[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Rules and Regulations]
[Pages 67864-67874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25451]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2017-0548; FRL: 8260.1-02-OAR]


Additional Revised Air Quality Designations for the 2015 Ozone 
National Ambient Air Quality Standards: El Paso County, Texas and Weld 
County, Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final action revises the initial air quality designations 
for two counties associated with two nonattainment areas for the 2015 
primary and secondary National Ambient Air Quality Standards (NAAQS) 
for ozone. In a July 10, 2020, decision, the District of Columbia 
Circuit Court remanded to the Environmental Protection Agency (EPA

[[Page 67865]]

or Agency), but did not vacate, the April 30, 2018, designations for 16 
counties associated with nine nonattainment areas located in seven 
states. In response, the EPA has re-evaluated the designations for the 
remanded counties by applying a uniform, nationwide analytical approach 
and interpretation of the designation provisions of the Clean Air Act 
(CAA) in considering the specific facts and circumstances of the areas 
using only data and information available at the time of the original 
designations. In this final action, the EPA is revising the boundaries 
of two nonattainment areas, affecting the designation status of two 
counties in two separate states (Colorado and Texas). The EPA addressed 
the 14 additional remanded counties in a previous Federal Register 
document.

DATES: The effective date of this rule is December 30, 2021.

ADDRESSES: The EPA has established a public docket for these ozone 
designations at https://www.regulations.gov under Docket ID No. EPA-HQ-
OAR-2017-0548. Although listed in the docket index, some information is 
not publicly available, e.g., Confidential Business Information 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.
    Out of an abundance of caution for members of the public and our 
staff, the EPA Docket Center and Reading Room are currently closed to 
the public, with limited exceptions, to reduce the risk of transmitting 
COVID-19. The Docket Center staff will continue to provide remote 
customer service via email, phone, and webform. For further information 
on EPA Docket Center services and the current status, please visit us 
online at https://www.epa.gov/dockets.
    In addition, the EPA has established a website for the designations 
for the 2015 ozone NAAQS at https://www.epa.gov/ozone-designations. The 
website includes the EPA's final revised designations action, technical 
support documents, revised responses to comments and other related 
information.

FOR FURTHER INFORMATION CONTACT: For general questions concerning this 
action, contact Carla Oldham, Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, Mail Code C539-01, 
Research Triangle Park, N.C. 27711, phone number (919) 541-3347 or by 
email at: [email protected]. The following EPA contacts can answer 
questions regarding areas affiliated with a particular EPA Regional 
office:
    Region 6--Carrie Paige, telephone (214) 665-6521, email at 
[email protected].
    Region 8--Abby Fulton, telephone (303) 312-6563, email at 
[email protected].

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              Regional offices                     Affected state(s)
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EPA Region 6--State Planning &                Texas.
 Implementation Branch, 1201 Elm Street,
 Dallas, Texas 75270.
EPA Region 8--Air Quality Planning Branch,    Colorado.
 1595 Wynkoop Street, Denver, Colorado 80202.
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    Most of the EPA's offices are closed to reduce the risk of 
transmitting COVID-19, but staff remain available via telephone and 
email. The EPA encourages the public to review information related to 
the EPA's final action responding to the July 10, 2020, Court Decision 
online at https://www.epa.gov/ozone-designations and in the public 
docket at https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-
2017-0548.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The following is an outline of the Preamble.

I. Preamble Glossary of Terms and Acronyms
II. What is the purpose of this action?
III. What is ozone and how is it formed?
IV. What are the 2015 ozone NAAQS and the health and welfare 
concerns they address?
V. What are the CAA requirements for air quality designations?
VI. What is the chronology for this designations action and what 
guidance did the EPA provide?
VII. What air quality data has the EPA used to designate the 
remanded areas for the 2015 ozone NAAQS?
VIII. What are the ozone air quality classifications and 
implementation dates?
IX. Environmental Justice Considerations
X. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    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 and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

    The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act
CAA Clean Air Act
CFR Code of Federal Regulations
CRA Congressional Review Act
DC District of Columbia
EPA Environmental Protection Agency
FR Federal Register
NAAQS National Ambient Air Quality Standards
NTTAA National Technology Transfer and Advancement Act
ppm Parts per million
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
SIP State Implementation Plan
TAR Tribal Authority Rule
TSD Technical Support Document
UMRA Unfunded Mandate Reform Act
U.S. United States
U.S.C. United States Code

II. What is the purpose of this action?

    The purpose of this final action is to announce and promulgate 
revised 2015 ozone NAAQS designations for two counties in response to 
the July 10, 2020, decision by the District of Columbia Circuit Court 
that remanded the counties to the EPA for further consideration. The 
affected counties were initially designated on April 30, 2018. The EPA 
addressed the 14 additional remanded counties in a previous Federal 
Register document (86 FR 31438; June 14, 2021).
    On October 1, 2015, the EPA promulgated revised primary and 
secondary NAAQS for ozone (80 FR 6592; October 26, 2015). In that 
action, the EPA strengthened both standards to a level of 0.070 parts 
per million (ppm), while retaining their indicators, averaging times, 
and forms. The EPA revised the ozone standards based on an

[[Page 67866]]

