Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes initial air quality designations for most areas in the United States, including areas of Indian country, for the 2008 primary and secondary national ambient air quality standards (NAAQS) for ozone. The designations for several counties in Illinois, Indiana, and Wisconsin that the EPA is considering for inclusion in the Chicago nonattainment area will be designated in a subsequent action, no later than May 31, 2012. Areas designated as nonattainment are also being classified by operation of law according to the severity of their air quality problems. The classification categories are Marginal, Moderate, Serious, Severe, and Extreme. The EPA is establishing the air quality thresholds that define the classifications in a separate rule that the EPA is signing and publishing in the Federal Register on the same schedule as these designations. In accordance with that separate rule, six nonattainment areas in California are being reclassified to a higher classification.

DATES:

The effective date of this rule is July 20, 2012.

ADDRESSES:

The EPA has established a docket for this action under Docket ID NO. EPA-HQ-OAR-2008-0476. All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in the docket or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742.

In addition, the EPA has established a Web site for this rulemaking at: http://www.epa.gov/ozonedesignations. The Web site includes the EPA's final state and tribal designations, as well as state initial recommendation letters, the EPA modification letters, technical support documents, responses to comments and other related technical information.

FOR FURTHER INFORMATION CONTACT:

Carla Oldham, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-3347 or by email at: oldham.carla@epa.gov.

Regional Office Contacts

Region I—Richard Burkhart (617) 918-1664

Region II—Bob Kelly (212) 637-3709

Region III—Maria Pino (215) 814-2181

Region IV—Jane Spann (404) 562-9029

Region V—Edward Doty (312) 886-6057

Region VI—Guy Donaldson (214) 665-7242

Region VII—Lachala Kemp (913) 551-7214

Region VIII—Scott Jackson (303) 312-6107

Region IX—John J. Kelly (415) 947-4151

Region X—Claudia Vaupel (206) 553-6121

SUPPLEMENTARY INFORMATION:

The public may inspect the rule and state-specific technical support information at the following locations:

Table of Contents

The following is an outline of the preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this action?

III. What is ozone and how is it formed?

IV. What are the 2008 ozone NAAQS and the health and welfare concerns they address?

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

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

VII. What air quality data has the EPA used to designate areas for the 2008 ozone NAAQS?

VIII. What are the ozone air quality classifications?

IX. What is the reclassification of six California nonattainment areas?

X. Can states request that areas within 5 percent of the upper or lower limit of a classification threshold be reclassified?

XI. How do designations affect Indian country?

XII. Where can I find information forming the basis for this rule and exchanges between EPA, states, and tribes related to this rule?

XIII. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

K. Congressional Review Act

L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

CAA Clean Air Act

CFR Code of Federal Regulations

DC District of Columbia

EPA Environmental Protection Agency

FR Federal Register

NAAQS National Ambient Air Quality Standards

NO_X Nitrogen Oxides

NTTAA National Technology Transfer and Advancement Act

PPM Parts per million

RFA Regulatory Flexibility Act

UMRA Unfunded Mandate Reform Act of 1995

TAR Tribal Authority Rule

U.S. United States

U.S.C. United States Code

VCS Voluntary Consensus Standards

VOC Volatile Organic Compounds

II. What is the purpose of this action?

The purpose of this action is to announce and promulgate initial area designations for most areas of the country with respect to the 2008 primary and secondary NAAQS for ozone, in accordance with the requirements of Clean Air Act (CAA) section 107(d). The EPA is designating areas as either nonattainment, unclassifiable, or unclassifiable/attainment. In addition, the nonattainment areas are classified by operation of law according to the severity of their ozone air quality problems and six areas in California are being reclassified immediately to a higher classification. The classification categories are Marginal, Moderate, Serious, Severe, and Extreme. The EPA is establishing the air quality thresholds that define the classifications in a separate rule titled, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: Nonattainment Area Classifications Approach, Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes” (Classifications Rule). In that separate rule, the EPA also codified the immediate reclassification of six areas in California. (See 40 CFR 51.1103(d).) The list of all areas being designated in each state and in areas of Indian county appear in the tables at the end of this final rule (amendments to 40 CFR 81.301-356). For areas designated as nonattainment, the tables include the area's classification by operation of law or the area's reclassification in accordance with 40 CFR 51.1103(d).

