[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Rules and Regulations]
[Pages 30204-30206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11704]



[[Page 30204]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2021-0340; FRL-10024-58-Region 9]


Designation of Areas for Air Quality Planning Purposes; 
California; Eastern Kern 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), the Environmental Protection 
Agency (EPA) is granting a request by the California Air Resources 
Board (CARB) to reclassify the Eastern Kern, California (``Eastern 
Kern'') ozone nonattainment area from ``Serious'' to ``Severe'' for the 
2008 ozone national ambient air quality standard (NAAQS).

DATES: This rule is effective on July 7, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2021-0340. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If you need assistance 
in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ben Leers, Air Planning Office (AIR-
2), EPA Region IX, (415) 947-4279, [email protected].

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

I. Reclassification of Eastern Kern to Severe Ozone Nonattainment

    In March 2008, the EPA strengthened the primary and secondary 
eight-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm 
(``2008 ozone NAAQS'').\1\ In accordance with section 107(d) of the 
CAA, the EPA must designate an area ``nonattainment'' if it is 
violating the NAAQS or if it is contributing to a violation of the 
NAAQS in a nearby area. With respect to the ozone NAAQS, the EPA 
further classifies nonattainment areas as ``Marginal,'' ``Moderate,'' 
``Serious,'' ``Severe,'' \2\ or ``Extreme,'' depending upon the ozone 
design value for an area.\3\ See CAA section 181(a)(1). As a general 
matter, higher classified ozone nonattainment areas are subject to a 
greater number of, and more stringent, CAA planning requirements than 
lower classified areas but are allowed more time to attain the ozone 
NAAQS. See, generally, subpart 2 of part D of title I of the CAA.
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    \1\ 73 FR 16436 (March 27, 2008).
    \2\ Throughout this document and in our final rule, we use the 
term ``Severe'' to refer to Severe areas that have up to 15 years to 
attain the ozone standards. The ozone area designation tables in 40 
CFR part 81 specify ``Severe-15'' to distinguish such areas from 
``Severe-17'' areas, which are Severe areas that have up to 17 years 
to attain the ozone standards.
    \3\ For the 2008 ozone NAAQS, the design value at each 
monitoring site is the annual fourth-highest daily maximum 8-hour 
average ozone concentration, averaged over three years. The design 
value for an area is the highest design value among the monitoring 
sites.
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    Effective July 20, 2012, the EPA designated and classified the 
Eastern Kern \4\ area under the CAA as Marginal nonattainment for the 
2008 ozone NAAQS.\5\ The EPA's classification of the Eastern Kern area 
as a Marginal ozone nonattainment area established a requirement that 
the area attain the 2008 ozone NAAQS as expeditiously as practicable, 
but no later than three years from the date of designation as 
nonattainment, i.e., July 20, 2015. Under CAA section 181(b)(2), the 
EPA is required to determine whether an area attained the ozone NAAQS 
by the applicable attainment date. In May 2016, the EPA found that 
Eastern Kern failed to attain the 2008 ozone NAAQS by the July 20, 2015 
Marginal attainment date and reclassified the area as Moderate for the 
2008 ozone NAAQS with a new maximum attainment date of July 20, 
2018.\6\
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    \4\ Kern County is located in the southern-most portion of 
California's Central Valley. The western portion of Kern County is 
part of the San Joaquin Valley air basin and is included within the 
San Joaquin Valley ozone nonattainment area. The eastern portion of 
Kern County is part of the Mojave Desert air basin. The Eastern Kern 
ozone nonattainment area covers the eastern portion of the county 
excluding Indian Wells Valley. For more detail on the boundaries of 
the Eastern Kern ozone nonattainment area, see the 2008 ozone table 
in 40 CFR 81.305.
    \5\ 77 FR 30088 (May 21, 2012).
    \6\ 81 FR 26697 (May 4, 2016).
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    On October 25, 2017, CARB submitted the ``Eastern Kern Air 
Pollution Control District 2017 Ozone Attainment Plan for the Federal 
75 ppb 8-Hour Ozone Standard'' (``the Eastern Kern 2017 Ozone Plan''). 
The Eastern Kern 2017 Ozone Plan includes a request for voluntary 
reclassification of the Eastern Kern ozone nonattainment area from 
Moderate to Serious. Effective August 6, 2018, the EPA granted CARB's 
request and reclassified the Eastern Kern ozone nonattainment area as 
Serious for the 2008 ozone NAAQS with a new maximum attainment date of 
July 20, 2021.\7\ By letter dated May 15, 2021, CARB submitted a 
request from the Eastern Kern Air Pollution Control District to the EPA 
to voluntarily reclassify the Eastern Kern ozone nonattainment area 
from Serious to Severe for the 2008 ozone NAAQS.\8\
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    \7\ 83 FR 31334 (July 5, 2018).
    \8\ Letter dated May 15, 2021, from Richard W. Corey, Executive 
Officer, CARB, to Deborah Jordan, Acting Regional Administrator, EPA 
Region IX. In the letter, CARB also requests reclassification of 
Eastern Kern to Serious for the 2015 ozone NAAQS. The EPA will take 
action on the reclassification request with respect to the 2015 
ozone NAAQS in a separate rulemaking.
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    Consistent with CAA section 181(b)(3), we are granting California's 
request and reclassifying the Eastern Kern area from Serious to Severe 
nonattainment for the 2008 ozone NAAQS. CAA section 181(b)(3) 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.'' Under 40 CFR 51.1103(b), a state 
``may request, and the Administrator must approve, a higher 
classification for any reason in accordance with CAA section 
181(b)(3)'' and 40 CFR 51.1103(a), Table 1. The EPA is therefore 
granting CARB's request for voluntary reclassification under section 
181(b)(3) for the Eastern Kern ozone nonattainment area, and the EPA is 
reclassifying the area from Serious to Severe for the 2008 ozone NAAQS. 
In the Proposed Rules section of this Federal Register, the EPA is 
proposing a schedule for CARB to submit the plan elements for a Severe 
ozone nonattainment area.