integrated assessment of an extensive body of new scientific evidence, 
which substantially strengthens our knowledge regarding ozone-related 
health and welfare effects, the results of exposure and risk analyses, 
the advice of the Clean Air Scientific Advisory Committee and 
consideration of public comments.
    The process for designating areas following promulgation of a new 
or revised NAAQS is contained in the CAA section 107(d) (42 U.S.C. 
7407(d)). After promulgation of a new or revised NAAQS, the CAA 
requires the EPA to determine if areas in the country meet the new 
standards. Accordingly, the EPA designated all areas of the country as 
to whether they met, or did not meet, the NAAQS in three rounds.\1\
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    \1\ The EPA designated areas for the 2015 ozone NAAQS in three 
rounds, resulting in 52 nonattainment areas. In Round 1 (82 FR 
54232; November 6, 2017), the EPA designated 2,646 counties, two 
separate tribal areas and five territories as attainment/
unclassifiable, and one area as unclassifiable. In Round 2 (83 FR 
25776; April 30, 2018), the EPA designated 51 nonattainment areas, 
one unclassifiable area, and all remaining areas as attainment/
unclassifiable, except for the eight counties in the San Antonio, 
Texas area. In Round 3 (83 FR 35136; July 17, 2018), the EPA 
designated one county in the San Antonio area as nonattainment and 
the other seven counties as attainment/unclassifiable.
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    Several environmental and public health advocacy groups, three 
local government agencies, and the state of Illinois filed a total of 
six petitions for review challenging the EPA's 2015 ozone NAAQS 
designations promulgated on April 30, 2018. The District of Columbia 
Circuit Court consolidated the petitions into a single case, Clean 
Wisconsin v. EPA, 964 F.3d 1145 (D.C. Cir. 2020). Collectively, the 
petitioners challenged aspects of the EPA's final designations for 17 
counties associated with nine nonattainment areas. The petitioners 
primarily argued that the EPA improperly designated counties (in whole 
or part) as attainment that should have been designated as 
nonattainment because of contribution to nearby counties with violating 
monitors. In its response brief, the EPA requested voluntary remand of 
the final designation decisions for 10 counties associated with four 
nonattainment areas to further review those designations.
    On July 10, 2020, the District of Columbia Circuit Court granted 
the EPA's requests for voluntary remand and also remanded several other 
counties (see Clean Wisconsin, 964 F.3d 1145). In total, the Court 
remanded back to the EPA 16 counties associated with nine nonattainment 
areas. The Court did not vacate the initial April 30, 2018, 
designations, but required the EPA to ``issue revised designations as 
expeditiously as practicable.'' In response to the Court decision, the 
EPA re-evaluated the existing technical record, including data and 
information, that was used for the initial April 2018 designations 
under a uniform, nationwide analytical approach, to support either 
revising or affirming the designations for these remanded counties. 
Table 1 summarizes the EPA's revised 2015 ozone NAAQS designations for 
the two remanded counties that are addressed in this Federal Register 
document. The technical support documents (TSDs) that describe the re-
evaluation of these counties are included in the public docket. The 
amended 40 CFR part 81 tables for the revised designations, which 
appear in the regulatory tables included at the end of this final rule, 
identify the revised designation for the two remanded counties and the 
classification for the associated nonattainment areas.

    Table 1--Remand Designations for El Paso County, Texas and Weld County, Colorado for the 2015 Ozone NAAQS
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       Nonattainment area name             Remanded county       April 2018 designation     Remand designation
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El Paso-Las Cruces, Texas-New Mexico   El Paso County, Texas..  Full county attainment.  Full county
 \a\.                                                                                     nonattainment.
Denver Metro/North Front Range,        Weld County, Colorado..  Partial county           Full county
 Colorado.                                                       nonattainment.           nonattainment.
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\a\ The EPA is expanding the initially designated Do[ntilde]a Ana County (Sunland Park Area), New Mexico
  nonattainment area to include El Paso County, Texas, and for clarity is renaming the area as the El Paso-Las
  Cruces, Texas-New Mexico nonattainment area.

    For the 14 remanded counties addressed in a previous action, as 
discussed further in Sections V and VI of this document, the EPA 
exercised its authority to take final action under section 107(d) of 
the CAA. For the remaining two remanded counties addressed in this 
action (El Paso County, Texas and Weld County, Colorado), a different 
process is required. As discussed in Section V of this document, CAA 
section 107(d) specifies that whenever the EPA Administrator intends to 
make a modification to a state's designation recommendation, the EPA 
must notify the state and provide the state with the opportunity to 
submit additional information to demonstrate why the EPA's intended 
modification is inappropriate. The EPA is required to give the 
notification no later than 120 days before promulgating the final 
designation, including any modification thereto.
    After re-evaluating the El Paso County, Texas and Weld County, 
Colorado areas in response to the court remand, the EPA notified Texas 
and Colorado of the Agency's intent to make modifications to the state 
recommendations for those two counties and conducted the required 120-
day notification process. CAA section 107(d)(1)(B)(ii). The EPA also 
sent a letter to New Mexico notifying that state of the EPA's intended 
modification of Texas's attainment recommendation that would expand the 
boundary of the existing Do[ntilde]a Ana County (Sunland Park Area), NM 
nonattainment area to include El Paso County, TX and, thus, become a 
multi-state nonattainment area. The EPA also issued a notice of 
availability for these letters and offered a public comment period (86 
FR 31460; June 14, 2021).

III. What is ozone and how is it formed?

    Ground-level ozone is a gas that is formed by the reaction of 
volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) in the atmosphere in the presence of sunlight. These 
precursor emissions are emitted by many types of pollution sources, 
including power plants and industrial emissions sources, on-road and 
off-road motor vehicles and engines, and smaller sources, collectively 
referred to as area sources. Ozone is predominately a summertime air 
pollutant. However, high ozone concentrations have also been observed 
in cold months, where a few areas in the Western United States (U.S.) 
have experienced high levels of local VOC and NOX emissions 
that have formed ozone when snow is on the ground and temperatures are 
near or below freezing. Ozone and ozone precursors can be transported 
to an area from sources in nearby areas or from

[[Page 67867]]

sources located hundreds of miles away. For purposes of determining 
ozone nonattainment area boundaries, the CAA requires the EPA to 
include areas that contribute to nearby violations of the NAAQS.

IV. What are the 2015 ozone NAAQS and the health and welfare concerns 
they address?

    On October 1, 2015, the EPA revised both the primary and secondary 
NAAQS for ozone to a level of 0.070 ppm (annual fourth-highest daily 
maximum 8-hour average concentration, averaged over 3 years).\2\ The 
level of the ozone NAAQS previously set in 2008 is 0.75 ppm. The 2015 
ozone NAAQS retain the same general form and averaging time as the 2008 
ozone NAAQS.
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    \2\ See 80 FR 65296; October 26, 2015, for a detailed 
explanation of the calculation of the 3-year, 8-hour average and 40 
CFR part 50, Appendix U.
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    The primary ozone standards provide protection for children, older 
adults, and people with asthma or other lung diseases, and other at-
risk populations against an array of adverse health effects that 
include reduced lung function, increased respiratory symptoms and 
pulmonary inflammation; effects that contribute to emergency department 
visits or hospital admissions; and mortality. The secondary ozone 
standards protect against adverse effects to the public welfare, 
including those related to impacts on sensitive vegetation and forested 
ecosystems.