In this action, the EPA is designating 45 areas as nonattainment. Seven of the areas are multi-state areas. The EPA is designating one area, Uinta Basin, WY, as unclassifiable because there is existing non-regulatory monitoring in the area that detected levels of ozone that exceed the NAAQS. Regulatory monitoring has been conducted in that area since April 2011, and thus there are not yet three consecutive years of certified ozone monitoring data available that can be used to determine the area's attainment status. Consistent with previous initial area designations for ozone, the EPA is designating all the remaining state areas and Indian country as unclassifiable/attainment.

Consistent with the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country” (December 20, 2011), the EPA is designating four areas of Indian country separately from their adjacent/surrounding state areas. The lands of the Pechanga Tribe and the Morongo Tribe in Southern California are being designated as separate nonattainment areas, while two additional areas in Indian country are being designated as separate unclassifiable/attainment areas.

The EPA is basing the designations on the most recent certified ozone air quality monitoring data and an evaluation of factors to assess contributions to nonattainment in nearby areas. State areas designated as nonattainment are subject to planning and emission reduction requirements as specified in the CAA. Requirements vary according to an area's classification. The EPA will be proposing shortly an implementation rule to assist states in the development of state implementation plans for attaining the ozone standards.

III. What is ozone and how is it formed?

Ground-level ozone, O₃, is a gas that is formed by the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NO_X) in the atmosphere in the presence of sunlight. These precursor emissions are emitted by many types of pollution sources, including power plants and industrial emissions sources, on-road and off-road motor vehicles and engines, and smaller sources, collectively referred to as area sources. Ozone is predominately a summertime air pollutant. However, high ozone concentrations have also been observed in cold months, where a few high elevation areas in the Western U.S. have experienced high levels of local VOC and NO_X emissions that have formed ozone when snow is on the ground and temperatures are near or below freezing. Ozone and ozone precursors can be transported to an area from sources in nearby areas or from sources located hundreds of miles away. For purposes of determining ozone nonattainment area boundaries, the CAA requires the EPA to include areas that contribute to nearby violations of the NAAQS.

IV. What are the 2008 ozone NAAQS and the health and welfare concerns they address?

On March 12, 2008, the EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years) to provide increased protection of public health and the environment. The 2008 ozone NAAQS retains the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but is set at a more protective level.

Ozone exposure also has been associated with increased susceptibility to respiratory infections, medication use by asthmatics, doctor visits, and emergency department visits and hospital admissions for individuals with respiratory disease. Ozone exposure may also contribute to premature death, especially in people with heart and lung disease. The secondary ozone standard was revised to protect against adverse welfare effects including impacts to sensitive vegetation and forested ecosystems.

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

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. However, if the Administrator has insufficient information to make these designations within that time frame, the EPA has the authority to extend the deadline for designation decisions by up to 1 additional year.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. These notifications are commonly known as the “120-day letters.” If the state does not agree with the EPA's intended modification, it then has an opportunity to respond to the EPA to demonstrate why it believes the modification proposed by the EPA is inappropriate. Even if a state fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate.

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as, “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that the EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.” Historically for ozone, the EPA designates the remaining areas as “unclassifiable/attainment” indicating that the areas either have attaining air quality monitoring data or that air quality information is not available because the areas are not monitored, and the EPA has not determined that the areas contribute to a violation in a nearby area.

The EPA believes that section 107(d) provides the agency with discretion to determine how best to interpret the terms “contributes to” and “nearby” in the definition of a nonattainment area for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA believes that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations. Similarly, the EPA believes that the statute permits the EPA to evaluate the appropriate application of the term “area” as may be appropriate for a particular NAAQS.

Section 301(d) of the CAA authorizes the EPA to approve eligible Indian tribes to implement provisions of the CAA on Indian reservations and other areas within the tribes' jurisdiction. The Tribal Authority Rule (TAR) (40 CFR Part 49), which implements section 301(d) of the CAA, sets forth the criteria and process for tribes to apply to the EPA for eligibility to administer CAA programs. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by the EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to the EPA.

