DOE published a final rule in the Federal Register on September 8, 2022 (September 2022 Final Rule), amending the test procedure for battery chargers. 87 FR 55090. This correction addresses numbering errors in the amendatory language in that final rule.

First, DOE noted in the amendatory instructions that it was replacing the text “appendix Y” with the text “appendices Y and Y1” in paragraph (p)(3) of 10 CFR 430.3 and replacing the text “Y, Z” with the text “Y, Y1, Z” in paragraph (p)(6) of 10 CFR 430.3. However, these paragraphs have recently been redesignated to paragraphs (p)(4) and (p)(7), respectively. Second, the instruction amending the introductory text of appendix Y to subpart B instructs to revise a note that does not currently exist. Instead, the instruction should have said to “add a note before the introductory text and revise the introductory paragraph”. Finally, the instruction to revise the definition of C-Rate in appendix Y erroneously refers to amending section 2.1.0 when the instruction should have stated to amend section 2.10. of appendix Y to subpart B of part 430.

As published, the regulatory text in September 2022 Final Rule may result in confusion due to incorrect section references. Because this final rule would simply correct errors in the text without making substantive changes in the September 2022 Final Rule, the changes addressed in this document are technical in nature.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the September 2022 Final Rule remain unchanged for this final rule technical correction. These determinations are set forth in the September 2022 Final Rule. 87 FR 55090, 55117-55122.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE finds that there is good cause to not issue a separate notice to solicit public comment on the changes contained in this document. Issuing a separate notice to solicit public comment would be impracticable, unnecessary, and contrary to the public interest. Neither the errors nor the corrections in this document affect the substance of the September 2022 Final Rule or any of the conclusions reached in support of the final rule. Providing prior notice and an opportunity for public comment on correcting objective, typographical errors that do not change the substance of the test procedure serves no useful purpose.

Further, this rule correcting typographical errors makes non-substantive changes to the test procedure. As such, this rule is not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d) otherwise applicable to rules that make substantive changes.

In final rule FR Doc. 2022-18717, published in the issue of Thursday, September 8, 2022, (87 FR 55090), the following corrections are made:

This document of the Department of Energy was signed on September 28, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to review and determination of the Board.

On September 21, 2022, the Board voted to approve a 0.75 percentage point increase in the primary credit rate, thereby increasing the primary credit rate from 2.50 percent to 3.25 percent. In addition, the Board had previously approved the renewal of the secondary credit rate formula, the primary credit rate plus 50 basis points. Under the formula, the secondary credit rate increased by 0.75 percentage points as a result of the Board's primary credit rate action, thereby increasing the secondary credit rate from 3.00 percent to 3.75 percent. The amendments to Regulation A reflect these rate changes.

The 0.75 percentage point increase in the primary credit rate was associated with a 0.75 percentage point increase in the target range for the federal funds rate (from a target range of 2 1/4 percent to 2 1/2 percent to a target range of 3 percent to 3 1/4 percent) announced by the Federal Open Market Committee on September 21, 2022, as described in the Board's amendment of its Regulation D published elsewhere in today's Federal Register .

In general, the Administrative Procedure Act (“APA”)  1 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  2 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 3 The APA further provides that the notice, public comment, and delayed effective date requirements of 5 U.S.C. 553 do not apply “to the extent that there is involved . . . a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”  4

Regulation A establishes the interest rates that the twelve Reserve Banks charge for extensions of primary credit and secondary credit. The Board has determined that the notice, public comment, and delayed effective date requirements of the APA do not apply to these final amendments to Regulation A. The amendments involve a matter relating to loans and are therefore exempt under the terms of the APA. Furthermore, because delay would undermine the Board's action in responding to economic data and conditions, the Board has determined that “good cause” exists within the meaning of the APA to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation A.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 5 As noted previously, a general notice of proposed rulemaking is not required if the final rule involves a matter relating to loans. Furthermore, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 6 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board is amending 12 CFR Chapter II to read as follows:

For monetary policy purposes, section 19 of the Federal Reserve Act (“Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. 1 Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”). 2 Section 19 also provides that balances maintained by or on behalf of certain institutions in an account at a Reserve Bank may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. 3 Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions. 4 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank. 5 Prior to these amendments, Regulation D established IORB at 2.40 percent. 6

The Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 3.15 percent. The amendment represents a 0.75 percentage point increase in IORB. This decision was announced on September 21, 2022, with an effective date of September 22, 2022, in the Federal Reserve Implementation Note that accompanied the FOMC's statement on September 21, 2022. The FOMC statement stated that the Committee decided to raise the target range for the federal funds rate to 3 to 3 1/4 percent.

The Federal Reserve Implementation Note stated:

As a result, the Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 3.15 percent.

In general, the Administrative Procedure Act (“APA”)  7 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  8 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 9

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to these final amendments to Regulation D. The rate change for IORB that is reflected in the final amendment to Regulation D was made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to this final amendment to Regulation D.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 10 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 11 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:

The purpose of Title XI  1 is “to provide that Federal financial and public policy interests in real estate related transactions will be protected by requiring that real estate appraisals utilized in connection with federally related transactions [FRTs] are performed in writing, in accordance with uniform standards, by individuals whose competency has been demonstrated and whose professional conduct will be subject to effective supervision.”  2

As directed by Title XI, the Federal financial institutions regulatory agencies' appraisal regulations require appraisals for FRTs to meet minimum appraisal standards as evidenced by the Uniform Standards of Professional Appraisal Practice (USPAP) promulgated by the Appraisal Standards Board (ASB) of the Appraisal Foundation. 3 Title XI also requires that certified and licensed appraisers meet the minimum qualification criteria as set forth in The Real Property Appraiser Qualification Criteria (AQB Criteria) issued by the Appraiser Qualifications Board (AQB) of the Appraisal Foundation. 4 The State appraiser regulatory agencies enforce these federal minimum requirements for credentialed appraisers in their respective States and are subject to federal oversight by the ASC. 5

Section 1119(b) of Title XI authorizes the ASC to waive, on a temporary basis, subject to approval of the FFIEC any requirement relating to certification or licensing of a person to perform appraisals under Title XI if the ASC or a State appraiser regulatory agency makes a written determination that there is a scarcity of certified or licensed appraisers to perform appraisals in connection with FRTs in a State, or in any geographical political subdivision of a State, leading to significant delays in the performance of such appraisals. A waiver terminates when the ASC determines that such significant delays have been eliminated. 6

Congress intended that the ASC exercise this waiver authority “cautiously.”  7

The ASC published rules of practice and procedure governing temporary waiver proceedings in 1992. 8 The ASC has ordered temporary waiver relief on two occasions. The first was for the Commonwealth of the Northern Mariana Islands in February 1993 (preceded by an interim order for relief issued in December 1992). The second was in August 2019 for the State of North Dakota (which was extended in part for one additional year in 2020).

Application of the rules of practice and procedure in the present day have led the ASC to recognize advantages to revising the rules to provide greater clarity, define certain terms and amend timeframes in the procedural process to be more conducive to deliberation by the ASC, and in the event of approval, deliberation by the FFIEC. The ASC is also adopting interpretations of several terms used in section 1119(b) of Title XI. These interpretations are included in the “definitions” section of the final rule.

Though neither procedural rules nor published agency interpretations of their statutory authority require notice and comment under the Administrative Procedure Act (APA), 9 the ASC voluntarily submitted the proposed rule and interpretations for public comment in order to seek feedback from interested parties. On January 13, 2022, the ASC published a proposed rule to amend the rules of practice and procedure governing temporary waiver proceedings with a 60-day public comment period. 10

The final rule amends rules of practice and procedure governing temporary waiver proceedings which were promulgated in 1992 pursuant to section 1119(b) of Title XI. 11 For the reasons discussed in section III of this SUPPLEMENTARY INFORMATION , the final rule adopts and amends the rules of practice and procedure substantially as proposed, with the following modifications:

(1) definition of “Petition” to include State financial institutions regulatory agencies as potential petitioners; and

(2) clarification that either a mandatory or discretionary waiver termination requires publication in the Federal Register , and that a discretionary waiver termination requires such publication with a 30-day comment period.

The following is a section-by-section review and discussion of the public comments received by the ASC concerning the proposal. The ASC requested comment on all aspects of the proposed amendments to the rules of practice and procedure governing temporary waiver proceedings. The ASC received four comment letters in response to the published proposal. These comment letters were received from appraiser trade associations, a state department of financial institutions, a national advocacy association for the credit union system and a national association of state bank supervisors.

Section 1102.1 finalizes proposed § 1102.1 without change and clarifies the distinction between: (1) a request from a State appraiser regulatory agency, referred to in the proposed rule as a “Request for Temporary Waiver”; and (2) information received from other persons or entities (which could include a State appraiser regulatory agency), referred to in the proposed rule as a “Petition.” The procedures set forth in the final rule for ASC's consideration of a temporary waiver varies depending on whether the ASC has received a Request for Temporary Waiver or a Petition requesting that the ASC initiate a temporary waiver proceeding.

One commenter asserted that Title XI's temporary waiver provision was meant to support implementation of State program requirements enacted by Congress rather than to provide regulatory relief, which has caused confusion in the marketplace. The commenter did indicate general support for the proposed actions regarding the temporary waiver process but expressed concern over negative consequences and continued confusion. Although the ASC acknowledges this comment, there is no provision in Title XI that sunsets the temporary waiver provision.

Another commenter stated that the process is cumbersome, bureaucratic and did not offer any real assistance, and added that the proposed revisions to the rule are seemingly designed to ensure the process is burdensome to the point applications are not received or will be deemed incomplete. While the current rule and this final rule seek to obtain appropriate information to inform the ASC in potentially exercising this waiver authority which Congress intended that the ASC exercise cautiously, 12 the final rule clarifies the information to be submitted and the procedures to be followed to the extent the ASC can exercise such authority in a procedural rulemaking.

Section 1102.2 finalizes proposed § 1102.2 with modification to the definition of “Petition” as discussed below. The following is a discussion of those definitions on which the ASC received public comment. Definitions on which the ASC did not receive comment are not discussed below.

One commenter noted that the proposed definition of “Petition” identified Federal financial institution regulators but failed to include State financial institution regulators. The ASC agrees, and therefore proposed § 1102.2(c) is adopted with modification to the definition of “Petition” to include State financial institutions regulatory agencies as a potential petitioner.

Several commenters asked for reconsideration of the proposed definitions of “scarcity” and “delay” to be measured or objectively determined as recommended in the report released in December 2021 by the Government Accountability Office (GAO). 13 The ASC appreciates the commenters' request for more precise definitions of these terms. The ASC has considered these comments and determined that “scarcity” and “delay” are best understood in the context of the individual State or geographical political subdivision of a State waiver applicant. Further, more precise definitions would limit the ASC's flexibility in making waiver determinations. However, the ASC has included new or revised definitions and interpretations of terms in the final rule in order to provide more clarity on the processing of a Request or Petition.

Another commenter asserted that having geographic location as a factor to consider in determining if a delay is out of the ordinary and opens the door to government-sanctioned discrimination. The acknowledgement of geographic location is built into the statute in section 1119(b) of Title XI, which references a finding of scarcity of certified or licensed appraisers to perform appraisals in connection with FRTs in a State, or in any geographical political subdivision of a State, leading to significant delays in the performance of such appraisals. The language in the current rule and this final rule reflects that language and recognizes varying circumstances in political subdivisions within a State. The ASC agrees it should not be applied to deprive anyone of equal access to credit.

Section 1102.3 finalizes proposed § 1102.3 without change. Section 1102.3(a) states that the State Appraisal Agency for the State in which temporary waiver relief is sought may file a Request for Temporary Waiver. Section 1102.3(b) provides that a Request for Temporary Waiver will not be deemed to have been received by the ASC unless it fully and accurately sets out:

• a written determination by the State Appraisal Agency that there is a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs within either a portion of, or the entire State;

• the requirement(s) of State law from which relief is being sought;

• the nature of the scarcity of certified or licensed appraisers (including supporting documentation, statistical or otherwise verifiable);

• the extent of the delays anticipated or experienced in the performance of appraisals by certified or licensed appraisers (including supporting documentation, statistical or otherwise verifiable);

• how complaints concerning appraisals by persons who are not certified or licensed would be processed in the event a temporary waiver is granted; and

• meaningful suggestions and recommendations for remedying the situation.

The amendments to paragraph (b) provide clarity on information that should be included in a Request for Temporary Waiver. The amendments also modify the requirement for a State Appraisal Agency to provide “a specific plan for expeditiously alleviating the scarcity and service delays” to “meaningful suggestions and recommendations for remedying the situation” recognizing that the situation creating scarcity and delay may be completely outside the control of the State Appraisal Agency.

The amendments include the phrase “supporting documentation, statistical or otherwise verifiable.” A Request for Temporary Waiver should include clear and specific data to support a claim that there is a scarcity of appraisers leading to significant delays in the performance of appraisals for FRTs, or a specified class of FRTs, for either a portion of, or the entire State. The data supporting such a claim may vary from location to location and situation to situation. Information about the following could assist the ASC in reviewing a Request for Temporary Waiver:

(1) Geography—location(s) of the scarcity leading to significant delay.

(2) Transactions—types of FRTs impacted ( i.e., property and transaction type(s) and transaction amount(s)).

(3) Time—length of time for waiver requested.

Section 1102.3(b) includes that a Request for Temporary Waiver address how complaints concerning appraisals by persons who are not certified or licensed would be processed in the event a temporary waiver is granted. Section 1102.3(c) clarifies that a Request for Temporary Waiver will be deemed received for purposes of publication in the Federal Register for notice and comment if the ASC determines that the information submitted meets the requirements of § 1102.3(b). Section 1102.3(d) sets forth what the process is in the event a Request for Temporary Waiver is not deemed to be received; written notice from the ASC would be required with an explanation for such a determination.

One commenter expressed concern over the requirement for a Request for Temporary Waiver to include “the extent of the delays anticipated or experienced in the performance of appraisals,” stating that granting a request based solely on anticipated delays is troubling. The commenter suggested requiring clear, convincing and specific evidence. While the ASC acknowledges the basis for this concern, this is language carried over from the current rule, and was helpful information for the ASC in considering more recent temporary waiver requests. The ASC would not consider “anticipated delay” alone, but rather would take this into account with all other information received.

The commenter addressed the need for applicants to understand the limited scope of temporary waivers to FRTs, that a temporary waiver does not remove the requirement for an appraisal for FRTs, and that many mortgage transactions are guided by underwriting requirements of an entity not covered under the FRT definition. The ASC agrees with the commenter's observations. The commenter also expressed concern that all available options should be exhausted prior to temporary waivers being considered, such as temporary practice permits and reciprocal licensing, and that States should be required to do so. While the ASC agrees that such options may be useful to minimize appraiser shortages, imposing such a requirement would be outside of the scope of this rulemaking, which is to amend existing rules of practice and procedure for temporary waivers.

The commenter also asserted that the ASC should afford great deference to the State appraiser regulatory agency in the processing of a Request for Temporary Waiver, and that the ASC should have clear and convincing evidence if it proceeds contrary to the State's position. The final rule has deference built into the process for a State's Request for Temporary Waiver. If all information is properly submitted, it is promptly published in the Federal Register . Even in the case of a Petition requesting the ASC exercise its discretionary authority to initiate a temporary waiver proceeding, the final rule incorporates the option for ASC referral and consultation with the State, while at the same time, maintaining the statutory responsibility for the ASC to make the determination, which would require FFIEC approval in the case of a temporary waiver being granted.

One commenter asked for reconsideration of the new requirement to address how complaints concerning appraisals by persons who are not credentialed would be processed stating that it is unnecessary since State regulators would continue to review and process complaints. Another commenter questioned this requirement stating that it is unnecessary since transactions would be governed by FFIEC agencies chartering or licensing the lender. While State appraiser regulatory agencies are charged with effective supervision of credentialed appraisers, some States may not have the authority to process complaints about unlicensed or uncredentialed individuals. The ASC found this to be a void when a temporary waiver was granted, and therefore review and processing of complaints should be addressed proactively in considering a Request for Temporary Waiver. If a State regulator would indeed continue to review and process such complaints, it would merely need to state that in the Request for Temporary Waiver. If the State lacks authority to do so, other options could be explored in a proactive manner.

A commenter stated that the ASC's request for documentation, statistical or otherwise verifiable, is a request for something that does not exist due to lack of a centralized reporting or gathering mechanism for such data. The final rule includes the phrase “supporting documentation, statistical or otherwise verifiable.” This is to provide clarification, without being overly prescriptive, as to what a Request or Petition for temporary waiver should include to support the existence of a scarcity and delay, and what the ASC will consider in determining receipt of a Request or Petition. This leaves options open for a requester or petitioner to provide clear and specific data to support a claim that there is a scarcity of appraisers leading to significant delays in the performance of covered appraisals, while recognizing the data supporting such a claim may vary from location to location and situation to situation.

Section 1102.4 finalizes proposed § 1102.4 with modification to § 1102.4(a) to include State financial institutions regulatory agencies as a potential petitioner, consistent with the modification to the definition of “Petition” in § 1102.2(c).

Section 1102.4 clarifies that a Petition is a request for the ASC to exercise its discretionary authority to initiate a temporary waiver proceeding. Section 1102.4(a), as modified, states that a Petition may be filed by the Federal or State financial institutions regulatory agencies, their respective regulated financial institutions, or other persons or institutions with a demonstrable interest in appraiser regulation, including a State Appraisal Agency.