V. What are the CAA requirements for air quality designations?

    After the EPA promulgates a new or revised NAAQS, the EPA is 
required to designate all areas in the country as nonattainment, 
attainment, or unclassifiable, for that NAAQS pursuant to section 
107(d)(1)-(2) of the CAA. Section 107(d)(1)(A)(i) of the CAA defines a 
nonattainment area as an area that does not meet the NAAQS or that 
contributes to a nearby area that does not meet the NAAQS. An 
attainment area is defined by the CAA as any area that meets the NAAQS 
and does not contribute to any nearby areas that do not meet the NAAQS. 
Unclassifiable areas are defined by the CAA as those that cannot be 
classified on the basis of available information as meeting or not 
meeting the NAAQS.
    Historically for ozone, the EPA has designated most areas that do 
not meet the definition of nonattainment as unclassifiable/attainment. 
This category includes areas that have air quality monitoring data 
meeting the NAAQS and areas that do not have monitors but for which the 
EPA has no evidence that the areas may be violating the NAAQS or 
contributing to a nearby violation. In the designations for the 2015 
ozone NAAQS, the EPA reversed the order of the label to attainment/
unclassifiable to better convey the definition of the designation 
category and to more easily distinguish the category from the separate 
unclassifiable category. In a few instances, based on circumstances 
where some monitoring data are available but are not sufficient for a 
determination that an area is or is not attaining the NAAQS, the EPA 
has designated an area as unclassifiable.
    The EPA notes that CAA section 107(d) provides the Agency with 
discretion to determine how best to interpret the terms in the 
definition of a nonattainment area (e.g., ``contributes to'' and 
``nearby'') for a new or revised NAAQS, given considerations such as 
the nature of a specific pollutant, the types of sources that may 
contribute to violations, the form of the standards for the pollutant, 
and other relevant information. In particular, the EPA's position is 
that the statute does not require the Agency to establish bright line 
tests or thresholds for what constitutes ``contribution'' or ``nearby'' 
for purposes of designations.\3\
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    \3\ This view was confirmed in Catawba County v. EPA, 571 F.3d 
20 (D.C. Cir. 2009).
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    Similarly, the EPA's position is that the statute permits the EPA 
to evaluate the appropriate application of the term ``area'' to include 
geographic areas based upon full or partial county boundaries, as may 
be appropriate for a particular NAAQS. For example, CAA section 
107(d)(1)(B)(ii) explicitly provides that the EPA can make 
modifications to designation recommendations for an area ``or portions 
thereof,'' and under CAA section 107(d)(1)(B)(iv) a designation remains 
in effect for an area ``or portion thereof'' until the EPA redesignates 
it.
    Section 107(d)(1)(B) of the CAA requires the EPA to issue initial 
area designations within 2 years of promulgating a new or revised 
NAAQS. However, if the Administrator has insufficient information to 
make these designations within that time frame, the EPA has the 
authority to extend the deadline for designation decisions by up to 1 
additional year.
    By no later than 1 year after the promulgation of a new or revised 
NAAQS, CAA section 107(d)(1)(A) provides that each state governor shall 
recommend air quality designations, including the appropriate 
boundaries for areas, to the EPA. The EPA reviews those state 
recommendations and is authorized to make any modifications the 
Administrator deems necessary. The statute does not define the term 
``necessary,'' but the EPA interprets this to authorize the 
Administrator to modify designation recommendations that are 
inconsistent with the statutory language, including modification of 
recommended boundaries for nonattainment areas that are not supported 
by the facts or analysis. If the EPA intends to modify a state's 
recommendation, section 107(d)(1)(B) of the CAA requires the EPA to 
notify the state of any such intended modifications not less than 120 
days prior to the EPA's promulgation of the final designation. These 
notifications are commonly known as the ``120-day letters.'' During 
this period, if the state does not agree with the EPA's proposed 
modification, it has an opportunity to respond to the EPA and to 
demonstrate why it believes the modification proposed by the EPA is 
inappropriate. If a state fails to provide any recommendation for an 
area, in whole or in part, the EPA must promulgate a designation that 
the Administrator deems appropriate, pursuant to CAA section 
107(d)(1)(B)(ii).
    Section 301(d) of the CAA authorizes the EPA to approve eligible 
Indian tribes to implement provisions of the CAA on Indian reservations 
and other areas within the tribes' jurisdiction. The Tribal Authority 
Rule (TAR) (40 CFR part 49), which implements section 301(d) of the 
CAA, sets forth the criteria and process for tribes to apply to the EPA 
for eligibility to administer CAA programs. The designations process 
contained in section 107(d) of the CAA is included among those 
provisions determined to be appropriate by the EPA for treatment of 
tribes in the same manner as states. Under the TAR, tribes generally 
are not subject to the same submission schedules imposed by the CAA on 
states. As authorized by the TAR, tribes may seek eligibility to submit 
designation recommendations to the EPA.

VI. What is the chronology for this designations action and what 
guidance did the EPA provide?

    On February 25, 2016, the EPA issued guidance for states and tribal 
agencies to use for purposes of making designation recommendations as 
required by CAA section 107(d)(1)(A). (See February 25, 2016, 
memorandum from Janet G. McCabe, Acting Assistant Administrator, to 
Regional Administrators, Regions 1-10, titled, ``Area Designations for 
the 2015 Ozone National Ambient Air Quality Standards'' (Designations 
Guidance)). The Designations Guidance provided

[[Page 67868]]