[[Page 30205]]

    As a result of this action, the Eastern Kern ozone nonattainment 
area must attain the 2008 ozone NAAQS as expeditiously as practicable, 
but no later than fifteen years from the effective date of designation 
as nonattainment, i.e., no later than July 20, 2027.
    The EPA has determined this action falls under the ``good cause'' 
exemption in section 553(b)(3)(B) of the Administrative Procedure Act 
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.'' 
The EPA has determined that public notice and comment for today's 
action is unnecessary because our action to approve voluntary 
reclassification requests under CAA section 181(b)(3) is 
nondiscretionary both in its issuance and in its content. As such, 
notice and comment rulemaking procedures would serve no useful purpose.

II. Statutory and Executive Order Reviews

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this final action is not a 
``significant regulatory action'' and therefore is not subject to 
Executive Order 12866. With respect to lands under state jurisdiction, 
voluntary reclassifications under CAA section 181(b)(3) of the CAA are 
based solely upon requests by the state, and the EPA is required under 
the CAA to grant them. These actions do not, in and of themselves, 
impose any new requirements on any sectors of the economy. In addition, 
because the statutory requirements are clearly defined with respect to 
the differently classified areas, and because those requirements are 
automatically triggered by reclassification, reclassification does not 
impose a materially adverse impact under Executive Order 12866. For 
these reasons, this final 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 final 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.) and that 
this final rule 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 the 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.
    This rule also does not have tribal implications because it will 
not have a substantial direct effect 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, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). There are no Indian reservation lands or 
other areas where the EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction within the Eastern Kern ozone nonattainment 
area, and thus, this reclassification action does not have tribal 
implications and will not impose substantial direct costs on tribal 
governments or preempt tribal law as specified by Executive Order 
13175.
    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 does not 
provide the EPA with the discretionary authority to address 
disproportionate human health or environmental effects with practical, 
appropriate, and legally permissible methods under Executive Order 
12898.
    This final 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, nor 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 final action does not alter the relationship or 
the distribution of power and responsibilities established in the CAA.
    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 the 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.).
    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a rule report to each 
House of the Congress and to 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 August 6, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

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

    Dated: May 27, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    For the reasons stated in the preamble, the EPA amends part 81, 
chapter I, title 40 of the Code of Federal Regulations as follows:

[[Page 30206]]

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

Subpart C--Section 107 Attainment Status Designations

0
2. In Sec.  81.305, the table entitled ``California--2008 8-Hour Ozone 
NAAQS [Primary and Secondary]'' is amended by revising the entry for 
``Kern County (Eastern Kern), CA'' to read as follows:


Sec.  81.305   California.

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                                                           California-2008 8-Hour Ozone NAAQS
                                                                 [Primary and secondary]
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                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                                   Date \1\                      Type                      Date \1\                      Type
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                                                                      * * * * * * *
Kern County (Eastern Kern), CA: \2\       ..........................  Nonattainment.............  July 7, 2021..............  Severe-15.
    Kern County (part):
        That portion of Kern County
         (with the exception of that
         portion in Hydrologic Unit
         Number 18090205--the Indian
         Wells Valley) east and south of
         a line described as follows:
         Beginning at the Kern-Los
         Angeles County boundary and
         running north and east along
         the northwest boundary of the
         Rancho La Liebre Land Grant to
         the point of intersection with
         the range line common to Range
         16 West and Range 17 West, San
         Bernardino Base and Meridian;
         north along the range line to
         the point of intersection with
         the Rancho El Tejon Land Grant
         boundary; then southeast,
         northeast, and northwest along
         the boundary of the Rancho El
         Tejon Grant to the northwest
         corner of Section 3, Township
         11 North, Range 17 West; then
         west 1.2 miles; then north to
         the Rancho El Tejon Land Grant
         boundary; then northwest along
         the Rancho El Tejon line to the
         southeast corner of Section 34,
         Township 32 South, Range 30
         East, Mount Diablo Base and
         Meridian; then north to the
         northwest corner of Section 35,
         Township 31 South, Range 30
         East; then northeast along the
         boundary of the Rancho El Tejon
         Land Grant to the southwest
         corner of Section 18, Township
         31 South, Range 31 East; then
         east to the southeast corner of
         Section 13, Township 31 South,
         Range 31 East; then north along
         the range line common to Range
         31 East and Range 32 East,
         Mount Diablo Base and Meridian,
         to the northwest corner of
         Section 6, Township 29 South,
         Range 32 East; then east to the
         southwest corner of Section 31,
         Township 28 South, Range 32
         East; then north along the
         range line common to Range 31
         East and Range 32 East to the
         northwest corner of Section 6,
         Township 28 South, Range 32
         East, then west to the
         southeast corner of Section 36,
         Township 27 South, Range 31
         East, then north along the
         range line common to Range 31
         East and Range 32 East to the
         Kern-Tulare County boundary.
 
                                                                     * * * * * * * *
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\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.

[FR Doc. 2021-11704 Filed 6-4-21; 8:45 am]
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