Section 1102.4(b) provides that a Petition should include:

• information (statistical or otherwise verifiable) to support the existence of a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs for either a portion of, or the entire State; and

• the extent of the delays anticipated or experienced in the performance of appraisals by certified or licensed appraisers (including supporting documentation, statistical or otherwise verifiable).

A Petition may also include meaningful suggestions and recommendations for remedying the situation. The amendments to this subsection provide clarity on information that should be included in a Petition while easing the expectation that a Petition contain the specificity of a Request for Temporary Waiver from a State Appraisal Agency.

The amendments include the phrase “supporting documentation, statistical or otherwise verifiable.” A Petition should include data to support a claim that there is a scarcity of appraisers leading to significant delays in the performance of appraisals for FRTs, or a specified class of FRTs, for either a portion of, or the entire State. Section 1102.4(c) clarifies the requirement for a petitioner to provide a copy of their Petition to the State Appraisal Agency, unless the Party filing the Petition is the State Appraisal Agency.

Section 1102.4(d) provides that a Petition may be processed for further action if the ASC determines that the information submitted meets the requirements of § 1102.4(b) and that further action should be taken to determine whether a scarcity of appraisers exists and that the scarcity is leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs within either a portion of, or the entire State. Section 1102.4(e) sets forth what is required in the event a Petition does not meet the requirements of § 1102.4(b) and thereby is either denied or referred back to the petitioner. In either case, written notice from the ASC would be required with an explanation for such a determination.

Section 1102.4(f) states that if a Petition is processed for further action, the ASC may initially refer a Petition to the State Appraisal Agency where temporary waiver relief is sought for evaluation and further study, or the ASC may take further action without referring a Petition to the State Appraisal Agency. If the ASC refers a Petition to the State Appraisal Agency, § 1102.4(g) states that in the event the State Appraisal Agency opts to conduct evaluation and further study on a Petition, the State Appraisal Agency may issue a written determination that there is a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a class of FRTs within either a portion of, or the entire State. Assuming the State Appraisal Agency has addressed the items that would be included in a Request for Temporary Waiver as set forth in § 1102.3(b), the Petition would now be subject to the procedures and requirements for a Request for Temporary Waiver.

The State Appraisal Agency could alternatively recommend that the ASC take no further action on the Petition, or simply decline to conduct evaluation and further study on a Petition. In either case, the ASC may exercise its discretion in determining whether to issue an Order initiating a temporary waiver proceeding.

One commenter stated that the proposed option to refer a Petition to the State appraiser regulatory agency may cause delay and that there is no statutory requirement for such a referral. Another commenter asserted that the option to refer a Petition to the State appraiser regulatory agency results in a delegation to the State appraiser regulatory agency and will create inconsistencies between States. The final rule incorporates the option for referral with the State while at the same time maintaining the statutory responsibility for the ASC to make a determination. It is important to note that the decision-making authority is with the ASC with approval from the FFIEC in the case of a temporary waiver being granted. However, given State regulators may be the most knowledgeable concerning any scarcity or delay within their borders, the ASC believes it appropriate to include the option to refer or consult with State regulators in the event of a Petition being filed.

Another commenter stated that the rule as proposed creates two classes of applicants, and that governmental agencies such as State bank regulators need the ability to directly apply for a waiver without being referred to State appraiser regulatory agencies. Section 1102.3(a) states that the State appraiser regulatory agency for the State in which temporary waiver relief is sought may file a Request for Temporary Waiver as distinguished from a Petition from other persons or entities as proposed in § 1102.4. Alternatively, a State appraiser regulatory agency may submit a Petition as set forth in proposed § 1102.4. The ASC believes this is consistent with the intent of the current rule  14 and agrees with the rationale set forth in the preamble of the current rule. The State appraiser regulatory agencies have always been given a more direct path to seek temporary waiver relief. Referral of a Petition from other persons or entities is an option the ASC may exercise but is not required as the commenter seems to suggest.

The commenter added that the rule as proposed requires applicants to provide meaningful suggestions and recommendations for remedying the situation, and that the cause is often complex, and the applicant may not be in a position to understand the greater political, legal or socioeconomic forces causing the shortage. As clarification, and as proposed, the final rule states that a Petition “may” include meaningful suggestions and recommendations for remedying the situation. This is not new and was carried over from the current rule. The ASC has acknowledged this is not a problem for the applicant alone to resolve. Particularly in the North Dakota temporary waiver process, the complexity of the problem was recognized, which was the basis for the condition to the Order granting a temporary waiver: “During the one-year period, the Requester is expected to develop a plan through continued dialogue with North Dakota stakeholders, including the Appraiser Board, to identify potential solutions to address appraiser scarcity and appraisal delay.”  15

One commenter expressed concern about availability of appraisal services, especially in rural areas, and the difficulty in securing timely appraisals. While recognizing multiple reasons for scarcity in areas, the commenter expressed support for revision of minimum credentialing requirements as established by the Appraisal Foundation's Appraiser Qualifications Board (AQB) to ensure new entrants into the profession and increase diversity. While the ASC supports a review of minimum credentialing requirements as established by the AQB to ensure they do not impose a barrier to entry into the profession and promote diversity, revisions to minimal credentialing requirements is outside the scope of this procedural rulemaking. 16

The commenter asked for reconsideration of what they understood to be a new requirement for a written determination by the State appraiser regulatory agency. That requirement is only in the case of a Request for Temporary Waiver and is not required in the case of a Petition. Moreover, the requirement is part of the statute and the current rule: section 1119(b) of Title XI authorizes the ASC to waive, on a temporary basis, subject to approval of the FFIEC “any requirement relating to certification or licensing of a person to perform appraisals under [Title XI] if the [ASC] or a [State appraiser regulatory agency] makes a written determination that there is a scarcity of certified or licensed appraisers to perform appraisals in connection with [FRTs] in a State. . . .” The final rule clarifies the application of this statutory requirement.

Section 1102.5 finalizes proposed § 1102.5 without change. Section 1102.5 clarifies that an Order initiating a temporary waiver proceeding may be in response to a Petition or may be initiated by the ASC without a Petition having been submitted. In either event, such an Order would include consideration of certain items that would be addressed in a Request for Temporary Waiver. ( See, e.g., § 1102.3(b)(2) through (6), Contents and Receipt of a Request for Temporary Waiver. ) If such an Order is issued, the ASC shall publish a Federal Register notice in accordance with § 1102.6(b).

Section 1102.6 finalizes proposed § 1102.6 without change and does not vary in substance from § 1102.4 of the current rule, which provides for a 30-day notice and comment period on either a Request for Temporary Waiver or an Order initiating a temporary waiver proceeding.

Section 1102.7 finalizes proposed § 1102.7 without change. Section 1102.7 expands the current 45-day deadline for the ASC to make a determination. Section 1102.7 also, for reasons set forth in the proposed rule, eliminates the interim Order from the rules of practice and procedure. With respect to recent requests for temporary waivers, or other information submissions requesting the ASC initiate a proceeding, the 45-day turnaround limited the time available to process and evaluate information submitted, including comments received during the notice and comment period. The timeframe for an ASC determination, on either a Request for Temporary Waiver or an Order initiating a temporary waiver proceeding, is expanded from 45 calendar days to 90 calendar days from the date of publication in the Federal Register to allow sufficient time for thorough processing and consideration. Section 1102.7 also clarifies that in the event the ASC issues an Order approving a temporary waiver, which is only effective upon FFIEC approval of the waiver, the FFIEC's consideration of the waiver is not subject to the ASC's 90-day timeframe for a determination.

One commenter asked for reconsideration of extending the ASC's timeframe for action on temporary waivers. The final rule provides clarity on what is expected to avoid delays in submitting proper information to the ASC. The ASC found the 45-day turnaround period, which allows only 15 days for consideration of comments received during the notice and comment period, to be a constraint on proper deliberation.

Another commenter expressed concern over removing the 45-day requirement for the ASC to take action stating that the ASC may deem a Request or Petition incomplete which may result in further delay. Under either the current rule or this final rule, the timeframe for taking action would not commence in either event until a Petition or Request is deemed received. Incomplete information submitted by an applicant would be the cause of delay in either circumstance. The final rule provides more clarity, particularly regarding the type of information that is expected in a Petition or a Request. This degree of specificity is intended to avoid rejection or supplementation of a Request or Petition, which was the case in the North Dakota request, resulting in a delay of nearly one year.

Section 1102.8 finalizes proposed § 1102.8 without change and does not vary in substance from § 1102.6 of the current rule.

Section 1102.9 finalizes proposed § 1102.9 with clarification that either a mandatory or discretionary waiver termination requires publication in the Federal Register , and that a discretionary waiver termination requires such publication with a 30-day comment period. Section 1102.9 distinguishes between mandatory waiver termination versus discretionary waiver termination. Section 1119(b) of Title XI states, “[t]he waiver terminates when the [ASC] determines that such significant delays have been eliminated.” Therefore, § 1102.9(a) requires termination in the event of such a finding by the ASC. Section 1102.9(b) retains the provision for a discretionary waiver termination in the event the ASC finds that the terms and conditions of the waiver Order are not being satisfied. Section 1102.9(c) requires publication in the Federal Register of either a mandatory or discretionary waiver termination, and Section 1102.9 finalizes proposed § 1102.9 with clarification that either a mandatory or discretionary waiver termination requires publication in the Federal Register , and that a discretionary waiver termination requires such publication with a 30-day comment period. In the absence of further ASC action to the contrary, a discretionary waiver termination automatically becomes final 21 calendar days after the close of the comment period. Consistent with statute, a mandatory waiver termination is final upon such a determination being made by the ASC.

The ASC has concluded that the final rule constitutes a rule of agency organization, procedure, or practice, and is therefore exempt from the notice-and-comment rulemaking requirements of the APA. 17 For the same reason, the amendments are not subject to the 30-day delayed effective date for substantive rules under the APA. 18 Moreover, agency interpretations of terms used in their statutory authority are exempt from the notice and comment requirement. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 19

There is no collection of information required by this final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The Paperwork Reduction Act of 1995  20 (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The ASC has reviewed this final rule and determined that it does not contain any information collection requirements subject to the PRA. Accordingly, no submissions to OMB will be made with respect to this final rule.

This final rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. This final rule amends the current rule to provide definitions of terms and greater clarity on the proceedings for a temporary waiver. A statement containing the information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq. is not required.

For the reasons set forth in the preamble, the ASC amends 12 CFR part 1102 as follows:

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of EASA ADs, with the most recent being EASA AD 2022-0086, dated May 13, 2022 (EASA AD 2022-0086), to correct an unsafe condition for Airbus Helicopters Deutschland GmbH (AHD), formerly Eurocopter Deutschland GmbH; and Airbus Helicopters Inc., formerly American Eurocopter LLC, Model MBB-BK117 C-2 helicopters. EASA issued EASA AD 2022-0086 to supersede EASA AD 2019-0313, dated December 20, 2019.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 C-2 helicopters. The NPRM published in the Federal Register on July 14, 2022 (87 FR 42106). The NPRM was prompted by reports of excessively worn bolts that connect the cardan-pivot joint with the piston rod of the TRA assembly. According to Airbus Helicopters, manufacturer investigations of affected TRAs have revealed improperly assembled cardan-pivot joints as the main cause of the excessively worn bolts. Additionally, incorrect washers as well as improperly shimmed laminated washers contribute to axial play and increased wear of the bolt. The NPRM proposed to require repetitively inspecting certain TRA assemblies, and depending on the results, replacing or repairing parts, or accomplishing additional inspections. The NPRM also proposed to prohibit installing an affected TRA assembly unless it passed required inspections. Lastly, the NPRM proposed terminating actions for certain inspections, as specified in EASA AD 2022-0086.

The FAA received no comments on the NPRM or on the determination of the costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2022-0086 requires, for certain TRAs with a steel or aluminum cardan-pivot joint, repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt. Depending on the results, EASA AD 2022-0086 requires replacing the bolt and laminated washers of the affected TRA or repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt at a reduced compliance time; or contacting AHD for approved repair instructions and compliance time or measuring the maximum diameter of the TRA piston rod bore hole. Depending on the results of measuring the maximum diameter of the TRA piston rod bore hole, EASA AD 2022-0086 requires replacing the bolt and laminated washers of the affected TRA; or contacting AHD for approved repair instructions and compliance time or repetitively measuring the maximum diameter of the TRA piston rod bore hole at a reduced compliance time. EASA AD 2022-0086 also prohibits installing an affected TRA assembly unless it passes its required inspections. Lastly, EASA AD 2022-0086 specifies certain terminating actions for repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA reviewed Airbus Helicopters Alert Service Bulletin MBB-BK117 C-2-67A-027, Revision 2, dated December 15, 2021. This service information specifies, for TRAs with a steel or aluminum cardan-pivot joint, procedures for measuring the minimum diameter of the cardan-pivot joint assembly bolt, measuring the maximum diameter of the TRA piston rod bore hole, replacing the bolt and laminated washers, and reassembling the TRA.

EASA AD 2022-0086 requires discarding certain parts, whereas this AD requires removing those parts from service instead. EASA AD 2022-0086 requires maintaining a removed bolt for possible investigation purposes for four weeks, whereas this AD does not require that action. EASA AD 2022-0086 requires contacting AHD for approved repair instructions and accomplishing those instructions within the compliance time specified therein, whereas this AD requires accomplishing a repair in accordance with certain approved methods before further flight.

The FAA estimates that this AD affects 142 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Measuring the cardan-pivot joint assembly bolt takes about 2 work-hours and parts cost a nominal amount for an estimated cost of $170 per helicopter and $24,140 for the U.S. fleet, per inspection cycle. If required, measuring the TRA piston rod bore hole following the cardan-pivot joint assembly bolt inspection takes about an additional 0.5 work-hour for an estimated cost of $43 per helicopter, per inspection cycle. Replacing a bolt and the laminated washers following an inspection takes about an additional 0.25 work-hour and parts cost about $586 for an estimated cost of $607 per replacement.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, November 03, 2022.

Supplement No 2 to Part 766—(Guidance on Charging and Penalty Determinations in Settlement of Administrative Enforcement Cases Involving Antiboycott Matters) (“Antiboycott Penalty Guidance”), a supplement added to the EAR in July 2007, describes how BIS's Office of Antiboycott Compliance (OAC) responds to violations of part 760 of the EAR (“Restrictive Trade Practices or Boycotts”) and to violations of related recordkeeping requirements set forth in part 762 of the EAR (“Recordkeeping”) (together, “the antiboycott provisions of the EAR”). Paragraph (d) of the Antiboycott Penalty Guidance specifies how BIS determines the appropriate sanctions in the settlement of administrative enforcement cases involving violations of the antiboycott provisions of the EAR.

In this final rule, BIS revises paragraph (d)(1)(ii)—Category of Violations, which categorizes violations by the seriousness of the alleged violations. Based on administrative antiboycott enforcement cases pursued in recent years under new statutory authority, the Export Control Reform Act of 2018 (50 U.S.C. 4801-4852), specifically, Part II (the Anti-Boycott Act of 2018), and current boycott-related trends and conditions, it is BIS's view that certain of the violations specified under Categories A and B in paragraph (d) do not accurately reflect BIS's current antiboycott enforcement priorities and practices or the agency's assessment of the seriousness of the alleged violations.

Accordingly, as detailed below, this rule makes certain revisions and clarifications to Categories A and B. By making these revisions, this amendment updates the two categories to better comport with current boycott-related activity and to better align BIS's penalty determinations with the agency's view of the seriousness of the alleged violations. BIS has revised Category A to include only those violations deemed the most serious; these violations will ordinarily warrant the maximum penalty available under the Anti-Boycott Act of 2018. BIS has also revised Category B, reflecting shifting trends in boycott activity, to include violations that most commonly and currently arise in commercial transactions in a boycott context; these violations will be the focus of OAC's antiboycott enforcement and subject to enhanced penalties to discourage cooperation with boycott-related requirements and to promote awareness, accountability and deterrence.

Specifically, consistent with these policy considerations, this rule moves certain violations from Category B to Category A and moves other violations from Category A to Category B. It also clarifies the references to certain violations. This rule does not make any revisions to Category C.

Section 760.2(a) (Refusals to do business) of the EAR is a prohibition that may take one of four forms identified in paragraph (a)(1). BIS will continue to classify the first of these forms, refusing to do business, as a Category A violation. However, this rule moves the second form of this prohibition, knowingly agreeing to refuse to do business, from Category A to B, and also corrects the inadvertent omission of the word “knowingly” in the former reference at paragraph (d)(1)(ii)(A)(2) of Supp. No. 2 to part 766. Additionally, this rule makes clarifying additions to Category B by adding in specific references to the two other forms that Section 760.2(a)(1) may take, namely, requiring, or knowingly agreeing to require, any other person to refuse to do business. These clarifying additions reflect BIS's longstanding assessment of these two forms of the prohibition as Category B violations.

This rule moves this violation from Category B to A.

This rule moves this violation from Category A to B.

This rule moves this violation from Category A to B.

These revisions and clarifications are intended to increase transparency and add clarity to the administrative enforcement process with respect to violations of the antiboycott provisions of the EAR and, in turn, to incentivize compliance and strengthen deterrence.

Additionally, this rule makes a technical amendment to the introductory paragraph of (b) of Supplement No. 2 to Part 766. Specifically, it replaces the outdated reference to Section 8 of the Export Administration Act of 1979, as amended, with a reference to the Export Control Reform Act of 2018, the current statutory authority for the antiboycott provisions of the EAR.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). Part II of ECRA contains the Anti-Boycott Act of 2018. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated as not significant for purposes of Executive Order 12866.

2. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

3. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

4. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

5. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694-0012, Report of Requests for Restrictive Trade Practice or Boycott—Single or Multiple Transactions. The collection carries a burden estimate of 60 to 90 minutes for a manual or electronic submission for a total burden estimate of 482 hours. BIS expects the burden hours associated with this collection to not to be impacted with the publication of this rule.

Accordingly, part 766 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The Coast Guard will enforce the regulations set forth in 33 CFR 100.801 for the Battle of the Basin Boat Races. The regulations will be enforced from 10 a.m. to 6 p.m. on October 29, 2022, and October 30, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event, which will be located between MM 4 and MM 5 on the Morgan City, Port Allen Route, LA. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with the regulations set forth in 33 CFR 100.801.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via a Safety Marine Information Broadcast and Broadcast Notice to Mariners.

On September 30, 2022, the Coast Guard issued a rulemaking that created a temporary security zone effective October 4, 2022. Due to the vessel's new departure date, additional time is needed; as a result, the Coast Guard is establishing through temporary regulations a security zone that will be in effect through October, 8, 2022. The temporary rule was issued without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard established this security zone to ensure security of the vessel, the CDC, and the surrounding waterway from terrorist acts, sabotage, or other subversive acts, accidents, or other events of a similar nature and the effective date of the zone must be extended due to the vessel's new departure date. It would be contrary to public interest to postpone extending the temporary security zone.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because the security zone is needed for immediate action to respond to potential security concerns associated with the vessel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with the transit of the M/V GREEN RIDGE when loaded will be a security concern within a 500-yard radius of the vessel. This rule is needed to provide for the safety and security the vessel, its cargo, and surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature while the vessel is transiting within Puget Sound.

The Coast Guard is establishing a 500-yard radius temporary moving security zone around the M/V GREEN RIDGE. The zone for the vessel is effective from October 4, 2022, through October 8, 2022. It will be subject to enforcement this entire period unless the COTP determines it is no longer needed, in which case the Coast Guard will inform mariners via Notice to Mariners. The duration of the zone is intended to protect the vessel, the cargo, and the surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature. No vessel or person will be permitted to enter the security zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, duration, and location of the security zone. This rule will impact a small designated area of 500-yards around the moving vessel while transiting from Terminal 7 in Tacoma, WA, to Admiralty Inlet, WA. Moreover, the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a moving security zone lasting for the duration of time that the M/V GREEN RIDGE is transiting while loaded with cargo. It will prohibit entry within a 500 yard radius of the M/V GREEN RIDGE while the vessel is transiting loaded within Puget Sound. It is categorically excluded from further review under L60(d) in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On October 9, 2020, NCDAQ submitted a SIP revision addressing changes to North Carolina's regulations on monitoring and performance testing for stationary sources of air pollution. Specifically, the revisions address several regulations under 15A North Carolina Administrative Code (NCAC) Subchapter 02D, Section .0600, Air Contaminants; Monitoring; Reporting, and Section .2600, Source Testing. 1

The October 9, 2020, revisions to the North Carolina SIP mostly include changes that do not alter the meaning of the regulations, such as clarifying changes, updating cross-references, and making several ministerial language changes. However, as described in an August 24, 2022, Notice of Proposed Rulemaking (NPRM), other changes transmitted include requiring additional information in the source testing protocols and revising the required test methods in certain cases.

On August 24, 2022, EPA published a NPRM proposing to approve these revisions. Additional details on the revisions, as well as EPA's rationale for approving these changes, can be found in the August 24, 2022, NPRM. See 87 FR 51941. Comments on the August 24, 2022, NPRM were due on or before September 23, 2022. EPA received no comments on the NPRM.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as specified in Section I of this preamble, EPA is finalizing the incorporation by reference of the following North Carolina rules, with a state effective date of November 1, 2019: Rule 02D .0607, Large Wood and Wood-Fossil Fuel Combination Units, Rule 02D .0608, Other Large Coal or Residual Oil Burners, Rule 02D .0610, Federal Monitoring Requirements, Rule 02D .0612, Alternative Monitoring and Reporting Procedures, Rule 02D .0613, Quality Assurance Program, Rule 02D .2603, Testing Protocol, Rule 02D .2604, Number of Test Points, Rule 02D .2605, Velocity and Volume Flow Rate, Rule 02D .2606, Molecular Weight, Rule 02D .2607, Determination of Moisture Content, Rule 02D .2608, Number of Runs and Compliance Determination, Rule 02D .2610, Opacity, Rule 02D .2612, Nitrogen Oxide Testing Methods, Rule 02D .2613, Volatile Organic Compound Testing Methods, and Rule 02D .2614, Determination of VOC Emission Control System Efficiency. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

EPA is approving the October 9, 2020, SIP revisions to incorporate multiple changes to North Carolina's source monitoring and testing provisions into the SIP. Specifically, EPA is approving various ministerial and minor changes to language and other clarifying changes throughout North Carolina's rules in 02D Section .0600, Monitoring: Recordkeeping: Reporting, and .2600, Source Testing. EPA is approving these changes for the reasons discussed above and in the NPRM.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided they meet the criteria of the CAA. This action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2022. 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).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On April 13, 2022, the EPA proposed actions to fulfill its statutory obligation under CAA section 181 to determine whether 31 Marginal ozone nonattainment areas attained the 2015 ozone NAAQS by August 3, 2021, the applicable attainment date for such areas. 1

First, the EPA proposed to find that six areas—Atlanta, Georgia (GA); Manitowoc County, Wisconsin (WI); Southern Wasatch Front, Utah; Amador County, California (CA); San Francisco Bay, California; and Yuma, Arizona (AZ)—attained the 2015 ozone NAAQS by the applicable attainment date based on complete, quality-assured and certified ozone air quality monitoring data for the 2018-2020 calendar years.

Second, the EPA proposed to grant the state of Utah's request for a 1-year extension of the attainment date from August 3, 2021, to August 3, 2022, for the Uinta Basin, UT nonattainment area. The proposed extension was based on a finding that the state met the statutory and regulatory requirements for a 1-year extension of the attainment date. Other information the EPA analyzed, such as air quality data indicating that the Uinta Basin area would likely qualify for a second extension and could possibly attain the NAAQS by a second extended attainment date, and screening analyses indicating that existing pollution burdens within the Uinta Basin area were not disproportionately high relative to the rest of the United States, were consistent with the EPA's proposal that an extension was appropriate under these circumstances. The EPA therefore proposed that upon the effective date of a final reclassification action, the attainment date for this area would be extended to August 3, 2022.

Third, the EPA proposed to find that 24 areas failed to attain the 2015 ozone NAAQS by the applicable attainment date and did not qualify for a 1-year attainment date extension. The 24 areas were: Allegan County, Michigan (MI); Baltimore, Maryland (MD); Berrien County, Michigan; Chicago, Illinois-Indiana-Wisconsin (IL-N-WI); Cincinnati, Ohio-Kentucky (OH-KY); Cleveland, Ohio; Dallas-Fort Worth, Texas (TX); Denver Metro/North Front Range, Colorado (CO) (Denver area); Detroit, Michigan; Door County-Revised, Wisconsin; Greater Connecticut, Connecticut (CT); Houston-Galveston-Brazoria, Texas; Louisville, Kentucky-Indiana; Mariposa, California; Milwaukee, Wisconsin; Muskegon County, Michigan; North Wasatch Front, Utah; Pechanga Band of Luiseño Mission Indians; Philadelphia-Wilmington-Atlantic City, Pennsylvania-New Jersey-Maryland-Delaware (PA-NJ-MD-DE); Phoenix-Mesa, Arizona; San Antonio, Texas; Sheboygan County, Wisconsin; St. Louis, Missouri-Illinois (MO-L); and Washington, District of Columbia-Maryland-Virginia (DC-MD-VA). The proposed determination for each of these areas was based upon complete, quality-assured and certified ozone air quality monitoring data that showed that the 8-hour ozone design value (DV) for the area exceeded 0.070 parts per million (ppm) for the period 2018-2020, i.e., the area's DV as of the attainment date. The EPA proposed that these 24 areas would be reclassified as Moderate nonattainment areas by operation of law on the effective date of a final action finding that these areas failed to attain the 2015 ozone NAAQS by the applicable attainment date for Marginal areas. 2

Since the EPA issued its proposal in April, the Agency redesignated the Manitowoc County, WI area to attainment for the 2015 ozone NAAQS, therefore we are not finalizing our proposed determination of attainment for the area as part of this notice. 3 Similarly, since April, the EPA has redesignated the Door County-Revised, WI area; the Ohio portion of the Cincinnati area; and, the Indiana portion of Louisville area to attainment for the 2015 ozone NAAQS based on attaining air quality for the period 2019-2021 and, therefore, we are not finalizing our proposed determinations of failure to attain and reclassifications for these areas or portions of redesignated areas. 4

Separately, ten additional Marginal areas are not included in this action because they are being addressed in separate actions:

1. On July 14, 2022, the EPA proposed to find that the Butte County, Calaveras County, San Luis Obispo (Eastern part), Sutter Buttes, Tuolumne County, and Tuscan Buttes areas in California attained by the attainment date (87 FR 42126).

2. On July 22, 2022, the EPA proposed to find that the Las Vegas, Nevada (NV) nonattainment area failed to attain by the attainment date. If this action is finalized as proposed, the Las Vegas, NV area will be reclassified as Moderate (87 FR 43764).

3. On August 15, 2022, the EPA proposed to find that the Imperial County, CA nonattainment area attained by the attainment date but for emissions emanating from outside the United States (87 FR 50030).

4. The EPA will be acting on the El Paso-Las Cruces, Texas-New Mexico nonattainment area in a separate action.

5. The EPA will be acting on the Detroit, MI nonattainment area in a separate action.

A summary of the actions proposed for the 28 areas covered by this final action is provided in Table 1 of this action.

In the April 2022 proposal, the EPA proposed to disapprove the CAA section 179B demonstrations submitted by the states of Texas and Utah for the San Antonio, Texas, and Northern Wasatch Front, Utah, nonattainment areas, respectively. The EPA sought comment on its application of the statutory provisions in CAA section 179B to these submissions, consistent with the Agency recommendations in the CAA section 179B Guidance. 5

In the April 2022 proposal, the EPA solicited comment on adjusting the due dates, in accordance with CAA section 182(i), for submission and implementation deadlines for all SIP requirements that apply to Moderate areas ( see CAA sections 172(c)(1) and 182(a) and (b), and 40 CFR 51.1300 et seq. ). Under CAA section 181(b)(2), Marginal nonattainment areas that fail to attain the 2015 ozone NAAQS by the applicable attainment date will be reclassified as Moderate by operation of law upon the effective date of the final determination. Each responsible state air agency must subsequently submit a SIP revision that satisfies the air quality planning requirements for a Moderate area under CAA section 182(b).

On August 3, 2018 (September 24, 2018, for the San Antonio area), when final nonattainment designations became effective for the 2015 ozone NAAQS, states responsible for areas initially classified as Moderate were required to prepare and submit SIP revisions by deadlines relative to that effective date. For those areas, the submission deadlines ranged from 2 to 3 years after the effective date of designation, depending on the SIP element required ( e.g., 2 years for the reasonably available control technology (RACT) SIP, 3 years for the attainment plan with reasonably available control measures (RACM) and attainment demonstration, and 3 years for a Basic vehicle inspection and maintenance (I/M) program SIP if required). Areas initially classified as Moderate are also required to implement RACM and RACT as expeditiously as practicable but no later than January 1 of the 5th year after the effective date of designations, i.e., January 1, 2023, with 2023 being the Moderate area attainment year (defined as the last calendar year prior to the applicable attainment date of August 3, 2024). Since those SIP submission dates have passed, the EPA proposed in its April 2022 proposal to apply the Administrator's discretion provided in CAA section 182(i) to adjust the Moderate area SIP due dates as well as certain implementation deadlines for newly reclassified areas. CAA section 182(i) requires that reclassified areas meet the applicable plan submission requirements “according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.”

The EPA proposed to align the SIP submission deadlines for RACT and I/M with the proposed January 1, 2023, submission deadline for other Moderate area requirements, given the compressed timeline and the need to achieve consistency among those submissions as discussed previously. The EPA adopted this approach previously for Marginal areas reclassified as Moderate for failure to timely attain the 2008 ozone NAAQS, to achieve consistency among required SIP submissions for areas facing a similarly compressed timeframe between the effective date of reclassification and the Moderate area attainment date. 6 Similarly, with respect to the SIP submission deadline for I/M for the 2015 ozone NAAQS, we proposed a January 1, 2023, deadline consistent with the I/M regulations which provide that an I/M SIP shall be submitted no later than the deadline for submitting the area's attainment SIP. 7

The EPA's implementing regulations for the 2015 ozone NAAQS require that, for areas initially classified as Moderate or higher, a state shall provide for implementation of RACT as expeditiously as practicable but no later than January 1 of the 5th year after the effective date of designation ( see 40 CFR 51.1312(a)(3)(i)), which corresponds with the beginning of the attainment year for initially classified Moderate areas ( i.e., January 1, 2023). The modeling and attainment demonstration requirements for 2015 ozone NAAQS areas classified Moderate or higher require that a state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season, notwithstanding any alternative deadline established per 40 CFR 51.1312 ( see 40 CFR 51.1308(d)). For reclassified areas, the EPA's implementing regulations for the 2015 ozone NAAQS require that the state shall provide for implementation of RACT as expeditiously as practicable, but no later than the start of the attainment year ozone season associated with the area's new attainment deadline, or January 1 of the third year after the associated SIP submission deadline, whichever is earlier; or the deadline established by the Administrator in the final action issuing the area reclassification ( see 40 CFR 51.1312(a)(3)(ii)).

The EPA requested comment on the proposed January 1, 2023, RACM/RACT implemented deadline. This proposed deadline is the same as the single RACT implementation deadline for all areas initially classified Moderate per 40 CFR 51.1312(a)(3) and would require implementation of any identified RACM/RACT as early as possible in the attainment year to influence an area's air quality and 2021-2023 attainment DV. The proposed RACT implementation deadline would also align with the proposed SIP submission deadline of January 1, 2023, and ensure that SIPs requiring control measures needed for attainment, including RACM, would be submitted no later than when those controls are required to be implemented. A single deadline for the Moderate area SIP submissions and RACT implementation would also treat states consistently, in keeping with CAA section 182(i).

For states that intend to use emission reductions from Basic I/M programs for the 2015 ozone NAAQS, the EPA proposed an implementation deadline of no later than the beginning of the applicable attainment year, i.e., January 1, 2023. In the case, however, that a state does not intend to rely upon emission reductions from their I/M program in attainment or reasonable further progress (RFP) SIPs, the EPA proposed to allow these I/M programs to be fully implemented no later than 4 years after the effective date of reclassification. The EPA also requested comment on allowing any newly reclassified areas required to implement a Basic I/M program (but not needing I/M for attainment or RFP SIP purposes) to fully implement such a program by no later than the Moderate area attainment date of August 3, 2024 (September 24, 2024, for the San Antonio area) in order to align the I/M implementation deadline with that of the other required Moderate area elements. 8

The public comment period for the EPA's April 2022 proposal closed on June 13, 2022, and included a public hearing held on May 9, 2022. The comments received during this period and the public hearing transcript can be found in the docket for this action. A majority of commenters supported the EPA's proposal to determine that certain areas failed to attain the 2015 ozone NAAQS by the applicable attainment date and to reclassify to Moderate the nonattaining areas that do not qualify for an attainment date extension. Our final actions are summarized in Table 2 of this action.

The EPA is responding to certain key comments in this section of the preamble. The remaining comments and EPA's responses can be found in the Response to Comments document, which is found in the docket for this rulemaking. To access the Response to Comments document, please go to http://www.regulations.gov, and search for Docket No. EPA-HQ-OAR-2021-0742, or contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1303 and after considering comments received, the EPA is making final determinations that the Atlanta, GA; Southern Wasatch Front, UT; Amador County, CA; San Francisco Bay, CA; and Yuma, AZ Marginal nonattainment areas listed in Table 2 attained the 2015 ozone NAAQS by the applicable attainment date of August 3, 2021. Once effective, this final action satisfies the EPA's obligation pursuant to CAA section 181(b)(2)(A) to determine, based on an area's air quality as of the attainment date, whether the area attained the standard by the applicable attainment date. The effect of a final determination of attainment by an area's attainment date is to discharge the EPA's obligation under CAA section 181(b)(2)(A) with respect to that attainment date, and to establish that, in accordance with CAA section 181(b)(2)(A), the area will not be reclassified for failure to attain by the applicable attainment date.

These determinations of attainment do not constitute a redesignation to attainment as provided for under CAA section 107(d)(3). The EPA may redesignate an area if the state meets additional statutory criteria, including the EPA approval of a state plan demonstrating maintenance of the air quality standard for 10 years after redesignation, as required under CAA section 175A. As for all NAAQS, the EPA is committed to working with states that choose to submit redesignation requests for areas that are attaining the 2015 ozone NAAQS.