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

Within one year after a new or revised air quality standard is established, the CAA requires the governor of each state to submit to the EPA a list of all areas in the state, with recommendations for whether each area meets the standard. On December 4, 2008, the EPA issued guidance for states and tribal agencies to use for this purpose. (See memorandum from Robert J. Meyers, Principal Deputy Assistant Administrator, to Regional Administrators, Regions I-X, titled, “Area Designations for the 2008 Revised Ozone National Ambient Air Quality Standards.) The guidance provided the anticipated timeline for designations and identified important factors that the EPA recommended states and tribes consider in making their recommendations. These factors include air quality data, emissions data, traffic and commuting patterns, growth rates and patterns, meteorology, geography/topography, and jurisdictional boundaries. In the guidance, the EPA asked that states and tribes submit their designation recommendations, including appropriate area boundaries, to the EPA by March 12, 2009. Later in the process, the EPA issued 2 new guidance memoranda related to designating areas of Indian county. (See December 20, 2011, memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Directors, Regions I-X, titled, “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country,” and December 20, 2011, memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Directors, Regions I-X, titled, “Guidance to Regions for Working with Tribes during the National Ambient Air Quality Standards (NAAQS) Designations Process.”)

Under the initial schedule, the EPA intended to complete the initial designations for the 2008 ozone NAAQS on a 2-year schedule, by March 12, 2010. On September 16, 2009, the EPA announced that it would initiate a rulemaking to reconsider the 2008 ozone NAAQS for various reasons, including the fact that the 0.075 ppm level fell outside of the range recommended by the Clean Air Scientific Advisory Committee, the independent group that provides advice to the EPA Administrator on the technical bases for the EPA's NAAQS. The EPA signed the proposed reconsideration on January 6, 2010. (See 75 FR 2938; January 19, 2010.) Because of the significant uncertainty the ozone NAAQS reconsideration created regarding the continued applicability of the 2008 NAAQS, the EPA determined there was insufficient information to designate areas within 2 years of promulgation of the NAAQS. Therefore, the EPA used its authority under CAA section 107(d)(1)(B) to extend the deadline for designating areas by 1 year, until March 12, 2011. (See 75 FR 2936; January 19, 2010.) The EPA has not taken final action on the proposed reconsideration; thus, the current NAAQS for ozone remains at 0.075 ppm, as established in 2008.

After the March 12, 2011, designation deadline passed, WildEarth Guardians and Elizabeth Crowe (WildEarth Guardians) filed a lawsuit seeking to compel the EPA to take action to designate areas for the 2008 ozone NAAQS. WildEarth Guardians and Elizabeth Crowe v. Jackson (D. Ariz. 11-CV-01661). The EPA and WildEarth Guardians settled the case by entering into a consent decree that requires the EPA Administrator to sign a final rule designating areas for the 2008 ozone NAAQS by May 31, 2012.

On September 22, 2011, the EPA issued a memorandum to clarify for state and local agencies the status of the 2008 ozone NAAQS and to outline plans for moving forward to implement them. The EPA indicated that it would proceed with initial area designations for the 2008 NAAQS, and planned to use the recommendations states made in 2009 as updated by the most current, certified air quality data from 2008-2010. While the EPA did not request that states submit updated designation recommendations, the EPA provided the opportunity for states to do so. Several states chose to update their recommendations, and some requested that the EPA base designations for their areas on certified air quality data from 2009-2011, and committed to certify the 2011 data earlier than the May 1 deadline for annual air monitoring certification under 40 CFR part 58.15(a)(2) so that the EPA would have sufficient time to consider the data in making decisions on designations and nonattainment area boundaries.