the anticipated timeline for designations and identified important 
factors that the EPA recommended states and tribes consider in making 
their recommendations and that the EPA intended to consider in 
promulgating designations. These factors include air quality data, 
emissions and emissions-related data, meteorological data, geography/
topography, and jurisdictional boundaries. In the Designations 
Guidance, the EPA asked that states and tribes submit their designation 
recommendations, including appropriate area boundaries, to the EPA by 
October 1, 2016. The EPA had previously issued two guidance memoranda 
related to designating areas of Indian country that also apply for 
designations for the 2015 ozone NAAQS.
    See December 20, 2011, memorandum from Stephen D. Page, Director, 
Office of Air Quality Planning and Standards, to Regional Air 
Directors, Regions I-X, titled, ``Policy for Establishing Separate Air 
Quality Designations for Areas of Indian Country,'' (Tribal 
Designations Guidance) and December 20, 2011, memorandum from Stephen 
D. Page, Director, Office of Air Quality Planning and Standards, to 
Regional Air Directors, Regions I-X, titled, ``Guidance to Regions for 
Working with Tribes during the National Ambient Air Quality Standards 
(NAAQS) Designations Process.'' In the Designation Guidance, the EPA 
indicated the Agency expected to complete the initial designations for 
the 2015 ozone NAAQS on a 2-year schedule, by October 1, 2017, 
consistent with CAA 107(d)(1)(B)(i).
    On November 6, 2017, the EPA designated as attainment/
unclassifiable 2,646 counties,\4\ including tribal lands within those 
counties, for which the states recommended a designation of attainment 
or attainment/unclassifiable. This represents approximately 85 percent 
of the counties in the U.S. The EPA also designated a three-county area 
in Washington as unclassifiable as recommended by the state. Consistent 
with the EPA's Tribal Designation Guidance, the EPA designated two 
areas of Indian country (Fond du Lac Band of Lake Superior Chippewa 
Indians and Forest County Potawatomi Community) as separate attainment/
unclassifiable areas.
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    \4\ Any reference to ``counties'' in this action also includes 
non-county administrative or statistical areas that are comparable 
to counties. Louisiana parishes; the organized boroughs of Alaska; 
the District of Columbia; and the independent cities of the states 
of Virginia, Maryland, Missouri, and Nevada are equivalent to 
counties for administrative purposes. Alaska's Unorganized Borough 
is divided into 10 census areas that are statistically equivalent to 
counties. As of 2017, there are currently 3,142 counties and county-
equivalents in the United States.
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    On or about December 22, 2017, the EPA sent 120-day letters to 
Governors and tribal leaders notifying them of the EPA's preliminary 
response to their designation recommendations for all areas of the 
country not designated in the November 2017 action, with the exception 
of eight counties in the San Antonio, Texas metropolitan area. For the 
areas addressed in the 120-day letters, the EPA requested that states 
and tribes submit any additional information that they wanted the EPA 
to consider in making final designation decisions by February 28, 2018, 
including any certified 2017 air quality monitoring data.
    Although not required by section 107(d)(2)(B) of the CAA, the EPA 
also provided a 30-day public comment period on the designation 
recommendations from states and tribes and the EPA's intended 
designations addressed in the 120-day letters to states and tribes. The 
EPA announced the public comment period in the Federal Register on 
January 5, 2018 (83 FR 651). On April 30, 2018, the EPA finalized 
designations for the areas addressed in the December 2017 120-day 
letter responses to states and tribes.
    In response to the Clean Wisconsin court decision relating to that 
April 30, 2018, action, the EPA has again applied a uniform, nationwide 
analytical approach and interpretation of CAA section 107(d)(1) to 
these areas across the country and reviewed the state and tribal 
responses and public comments, as well as reviewed the court decision 
itself, in the Agency's decision to revise certain designations 
remanded by the court. Comments from the states, tribes and the public, 
and the EPA's updated responses to significant comments, are also 
available in the docket along with the individual TSDs for areas with 
associated remanded counties.
    In the Clean Wisconsin decision, the D.C. Circuit directed the EPA 
to complete a process to revise, as appropriate, its April 2018 
designations for the remanded counties ``as expeditiously as 
practicable.'' The CAA does not require the EPA to follow a specific 
process when final designations are remanded to the Agency. The EPA's 
final action reflects a reasonable interpretation of the CAA section 
107(d) requirements, particularly given the court's direction.
    Under CAA section 107(d)(2)(B), the EPA is not required to provide 
an Administrative Procedure Act (APA) public comment period for 
designations actions. CAA section 107(d)(1)(B)(ii) lays out a 
particular process when the EPA disagrees with a state's recommended 
designations. In particular, the Administrator must provide the state 
with 120 days to demonstrate why any proposed modifications to the 
state's recommendation are inappropriate. The EPA notified Texas and 
Colorado on or about May 24, 2021, that the Agency intended to modify 
the states' recommendations and provided intended designations 
revisions. Although not required by section 107(d)(2)(B) of the CAA, 
the EPA also provided a 30-day public comment period on the designation 
recommendations from Texas and Colorado and the EPA's intended 
designations revisions addressed in the 120-day letters.

VII. What air quality data has the EPA used to designate the remanded 
areas for the 2015 ozone NAAQS?

    For the two remanded counties and associated nonattainment areas 
addressed in this action, as well the 14 remanded counties addressed in 
a previous action, the EPA has re-evaluated the designations under a 
uniform, nationwide analytical approach in considering the specific 
facts and circumstances of the areas using data and information 
available at the time of the April 30, 2018, final designations action. 
The EPA has primarily based the revised final ozone designations in 
this action on air quality monitoring data from the years 2014-2016, 
which were the most recent data that states were required to certify at 
the time the EPA notified states of its intended designations and any 
intended modifications to their recommendations in December 2017. Under 
40 CFR 58.16, states are required to report all monitored ozone air 
quality data and associated quality assurance data within 90 days after 
the end of each quarterly reporting period, and under 40 CFR 
58.15(a)(2), states are required to submit annual summary reports and a 
data certification letter to the EPA by May 1 for ozone air quality 
data collected in the previous calendar year. Thus, at the time of the 
120-day letters, the most recent certification obligation was for air 
quality data from 2016. In the 120-day notification letters to states, 
the EPA indicated that for the EPA to consider air quality data for the 
period 2015-2017 in the final designation decisions for any area, a 
state must submit certified, quality assured 2015-2017 air quality 
monitoring data for the area to the EPA by February 28, 2018. Colorado, 
Texas, and New Mexico did not choose to submit early certified air 
quality

[[Page 67869]]

monitoring data. Therefore, the April 30, 2018 initial designations for 
these states were based on air quality data from 2014-2016.
    The EPA's reliance on only information available at the time of the 
April 30, 2018, designations action to support the revised designations 
in this Federal Register document is reasonable in light of the 
circumstances. The CAA does not specify what data the Agency must rely 
on in re-promulgating designations upon remand from a court. As such, 
the EPA's reasonable reliance on data available on April 30, 2018, 
reflects the EPA's dedication to national consistency and the specific 
direction of the court in Clean Wisconsin: ``to issue revised 
designations as expeditiously as practicable'' in responding to the 
remand.\5\
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    \5\ Clean Wisconsin, 964 F.2d at 1176.
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    Section 107(d) of the CAA lays out a particular timeline for 
designations decisions to be made, triggered from the promulgation date 
of a NAAQS. For the 2015 ozone NAAQS, the designation of every area of 
the country, apart from those remanded to the Agency, relied on the 
existing record.\6\ As the D.C. Circuit stated in previous cases 
reviewing the EPA's designations decisions, ``inconsistency is the 
hallmark of arbitrary agency action.'' \7\ Relying on the data 
available to the Agency at the time of the April 2018 designations 
action would prevent inconsistent treatment between the remanded 
counties and every other area of the country.
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    \6\ As is discussed earlier in this section, almost every 
designation relied on monitored 2014-2016 design values. The few 
exceptions were for states that early-certified 2015-2017 data in 
accordance with the Designation Guidance.
    \7\ Catawba County v. EPA, 571 F.3d 20, 51 (D.C. Cir. 2009); see 
also Mississippi Comm'n v. EPA, 790 F.3d 138, 160 (D.C. Cir. 2015).
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    In addition, both our previous action responding to the Court 
remand for 14 counties and this action expand the boundaries of 
existing nonattainment areas but do not create any new nonattainment 
areas. If it is important to treat areas across the country 
consistently, it is that much more important that the EPA treat 
different portions of the same nonattainment area consistently. The EPA 
received some comments on this approach; further explanation for the 
EPA's decision to rely on the data available on April 30, 2018, appears 
in the EPA's Response to Comments document, available in the electronic 
docket for this action (www.regulations.gov, docket number EPA-HQ-OAR-
2017-0548) and at the EPA's Ozone Designations web page (https://www.epa.gov/ozone-designations).
    The D.C. Circuit's direction to act ``as expeditiously as 
practicable'' also weighs in favor of using information available on 
April 30, 2018. Gathering and analyzing new data would necessarily have 
taken longer, because much of the data the EPA generally relies upon in 
its designations decision-making process is obtained outside the 
Agency, including from states.