The EPA received adverse comments on our proposed determination of attainment for the Atlanta area, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: One commenter stated that the EPA is proposing to determine the Atlanta area as having attained the standard based on its 2019-2021 DV, which the commenter states are exactly at 70 parts per billion (ppb). The commenter claimed that the years of 2020 and 2021 were characterized by the unusual and unique events related to the COVID-19 epidemic (including significant reductions in traffic) which the commenter states could have significantly influenced the ozone levels in the region. The commenter also stated that another factor “potentially skewing the averaging is the likely removal of high ozone days via claims of exceptional events due to the large number of fires in the western states in 2020, which was among the top five years with largest wildfire acreage burned since 1960.” The commenter concluded by asking the EPA to “redesignate the Atlanta metro area as a Moderate NAA [nonattainment area] for the 2015 standard.”

Response: CAA section 181(b)(2)(A) requires that the EPA determine whether an area attained by the attainment date “based on the area's design value [DV] (as of the attainment date).” The DV, as defined and explained in 40 CFR part 50, Appendix U, refers to the metric that is used to compare ambient ozone concentration data measured at a site in order to determine compliance with the NAAQS. Per 40 CFR 50.19, the 2015 ozone NAAQS is met when the 3-year DV is less than or equal to 70 ppb ( i.e., 0.070 ppm). Per the CAA and EPA's regulations, the Atlanta area's DV for the relevant time period ( i.e., the 2018-2020 DV, for an attainment date in 2021) meets the level of the NAAQS, and the area therefore attained by its applicable attainment date.

We also note that even though the recorded DV for the 2018-2020 period is at 0.070 ppm, an area's DV is determined by the monitor with the highest monitored reading. While one monitor in the Atlanta area recorded a 2018-2020 DV of 0.070 ppm, the remaining monitors in the area showed 2018-2020 DVs below 0.070 ppm. More recent data indicate that for the period 2019-2021, the DVs at all of the Atlanta area monitors are below 0.070 ppm; the highest 2019-2021 DV value for the Atlanta Area is 0.068 ppm. 9 To the extent that events related to the COVID-19 pandemic may have “significantly influenced the ozone levels in the region,” the EPA did not consider such events in this determination of attainment action, which is based solely on an area's monitored air quality as of the applicable attainment date.

Regarding the commenter's statement that another factor “potentially skewing the averaging is the likely removal of high ozone days via claims of exceptional events due to the large number of fires in the western states in 2020,” the EPA has not received an exceptional events request related to ozone data for the Atlanta area. In order for the EPA to exclude particular periods of ozone monitoring data from consideration in calculating DVs, the EPA would have to concur on an exceptional events demonstration from Georgia. The EPA has not excluded any ozone data from monitors in the Atlanta area via claims of exceptional events during the 2018-2020 period.

Finally, the EPA assumes the commenter is asking the EPA to reclassify (not redesignate) the Atlanta area to Moderate. However, based on certified 2018-2020 monitored air quality data, because EPA is determining that the Atlanta area attained the 2015 ozone NAAQS by the required August 3, 2021, attainment date, the EPA does not have the authority under the CAA to reclassify the Atlanta area to Moderate for the 2015 ozone NAAQS, unless the area were to voluntarily request that reclassification under CAA section 181(b)(3).

Pursuant to CAA section 181(a)(5) and 40 CFR 51.1307 and after considering comments received, the EPA is finalizing its proposal to grant the Utah Division of Air Quality's (UDAQ) request to extend the attainment date for the Uinta Basin Marginal area by one year from August 3, 2021, to August 3, 2022. 10 In a letter dated May 25, 2021, the Ute Indian Tribe also requested an attainment date extension for the area. 11 Section 181(a)(5) of the CAA provides the EPA the discretion ( i.e., “the Administrator may”) to extend an area's applicable attainment date by one additional year upon application by any state if the state meets the two criteria under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1307; specifically, that a state can certify compliance with the applicable SIP and can demonstrate that, for the first attainment date extension, an area's fourth highest daily maximum 8-hour value for the attainment year does not exceed the level of the standard (0.070 ppm). In proposing to grant a first attainment date extension for the Uinta Basin area, we considered additional facts and circumstances, such as air quality trends and the existing pollution burden in the area, and found that the additional information did not weigh against our proposal to grant UDAQ's request. 12

The EPA received favorable and adverse comments on its proposal to grant the 1-year attainment date extension for the Uinta Basin area, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: One commenter supported the EPA's proposal to grant the 1-year attainment date extension for the Uinta Basin area, stating that the area fully met the statutory criteria for the first one-year extension. The commenter also noted that the area fully meets the statutory criteria for a second one-year extension requested by UDAQ and supported by the Ute Indian Tribe, and may attain the 2015 ozone NAAQS with its 2020-2022 DV. Further, while they appreciated there may be circumstances where a regulatory decision may include EJ considerations, the commenter emphasized their hope that future decisions on the second attainment date extension and potential redesignation for the Uinta Basin area follow only the “clear” requirements set out in the CAA.

Response: The EPA agrees that UDAQ's request for a first attainment date extension for the Uinta Basin area met the two qualifying criteria under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1307. The status of, and the EPA's future action on, a UDAQ request for a second extension are outside the scope of this final action; however, we acknowledge that that the fourth highest daily maximum 8-hour value for 2021 would allow it to meet one of the necessary criteria to qualify for a second attainment date extension. 13 We also agree that the Uinta Basin area could potentially attain the 2015 ozone standard by a second extended attainment date (August 3, 2023) if the fourth highest daily maximum 8-hour average concentration for 2022 remains consistent with the final values for 2020 (0.066 ppm), 0.072 ppm (2021) and, e.g., 0.066 ppm (2022 preliminary) that, when averaged with the 2020 and 2021 values, would result in an attaining 2020-2022 DV of 0.068 ppm.

The EPA disagrees that the Agency's decision to consider relevant information in exercising its discretion under a statutory provision is in any way in contravention of the “clear” requirements set out in the CAA. The requirement at issue in the CAA directs the Administrator to exercise discretion, establishing two minimum criteria that must be met before a request for an attainment date extension may be granted. Therefore, the “clear” requirement in the Act is for the Administrator to exercise judgment, and that exercising of judgment must, as always, be reasonable and based on relevant facts and factors. The ultimate goal of Part D of the CAA, which governs planning requirements for nonattainment areas, and the responsibility of states and the EPA under that section of the Act, is to drive progress in nonattainment areas towards attainment of the NAAQS in order to protect public health, and to attain the NAAQS as expeditiously as practicable but by no later than the attainment dates prescribed by the Act. 14 CAA section 181(a)(5) in particular is intended to provide flexibility where an area is close to achieving attainment and can likely do so with a bit more time.

It is therefore reasonable, in exercising discretion under CAA section 181(a)(5), for the EPA to consider facts and circumstances that are directly relevant to this inquiry, including what current air quality data indicate about the likelihood of timely attainment in the area, or likelihood of eligibility for a second extension, and what the existing public health burden is in the area that would be impacted by the EPA's decision. The EPA also took note of the source categories and unique conditions leading to elevated ozone concentrations in the Uinta Basin area, and the anticipated emission reductions that had the potential to have a significant impact on ozone concentrations in the area in the near future. To the extent that the commenter is asserting that the EPA should interpret CAA section 181(a)(5) to mean that the EPA must grant a state's request for an extension if the two criteria are met, we do not agree. The Act says “may,” and that word has meaning.

Comment: Three commenters opposed the proposed attainment date extension for the Uinta Basin area. Two of the commenters contended that the extension should not be granted because the area would not be able to attain by the extended August 3, 2022, attainment date based on the 2019-2021 DV of 0.078 ppm and a fourth highest daily maximum value of 0.072 ppm in 2021, and that granting the request would delay implementation of needed Moderate area controls. One of the commenters added that the EPA should not grant the extension request because doing so would not be based on an identifiable trend toward cleaner air, documented reductions in the emissions of ozone precursors, or enforceable controls shown to achieve attainment. Further, they claimed that the Uinta Basin area attaining the 2015 ozone NAAQS by a second extended attainment date ( i.e., August 3, 2023) would not demonstrate that ozone concentrations in the area will remain low based on concrete emission reductions or air quality trends that showed consistent progress toward attainment, but rather because the 2020-2022 DV would no longer include the 2019 fourth highest daily maximum value of 0.098 ppm. Finally, a third commenter stated that all 1-year extensions should be denied due to the adverse health impacts of ozone.

Response: The EPA disagrees with the commenters. CAA section 181(a)(5) is intended to provide flexibility where an area is close to achieving attainment and can likely do so with a bit more time. Rather than require an area to attain the NAAQS by a first extended attainment date, the provision expressly allows for a maximum of two 1-year extensions for a single area. Not being able to possibly attain by a second extended attainment date would weigh against the EPA granting a first extension request. That is not the case for the Uinta Basin area, where air quality data indicate that the area can meet the necessary air quality criterion for a second 1-year extension and could potentially attain the 2015 ozone NAAQS by the second extended attainment date of August 3, 2023. Attainment in 2023 would be based on the area's 2020-2022 DV, which would necessarily exclude 2019 air quality data and represent a 3-year air quality trend preceding the extended attainment date. In our proposal to grant UDAQ's extension request, we also considered the proposed Federal Implementation Plan (FIP) for Managing Emissions from Oil and Natural Gas Sources on Indian Country Lands within the Uintah and Ouray (U&O) Indian Reservation in Utah (U&O FIP), which the EPA is working to finalize. 15 We anticipate that the new control requirements in the final U&O FIP could make a meaningful improvement in air quality and address periodic winter ozone exceedances on the reservation, and in the nonattainment area and larger Uinta Basin region.

The types of considerations raised by the commenters—documented reductions in emissions of ozone precursors and demonstrations that enforceable controls achieved attainment—are relevant inquiries for states that are seeking redesignations to attainment. See CAA section 107(d)(3)(E)(iii). By contrast, the CAA mandates that the EPA determine whether an area attained the NAAQS solely on the basis of the area's DV as of the attainment date, CAA section 181(b)(2)(A), and does not permit the EPA to consider in making that determination how the area attained or whether the area will continue to attain in making that determination. Therefore, we decline to consider these factors in determining whether to grant Utah's request for an attainment date extension for the Uinta Basin area.

Pursuant to CAA section 181(b)(2) and after considering comments received, the EPA is finalizing the proposed determinations for 22 Marginal nonattainment areas or portions of areas listed in Table 2 that failed to attain the 2015 ozone NAAQS by the applicable attainment date of August 3, 2021. Therefore, upon the effective date of this final action, these 22 areas or portions of areas will be reclassified, by operation of law, to Moderate for the 2015 ozone NAAQS. Once reclassified as Moderate, these areas will be required to attain the standard “as expeditiously as practicable” but no later than 6 years after the initial designation as nonattainment, which in this case would be no later than August 3, 2024. If any of these areas attains the 2015 ozone NAAQS prior to the Moderate area attainment date, the relevant state may request redesignation to attainment, provided the state can demonstrate at a minimum that the other criteria under CAA section 107(d)(3)(E) are met. 16

The EPA received adverse comments on its proposal to determine that certain areas failed to attain by the applicable attainment date and to reclassify those areas as Moderate, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: One commenter opposed the proposed reclassification of the Denver Metro/North Front Range, CO area to Moderate, citing extensive existing state regulations, prior emissions reductions, adverse effects of the reclassification (permitting burdens, economic impacts, costs that outweigh benefits), and the role of wildfires/exceptional events and international transport.

Response: The EPA disagrees with the assertion that the Denver area should not be reclassified as Moderate. The EPA has a mandatory duty under CAA section 181(b)(2)(A) to determine whether the Denver area attained by its August 3, 2021, attainment date, based on the area's design value as of the attainment date. The CAA does not allow the EPA to consider permitting, economic, or cost impacts in assessing whether an area has attained the NAAQS by the applicable date. Instead, CAA section 181(b)(2) requires the EPA to make the determination of attainment based solely on the area's DV, which is derived entirely from monitored air quality data.

Comment: One commenter opposed the EPA's proposal to reclassify the Wisconsin nonattainment areas from Marginal to Moderate. The commenter noted that Wisconsin's lakeshore air quality is heavily impacted by ozone precursors originating from upwind states and asserted that further actions taken by Wisconsin to address Moderate area planning requirements are unlikely to significantly improve air quality in Kenosha County (part of the Chicago area), Sheboygan County, or Milwaukee areas.

Response: CAA section 181(b)(2) requires the EPA to determine, based on an area's ozone design value as of the area's attainment deadline, whether the area has attained the ozone standard by that date. The CAA also requires that any area that the EPA finds has not attained the standard by the attainment deadline shall be reclassified by operation of law to the higher of the next “highest” classification ( e.g., Marginal to Moderate, Moderate to Serious, etc.) or the classification applicable to the area's DV. Further, the Agency's mandatory duty to make determinations of attainment or failure to attain the NAAQS exists regardless of the nature or effect of transported ozone on monitored air quality in a given nonattainment area. Cf. Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002) (rejecting the EPA's decision not to reclassify a downwind nonattainment area that failed to timely attain due to transported pollution from upwind states).

Under EPA regulations at 40 CFR part 50, appendix U, the 2015 ozone NAAQS is attained at a monitoring site when the three-year average of the annual fourth-highest daily maximum eight-hour average ozone concentration ( i.e., the DV) is less than or equal to 0.070 ppm. When the DV is less than or equal to 0.070 ppm at each ambient air quality monitoring site within the area, the area is deemed to be meeting the NAAQS. If the DV is greater than 0.070 ppm at any site in the area, the area is deemed to be violating the NAAQS. Because monitoring sites in the Chicago, Sheboygan County and Milwaukee areas have DVs of 0.079 ppm, 0.077 ppm, and 0.076 ppm, respectively, for the 2018-2020 period, the EPA must determine that the areas failed to attain the standard by the August 3, 2021, Marginal attainment deadline and reclassify the areas as Moderate as required by section 181(b)(2) of the CAA.

The EPA is finalizing the proposed disapprovals of the CAA section 179B demonstrations submitted by the states of Texas and Utah for the San Antonio, Texas, and Northern Wasatch Front, Utah, nonattainment areas, respectively. The EPA interprets CAA section 179B to provide the EPA with authority to consider impacts from international emissions in two contexts: (1) A “prospective” state demonstration submitted as part of an attainment plan, which the EPA considers when determining whether the SIP submission adequately demonstrates that a nonattainment area will attain the NAAQS by its future attainment date ( see CAA section 179B(a)), but for emissions emanating from outside of the United States ( i.e., international transport); or (2) a “retrospective” state demonstration, which the EPA considers when determining after the attainment date whether a nonattainment area attained the NAAQS by the attainment date or would have attained but for international transport ( see CAA section 179B(b)-(d)). Any State that establishes to the satisfaction of the Administrator that an area would have attained the national ambient air quality standard by the applicable attainment date but for emissions emanating from outside of the United States shall not be subject to reclassification to a higher classification category. The EPA interprets the statute to require states to meet all nonattainment area requirements applicable for the relevant NAAQS and area classification, regardless of any CAA section 179B submission. The EPA provides examples and describes the kinds of information and analyses that are relevant to this issue to assist air agencies better understand how to satisfy the requirements of CAA section 179B in the “Guidance on the Preparation of Clean Air Act Section 179B Demonstrations for Nonattainment Areas Affected by International Transport of Emissions” (CAA Section 179B Guidance). 17 The guidance also describes the weight of evidence approach that the EPA uses when evaluating CAA section 179B demonstrations.

The EPA received adverse comments on our proposed disapprovals of the CAA section 179B demonstrations from Texas and Utah, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: One commenter disagreed with EPA's authority to consider impacts from international emissions in two contexts, prospective or retrospective. The commenter disagreed that the state should have considered a “retrospective” demonstration under CAA section 179B(b) to address reclassification. The commenter asserted that CAA section 179B(a) was written to cover any NAAQS, and that CAA sections 179B(b-d) were written to clarify that any CAA section 179B demonstration would also provide relief to reclassifications that only apply to ozone, carbon monoxide and particulate matter (PM 10 ). In essence, the commenter argued that a state can seek to avoid reclassification for failure to attain the NAAQS by the attainment date under CAA section 179B(b) at any time, and EPA need not wait for the facts and analysis to evaluate the impacts of international transport until the attainment date actually occurs.

Response: The EPA disagrees with the commenter's interpretation that a single demonstration would be adequate to obtain the specific and differing regulatory relief described in CAA section 179B(a) (relief from the attainment demonstration requirement) and CAA sections 179B(b-d) (relief from the reclassification requirement). The EPA submitted comments to the Texas Commission on Environmental Quality on the Bexar County (San Antonio), Texas CAA section 179B proposal, echoing the CAA section 179B language and the interpretations expressed in EPA's December 2019 draft guidance, describing how the State's proposed “prospective” demonstration (addressing the standard laid out in CAA section 179B(a) and focusing on data available to the State in 2019) would not provide the San Antonio area relief from failing to meet its attainment deadline. The EPA indicated that the State should develop a “retrospective” demonstration under CAA section 179B(b) if seeking relief from the reclassification requirement.

As stated in the April 2022 proposal and EPA's final CAA Section 179B Guidance, both the distinct language in CAA sections 179B(a) and 179B(b) and the different regulatory relief those two sections grant support EPA's interpretation that different types of demonstrations are needed for areas seeking the different forms of relief. For a state that is required to submit an attainment plan demonstrating that a nonattainment area will attain by the applicable attainment date, CAA section 179B(a) allows the state to submit, and the Administrator to assess, a demonstration that such a plan “would be adequate to attain” the NAAQS by the attainment date, but for international transport. For a nonattainment area that has not attained the NAAQS by the attainment date, and thus is facing reclassification to a higher classification level, CAA section 179B(b) allows the state to submit, and the Administrator to assess, a demonstration that the area “would have attained” the NAAQS by the attainment date, but for international transport. For a state to gain this latter type of relief, the EPA believes it is reasonable to require that the state include in its demonstration emissions and air quality data from the 3 years preceding the attainment date, along with analyses of the amount and nature of impacts attributed to international transport that actually occurred during that same relevant period of time.