On or about December 9, 2011, the EPA sent letters to Governors and Tribal leaders notifying them of the EPA's preliminary response to their designation recommendations and to inform them of the EPA's approach for completing the designations for the 2008 ozone NAAQS. The EPA requested that states submit any additional information that they wanted the EPA to consider by February 29, 2011, including any certified 2011 air quality monitoring data. On January 31, 2011, the EPA sent revised 120-day letter responses to Illinois, Indiana, and Wisconsin based on updated ozone air quality data for 2009-2011, submitted by the state of Illinois two days before the EPA sent the December 9, 2011, letters. Given the timing of Illinois' submission of certified data, EPA was not able to consider the information in the December 9, 2011, letters. After reviewing the new information, which indicated a violation of the ozone NAAQS at a monitor in the Chicago area, the EPA sent letters on January 31, 2012 notifying Illinois, Indiana, and Wisconsin that it intended to designate certain counties, identified in those letters, as nonattainment for the 2008 ozone NAAQS. The EPA cannot finalize a designation for those areas until 120 days following the letters. Therefore, the EPA will be designating the Illinois, Indiana, and Wisconsin counties identified in the January 31, 2011, letters in a separate rule that will be signed no later than May 31, 2012.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's 120-day response letters to states and tribes. The EPA announced a 30-day public comment period in the Federal Register on December 20, 2011 (76 FR 78872). The comment period was subsequently extended until February 3, 2012 (77 FR 2677; January 19, 2012). On February 14, 2012 (77 FR 8211), the EPA reopened the public comment period for the limited purpose of inviting comment on the EPA's revised responses to Illinois, Indiana, and Wisconsin. State and tribal recommendations and the EPA's preliminary responses were posted on EPA's Web site at http://www.epa.gov/ozonedesignations and are available in the docket for the designations action. Comments from the states, tribes and the public, and EPA's responses to significant comments, are also in the docket.

VII. What air quality data has the EPA used to designate areas for the 2008 ozone NAAQS?

The final ozone designations are based primarily on certified air quality monitoring data from calendar years 2008-2010, which was the most recent certified data available to the EPA at the time the EPA notified the states of its intended modifications to their recommendations. Under 40 CFR 58.16, states are required to report all monitored ozone air quality data and associated quality assurance data within 90 days after the end of each quarterly reporting period, and under 40 CFR part 58.15(a)(2) states are required to submit annual summary reports and a data certification letter to the EPA by May 1 for ozone air quality data collected in the previous calendar year. States generally had not completed these requirements for calendar year 2011 ozone air quality data when the EPA notified states of our intended designations on December 9, 2011. In certain cases, states included as part of their designation recommendations a request that the EPA consider monitoring data from 2009-2011 in making final designation decisions. In these requests, they indicated to the EPA what they expected their certified ozone air quality data would show regarding whether an area was attaining the standard, and for designations purposes they committed to certifying their 2011 data no later than February 29, 2012, so that the EPA would have sufficient time to consider it. Thus, for those areas, the EPA considered the state's preliminary representation of 2011 data in sending the 120-day notification letter. We have verified these representations in making our final designations decisions.

VIII. What are the ozone air quality classifications?

In accordance with CAA section 181(a)(1), each area designated as nonattainment for the 2008 ozone NAAQS is classified by operation of law at the same time as the area is designated by the EPA. Under Subpart 2 of part D of title I of the CAA, state planning and emissions control requirements for ozone are determined, in part, by a nonattainment area's classification. The ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years). The possible classifications are Marginal, Moderate, Serious, Severe, and Extreme. Nonattainment areas with a “lower” classification have ozone levels that are closer to the standard than areas with a “higher” classification. Areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. The final Classifications Rule, which is being signed at the same time as the designations rule and being published and effective at the same time or before the designations, establishes the classification thresholds for each classification category for purposes of the 2008 NAAQS and explains the EPA's methodology for calculating the thresholds. In addition, in the Classifications Rule, the EPA promulgated a regulation, 40 CFR 51.1103(d), that immediately reclassifies 6 areas in California to higher classifications. The classification for each nonattainment area designated for the 2008 ozone NAAQS is shown in the 40 CFR part 81 tables at the end of this designations rule.