VIII. What are the ozone air quality classifications and implementation 
dates?

    In accordance with CAA section 181(a)(1), each area designated as 
nonattainment for the ozone NAAQS is classified by operation of law 
when designated by the EPA. Under Subpart 2 of part D of title I of the 
CAA, state planning and emissions control requirements for ozone are 
determined, in part, by a nonattainment area's classification. The 
ozone nonattainment areas are classified based on the severity of their 
ozone levels (as determined based on the area's ``design value,'' which 
represents air quality in the area for the most recent 3 years).\8\ The 
possible classifications are Marginal, Moderate, Serious, Severe, and 
Extreme. Nonattainment areas with a ``lower'' classification have ozone 
levels that are closer to the standard than areas with a ``higher'' 
classification. Areas in the lower classification levels have fewer 
and/or less stringent mandatory air quality planning and control 
requirements than those in higher classifications. On March 9, 2018 (83 
FR 10376), the EPA published the Classifications Rule that establishes 
how the statutory classifications will apply for the 2015 ozone NAAQS, 
including the air quality thresholds for each classification category. 
Each nonattainment area's design value, based on the then-most recent 3 
years of certified air quality monitoring data, is used to establish 
the classification for the area.
---------------------------------------------------------------------------

    \8\ The air quality design value for the 8-hour ozone NAAQS is 
the 3-year average of the annual 4th highest daily maximum 8-hour 
average ozone concentration. See 40 CFR part 50, Appendix U.
---------------------------------------------------------------------------

    The regulatory tables included at the end of this action for the 
Denver Metro/North Front Range, CO nonattainment area and the El Paso-
Las Cruces, TX-NM nonattainment area provide the classification for the 
designated nonattainment area for the 2015 ozone NAAQS based on the 
design value for the area and the classification thresholds established 
in the Classification Rule. Both of these areas addressed in this 
Federal Register document are Marginal nonattainment areas.
    As established in the final implementing regulations for the 2015 
ozone NAAQS, nonattainment areas (including the areas subject to this 
final action) shall attain the 2015 standards as expeditiously as 
practicable but not later than the dates provided in Table 1 of 40 CFR 
51.1303(a) expressed in years after the effective date of area 
designations, which was August 3, 2018 (83 FR 25776; June 4, 2018). The 
resulting attainment date for Marginal areas is not later than 3 years 
from the designation effective date, or August 3, 2021. Further, states 
with Marginal nonattainment areas have 2 years from the effective date 
of designation to submit state implementation plan (SIP) revisions 
addressing emissions inventories (required by CAA section 182(a)(1)) 
and emissions statement regulations (CAA section 182(a)(3)(B)) (83 FR 
62998, 63000; December 6, 2018). See also 40 CFR 51.1315. The resulting 
emissions inventory and emissions statement SIP revisions were due 
August 3, 2020. The August 3, 2021, Marginal area attainment date still 
applies for the areas subject to this final action, inclusive of the 
revised nonattainment boundaries. As with the other 14 remanded 
counties, the August 3, 2020, SIP submission requirements apply to the 
entirety of Weld County, Colorado. The EPA expects states with areas 
subject to this final action to work with their respective EPA Regional 
office to submit any necessary supplements or revisions to fulfill the 
Marginal area SIP revision requirements associated with the 
nonattainment boundaries in this final action as expeditiously as 
practicable.
    However, the EPA recognizes that Texas is in a unique position 
among the states affected by the D.C. Circuit's remand. For all of the 
other nonattainment area boundaries modified either in this document or 
in the previous action (86 FR 31438; June 14, 2021) in response to the 
court's decision, the relevant states already had counties or portions 
of counties as a part of those nonattainment areas, and thus already 
had an August 3, 2020, deadline to submit SIPs meeting the requirements 
for a Marginal nonattainment area. However, no portion of Texas was 
already designated nonattainment as a part of the Do[ntilde]a Ana, New 
Mexico area; as such, Texas had no notice that it should prepare a 
Marginal area SIP submission for that area. Given the lack of prior 
notice, the EPA believes it is reasonable to provide Texas with a 
deadline of December 30, 2022 to

[[Page 67870]]

submit a SIP submission that meets all the Marginal nonattainment area 
planning requirements for the newly expanded El Paso-Las Cruces Texas-
New Mexico nonattainment area. See CAA section 301(a)(1).
    Setting a separate deadline for El Paso's SIP submission is not at 
odds with the EPA's decision to keep a consistent attainment date for 
the entirety of the El Paso-Las Cruces Texas-New Mexico nonattainment 
area, or CAA section 182(j). The CAA requires that states take 
``reasonable'' steps to coordinate planning efforts for joint 
nonattainment areas. Providing additional time to allow Texas to make a 
Marginal area submission will not interfere, and could better serve, 
future coordination on planning efforts for the entire nonattainment 
area. Other parts of the CAA also provide support for this final 
action's decisions regarding attainment dates and SIP submission 
deadlines. Section 182(i) of the CAA allows the Administrator to adjust 
SIP deadlines but not attainment dates upon mandatory reclassification 
of certain ozone nonattainment areas. In addition, areas subject to 
Marginal area requirements are not required to ``plan'' for attainment 
in the same way as areas classified Moderate and above. The primary 
substantive obligations associated with a Marginal classification are 
the requirement to submit an emissions inventory and the requirement 
that new sources in the area must implement nonattainment new source 
review. Neither requirement is integrally related to attainment 
planning--they are not submitted to demonstrate how the area will 
attain or make reasonable further progress towards attainment, and they 
are not suspended if the area is attaining.
    Setting a reasonable future deadline for SIP submissions is 
consistent with the EPA's past practice and D.C. Circuit precedent. On 
January 4, 2013, the D.C. Circuit remanded the EPA's 2007 
PM2.5 Implementation Rule,\9\ finding that the EPA had 
applied the incorrect set of implementation provisions within the CAA, 
including a series of deadlines for SIP submissions.\10\ Upon remand, 
the deadlines that should have applied to the relevant areas were in 
the past. Given that, the EPA took final action in 2014 to set up 
``relatively brief but reasonable'' deadlines for required SIP 
submissions. While the action changed the submission deadlines, it also 
left in place the attainment dates that had occurred in the past for 
the relevant nonattainment areas. Petitioners challenged the EPA's rule 
establishing future SIP submittal deadlines on the basis that the CAA 
established SIP submittal deadlines, those should have applied based on 
the D.C. Circuit's earlier decision, and the EPA lacked discretion to 
change those deadlines. The EPA's rule establishing new, future SIP 
submittal deadlines in this circumstance was upheld by the D.C. Circuit 
in WildEarth Guardians v. EPA, 830 F.3d 529 (D.C. Cir. 2016) (finding 
that the EPA acted within its authority in novel circumstances where a 
SIP submission deadline passed without states' awareness due to a 
remanded action).
---------------------------------------------------------------------------