Comment: A few commenters asserted that the term “but for” under CAA section 179B is not defined and disagreed with the EPA's interpretation of that term and requirements for CAA section 179B. A commenter asserted that its CAA section 179B demonstration should not have to show that international anthropogenic emissions solely or primarily cause exceedances. A few commenters indicated that any impact of international emissions should be enough for an approvable demonstration. One commenter claimed that the EPA has imposed arbitrary hurdles on the Northern Wasatch Front nonattainment area to achieve a successful CAA section 179B demonstration. The commenter alleged that the EPA's requirements are not supported by the statute and are outside of Congress's intent. Furthermore, the commenter stated that the EPA's argument for disapproving Utah's demonstration is inappropriate in finding that ozone exceedance days “are predominantly due to local contributions.” In addition, they stated that the EPA should find that a 10-15 percent contribution from international sources to local ozone in the Northern Wasatch Front meets the CAA “but for” criteria. The commenter disagreed that only sources causing peak ozone concentrations should matter in the CAA section 179B evaluation. The commenter also stated that although the CAA establishes the “but for” test, the statute makes no differentiation between base contributions or peak contributions. The commenter claimed that by the EPA considering whether international contributions are greater on exceedance days than on non-exceedance days, the EPA suggests that the influence of international emissions on Northern Wasatch Front ozone must be event-based rather than continuous and the commenter states that this line of reasoning is inconsistent with the scientific literature cited by the EPA. The commenter also asserted that the EPA is inappropriately requiring a large international contribution relative to the domestic contribution for a valid CAA section 179B demonstration and referenced the EPA's response to comment for the CAA Section 179B Guidance to support the argument that the EPA did not intend this to be a requirement at the time of the issuance of the Guidance. 18

Response: The EPA disagrees with the commenters concerning the appropriate application of CAA section 179B, and in particular the appropriate interpretation of the term “but for” in this specific context. As acknowledged by the commenters, CAA section 179B is notably silent on the definition of “but for.” Specifically, the statute does not define “but for,” nor does it define what criteria the EPA should use to evaluate whether a state has demonstrated the relevant statutory criteria to the “satisfaction of the Administrator.” Given the ambiguous statutory text, the EPA has authority to interpret the term “but for” in the way most consistent with the purpose of CAA section 179B. Given the statute's explicit inclusion of the phrase “to the satisfaction of the Administrator,” the EPA concludes that this can entail what the Agency considers relevant for this type of demonstration. For example, the EPA reasonably interprets the language in CAA section 179B to authorize it to differentiate between base and peak contributions in exercising its technical judgment in assessing CAA section 179B demonstrations made by states. This distinction is very relevant when determining the degree to which international transport affects ambient pollutant levels during periods that are relevant to determining attainment. The commenter intimated that when ambient concentrations minus modeled international contributions are less than the level of the NAAQS, the state should automatically receive CAA section 179B relief. The EPA does not agree with this “simple subtraction” interpretation of “but for,” which would ignore the complex nature of ozone sources and transport, as well as the multitude of analysis methods and tools which states and the EPA may use to evaluate and characterize sources impacting ozone concentrations at violating monitors. In addition, this simplistic interpretation of “but for” would in effect functionally raise the level of the NAAQS in all areas of the country for which states claim that there is international transport, regardless of what any other facts or analyses would indicate about the nature and impacts of such transport. 19 Given the statutory directive to the EPA to promulgate NAAQS that are adequately protective of public health with an ample margin of safety, the EPA does not consider a “simple subtraction” approach to be appropriate. 20 Rather, the EPA has provided the CAA section 179B Guidance to give recommendations for a more comprehensive weight of evidence approach, which states and EPA should use to evaluate international emissions contributions at violating ozone monitors.

As we stated in the proposal, “[g]iven the extensive number of technical factors and meteorological conditions that can affect international transport of air pollution, EPA relies on the weight of evidence of all information and analyses provided by the air agency. The appropriate level of supporting documentation will vary on a case-by-case basis, depending on the nature and severity of international influence. EPA considers and qualitatively weighs all evidence based on its relevance to CAA section 179B and the nature of international contributions as described in the demonstration's conceptual model. Every demonstration should include fact-specific analyses tailored to the nonattainment area in question. When a CAA section 179B demonstration shows that international contributions are larger than domestic contributions, the weight of evidence will be more compelling than if the demonstration shows domestic contributions exceeding international contributions.”  21

Furthermore, as explained in the proposal, there are four characteristics that the EPA thinks indicate that an area needs a more involved weight of evidence showing: (1) Affected monitors not located near an international border; (2) Specific international sources and/or their contributing emissions are not identified or are difficult to identify; (3) Exceedances on internationally influenced days are in the range of typical exceedances attributable to local sources; and (4) Exceedances occurred in association with other processes and sources of pollutants, or on days where meteorological conditions were conducive to local pollutant formation ( e.g., for ozone, clear skies and elevated temperatures). The San Antonio and Northern Wasatch Front nonattainment areas meet all four of these characteristics suggesting the need for a comprehensive weight of evidence showing, including multiple lines of evidence to support a CAA section 179B demonstration in these areas. The EPA recognizes that no single analysis is sufficient to support or refute a CAA section 179B demonstration definitively. Therefore, the Agency utilized multiple lines of evidence in the proposed disapproval of the submitted CAA section 179B demonstrations, which, taken together, provided a consistent and coherent conceptual model that did not support a “but for” finding for these areas. The EPA disagrees that the analyses the Agency recommended in the CAA section 179B Guidance and the Agency relied upon in evaluation are arbitrary or not supported by the statute.

Further, the EPA's 179B Guidance indicated that a demonstration will be stronger when international contributions are shown to be greater on NAAQS exceedance days than on non-exceedance days. Inclusion of this information will make it easier to differentiate locally versus internationally driven exceedances. However, the above interpretation from the Section 179B Guidance should not be considered as requiring that international contributions be restricted to contributions from specific international transport events. Rather, the CAA section 179B Guidance and the April 2022 proposal point to the need for a more detailed demonstration in cases where international contributions are difficult to distinguish from US contributions, including when “[e]xceedances on internationally influenced days are in the range of typical exceedances attributable to local sources.” In addition, as part of a thorough evaluation of the impacts of international transport, the EPA considers it appropriate to focus on analyzing the contributions on the days that contribute to an area's NAAQS violation.

Comment: A commenter claimed that the EPA used one criterion ( i.e., whether feasible measures have been implemented) in the Northern Wasatch Front determination that the EPA had already rejected in a prior rulemaking  22 as not being part of a CAA section 179B demonstration.

Response: The EPA disagrees with this comment. The comment seems to conflate the requirement in CAA section 182(b)(2) that areas classified as Moderate and higher must show that they have implemented RACM/RACT with the EPA's statements in the proposal that Utah's demonstration would have been strengthened through a showing that the state had attempted to implement feasible controls. The EPA explained that the proposed disapproval of the CAA section 179B demonstration for the Wasatch area relied on multiple lines of evidence. As noted in the technical support document (TSD) for the proposed disapproval of this CAA section 179B demonstration, the state did not make a compelling demonstration that it has implemented controls to mitigate local emissions contributing to ozone levels on exceedance days. Because each nonattainment area is unique, the types of analyses that would be appropriate for any particular area depend on area-specific factors. The EPA considers the weight of available evidence in assessing a state's CAA section 179B demonstration. The EPA considered the fact that the state has not attempted to implement reasonable local controls along with information indicating whether ozone exceedances had occurred predominantly as a result of emissions from local sources versus international sources. Imposition of local control measures is not a prerequisite or requirement to a Marginal area's CAA section 179B(b) demonstration. However, consideration of whether feasible controls have been implemented in an area could be a significant factor relative to information characterizing the nature of contributions on exceedance days. Such control measure information is therefore helpful in considering to what extent local versus international emissions contributed to ozone exceedances in the Northern Wasatch Front.

Comment: A commenter stated that states would benefit from further clarification of the CAA Section 179B Guidance and a concerted effort from the EPA to codify its CAA section 179B(b) interpretation through rulemaking.

Response: This action is to fulfill our statutory obligation under CAA section 181 by determining whether 28 Marginal ozone nonattainment areas attained the 2015 ozone NAAQS by August 3, 2021, the applicable attainment date for such areas. As part of the final disapproval for the San Antonio and Northern Wasatch Front CAA section 179B demonstrations, this rulemaking action is intended to clarify EPA's interpretations of CAA section 179B and apply them to certain areas of the country through regulatory action. The EPA does not intend to initiate a public notice-and-comment rulemaking to codify the provisions of CAA section 179B at this time.

Pursuant to CAA section 182(i) and after considering comments received, the EPA is finalizing its proposed deadlines for Moderate area SIP revisions, and implementation of RACM/RACT and Basic I/M programs for the 2015 ozone NAAQS. SIP revisions required for the newly reclassified Moderate areas must be submitted no later than January 1, 2023, and RACM/RACT for these areas must be implemented as expeditiously as practicable, but no later than the same date. We acknowledge that for some states with reclassified Moderate areas, meeting a January 1, 2023, SIP submission and RACM/RACT implementation deadline will be challenging. However, the options for establishing deadlines within the CAA framework of attainment timeframes and RACT implementation requirements are constrained. We also recognize there are ways to anticipate and manage the tight timeframes for SIP development and submission, such as advance planning based on preliminary area DVs. Also, a state may at any time request—and the EPA must grant—a voluntary reclassification under CAA section 181(b)(3). The EPA remains committed to working closely with affected states to help them prepare their SIP revisions in a timely manner.

For required Basic I/M programs, the EPA is finalizing an implementation deadline of no later than 4 years after the effective date of reclassification for states that do not intend to rely upon emission reductions from their Basic I/M program in attainment or RFP SIPs. As discussed in the April 2022 proposal, the EPA realizes that implementing a brand new or revised I/M program on an accelerated timeline may be difficult to achieve in practice, especially for states with no I/M programs elsewhere within their jurisdiction.

The EPA received adverse comments on our proposed deadlines, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: Regarding the proposed January 1, 2023, SIP submission deadline for reclassified Moderate areas, the EPA received comments stating that the deadline was unreasonable, and/or the resulting compressed timeframe provided insufficient time for SIP development, with some commenters also noting that the EPA's delayed rulemaking in this action has contributed to the planning burden on states. Two commenters observed that the proposed deadline would be less than 12 months from final area reclassifications, with one commenter contending the EPA has long held that one year from final reclassification was an appropriate SIP submission deadline, and both commenters referencing the previous determination and reclassification action for Moderate areas under the 2008 ozone NAAQS as an example. One other commenter requested a SIP submission deadline of May 1, 2023, and two other commenters requested that the EPA provide the same planning timeframes allowed for initially designated areas ( e.g., 2 years for RACT SIPs, 3 years for RFP and attainment demonstration SIPs). Two additional commenters did not request a specific deadline but were concerned that the proposed submission deadline was unachievable given the timing and time demands of state legislative processes, e.g., the Colorado General Assembly does not convene until mid-January each year, and the Connecticut regulatory adoption process generally takes 10-12 months and requires the approval of a legislative committee.

Response: The EPA acknowledges the short planning timeframe available to states with newly reclassified Moderate areas, and that delays in this rulemaking have reduced the time between the effective date of final area reclassifications and the proposed January 1, 2023, deadlines for SIP submissions for these areas. We further acknowledge that the available timeframe here will present significant challenges for many states. But we believe that our approaches for establishing SIP submission deadlines in prior determination and reclassification actions were case-specific and, while informative, are not determinative of our final action here. Of potential alternatives, we maintain that the deadline established in this final action best provides for consistent treatment of states in submitting SIP revisions within the constraints of attainment timeframes and RACT requirements under the Act. Further, to the extent that commenters suggested that states are confined to initiating SIP development activities only after the EPA finalizes its attainment determinations and area reclassifications, we disagree, as there are proactive and voluntary pathways by which states can anticipate and manage the tight timeframes to develop required SIP revisions for reclassified nonattainment areas. The EPA addresses specific aspects of commenters' concerns as follows.

Responding to comments that the January 1, 2023, deadline for SIP submissions for reclassified Moderate areas is unreasonable and/or provides insufficient time for state planning activities, we look to the statutory framework and context underlying our legal and policy basis. Areas initially classified as Moderate under the 2015 ozone NAAQS were required to prepare and submit SIP revisions by deadlines relative to the effective date of the nonattainment designation ( i.e., August 3, 2018), which ranged from 2 to 3 years after the effective date of designation ( e.g., 2 years for the RACT SIP, and 3 years for the attainment plan with RACM and attainment demonstration). These SIP submission deadlines preceded the RACT implementation deadline ( i.e., as expeditiously as practicable but no later than January 1 of the 5th year after the effective date of designations) and have the practical effect of ensuring that SIPs requiring control measures needed for attainment, including RACM, would be submitted prior to when those controls are required to be implemented—in this case, no later than the beginning of the Moderate area attainment year. i.e., January 1, 2023.

Section 181(b)(2)(A) of the CAA requires that within 6 months following the applicable attainment date, the EPA shall determine whether an ozone nonattainment area attained the ozone standard, and those areas that failed to attain and were not granted a 1-year attainment date extension are reclassified by operation of law. Although Congress did not articulate specific SIP submission deadlines for reclassified areas in the Act, it provided the EPA with authority under CAA section 182(i) to adjust any related deadlines for requirements under CAA sections 182(b) through (d) “. . . to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” Explicitly excluded from CAA section 182(i) is authority to adjust attainment dates, i.e., “. . . the Administrator may adjust any applicable deadlines (other than attainment dates) . . .”.

The area classifications and attainment date framework established in Table 1 of CAA section 181(a)(1) and interpreted by 40 CFR 51.1303 inherently constrains the planning and implementation timeframe for reclassified areas, particularly at lower area classifications. The time increments between the Marginal and Moderate, and the Moderate and Serious area statutory attainment dates are only three years. These short timeframes are further constrained by the RACT implementation deadline for reclassified areas. Consistent with the RACT requirements of 40 CFR 51.1312(a)(3)(ii), the EPA proposed a RACT implementation deadline for reclassified Moderate areas corresponding with the beginning of the Moderate area attainment year ( i.e., January 1, 2023). Aligning the RACT implementation and SIP submission deadline for reclassified areas ensures that SIPs requiring control measures needed for attainment, including RACM, are submitted no later than when those controls are required to be implemented. 23 The combination of constraints dictated by the statutory and regulatory requirements for reclassified ozone areas, particularly at the lower classifications, are a primary cause of the compressed timeframe for SIP development and implementation. Even if the EPA had published this final determination and reclassification action by the statutory due date ( i.e., February 3, 2022) with an effective date 30 days after ( i.e., approximately March 7, 2022) there still would be less than a year between the effective date and the SIP submission deadline of January 1, 2023. We recognize that many areas may face difficulty in meeting the submission and implementation deadlines in the final rule, but this approach is consistent with the CAA and our regulations, and given the competing considerations, is a reasonable exercise of the EPA's discretion under CAA section 182(i).

Two commenters observed that the proposed deadline would be less than 12 months from final area reclassifications, with one commenter asserting that the EPA has long held that an appropriate deadline for states with reclassified areas to submit required SIP revisions is one year from final reclassification. Both commenters referenced the EPA's August 2019 final determination action that reclassified certain areas from Moderate to Serious for the 2008 ozone NAAQS and established a SIP submission deadline in August 2020. While we acknowledge that the short timeframe for SIP submittal here will present significant challenges for many states, we disagree with the commenter's general assertion that establishing a one-year SIP submission timeframe is a “long held” approach for the EPA. To this end, we wish to note multiple instances of the EPA establishing a SIP submission deadline of less than one year from the effective date of the final determination and reclassification action, e.g., for four reclassified Moderate areas under the 1997 8-hour ozone NAAQS. Final actions for the four reclassified Moderate areas—Imperial County, California; Atlanta, Georgia; Beaumont-Port Arthur, Texas; and Baton Rouge, Louisiana—established a SIP submission deadline corresponding with the beginning of the Moderate area attainment year ( i.e., December 31, 2008, or January 1, 2009) and approximately eight months from the final action effective date. 24 SIP revisions for reclassified Moderate and Serious areas under the 2008 ozone NAAQS were due approximately seven and ten months from the final action effective dates, respectively. 25

The EPA acknowledges that the referenced determination and reclassification action for Moderate areas under the 2008 ozone NAAQS established a SIP submission deadline for reclassified Serious areas of approximately one year from the final action. In that instance, the SIP submission deadline (August 3, 2020) was approximately 11 months from the final action effective date (September 23, 2019). However, we consider the final action for reclassified Serious areas under the 2008 ozone NAAQS distinguishable from this current action because the EPA proposed a SIP submission deadline of 12 months from the final action effective date, but was persuaded by comments received to finalize an aligned deadline of August 3, 2020, which corresponded with the RACT SIP submission deadline for areas initially classified Moderate and higher for the 2015 ozone NAAQS. The EPA's rationale, pursuant to the authority of CAA section 182(i), was to provide for “consistency among submissions” due from a nonattainment area for more than one NAAQS, which could also allow states to save limited resources by consolidating two SIP submissions into a single submission. 26 That situation does not exist for this current action and, while previous determination and reclassification actions may be informative, the EPA considers them to be case-specific and not necessarily determinative of our final rule approach for reclassified Moderate areas under the 2015 ozone NAAQS. The timeframes for the prior actions discussed here, as for the present action, were informed by the attainment date, and the different submission deadlines necessarily considered the time between the establishing action and the applicable attainment date. This timeframe varies across actions, and we cannot here apply a longer timeframe from a previous action if it would not be allowed by the applicable attainment date for this action.

