and of 
themselves do not impose any federal intergovernmental mandate, and 
because tribes are not subject to implementation plan submittal 
deadlines that apply to states as a result of reclassifications.
    Executive Order 13175 (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.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.'' One Indian tribe (the Twenty-Nine Palms 
Band of Mission Indians of California) has jurisdiction over Indian 
country located within the boundaries of the Western Mojave Desert 
area. EPA implements federal Clean Air Act programs, including 
reclassifications, in this area of Indian country consistent with our 
discretionary authority under sections 301(a) and 301(d)(4) of the 
Clean Air Act. EPA has concluded that this final rule might have tribal 
implications for the purposes of Executive Order 13175 but will not 
impose substantial direct costs upon the Tribe, nor does it preempt 
Tribal law. This final rule does not affect implementation of new 
source review for new or modified stationary sources proposed in Indian 
country within the boundaries of the Western Mojave Desert area because 
such sources are already subject to the permitting requirements that 
apply in ``Severe'' nonattainment areas for purposes of the 1-hour 
ozone NAAQS. This reclassification might affect projects proposed in 
this area of Indian country that require Federal permits, approvals, or 
funding under EPA's General Conformity rule because of the lower de 
minimis thresholds triggered by reclassification (25 tons per year for 
volatile organic compounds or oxides of nitrogen). Given the potential 
implications, EPA contacted tribal officials to provide an opportunity 
for meaningful and timely input into this action. As discussed in 
section I of this document, on April 11, 2012, the Tribe agreed to the 
reclassification of its tribal lands within the Western Mojave Desert 
area consistent with the surrounding State lands.
    This action also does not have Federalism implications because it 
does 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 (64 FR 43255, August 
10, 1999). This action does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act.
    This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because EPA interprets Executive 
Order 13045 as applying only to those regulatory actions that concern 
health or safety risks, such that the analysis required under section 
5-501 of the Executive Order has the potential to influence the 
regulation.
    Reclassification actions do not involve technical standards and 
thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    Executive Order 12898 (59 FR 7629, February 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. This reclassification action relates 
to ozone, a pollutant that is regional in nature, and is not the type 
of action that could result in the types of local impacts addressed in 
Executive Order 12898.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 9, 2012. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, National parks, Ozone, Wilderness areas.

    Dated: April 26, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[Amended]

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--[Amended]

0
2. Section 81.305 is amended in the table for ``California--Ozone (8-
hour

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Standard)'' by revising the entry for ``Los Angeles and San Bernardino 
Counties (Western Mojave Desert), CA'' to read as follows:


Sec.  81.305  California.

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                                                California--Ozone
                                                (8-Hour Standard)
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                                           Designation a                       Category/classification
        Designated area        ---------------------------------------------------------------------------------
                                  Date \1\            Type             Date \1\                Type
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Los Angeles and San Bernardino  ...........  Nonattainment.........     6/7/2012  Subpart 2/Severe-15.
 Counties (Western Mojave
 Desert), CA.
Los Angeles County (part).....  ...........  Nonattainment.........     6/7/2012  Subpart 2/Severe-15.
    That portion of Los
     Angeles County which lies
     north and east of a line
     described as follows:
     Beginning at the Los
     Angeles-San Bernardino
     County boundary and
     running west along the
     Township line common to
     Township 3 North and
     Township 2 North, San
     Bernardino Base and
     Meridian; then north
     along the range line
     common to Range 8 West
     and Range 9 West; then
     west along the Township
     line common to Township 4
     North and Township 3
     North; then north along
     the range line common to
     Range 12 West and Range
     13 West to the southeast
     corner of Section 12,
     Township 5 North and
     Range 13 West; then west
     along the south
     boundaries of Sections
     12, 11, 10, 9, 8, and 7,
     Township 5 North and
     Range 13 West to the
     boundary of the Angeles
     National Forest which is
     collinear with the range
     line common to Range 13
     West and Range 14 West;
     then north and west along
     the Angeles National
     Forest boundary to the
     point of intersection
     with the Township line
     common to Township 7
     North and Township 6
     North (point is at the
     northwest corner of
     Section 4 in Township 6
     North and Range 14 West);
     then west along the
     Township line common to
     Township 7 North and
     Township 6 North; then
     north along the range
     line common to Range 15
     West and Range 16 West to
     the southeast corner of
     Section 13, Township 7
     North and Range 16 West;
     then along the south
     boundaries of Sections
     13, 14, 15, 16, 17, and
     18, Township 7 North and
     Range 16 West; then north
     along the range line
     common to Range 16 West
     and Range 17 West to the
     north boundary of the
     Angeles National Forest
     (collinear with the
     Township line common to
     Township 8 North and
     Township 7 North); then
     west and north along the
     Angeles National Forest
     boundary to the point of
     intersection with the
     south boundary of the
     Rancho La Liebre Land
     Grant; then west and
     north along this land
     grant boundary to the Los
     Angeles-Kern County
     boundary.
San Bernardino County (part)..  ...........  Nonattainment.........     6/7/2012  Subpart 2/Severe-15.
    That portion of San
     Bernardino County which
     lies north and east of a
     line described as
     follows: Beginning at the
     San Bernardino-Riverside
     County boundary and
     running north along the
     range line common to
     Range 3 East and Range 2
     East, San Bernardino Base
     and Meridian; then west
     along the Township line
     common to Township 3
     North and Township 2
     North to the San
     Bernardino-Los Angeles
     County boundary; And that
     portion of San Bernardino
     County which lies south
     and west of a line
     described as follows:
     latitude 35 degrees, 10
     minutes north and
     longitude 115 degrees, 45
     minutes west.
 
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[FR Doc. 2012-11076 Filed 5-7-12; 8:45 am]
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