    \9\ Final Clean Air Fine Particle Implementation Rule, 72 FR 
20585 (April 25, 2007).
    \10\ Identification of Nonattainment Classification and 
Deadlines for Submission of State Implementation Plan (SIP) 
Provisions for the 1997 Fine Particle (PM2.5) National 
Ambient Air Quality Standard (NAAQS) and 2006 p.m.2.5 NAAQS, 79 FR 
31,566 (June 2, 2014).
---------------------------------------------------------------------------

    The EPA recognizes that the Agency did not specifically provide 
notice in its June 14, 2021 intended designations that Texas's Marginal 
area SIP submission deadlines would be extended from August 3, 2020 to 
December 30, 2022. However, as discussed in the previous section, under 
CAA section 107(d)(2)(B), designations actions are specifically 
exempted from the notice and comment requirements of the APA. See CAA 
section 172(b) (requiring the Administrator to establish a schedule for 
SIP requirements at the time the Administrator promulgates a 
nonattainment designation). In addition, the Agency did not specify 
what deadline would apply, and numerous commenters addressed the issue 
in comments, suggesting that the Agency in fact provided enough notice 
on the issue that it is appropriate to finalize without additional 
notice. As such, the EPA does not believe that a more specific notice 
was necessary to extend Texas's SIP submission deadlines.
    Even if additional notice were required, the EPA would have good 
cause to waive such a requirement to finalize an extension of Texas's 
SIP submission deadlines for the revised additional portion of the El 
Paso-Las Cruces TX-NM nonattainment area, as providing an additional 
notice and comment period would be impracticable and contrary to the 
public interest. See APA Section 553(b)(B). Upon the effective date of 
this final action, without a finalized extension of Texas's SIP 
deadline, the EPA would immediately be vulnerable to deadline 
litigation for the Agency's failure to issue findings of failure to 
submit under CAA section 107(k)(1)(B)--for a state that until today was 
not required to submit anything to the Agency. And, the Agency does not 
have time, given the deadlines for other statutorily-required actions 
and the Clean Wisconsin court's direction for the EPA to act as 
expeditiously as practicable, to wait to finalize these revised 
designations for a full notice-and-comment process on this lone issue, 
which is a small part of a large and complex series of Agency actions. 
Further, a specific, brief, and reasonable deadline set in the future 
provides the state and stakeholders with certainty and the ability to 
develop and submit the SIP revisions at issue on a timely basis, rather 
than complications and potential mandatory duty deadline suit 
litigation that could ensue if the EPA established a submittal deadline 
that had already lapsed.

IX. Environmental Justice (EJ) Considerations

    Consideration of EJ concerns is consistent with an Administrator 
directive and presidential executive orders. On April 7, 2021, the 
Administrator directed the EPA offices to take immediate and 
affirmative steps to incorporate EJ considerations into the regulatory 
development processes.\11\ The EPA has defined environmental justice as 
``the fair treatment and meaningful involvement of all people 
regardless of race, color, national origin, or income with respect to 
the development, implementation and enforcement of environmental laws, 
regulations and policies.'' \12\ The Administrator's directive came as 
part of implementing the Biden-Harris Administration's executive order 
(E.O. 13985, 86 FR 7009, January 25, 2021) directing all federal 
agencies to embed equity into their programs and services to ensure the 
consistent and systematic fair, just, and impartial treatment of all 
individuals, including those who belong to underserved communities that 
have been denied such treatment.\13\ E.O. 13985 defines the term 
``underserved communities'' as referring to populations sharing a 
particular characteristic, as well as geographic communities, that have 
been systematically denied a full opportunity to participate in aspects 
of economic,

[[Page 67871]]

social, and civic life. The new E.O. 13985 is an update to E.O. 12898 
(``Federal Actions To Address Environmental Justice in Minority 
Populations and Low-Income Populations,'' 59 FR 7629, February 16, 
1994) that directed federal agencies to focus on the environmental and 
human health effects of federal actions on minority and low-income 
populations with the goal of achieving environmental protection for all 
communities.\14\ Finally, in a subsequent executive order addressing 
the global climate crisis (E.O. 14008), the Biden-Harris Administration 
formalized their commitment to make EJ a part of the mission of every 
agency by directing federal agencies to develop programs, policies, and 
activities to address the disproportionate health, environmental, 
economic, and climate impacts on disadvantaged communities.\15\
---------------------------------------------------------------------------

    \11\ Message from the EPA Administrator, Our Commitment to 
Environmental Justice (issued April 7, 2021) at https://www.epa.gov/sites/production/files/2021-04/documents/regan-messageoncommitmenttoenvironmentaljustice-april072021.pdf.
    \12\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
    \13\ ``Executive Order on Advancing Racial Equity and Support 
for Underserved Communities Through the Federal Government'' (E.O. 
13985, issued January 20, 2021) at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/.
    \14\ See https://www.epa.gov/sites/production/files/2015-02/documents/exec_order_12898.pdf.
    \15\ ``Executive Order on Tackling the Climate Crisis at Home 
and Abroad'' (E.O. 14008, issued January 27, 2021) at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/.
---------------------------------------------------------------------------