Several commenters requested that EPA establish a later SIP submission deadline for reclassified Moderate areas, with one commenter requesting a specific date of May 1, 2023, and two commenters requesting deadlines that would provide the same planning timeframes allowed for initially designated areas. Two additional commenters did not request a specific deadline but were concerned that the proposed submission deadline was unachievable given the timing and time demands of state legislative processes. As discussed previously, Congress did not articulate specific SIP submission deadlines for reclassified areas in the Act, and it required that states submit all SIP revisions for initially designated Moderate areas (including RACT and the attainment plan with RACM and attainment demonstration) before their RACT implementation deadline, which is as expeditiously as practicable but no later than January 1, 2023. Further, as discussed in the proposed action, the EPA does not find it appropriate to provide deadlines of 2 and 3 years from the effective date of a final action on this determination, as those deadlines would fall after the Moderate area attainment date of August 3, 2024. 27 The January 1, 2023, submission deadline for reclassified Moderate areas may not be compatible with some state legislative processes, but nowhere in Subpart 2 did Congress indicate that state legislative processes or calendars should dictate, or even factor into, deadlines for CAA NAAQS implementation. The EPA maintains that establishing the selected SIP submission deadline ensures consistent treatment of states, consistency among SIP submissions, and balances the other considerations relevant to ozone attainment planning such as attainment dates and existing regulatory requirements.

We acknowledge again that meeting this SIP submission deadline will be challenging for many states, and that delays in this rulemaking have reduced the time between the effective date of this final action and the deadline for submission and implementation. However, to the extent that commenters suggested that states can only initiate SIP development activities only after the EPA finalizes its attainment determinations and area reclassifications, we disagree. There are proactive and voluntary pathways by which states can anticipate and manage the tight timeframes to develop required SIP revisions for reclassified nonattainment areas, including early planning and voluntary reclassification. The EPA is aware that many states with areas affected by this current action may be constrained in finalizing rulemakings that require additional emissions controls unless the state air agency can demonstrate such controls were mandated by an underlying federal requirement ( e.g., required pursuant to a mandatory area reclassification). However, to our knowledge most states with affected areas are not prohibited from starting their SIP development activities before the EPA finalizes this current action. As we noted in our 2019 attainment determination and reclassification action for the 2008 ozone NAAQS, states with Moderate areas that were proposed for reclassification as Serious had known with a reasonable amount of certainty that revised SIPs would be due in the near future to provide for expeditious attainment of the 2008 ozone NAAQS, and had the opportunity to make progress on plan development activities before issuance of the final action. 28 That remains true for this current action, where states with affected Marginal areas have been aware of preliminary 2018-2020 DVs since at least December 2020 and could have reasonably anticipated that SIP revisions for reclassified Moderate areas would again be due in the near future, consistent with previous EPA determination and reclassification actions. Nonetheless, the EPA recognizes the challenges posed by the aligned SIP submission and RACT implementation deadline of January 1, 2023, and is committed to working closely with states to help them as they prepare SIP revisions in a timely manner.

The EPA also notes that voluntary reclassification provides another way for states to anticipate and manage the tight timeframes for SIP development for nonattainment areas. An air agency can request—and the EPA must grant—a voluntary reclassification under CAA section 181(b)(3), which resets the area's attainment date into the future, and would therefore likely provide more time and flexibility for developing and submitting required SIP revisions. Of particular benefit for states is the longer timeframe to prepare RACT analyses and adopt SIP revisions for voluntarily reclassified areas, which could result in states determining that additional controls are reasonable and in turn help expedite air quality improvements in these areas.

Comment: Regarding the proposed January 1, 2023, RACT implementation deadline for reclassified Moderate areas, the EPA received comments stating that the deadline was unreasonable, and/or the resulting compressed timeframe provided insufficient time for RACT SIP development and implementation by affected sources. One commenter generally agreed with the EPA that measures necessary to advance attainment should be implemented by the beginning of ozone season in the attainment year but, along with other commenters, contended it would be difficult for sources to timely procure needed materials and/or install new controls. Some commenters also noted that RACT implementation could be hindered by current supply chain issues stemming from, e.g., the COVID-19 pandemic. Two commenters supported RACT implementation deadlines corresponding with the start of the Moderate area attainment year ozone season for their respective areas (March 1, 2023, and May 1, 2023), and one commenter requested that states be afforded the RACT implementation timeframe for initially designated areas, i.e., as expeditiously as practicable but no later than January 1 of the fifth year after the effective date of designations. Another commenter contended that the January 1, 2023, deadline would limit RACM and RACT to only those measures that are already on the books or well into the adoption process. The same commenter further characterized the RACT requirement for their reclassified Moderate area as administrative and without environmental benefit because the proposed RACT timeline would limit them to merely certifying the adequacy their recent 2008 ozone NAAQS RACT evaluation for purposes of the 2015 ozone NAAQS.

Response: As discussed in the preceding response to comments regarding submission deadlines, the EPA considers the compressed planning and RACT implementation timeframe for reclassified Moderate areas to dictated, to some degree, by the area classifications and attainment date framework established in the CAA. The regulatory RACT implementation deadline for reclassified areas, which is no later than the start of the area's attainment year ozone season, creates further constraints. In consideration of CAA section 182(i)'s direction that the EPA consider “consistency among the required submissions” and the EPA's interpretation that that provision may refer in part to similarly situated Marginal areas across the country subject to reclassification, the EPA did not propose, and is not finalizing an approach that would establish different RACM/RACT implementation deadlines corresponding to an area's defined ozone season starting month. We instead proposed, and are finalizing, a consistent, nationally applicable RACM/RACT implementation deadline for all newly reclassified Moderate areas corresponding with the beginning of the applicable attainment year, i.e., January 1, 2023, which is also the same as the single RACT implementation deadline for all areas initially classified Moderate under the 2015 ozone NAAQS. The EPA maintains that this single deadline would provide for implementation of any identified RACM/RACT as early as possible in the attainment year to influence an area's air quality and 2021-2023 attainment DV and also treat states consistently, in keeping with CAA section 182(i). We do not think a RACT implementation deadline of as expeditiously as practicable but no later than January 1 of the fifth year after the effective date of this final action, as one commenter requested, is appropriate or reasonable, because that deadline would not only fall after the Moderate area attainment date of August 3, 2024, but also after the Serious area attainment date of August 3, 2027. Such a deadline would not serve the CAA's goal of expeditious attainment of the NAAQS by no later than the attainment date.

The EPA recognizes that measures that states identify as “reasonably available” and that affected sources must implement are directly tied to the amount of time provided by the EPA in establishing a due date within the statutory and regulatory constraints discussed previously. Therefore, as one commenter described, the January 1, 2023, submission and implementation deadline could limit RACM and RACT to measures that are already on the books or well into the state's adoption process, and might not generate additional emission reductions. However, delaying the implementation deadline for RACT will not make it more likely that the area will attain by its attainment date. The deadline the EPA is finalizing is already the beginning of the last year in which any emission reductions could influence an area's DV as of their next attainment date. So, to the extent that commenters do not think it will be possible to implement any controls beyond what is already on the books or well into the adoption process, but recognizes that additional controls are necessary for that area to reach attainment, those states, as discussed previously, may exercise their option to request a voluntary reclassification, which the EPA must approve. The EPA cannot, under the CAA, reclassify areas that it knows will not attain or are unlikely to attain by the attainment date; but states are fully within their rights to recognize this and put themselves in a better position for longer planning and implementation timeframes.

Importantly, as the commenter noted, RACT for reclassified Moderate areas could include adopted and in-progress measures that were initiated independent of the EPA's current determination and reclassification action for 2015 ozone Marginal areas. This highlights an important principle underlying the CAA, namely that of “cooperative federalism” where, in partnership with the EPA, states and local governments have the primary responsibility for the control of air pollution at its source ( see CAA section 101(a)(3)). Marginal areas do not have a statutory obligation to determine and implement RACM/RACT, as required for areas classified as Moderate or higher; however, the CAA does not prevent states with Marginal areas from adopting “SIP strengthening” measures that improve air quality but do not address a specific CAA requirement and may potentially be determined as RACT pursuant to a mandatory area reclassification. As discussed in the preceding response to comments, we are aware that states with reclassified Moderate areas may be constrained in finalizing rulemakings that require additional emissions controls unless the state air agency can demonstrate an underlying federal requirement but, for many areas, states have had significant lead time to initiate SIP development based on their knowledge of preliminary 2018-2020 DVs and reasonable anticipation that SIP revisions would be due in the near future.

Comment: The EPA received two comments on the 4-year timeframe to implement new or revised I/M programs not tied to attainment. One commenter supported allowing up to four years to implement new I/M programs. The second commenter noted that a 4-year implementation timeline for I/M may be ambitious given the considerable community outreach and public education efforts that are necessary to start up a program that potentially impacts so many individuals. The commenter urged the EPA to give states more than four years to fully implement an I/M program.

Response: The EPA acknowledges the unique nature of I/M programs and that there are many challenges, tasks, and milestones when establishing and implementing a new or revised I/M program. For the reasons described in the April 2022 proposal, the EPA continues to maintain that a deadline of up to four years is reasonable and is using our authority under CAA section 182(i) to grant this flexibility to those areas required to implement I/M under this final rule but are not intending to rely on the I/M program for attainment or RFP reductions.

Comment: One commenter noted the EPA should clarify what technical assistance will be provided for I/M programs and when it will be provided.

Response: As stated in the NPRM, the EPA intends to provide technical assistance and guidance for I/M programs in affected ozone nonattainment areas. The EPA encourages states to contact their EPA Regional Office early in the I/M SIP development process. In addition, the EPA's Office of Transportation and Air Quality continues to provide I/M guidance; see the EPA's I/M website at www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im.

As discussed in Section II.B of this notice, the EPA is finalizing its proposal to grant a request for a 1-year attainment date extension for the Uinta Basin, Utah, nonattainment area and extend the August 3, 2021, Marginal area attainment date to August 3, 2022, based on our finding that the state meets the two criteria under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1307 and additional considerations do not weigh against our decision to grant UDAQ's request. For example, the EPA conducted an EJSCREEN analysis for the area to evaluate whether communities in the Uinta Basin area may be exposed to disproportionate pollution burdens. The results of our screening analysis did not indicate disproportionate exposure or burdens with respect to the non-ozone environmental indicators assessed in EJSCREEN.

As discussed in Section II.E of this notice and the April 2022 proposal, a Basic vehicle I/M SIP is required for urbanized Moderate areas under the 2015 ozone NAAQS, including for areas with and without an existing I/M program that may have been implemented to meet the CAA requirements for a previous ozone NAAQS. I/M programs ensure that vehicles are operating according to the EPA's vehicle emissions standards and adequately protecting public health. However, any Basic I/M program for the 2015 ozone NAAQS may present potential economic hardship and other concerns for low-income individuals of newly reclassified Moderate ozone nonattainment areas, and we encourage states that are not already providing vehicle repair or replacement assistance programs to work with interested parties in their nonattainment areas to address such concerns.

This action is exempt from review by the Office of Management and Budget (OMB) because it responds to the CAA requirement to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain.

This rule does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget. This action does not contain any information collection activities and serves only to make final: (1) determinations that certain Marginal nonattainment areas listed in Table 2 attained the 2015 ozone standards by the August 3, 2021 attainment date; (2) approval to grant a certain Marginal nonattainment area listed in Table 2 a 1-year attainment date extension from the August 3, 2021, attainment date to August 3, 2022; (3) determinations that certain Marginal nonattainment areas listed in Table 2 failed to attain the 2015 ozone standards by the August 3, 2021, attainment date (September 24, 2021, for San Antonio, Texas) where such areas will be reclassified as Moderate nonattainment for the 2015 ozone standards by operation of law upon the effective date of the final reclassification action; and (4) adjust any applicable implementation deadlines.

On March 12, 2008, the EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 ppm to provide increased protection of public health and the environment. 1 When the EPA promulgates a new or revised NAAQS, the EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The CAA requires the EPA to complete the initial area designation process within 2 years of promulgating the NAAQS, with authority to extend the deadline for designations decisions by 1 additional year if the Administrator has insufficient information to make the designations within the initial 2-year timeframe. The final designations for the 2008 ozone NAAQS were based primarily on certified air quality monitoring data from calendar years 2008-2010, i.e., area design values as of the time of designations. 2

In accordance with CAA section 181(a)(1), each area designated as nonattainment for the 2008 ozone NAAQS was also classified by operation of law at the same time as the area was designated by the EPA. 3 In a separate Classifications Rule, the ozone nonattainment areas were classified as Marginal, Moderate, Serious, Severe, or Extreme, based on the severity of their ozone levels, which is also determined by available area design values at the time of designation. 4 Subpart 2 of the CAA requires ozone nonattainment areas to achieve the NAAQS as expeditiously as practicable, but not later than the maximum attainment date. Higher classifications, or more polluted areas, receive more time to attain compliance. When the EPA determines that an area has failed to attain by the maximum attainment date, that area is automatically reclassified to the next highest classification, allowing more time for compliance with the NAAQS but imposing additional mandatory controls under the Act.

Consequently, as each attainment date for each 2008 ozone NAAQS classification established under the statute and regulations has passed, the EPA has made the required determinations as to whether areas across the country attained the NAAQS by those dates based on the areas' design values as of the attainment dates. 5 As areas across the country have implemented more stringent controls and as federal measures have required emission reductions of precursors of ozone pollution from mobile sources and stationary point sources, air quality in the nonattainment areas under the 2008 ozone NAAQS has improved, and areas have come into attainment of the NAAQS. For this reason, the EPA has had to address fewer areas in each successive notice determining whether areas attained by the attainment date, and the number of areas that have failed to attain by the attainment date and been reclassified has decreased over time. 6

Accordingly, on April 13, 2022, the EPA proposed actions to fulfill its statutory obligation under Clean Air Act (CAA or the Act) section 181 to determine whether the remaining Serious ozone nonattainment areas across the country attained the 2008 ozone NAAQS by July 20, 2021, the applicable attainment date for such areas. 7 As noted there, the EPA's proposal addressed seven of the nine remaining Serious nonattainment areas for the 2008 ozone NAAQS—specifically, (1) Chicago-Naperville, IL-IN-WI; (2) Dallas-Fort Worth, TX; (3) Denver-Boulder-Greeley-Ft. Collins-Loveland, CO; (4) Greater Connecticut, CT; (5) Houston-Galveston-Brazoria, TX; (6) Morongo Band of Mission Indians; and (7) New York-N. New Jersey-Long Island, CT-NJ-NY. The two other Serious nonattainment areas located in California were addressed in a separate proposal, which considered exceptional events demonstrations submitted by the California Air Resources Board. 8

First, the EPA proposed to find that the Greater Connecticut, CT, nonattainment area attained the 2008 ozone NAAQS by the applicable attainment date based on complete, quality-assured and certified ozone air quality monitoring data for the 2018-2020 calendar years.

Second, the EPA proposed to deny the state of Texas's request for a 1-year extension of the attainment date from July 20, 2021, to July 20, 2022, for the Houston-Galveston-Brazoria, TX, nonattainment area (Houston area). The proposed denial of Texas Commission of Environmental Quality's (TCEQ's) request was based, in part, on our consideration of air quality trends in the Houston area that indicated the area would not timely attain by the extended attainment date, nor even qualify for a second 1-year extension of the attainment date. Our proposed denial was also based, in part, on our consideration of existing pollution burdens for some communities within the area. Taken together, these considerations weighed in favor of not delaying the imposition of more stringent requirements associated with reclassification, and the EPA, therefore, proposed to deny the state's request for an extension. 9

Third, the EPA proposed to find that six areas failed to attain the 2008 ozone NAAQS by the applicable attainment date. The six areas were: (1) Chicago-Naperville, Illinois-Indiana-Wisconsin (IL-IN-WI) (Chicago area); (2) Dallas-Fort Worth, TX; (3) Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado (CO) (Denver Area); (4) Houston-Galveston-Brazoria, TX (Houston area); (5) Morongo Band of Mission Indians; and (6) New York-North New Jersey-Long Island, Connecticut-New Jersey-New York (CT-NJ-NY) (New York Metropolitan area). The proposed determination for each of these areas was based upon complete, quality-assured and certified ozone air quality monitoring data that showed that the 8-hour ozone design value (DV) for the area exceeded 0.075 ppm for the period 2018-2020, i.e., the area's DV as of the attainment date. The EPA proposed that these six areas would be reclassified as Severe nonattainment areas by operation of law on the effective date of a final action finding that these areas failed to attain the 2008 ozone NAAQS by the applicable attainment date for Serious areas. 10 Since EPA issued its proposal in April, the Agency redesignated the Chicago area to attainment for the 2008 ozone NAAQS based on attaining air quality for the period 2019-2021 and a determination that the other statutory criteria for redesignation were met, and, therefore, we are not finalizing our proposed determination of failure to attain and reclassification for this area. 11

A summary of the actions proposed for the six areas covered by this final action is provided in Table 1 in this action.