IX. What is the reclassification of six California nonattainment areas?

The final Classifications Rule addresses the reclassification for the 2008 ozone NAAQS of selected areas in California that had voluntarily reclassified under the 1997 ozone NAAQS. In accordance with the final Classifications Rule, the following areas are being voluntarily reclassified to a higher classification for purposes of the 2008 NAAQS pursuant to that rule: Serious—Ventura County, CA; Severe—Los Angeles-San Bernardino Counties (West Mojave Desert), Riverside County (Coachella Valley), and Sacramento Metro, CA; Extreme—Los Angeles-South Coast Air Basin, and San Joaquin Valley, CA. These classifications are reflected in the tables at the end of this final rule (amendments to 40 CFR 81.301-356).

X. Can states request that areas within 5 percent of the upper or lower limit of a classification threshold be reclassified?

Under CAA section 181(a)(4), an ozone nonattainment area may be reclassified to a higher or lower classification (also known as a classification bump up or a bump down) “if an area classified under paragraph (1) (Table 1) would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based.” The section also states that “In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport, and the mix of sources and air pollutants in the area.”

As noted in the preamble to the rule designating and classifying areas following enactment of the CAA Amendments of 1990, the section 181(a)(4) provisions grant the Administrator broad discretion in making or determining not to make, a reclassification. (See 56 FR 56698; November 6, 1991.) As part of the 1991 action, the EPA developed criteria to evaluate whether it is appropriate to reclassify a particular area. (See list below and at 56 FR 56698.) Because section 181(b)(3) provides that the EPA must grant any state request to reclassify an area into a higher classification, the EPA focused these criteria primarily on how the EPA would assess requests for a lower classification. In 1991, EPA approved reclassifications when the area met the first requirement (a request by the state to EPA) and at least some of the other criteria, and did not violate any of the criteria (emissions reductions, trends, etc.). The EPA used the same method and criteria once again to evaluate reclassification requests under section 181(a)(4) for purposes of the 1997 ozone NAAQS. The EPA intends to continue to use this same approach for purposes of evaluating any request for a reclassification for the 2008 ozone NAAQS. For reclassifications downwards, states may only request a reclassification to the next lower classification, and air quality data from prior years cannot be used as justification to be reclassified to an even lower classification.

The criteria EPA intends to use to evaluate whether it is appropriate to reclassify a particular area include:

Request by state: The EPA does not intend to exercise its authority to reclassify areas on the EPA's own initiative. Rather, the EPA intends to rely on the state to submit a request for a reclassification. A tribe may also submit such a request and, in the case of a multi-state nonattainment area, all affected states must submit the same reclassification request.

Discontinuity: A five percent reclassification must not result in an illogical or excessive discontinuity relative to surrounding areas. In particular, in light of the area-wide nature of ozone formation, a reclassification should not create a “donut hole” where an area of one classification is surrounded by areas of higher classification.

Attainment: Evidence should be available that the proposed area would be able to attain by the earlier date specified by the lower classification in the case of a reclassification downward.

Emissions reductions: Evidence should be available that the area would be very likely to achieve the appropriate total percent emission reduction necessary in order to attain in the shorter time period for a reclassification downward.

Trends: Near- and long-term trends in emissions and air quality should support a reclassification. Historical air quality data should indicate substantial air quality improvement for a reclassification downward. Growth projections and emission trends should support a reclassification downward. In addition, we will consider whether vehicle miles traveled and other indicators of emissions are increasing at higher than normal rates.

Years of data: The same years of ozone air quality data used for the initial designation and classification should be used for reclassification requests.

A. Five Percent Reclassifications to a Lower Classification

For an area to be eligible to be reclassified to a lower classification under section 181(a)(4), the area's design value must be within five percent of the upper limit for the next lower classification. For example, an area with a Moderate design value of 0.090 ppm (or less) would be eligible to request a reclassification to Marginal because 0.090 ppm is five percent more than the upper limit of 0.086 ppm for the Marginal classification. Accordingly, areas with the following design values may be eligible to request a reclassification to the next lower classification: Moderate areas with a design value of 0.090 ppm or less; Serious areas with a design value of 0.105 ppm or less; and Severe areas with a design value of 0.118 ppm or less.