    When the EPA establishes a new or revised NAAQS, the CAA requires 
the EPA to designate all areas of the U.S. as either nonattainment, 
attainment, or unclassifiable. This action for El Paso County, Texas 
and Weld County, Colorado, revises certain designation determinations 
for the 2015 ozone NAAQS that were identified in the July 10, 2020, 
court remand. Since these two areas have air quality that do not meet 
the NAAQS, or have been determined to contribute emissions to such 
areas, the CAA requires relevant state authorities to initiate 
appropriate air quality management actions to ensure that all those 
residing, working, attending school, or otherwise present in those 
areas are protected, regardless of minority and economic status.
    As part of this area designation action, the EPA evaluated a number 
of EJ issues, including the demographics of the impacted area, higher 
susceptibility in response to pollution exposure, and capacity to 
participate in decision making, as described in this section. 
Specifically, the EPA analyzed certain key demographics for both El 
Paso County, Texas, and Weld County Colorado, as part of the EJ 
evaluation conducted for this rulemaking effort. Additionally, the EPA 
provided the public with information about the air quality in the 
relevant areas of the country and provided adequate opportunity for 
public comment on the EPA's proposal.
    Demographics of impacted area. The EPA evaluated the 2019 census 
data available for El Paso County, Texas and Weld County, Colorado to 
identify key demographic indicators. These include the percent of the 
population identifying as people of color \16\ as well as the percent 
of the population identifying as low income.\17\ In El Paso County, 
Texas,\18\ 91.1 percent of the population identify as people of color 
(mostly as Hispanic or Latino) and 18.8 percent identify as low income. 
By comparison, 39.7 percent of the population of the state of Texas and 
18.5 percent of the nation identify as Hispanic or Latino. In Weld 
County, Colorado,\19\ 37.6 percent of the population identify as people 
of color and 8.4 percent of the population identify as low income.\20\
---------------------------------------------------------------------------

    \16\ By percent identifying as people of color we mean the 
percent of individuals in a block group who list their racial status 
as a race other than white alone and/or list their ethnicity as 
Hispanic or Latino. That is, all people other than non-Hispanic 
white-alone individuals. The word ``alone'' in this case indicates 
that the person is of a single race, not multiracial. Source: The 
Census Bureau's American Community Survey 5-year summary estimates.
    \17\ Following the Office of Management and Budget's (OMB) 
Statistical Policy Directive 14, the Census Bureau uses a set of 
money income thresholds that vary by family size and composition to 
determine who is in poverty. If a family's total income is less than 
the family's threshold, then that family and every individual in it 
is considered in poverty. The official poverty thresholds do not 
vary geographically, but they are updated for inflation using 
Consumer Price Index (CPI-U). The official poverty definition uses 
money income before taxes and does not include capital gains or 
noncash benefits (such as public housing, Medicaid, and food 
stamps). Source: How the Census Bureau Measures Poverty.
    \18\ The Census Bureau population estimate on July 1, 2019, for 
El Paso County, Texas from which this data derives was 839,238.
    \19\ The Census Bureau population estimate on July 1, 2019, for 
Weld County, Colorado from which this data derives was 324,492.
    \20\ The percent of individuals in a block group who list their 
racial status as a race other than white alone and/or list their 
ethnicity as Hispanic or Latino. That is, all people other than non-
Hispanic white-alone individuals. The word ``alone'' in this case 
indicates that the person is of a single race, not multiracial. 
Source: The Census Bureau's American Community Survey 5-year summary 
estimates.
---------------------------------------------------------------------------

    Higher susceptibility in response to pollution exposure. As 
discussed in the EPA's EJ Technical Guidance, people of color, low-
income populations, and indigenous peoples often experience greater 
exposure and disease burdens than the general population as a whole, 
which can increase their susceptibility to adverse health effects from 
environmental stressors.\21\ We recognize also that underserved 
communities can experience reduced access to health care, nutritional, 
and fitness resources, further increasing their susceptibility. People 
susceptible to the effects of degraded ambient air include people with 
asthma, children, older adults, and people who are active outdoors, 
especially outdoor workers. The resulting adverse respiratory effects 
can include, e.g., difficulty in breathing, airway inflammation and 
damage, aggravation of lung diseases, and increased frequency of asthma 
attacks.\22\ Exposure to elevated concentrations of nitrogen dioxide (a 
type of NOX compound and ozone precursor) can produce 
similar adverse health effects to ozone.\23\ VOC emissions can include 
listed Hazardous Air Pollutants (HAPs) that cause or may cause serious 
health problems such as cancer, and noncancer effects on the lungs and 
other parts of the respiratory system; on the immune, nervous and 
reproductive systems; and to organs such as the heart, liver and 
kidneys.\24\
---------------------------------------------------------------------------

    \21\ ``Technical Guidance for Assessing Environmental Justice in 
Regulatory Analysis,'' Section 4 (June 2016) at https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
    \22\ See https://www.epa.gov/ground-level-ozone-pollution/health-effects-ozone-pollution.
    \23\ See https://www.epa.gov/no2-pollution/basic-information-about-no2.
    \24\ See https://www.epa.gov/national-air-toxics-assessment/nata-frequent-questions#background1.
---------------------------------------------------------------------------

    Capacity to participate in decision making. The inability to 
participate in the environmental decision-making process may contribute 
to disproportionate adverse impacts for underserved communities. 
Obstacles to participation may include lack of trust; availability or 
lack of information; language barriers and other socio-cultural issues; 
inability to access available communication channels; and limited 
capacity to access technical and legal resources.
    On June 14, 2021, the EPA published a Notice of Availability in the 
Federal Register, providing EPA's intended designations for the 
remanded El Paso and Weld Counties and provided a 30-day public comment 
period. The EPA received comments from a wide range of stakeholders to 
include small business, industry, environmental groups, governmental 
planning agencies, county commissioners and the public at large from 
both areas. All comments received and responses are in the docket for 
this action.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget because it responds to the CAA

[[Page 67872]]

requirement to promulgate air quality designations after promulgation 
of a new or revised NAAQS.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. This action fulfills the non-discretionary duty for the EPA to 
promulgate air quality designations after promulgation of a new or 
revised NAAQS and does not contain any information collection 
activities.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    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. The 
division of responsibility between the federal government and the 
states for purposes of implementing the NAAQS is established under the 
CAA.

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

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. There was one Federally 
Recognized Tribe that was potentially affected by this action, the 
Ysleta del Sur Pueblo. Consistent with the EPA Policy on Coordination 
and Consultation with Indian Tribes, by letter dated May 26, 2021, the 
EPA offered the Ysleta del Sur Pueblo the opportunity for consultation 
and informed the tribe of the designations process and the intended 
designation for El Paso County, TX. The tribe did not request any 
consultation.

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

    The EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
documentation for this determination is contained in Section IX of this 
preamble, ``Environmental Justice Concerns.''