In the April 2022 proposal, the EPA also solicited comment on adjusting the due dates, in accordance with CAA section 182(i), for SIP submissions and implementation deadlines for all SIP requirements that would apply to newly reclassified Severe areas ( see CAA sections 172(c)(1) and 182(a)(b)(c) and (d), and 40 CFR 51.1100 et seq. ). Under CAA section 181(b)(2), Serious nonattainment areas that fail to attain the 2008 ozone NAAQS by the applicable attainment date for such areas will be reclassified as Severe by operation of law upon the effective date of the final reclassification action. Each responsible state air agency must subsequently submit a SIP revision that satisfies the air quality planning requirements for a Severe area under CAA section 182(d), and they must attain the standard by July 20, 2027 (within 15 years of initial designation). For areas reclassified as Severe, SIP submissions must apply the more stringent major source threshold of 25 tons per year (tpy)  12 for reasonably available control technology (RACT) and nonattainment new source review (NNSR), and the more stringent NNSR emissions offset ratio of 1.3:1. 13 In order to fulfill their Severe area SIP submission requirements, states may, where appropriate, certify that existing SIP provisions for an area are adequate to address one or more Severe area requirement(s). Such certifications must be submitted as SIP revisions.

On July 20, 2012, when final nonattainment designations became effective for the 2008 ozone NAAQS, states responsible for areas initially classified as Severe were required to prepare and submit SIP revisions by deadlines relative to that effective date. For those areas, the submission deadlines ranged from 2 to 10 years after July 20, 2012, depending on the SIP element ( e.g., 2 years for the RACT SIP and vehicle miles traveled (VMT) offset demonstration, 4 years for the attainment demonstration, 10 years for the CAA section 185 fee program). Initial Severe areas were also required to implement RACT as expeditiously as practicable but no later than January 1 of the 5th year after July 20, 2012 ( i.e., January 1, 2017). Those deadlines have all now passed, and the EPA proposed to use its discretion under CAA section 182(i) to adjust the SIP deadlines that would otherwise apply. 14

The EPA proposed a SIP submission deadline of 18 months after the effective date of reclassification to address the CAA section 185 fee program, VMT offset demonstration, and reasonably available control measures (RACM) and RACT requirements. This deadline is consistent with that for all other Severe area plan elements required under CAA sections 172(c)(1) and 182(a)(b)(c) and (d), and 40 CFR 51.1100 et seq.

As required by 40 CFR 51.1108(d) the state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. 15 Further, the EPA proposed that any controls that air agencies determine are needed for meeting CAA requirements must be implemented as expeditiously as practicable but no later than 18 months from the proposed SIP submission deadline. These controls include any identified RACT, and any needed transportation control strategies or transportation control measures (TCMs) indicated in the VMT offset demonstration. The EPA requested comment on (1) aligning the implementation deadlines for RACT and transportation-related controls; (2) on requiring that any controls needed for meeting reasonable further progress (RFP) or timely attainment of the 2008 ozone NAAQS be implemented as expeditiously as practicable but no later than 18 months after the proposed SIP submission deadline, and (3) on providing an overall 36-month schedule for SIP submission and controls implementation.

The public comment period for the EPA's April 2022 proposal closed on June 13, 2022, and included a public hearing held on May 9, 2022. The comments received during this period and the public hearing transcript can be found in the docket for this action. A majority of commenters supported the EPA's proposal to determine that one area attained the 2008 ozone NAAQS by the applicable attainment date, to deny a requested 1-year attainment date extension for the Houston area, and to reclassify to Severe the nonattainment areas that did not attain the 2008 ozone NAAQS by the applicable attainment date and do not qualify for an attainment date extension. Our final actions are summarized in Table 2 of this action.

The EPA is responding to certain comments in this section of the preamble. The remaining comments and the EPA's responses can be found in the Response to Comments document, which is found in the docket for this rulemaking. To access the Response to Comments document, please go to http://www.regulations.gov, and search for Docket No. EPA-HQ-OAR-2021-0741, or contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1103 and after considering comments received, the EPA is making a final determination that the Greater Connecticut Serious nonattainment area listed in Table 2 of this action attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2021. Once effective, this final action satisfies the EPA's obligation pursuant to CAA section 181(b)(2)(A) to determine, based on an area's air quality as of the attainment date, whether the area attained the standard by the applicable attainment date. The effect of a final determination of attainment by an area's attainment date is to discharge the EPA's obligation under CAA section 181(b)(2)(A), and to establish that, in accordance with CAA section 181(b)(2)(A), the area will not be reclassified for failure to attain by the applicable attainment date.

This determination of attainment does not constitute a redesignation to attainment as provided for under CAA section 107(d)(3). The EPA may redesignate an area if the state meets additional statutory criteria, including the EPA approval of a state plan demonstrating maintenance of the air quality standard for 10 years after redesignation, as required under CAA section 175A. As for all NAAQS, the EPA is committed to working with states that choose to submit redesignation requests for areas that are attaining the 2008 ozone NAAQS.

The EPA did not receive adverse comments on its proposed determination of attainment for the Greater Connecticut area. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Pursuant to CAA section 181(b)(2) and after considering comments received, the EPA is finalizing its proposed determinations that the five Serious nonattainment areas listed in Table 2 of this action failed to attain the 2008 ozone NAAQS by the applicable attainment date of July 20, 2021. Therefore, upon the effective date of this final action, these five areas will be reclassified, by operation of law, as Severe for the 2008 ozone NAAQS. Once reclassified as Severe, these areas will be required to attain the standard “as expeditiously as practicable” but no later than 15 years after the initial designation as nonattainment, which in this case would be no later than July 20, 2027. If any of these areas attains the 2008 ozone NAAQS, the relevant state may request redesignation to attainment, provided the state can demonstrate that the criteria under CAA section 107(d)(3)(E) are met. 16

Included in these five areas is the Houston area, for which the EPA is finalizing its proposed denial of the TCEQ request to extend the Houston Serious area attainment date by one year from July 20, 2021, to July 20, 2022. 17 A majority of commenters supported the EPA's proposal to deny the Houston area attainment date extension request, to determine that the area failed to attain by the applicable attainment date, and to reclassify the area as Severe. We also received an adverse comment from TCEQ on our proposed action, which is addressed in the Response to Comments document in the rulemaking docket for this action. As detailed in the Response to Comments document, TCEQ acknowledged that the CAA grants the EPA discretion in acting on attainment date extension requests, but urged the EPA to grant Texas's request on the basis that the area had met the two qualifying criteria. We think it is reasonable, given the statute's goal of expeditious attainment of the NAAQS in order to protect public health and the environment, to consider available information that demonstrates that Houston could not have attained by an extended attainment date or qualified for a second extension, and that indicates that the population impacted by the Agency's decision already bears a disproportionate burden of pollution. Specifically, as discussed in the proposal, the EPA's analysis of existing pollution burden found that there are communities residing and working near violating ozone monitors in the Houston area and the Houston Ship Channel that are exposed to a significant and disproportionate burden of ozone pollution and other sources of pollution ( e.g., vehicle traffic and particulate matter emissions) compared to the greater Houston area and the U.S. as a whole. 18 The existing pollution burden on the population that would be impacted by the EPA's action on the state's request is a relevant consideration where the EPA is exercising its judgment about whether or not to issue a determination that would have the effect of immediately requiring more stringent pollution controls or providing additional time to see whether air quality would resolve without those controls.

The EPA recognizes that delays in issuing this final rulemaking have had the practical effect of providing an extra year for the Houston area to attain the 2008 ozone NAAQS, because the contemplated extended attainment date would have been July 20, 2022. Regardless, the EPA continues to have an obligation to act on TCEQ's request, and the basis articulated in the proposal and in the RTC for denying TCEQ's request is reasonable and consistent with the Agency's analytic approach when evaluating requests from other states seeking extensions under the same statutory provision for other ozone NAAQS. 19 We also note that certified data now available for the period 2019-2021 confirm the preliminary assessment on air quality trends in the proposal, showing that the Houston area did not attain by the extended date, and does not qualify for a second extension. The import of the air quality information in the record alone would support a denial. The EPA is, therefore, finalizing its denial of TCEQ's requested 1-year attainment date extension for the Houston area based upon the Agency's analysis of air quality trends. Denying the extension request and determining that the Houston area failed to attain the 2008 ozone NAAQS by its July 20, 2021, attainment date will, by operation of law, include the Houston area among the other areas being reclassified to Severe for the 2008 ozone NAAQS and trigger the deadlines associated with the set of more protective attainment planning and control requirements for those areas.

With respect to the remaining areas included in this final action, a majority of commenters supported the EPA's proposal to determine that they failed to attain by the applicable attainment date and to reclassify those areas as Severe. We also received several adverse comments on our proposed determinations, some of which are addressed below. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the rulemaking docket for this action.

Comment: Several commenters opposed reclassifying the Denver area to Severe nonattainment, claiming that the environmental benefits of the action do not outweigh the economic costs. One commenter claimed that the EPA is “required to determine whether the benefits of a regulation justify the costs” and that the EPA should not adopt the regulation because “the programs required by a downgrade will not achieve any reduction in ozone.” The commenter claims that E.O. 12866 gives the EPA an option to decline to reclassify the area, and that the E.O. requires the EPA to assess the costs and benefits of the reclassification as a “significant regulatory action” because it will cost individuals and companies in Colorado more than $1 billion annually. The commenter also stated that it is time for the EPA to consider alternative regulations that would “give Colorado an incentive to achieve the ozone standard, while imposing the least burden on society” and cited to E.O. 12866 for performance objectives rather than programs.

Response: The EPA disagrees with these comments. CAA section 181(b)(2)(A) states that “the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law . . . to the higher of—(i) the next higher classification for the area or (ii) the classification applicable to the area's design value . . . .” This provision unambiguously requires the EPA to determine whether an area timely attained “based on the area's design value (as of the attainment date).” The area's design value as of its attainment date is the sole criterion that the EPA is permitted to consider in determining whether an area has timely attained. With respect to reclassification, the statute is similarly restrictive: any area that the Administrator finds has not attained by its attainment date shall be reclassified by operation of law. The Act exempts from reclassification Severe or Extreme areas and limited other areas ( e.g., an area that can demonstrate, under CAA section 179B(b), that the area would have attained by the applicable attainment date, but for emissions emanating from outside of the United States). Outside of limited explicit exceptions, Congress made the judgment that reclassification would apply to areas that fail to attain the NAAQS on time and left no determination or even action for the EPA to carry out. The reclassification happens “by operation of law” when the EPA makes the determination that an area has failed to attain by its attainment date, and there is no Agency judgment or consideration of factors—cost, benefit, or otherwise. Cf. Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002) (rejecting the EPA's decision not to reclassify a downwind nonattainment area that failed to timely attain due to transported pollution from upwind states). Accordingly, the EPA does not consider cost in the reclassification of areas that fail to attain the ozone standard. We also do not agree that E.O. 12866 provides the EPA with any option not to reclassify. Nothing in the E.O. purports to override the mandatory duty established in the Clean Air Act, nor could it. E.O. 12866 ( see 58 FR 51735, October 4, 1993) gives the Office of Management and Budget (OMB) the authority to review regulatory actions that are categorized as “significant” under section 3(f) of E.O. 12866. In their corresponding E.O. 12866 guidance, OMB listed types of regulatory actions that are exempt from OMB review, including “area designations of air quality planning purposes.”  20 The EPA has historically interpreted its ozone determination of attainment actions to fall in this exempted category because these action involve determinations based on air quality, responding to the CAA requirement to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain. 21 Findings of failure to attain under CAA section 181(b)(2) are based on air quality considerations, and reclassifications must occur by operation of law in light of certain air quality conditions. The statutory requirements are clearly defined with respect to the differently classified areas, and those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values. Congress has not authorized or directed the EPA to consider cost in this process, and E.O. 12866 does not provide any further authority or requirement to do so. With respect to the concern that the reclassification will cost individuals and companies in Colorado more than $1 billion annually, the commenter bases that estimate on information he obtained related to the cost of providing federal RFG in the Denver area. We respond to this comment in detail in the Response to Comments document in the docket for this action. In that response we conclude that the cost of implementing the federal RFG program in the Denver area will be approximately $13.3 million per year.

Comment: Several commenters opposed the reclassification of the Denver area because Colorado has undertaken many efforts to reduce ozone precursor emissions. One commenter asserted that the economic impacts from reclassifying the area will be “felt across communities and industries for years to come.” Two commenters pointed to VMT growth offset requirements for Severe nonattainment areas, with one contending that the “EPA should not mandate air quality measures that Colorado residents have so recently rejected.” Two commenters stated that the EPA should use incentives, not mandates, to improve air quality. Commenters pointed to federal actions that will reduce ozone as justification for not reclassifying the Denver area.

Response: The EPA agrees that the state has taken significant regulatory steps to reduce ozone precursor emissions but disagrees that these steps are a basis to refrain from reclassifying the area. Regardless of ozone trends or of the state's actions to date, the EPA has a mandatory duty under CAA section 181(b)(2)(A) to determine whether the Denver area attained by its July 20, 2021, attainment date based on the area's design value as of that date. As previously stated, the CAA does not allow the EPA to consider economic impacts in assessing whether an area has attained the NAAQS by the applicable date. Instead, CAA section 181(b)(2) requires the EPA to make the determination of attainment based solely on the area's DV, which is derived entirely from monitored air quality data.

Regarding VMT growth offsets, CAA section 182(d)(1)(A) requires that Severe and Extreme ozone nonattainment areas identify and adopt specific and enforceable transportation control measures to offset any growth in emissions associated with an increase in VMT. The first steps for addressing the CAA's VMT offset provision are for the state to determine if there has been any growth in emissions due to increased VMT and, if there has been an increase in emissions, to quantify the magnitude of that increase. If there is any increase in emissions, the state would select the control measures to offset the identified growth in emissions. The EPA has issued guidance on these calculations and provided a tool to be used with the MOVES3 emission factor model. 22   23 In this final notice, the EPA is not prescribing that any specific measures be adopted by areas being reclassified as Severe, nor would it be appropriate to do so. The nonattainment area requirements in the CAA include a range of measures to reduce emissions that are to be implemented throughout the entire nonattainment area. The VMT offset guidance referenced above provides for including emission reductions from “clean car technology” in demonstrations for meeting CAA section 182(d)(1)(A) requirements. State air agencies continue to have flexibility in how they can tailor and implement emission reduction measures within each nonattainment area in order to attain the standard as expeditiously as practicable.

Pursuant to CAA section 182(i) and after considering comments received, the EPA is finalizing, with one exception for the CAA section 185 fee program, its proposed deadlines for Severe area SIP revisions, and implementation of RACT and any needed transportation control strategies or TCMs indicated in the VMT offset demonstration. Specifically, SIP revisions required for all newly reclassified Severe areas must be submitted no later than 18 months after the effective date of reclassification. Any controls that air agencies determine are needed for meeting CAA requirements must be implemented as expeditiously as practicable but no later than 18 months from the SIP submission deadline, which would provide an overall 36-month schedule for SIP submission and controls implementation for reclassified Severe areas. For the CAA section 185 fee program SIP, the EPA is finalizing a submittal deadline of 36 months after the effective date of reclassification.

The EPA received several significant adverse comments on our proposed deadlines, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: The EPA received several comments requesting that we modify the SIP submission and/or controls implementation deadlines for reclassified Severe areas. One commenter considered the overall 36-month schedule as adequate for regulatory development and SIP preparation and submission, but insufficient for new major sources to plan, budget and install new emissions controls, and requested 48-60 months to allow the owners of affected sources to comply. Another commenter stated that any control measures that can be implemented prior to the 2026 ozone season will contribute to compliance of the standard by the July 20, 2027, attainment date, and requested that the EPA extend the controls implementation deadline to the beginning of their area's attainment year ozone season (March 1, 2026) in order to maximize the time to get additional reductions implemented before the final ozone season used for compliance with the ozone NAAQS.

Response: The EPA disagrees with the commenters' requested extensions to the proposed deadlines for SIP submissions and controls implementation, which we contend would unduly delay emissions reductions and improvements to air quality in reclassified Severe areas. The request of 48-60 months to allow for source compliance did not specify whether this time allowance was inclusive of, or in addition to, their suggested 36 months for SIP preparation and submission. Assuming an effective date for this final action in November 2022, and the commenter's request for 48-60 months for SIP submission and implementation, the requested schedule would extend the controls implementation deadline to almost the end of the Severe area attainment year in the case of 48 months ( i.e., November 2026); and past the July 20, 2027, Severe area attainment date in the case of 60 months ( i.e., November 2027). The EPA's overall 36-month schedule would result in a controls implementation deadline of approximately November 2025, shortly before the beginning of Severe area attainment year and just a few months before the other commenter's requested implementation deadline of March 1, 2026.

The EPA maintains that the adopted SIP submission and implementation schedule balances the goals of robust SIP revisions, expeditious and meaningful emissions reductions, and consistency across submissions (per CAA section 182(i)) for areas reclassified as Severe. SIP revisions to address RACM/RACT requirements and other required Severe area plan elements will be due 18 months after the effective date of reclassification, which provides more planning time than the submission deadlines in previous 2008 ozone reclassification actions (approximately 12 months after the effective date of reclassification) and could contribute to states determining that additional controls are reasonable (compared to a shorter planning timeframe). We do not find it appropriate to provide a SIP submission deadline of 36 months from the effective date of this final action and an overall schedule of 48-60 months for controls implementation because this would unduly delay implementation late into the Severe area DV period (2024-2026) or beyond the Severe area attainment date of July 20, 2027. Further, the EPA considers it reasonable to require that any controls determined as needed for meeting CAA requirements must be implemented as expeditiously as practicable but no later than 18 months from the proposed SIP submission deadline. This implementation deadline in November 2025 will correspond approximately with the beginning of the Severe are attainment year (January 1, 2026) and will treat areas with varying ozone season start dates consistently per CAA section 182(i).