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the U.S. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

L. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) When the Agency action consists of ``nationally 
applicable regulations promulgated, or final action taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, ``if such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' For 
locally or regionally applicable final actions, the CAA reserves the 
EPA complete discretion whether to invoke the exception in (ii).
    This final action designating areas for the 2015 ozone NAAQS is 
``nationally applicable'' within the meaning of CAA section 307(b)(1). 
In the alternative, to the extent a court finds this action to be 
locally or regionally applicable, the Administrator is exercising the 
complete discretion afforded to him under the CAA to make and publish a 
finding that this action is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1).\25\ This 
final action establishes designations for two areas across the U.S. for 
the 2015 ozone NAAQS, located in two states, in two EPA regions, and in 
two different federal judicial circuits.\26\ This final action applies 
a uniform, nationwide analytical method and interpretation of CAA 
section 107(d)(1) to these areas across the country in a single final 
action, and the final action is based on this common core of 
determinations. More specifically, this final action is based on a 
determination by the EPA to evaluate areas nationwide under a common 
five factor analysis in determining whether areas were in violation of 
or contributing to an area in violation of the 2015 ozone NAAQS at the 
time of the April 2018 designations final action. For example, the 
EPA's revised designations are based on a determination by the EPA to 
reconsider the information and data in the record and available at the 
time of the designations action signed April 2018, rather than 
considering newer air quality information.
---------------------------------------------------------------------------

    \25\ In deciding whether to invoke the exception by making and 
publishing a finding that this final action is based on a 
determination of nationwide scope or effect, the Administrator has 
also taken into account a number of policy considerations, including 
his judgment balancing the benefit of obtaining the D.C. Circuit's 
authoritative centralized review versus allowing development of the 
issue in other contexts and the best use of Agency resources.
    \26\ In the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
---------------------------------------------------------------------------

    For these reasons, this final action is nationally applicable or, 
alternatively, the Administrator is exercising the complete discretion 
afforded to him by the CAA and hereby finds that this final action is 
based on a determination of nationwide scope or effect for purposes of 
CAA section 307(b)(1) and is hereby publishing that finding in the 
Federal

[[Page 67873]]

Register. Under section 307(b)(1) of the CAA, any petitions for review 
of this final action must be filed in the U.S. Court of Appeals for the 
District of Columbia Circuit within 60 days from the date this final 
action is published in the Federal Register. Filing a petition for 
reconsideration by the Administrator of these final actions does not 
affect the finality of the actions for the purposes of judicial review, 
nor does it extend the time within which a petition for judicial review 
must be filed and shall not postpone the effectiveness of such actions.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, the EPA amends 40 CFR 
part 81 as follows:

PART 81--DESIGNATIONS 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.  81.306, the table titled ``Colorado--2015 8-Hour Ozone 
NAAQS [Primary and Secondary]'' is amended by:
0
a. Under the heading ``Denver Metro/North Front Range, CO'' removing 
the entry for ``Weld County (part)'' and adding in its place an entry 
for ``Weld County'';
0
b. Removing the entry ``Weld County (part) remainder'' after the entry 
for ``Washington County''.
    The addition reads as follows:


Sec.  81.306  Colorado.

* * * * *

                                        Colorado--2015 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                   Designation                           Classification
       Designated area \1\       -------------------------------------------------------------------------------
                                        Date \2\                 Type             Date \2\           Type
----------------------------------------------------------------------------------------------------------------
Denver Metro/North Front Range,   ...................  Nonattainment..........  ...........  Marginal.
 CO.
 
                                                  * * * * * * *
    Weld County.................  December 30, 2021
                                   \3\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
  boundaries of any area of Indian country in this table, including any area of Indian country located in the
  larger designation area. The inclusion of any Indian country in the designation area is not a determination
  that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
\3\ EPA revised the nonattainment boundary in response to a court decision, which did not vacate any
  designations for the 2015 ozone NAAQS, but which remanded the designation for the identified county. Because
  this additional area is part of a previously designated nonattainment area, the associated implementation
  dates for the overall nonattainment area (e.g., the August 3, 2021 attainment date) remain unchanged
  regardless of this later designation date.

* * * * *

0
3. In Sec.  81.332, the table titled ``New Mexico--2015 8-Hour Ozone 
NAAQS [Primary and Secondary]'' is amended by removing the entry 
``Do[ntilde]a Ana County (Sunland Park Area), NM'' and adding the entry 
``El Paso-Las Cruces, TX-NM'' in its place to read as follows:


Sec.  81.332  New Mexico.

* * * * *

                                       New Mexico--2015 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                   Designation                           Classification
       Designated area \1\       -------------------------------------------------------------------------------
                                        Date \2\                 Type             Date \2\           Type
----------------------------------------------------------------------------------------------------------------
El Paso-Las Cruces, TX-NM.......  ...................  Nonattainment..........  ...........  Marginal.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
  boundaries of any area of Indian country in this table, including any area of Indian country located in the
  larger designation area. The inclusion of any Indian country in the designation area is not a determination
  that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.

* * * * *

0
4. In Sec.  81.344, the table titled ``Texas--2015 8-Hour Ozone NAAQS 
[Primary and Secondary]'' is amended as follows:
0
a. Adding the entry ``El Paso-Las Cruces, TX-NM'' above the entry 
``Houston-Galveston-Brazoria, TX'';
0
b. Adding the entry ``El Paso County'' under the new entry ``El Paso-
Las Cruces, TX-NM'';
0
c. Under the entry ``Rest of State'' removing the entry ``El Paso 
County''.
    The revisions and addition read as follows:


Sec.  81.344  Texas.

* * * * *

[[Page 67874]]



                                         Texas--2015 8-Hour Ozone NAAQS
                                             [Primary and secondary]
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                                                   Designation                           Classification
       Designated area \1\       -------------------------------------------------------------------------------
                                        Date \2\                 Type             Date \2\           Type
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                                                  * * * * * * *
El Paso-Las Cruces, TX-NM.......  ...................  Nonattainment..........  ...........  Marginal.
    El Paso County..............  December 30, 2021
                                   \3\.
 
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\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
  boundaries of any area of Indian country in this table, including any area of Indian country located in the
  larger designation area. The inclusion of any Indian country in the designation area is not a determination
  that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
\3\ EPA revised the nonattainment boundary in response to a court decision, which did not vacate any
  designations for the 2015 ozone NAAQS, but which remanded the designation for the identified county. Because
  this additional area is part of a previously designated nonattainment area, the associated August 3, 2021
  attainment date remains unchanged regardless of this later designation date. EPA established a later state
  implementation plan submission date for El Paso County.

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[FR Doc. 2021-25451 Filed 11-29-21; 8:45 am]
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