Comment: The EPA received a comment from an air agency asserting that the proposed 18-month deadline for submittal of CAA section 185 penalty fee programs, at the same time as the attainment demonstration, RFP, and RACT SIP revisions, is unnecessary and imposes undue burden on states. They further argue that it is unnecessary, noting that for initial Severe areas, the Act specifically sets a later deadline for the CAA section 185 fee program than for the other elements. The commenter suggests the EPA provide at least an additional 18 months, because implementation of a CAA section 185 fee program is a penalty for failing to attain the NAAQS by the attainment date. The program therefore could not become effective until the calendar year following the July 20, 2027, attainment date, at the earliest. Therefore, extending the submittal deadline would not create significant implementation issues and would not significantly limit the EPA's review time to act on the submittal prior to the attainment date.

Response: As noted previously, the EPA is finalizing a later submittal date for the CAA section 185 fee program than what was proposed, setting the due date 3 years from the effective date of reclassification (18 months longer than the proposed deadline). The EPA agrees with the commenter that under this new deadline it will still be possible to establish approved CAA section 185 fee programs for reclassified areas ahead of when they are needed, which in this case is the Severe attainment date of July 20, 2027. The new due date would be in approximately mid-2025, nearly 2 years ahead of the attainment date. Although this is not as much lead time as the CAA provides for initial Severe areas, the CAA allows the EPA to adjust deadlines as appropriate for reclassified areas per CAA section 182(i), and we agree that this deadline will not create implementation issues or unreasonably limit EPA's review time ahead of the attainment date. Although we do not believe the development of the CAA 185 program will pose an undue burden on states, we do believe, in light of related comments about the challenges with completing other Severe area requirements within the 18 months provided, that allowing more time for the CAA section 185 program could allow more focused attention to those other elements in the first 18 months following reclassification. To the degree that states want to take advantage of the administrative efficiency of adopting the CAA section 185 program element along with other required Severe area SIP elements, which was a benefit the EPA noted at proposal, they would still have the option to submit their CAA section 185 programs with the other elements.

As discussed in the April 2022 proposal, the CAA prohibits the sale of conventional gasoline in any ozone nonattainment area that is reclassified as Severe and requires that federal reformulated gasoline (RFG) must be sold instead. 24 The prohibition on the sale of conventional gasoline takes effect one year after the effective date of the reclassification ( see CAA section 211(k)(10)(D); 211(k)(5)), November 7, 2023. The primary difference between conventional gasoline and federal RFG is that federal RFG must comply with a maximum Reid Vapor Pressure (RVP) per-gallon standard of 7.4 pounds per square inch during the summer season. 25   26 Higher maximum RVP per-gallon standards apply to conventional gasoline during the summer season. 27 Also, as discussed in the proposal, the reclassification of certain areas to Severe will not result in any changes to where federal RFG is sold because the sale of federal RFG is already required in the following nonattainment areas: New York Metropolitan area, the Houston area, and the Morongo Band of Mission Indians area. A SIP revision is not required in order for the prohibition on the sale of conventional gasoline to take effect.

The EPA proposed to reclassify the Chicago area as Severe for the 2008 ozone NAAQS in the April 2022 proposal. However, the area attained the 2008 ozone NAAQS based on 2019-2021 air quality data, and as discussed in Section I of this action, the EPA has redesignated the Chicago area to attainment since its April proposal. Therefore, federal RFG is not required for this area for the 2008 ozone NAAQS, although federal RFG continues to be required in the area for other reasons.

The reclassification of the Dallas-Fort Worth area as Severe results in the current federal RFG area being expanded to include all 10 counties in the 2008 ozone NAAQS nonattainment area effective one year after the effective date of this final rule. 28 See Section I of this action for more information on this area.

The reclassification of the Denver area as Severe for the 2008 ozone NAAQS results in the prohibition of the sale of conventional gasoline throughout the entire nonattainment area under CAA section 211(k)(10)(D) and section 211(k)(5) effective 1 year after the effective date of this final rule, November 7, 2023. This is a new requirement for the area as federal RFG is not currently required to be sold in any part of the Denver 2008 ozone NAAQS nonattainment area.

The EPA received comments on the CAA requirement to sell federal RFG in the Denver area, which are addressed as follows. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.

Comment: One commenter raised concerns about making the transition from conventional gasoline to federal RFG if the transition was required to occur during the summer of 2023. The commenter noted that such a transition presented two challenges: first, because it would occur during the summer, which is peak season for gasoline demand and a time during which the current pipeline system supplying the market operates at a very high utilization rate, and second, because requiring RFG to be implemented during the summer of 2023 would not provide fuel suppliers with sufficient time to complete necessary projects to implement the transition to RFG. The commenter pointed to several actions that fuel suppliers need to complete in order to supply RFG to the Denver area including analyzing their ability to produce fuel choices, their unique market structure, and the existing fuel distribution network and obtaining permits for construction projects and rail loading. The commenter opined that the 1-year clock for the implementation of RFG should start after the end of the 2022 summer fuel season ends on September 15, 2022.

Response: The EPA understands the concerns that the commenter raised concerning the challenges that would be presented if the transition to RFG were to occur during the summer season that runs from June 1 to September 15 for wholesale purchaser-consumers and from May 1 to September 15 for all other persons. 29 The EPA also understands the type of analyses and work that will need to be completed in order to supply RFG to the Denver area. With respect to areas that are reclassified as Severe for the ozone NAAQS, CAA section 211(k)(10)(D) states that, “Effective one year after the reclassification of any ozone nonattainment area as a Severe ozone nonattainment area under section 7511(b) of this title, such Severe area shall also be a “covered area” for purposes of this subsection.”  30 The reclassification of the Denver area to Severe for the 2008 ozone NAAQS will not be effective until after the 2022 summer season for fuel sales ends on September 15, 2022. While the CAA requires that Denver be an RFG covered area one year after the effective date of the reclassification, the RFG maximum Reid Vapor Pressure (RVP) per-gallon standard of 7.4 pounds per square inch (psi) will not apply for the first time until June 1, 2024, for wholesale purchaser-consumers and May 1, 2024, for all other persons. 31 This will provide fuel suppliers with approximately 18 months after the effective date of the reclassification to complete preparations for the sale of RFG in the Denver area. It will also be approximately two years after EPA proposed to reclassify the Denver area as Severe for the 2008 ozone NAAQS. 32

As discussed in Section II.B of this action, the EPA is finalizing its proposal to deny a request for a 1-year attainment date extension for the Houston area and to determine that the area failed to attain the 2008 ozone NAAQS by the attainment date. Denying the extension request is based on our assessment of air quality trends in the Houston area. Given our findings that the area is not likely to attain by an extended attainment date or qualify for a second extension, we also considered the impact of our action on existing air pollution burdens in the area. Screening-level EJ analyses indicate an already disproportionate air pollution burden for communities near the Houston Ship Channel and communities around violating ozone regulatory monitor sites in the Houston area. The area's reclassification to Severe will result in more timely application in this area of the Act's more stringent controls associated with that higher classification. Expeditious attainment of the NAAQS will protect all those residing, working, attending school, or otherwise present in those areas, including communities of color and low-income communities.

This action is exempt from review by the Office of Management and Budget (OMB) because it responds to the CAA requirement to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain.

This rule does not impose any new information collection burden under the PRA not already approved by the OMB. This action does not contain any information collection activities and serves only to make final: (1) a determination that a certain Serious nonattainment area listed in Table 2 in this action attained the 2008 ozone standards by the July 20, 2021, attainment date; (2) determinations that certain Serious nonattainment areas listed in Table 2 in this action failed to attain the 2008 ozone standards by the July 20, 2021, attainment date where such areas will be reclassified as Severe nonattainment for the 2008 ozone standards by operation of law upon the effective date of the final reclassification action; and (3) adjust any applicable implementation deadlines.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The determinations of attainment and failure to attain the 2008 ozone standards (and resulting reclassifications) do not in and of themselves create any new requirements beyond what is mandated by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities.

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.

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.

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law.

The EPA has identified tribal areas within the nonattainment areas covered by this rulemaking that would be potentially affected by this final action. Specifically, two of the nonattainment areas addressed in this action have tribes located within their boundaries: the Greater Connecticut, CT, area (Mashantucket Pequot Tribal Nation and Mohegan Indian Tribe), and the New York-Northern New Jersey-Long Island, CT-NJ-NY area (Shinnecock Indian Nation). One of the nonattainment areas addressed in this document is a separate tribal nonattainment area (Morongo Band of Mission Indians area).

The EPA has concluded that the final rule may have tribal implications for these tribes for the purposes of Executive Order 13175 but would not impose substantial direct costs upon the tribes, nor would it preempt tribal law. As noted in our proposed rule, a tribe that is part of an area that is reclassified from Serious to Severe nonattainment is not required to submit a tribal implementation plan revision to address new Severe area requirements. 33 However, the NNSR major source threshold and offset requirements will change for stationary sources seeking preconstruction permits in any nonattainment areas newly reclassified as Severe (Section II.D.1 of this notice), including on tribal lands within these nonattainment areas. Areas that are already classified Severe for a previous ozone NAAQS are already subject to these higher offset ratios and lower thresholds, so a reclassification to Severe for the 2008 ozone NAAQS would have no effect on NNSR permitting requirements for tribal lands in those areas.

The EPA has communicated or intends to communicate with the potentially affected tribes located within the boundaries of the nonattainment areas addressed in this final action, including offering government-to-government consultation, as appropriate.

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.

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

This rulemaking does not involve technical standards.

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 III of this preamble, “Environmental Justice (EJ) Impacts,” and the relevant documents have been placed in the public docket for this action.

With respect to the determinations of whether areas have attained the NAAQS by the attainment date, the EPA has no discretionary authority to address EJ in these determinations. The CAA directs that within 6 months following the applicable attainment date, the Administrator shall determine, based on the area's design value as of the attainment date, whether the area attained the standard by that date. CAA section 181(b)(2)(A). Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law to either the next higher classification or the classification applicable to the area's design value. Id.

This rule is exempt from the CRA because it is a rule of particular applicability. The rule makes factual determinations for specific entities and does not directly regulate any entities. The determinations of attainment and failure to attain the 2008 ozone NAAQS (and resulting reclassifications) and the denial of a 1-year attainment date extension request do not in and of themselves create any new requirements beyond what is mandated by the CAA.

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 actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “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 to the EPA complete discretion whether to invoke the exception in (ii).

This final action is “nationally applicable” within the meaning of CAA section 307(b)(1). In this final action, the EPA is applying a uniform process and standard to areas across the country to make determinations regarding attainment of the 2008 ozone NAAQS for the majority of areas that remain designated and classified as Serious nonattainment for these NAAQS. All listed areas that have failed to attain by the Serious area attainment date  34 are reclassified to Severe upon the effective date of this final action and are subject to the same deadlines established pursuant to CAA section 182(i) for revising state implementation plans and implementing control requirements associated with the Severe area classification. While many areas that were initially designated nonattainment for the 2008 ozone NAAQS in 2012 have, in the intervening decade, come into attainment of the NAAQS, the remaining nonattainment areas subject to this final rulemaking are located in six states across a wide geographic area and fall within four of the ten EPA regions and six judicial circuits. The areas affected by this notice comprise major metropolitan areas in the American South, West, and Northeast, as well as a tribal area in the West. Given that on its face this action addresses areas in states located across a wide geographic area, and uses common, nationwide analytical methods the EPA consistently applies when making determinations regarding attainment, acting on attainment date extension requests, and adjusting deadlines for all newly reclassified areas, this is a “nationally applicable” action within the meaning of CAA section 307(b)(1).

In the alternative, to the extent a court finds this final 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). 35 In deciding to invoke this exception, the Administrator has taken into account a number of policy considerations, including his judgment regarding the benefit of obtaining the D.C. Circuit's authoritative centralized review, rather than allowing development of the issue in other contexts, in order to ensure consistency in the Agency's approach to implementation of the 2008 ozone NAAQS in the majority of the nonattainment areas nationwide that remain classified Serious for the 2008 ozone NAAQS. This final action treats all of the identified Serious nonattainment areas consistently by reclassifying them to Severe and establishing consistent deadlines for all of these areas to submit and implement control measures and other plan elements required for Severe areas. The Administrator finds that this is a matter on which national uniformity is desirable to take advantage of the D.C. Circuit's administrative law expertise and facilitate the orderly development of the basic law under the Act. The Administrator also finds that consolidated review of this action in the D.C. Circuit will avoid piecemeal litigation in the regional circuits, further judicial economy, and eliminate the risk of inconsistent results for different states. The Administrator also finds that a nationally consistent approach to the CAA's mandate concerning reclassification of areas that fail to attain the 2008 ozone NAAQS constitutes the best use of agency resources. The Administrator is publishing his finding that this action is based on a determination of nationwide scope or effect in the Federal Register as part of this final rule.

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 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 publishing that finding in the Federal Register . Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by December 6, 2022.

For the reasons stated in the preamble, parts 52 and 81, title 40, chapter 1 of the Code of Federal Regulations are amended as follows:

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

The baseline General and Reserve category quotas are 587.9 mt and 31.2 mt, respectively. The General category baseline subquota is further suballocated to different time periods. Relevant to this action, the subquota for the October through November time period is 76.4 mt. To date for 2022, NMFS has published several actions that have resulted in adjustments to the General and Reserve category quotas, including the allowable carryover of underharvest from 2021 to 2022 (87 FR 5737, February 2, 2022; 87 FR 33049, June 1, 2022; 87 FR 43447, July 21, 2022; 87 FR 54910, September 8, 2022). The current adjusted Reserve category quota is 186.2 mt.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering the determination criteria provided under § 635.27(a)(8). NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. These considerations include, but are not limited to, the following.

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

Regarding the likelihood of closure of the General category fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)), NMFS considered the catches and catch rates of the General category quota to date (including during the summer/fall and winter fisheries in the last several years). NMFS also took into consideration the final rule that set restricted-fishing days for the General Category through November 30, 2022 (87 FR 33056, June 1, 2022). While the General category October through November time period subquota has not yet been exceeded, without a quota transfer at this time, based on catch rates in the last three years in comparison to the available quota, NMFS anticipates it would likely need to close the General category fishery in October. Once the fishery is closed, participants would have to stop BFT fishing activities even though commercial-sized BFT remain available in the areas where General category permitted vessels operate at this time of year. Transferring 125 mt of BFT quota from the Reserve category would account for the 23.5 mt (640.4 mt − 616.9 mt = 23.5 mt) of accrued overharvest from the prior time periods and result in an additional 101.5 mt (125 mt − 23.5 mt = 101.5 mt) being available for the October through November 2022 subquota time period, thus effectively providing limited additional opportunities to harvest the U.S. BFT quota while avoiding exceeding it.

Regarding the projected ability of the vessels fishing under the General category quota to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. A portion of the transferred quota covers the 23.5 mt overharvest in the category to date, and NMFS anticipates that General category participants will be able to harvest the additional 101.5 mt of transferred BFT quota by the end of the subquota time period. NMFS may adjust each time period's subquota based on overharvest or underharvest in the prior period and may transfer subquota from one time period to another time period. By allowing for such quota adjustments and transfers, NMFS anticipates that the General category quota would be used before the end of the fishing year. Thus, this quota transfer would allow fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest the available U.S. BFT quota.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2022 landings and dead discards. In the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS recently took such an action to carry over the allowable 127.3 mt of underharvest from 2021 to 2022 (87 FR 33049). NMFS will need to account for 2022 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations (established in Recommendation 21-07), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available General category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest available BFT quota allocations (related to § 635.27(a)(8)(x)). Specific to the General category, this includes providing opportunities equitably across all time periods.

Given these considerations, NMFS is transferring 125 mt of the available 186.2 mt of Reserve category quota to the General category. Of this amount, 23.5 mt accounts for preliminary overharvest of the June through August and September time period subquotas, and 101.5 mt is added to the October through November subquota to provide further opportunities for General category fishermen to participate in the October through November General category fishery. Therefore, NMFS adjusts the General category October through November 2022 subquota to 177.9 mt (76.4 mt + 101.5 mt = 177.9 mt) after accounting for the 23.5 mt of overharvest for the prior 2022 time periods and adjusts the Reserve category quota to 61.2 mt (186.2 mt−125 mt = 61.2 mt). The General category fishery will remain open until November 30, 2022, or until the adjusted General category quota is reached, whichever comes first.

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General category and HMS Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, by using the HMS Catch Reporting app, or calling 888-872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available quota is not exceeded, or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at 978-281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing prior notice and opportunity for public comment on the quota transfer for the October through November 2022 time period is impracticable. The General category fishery is underway, there was an exceedance of the September subquota, and while the October through November subquota has not yet been exceeded, NMFS anticipates that it will likely need to close the General category soon. Delaying the action is contrary to the public interest, not only because it would likely result in a General category closure and associated costs to the fishery, but also administrative costs due to further agency action needed to re-open the fishery after quota is transferred. The delay would preclude the fishery from harvesting BFT that are available on the fishing grounds and that might otherwise become unavailable during a delay. This action does not raise conservation and management concerns. Transferring quota from the Reserve category to the General category does not affect the overall U.S. BFT quota, and available data show the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

For all of the above reasons, the AA also finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effectiveness.