B. Five Percent Reclassifications to a Higher Classification

An ozone nonattainment area may also be reclassified under section 181(a)(4) to the next higher classification. As with five percent reclassifications to a lower classification, the EPA does not intend to exercise its authority to reclassify areas to a higher classification on the EPA's own initiative. Rather, the EPA intends to rely on the state to submit a request for such a reclassification. Areas with the following design values are eligible to request a reclassification to the next higher classification: Marginal areas with a design value of 0.082 ppm or more; Moderate areas with a design value of 0.095 ppm or more; and Serious areas with a design value of 0.108 ppm or more.

C. Timing of the Five Percent Reclassifications

A Governor or eligible Tribal governing body of any area that wishes to pursue a reclassification should submit all requests and supporting documentation to the EPA Regional Office by June 20, 2012. This relatively short time frame is necessary because section 181(a)(4) only authorizes the Administrator to make such reclassifications within 90 days after the initial classification.

XI. How do designations affect Indian country?

All state areas listed in the tables at the end of this document are designated as indicated, and include Indian country geographically located within such areas, except as otherwise noted. In general, state recommendations for initial area designations do not apply to Indian country. Consistent with the “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country” (December 20, 2011), in instances where the EPA did not receive an initial designation recommendation from a tribe, the EPA is designating their area of Indian country along with the adjacent/surrounding state area(s). Tribes whose areas of Indian country are designated as nonattainment for the 2008 ozone NAAQS are being affected by poor air quality. Where nonattainment areas include both Indian country and state land, it is important for states and tribes to work together to coordinate planning efforts. Coordinated planning will help ensure that the planning decisions made by the states and tribes complement each other and that the nonattainment area makes reasonable progress toward attainment and ultimately attains the 2008 ozone NAAQS.

XII. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

Information providing the basis for this action are provided in the docket for this rulemaking. The applicable EPA guidance memoranda and copies of correspondence regarding this process between the EPA and the states, tribes, and other parties are available for review at the EPA Docket Center listed above in the addresses section of this document, and on the EPA's ozone designation Web site at http://www.epa.gov/ozonedesignations. State-specific information is available from the EPA Regional Offices.

XIII. Statutory and Executive Order Reviews

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to areas as required.

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

This action responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This rule responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107. The present final rule does not establish any new information collection requirements.

C. Regulatory Flexibility Act

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements as provided under CAA section 107(d)(2)(B).

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and ozone NAAQS (40 CFR 50.15). The CAA establishes the process whereby states take primary responsibility in developing plans to meet the ozone NAAQS.

E. Executive Order 13132: Federalism

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the ozone NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the ozone NAAQS. Thus, Executive Order 13132 does not apply to this rule.

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

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) the EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or the EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

The EPA has concluded that this action may have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Tribes whose areas of Indian country are being designated as “nonattainment” for the 2008 ozone NAAQS are affected by poor air quality. Although tribes are not required to submit implementation plans under the Clean Air Act, for those tribes whose areas are being designated as part of surrounding state areas, it will be imperative that states and the tribes coordinate on air quality planning efforts to ensure that ozone levels are reduced. In addition, several tribes' areas of Indian country are being designated as “nonattainment” separately from their surrounding state areas. For these tribes, internal capacity for air quality planning will be important to enable their areas of Indian country to come into attainment.

The EPA consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. At the beginning of the designations process, letters were sent to all tribes who were expected to be impacted by designations for the 2008 ozone NAAQS. These letters not only informed the tribes of the overall designations process, but also offered the tribes consultation to ensure early communication and coordination. Additionally, letters were sent to potentially affected tribes indicating the EPA's intended designations for their areas of Indian country. These letters offered an additional opportunity for consultation. All consultations were completed in late February/early April 2012. During consultation, the primary concerns raised by tribes included the following: Impact of nonattainment designation on future economic development; appropriateness of using data from monitors not on tribal land; and ensuring final decisions are consistent with the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country.” (December 20, 2011). During the consultations, the EPA's Regional Offices ensured that the tribes fully understood the reasoning for the EPA's preliminary designations decisions and how those decisions are aligned with a consideration of the most recent certified air quality data and all other relevant information, including the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country.” To the extent possible, the EPA included the tribes' input into the final decision-making process for designations of their areas of Indian country for the 2008 ozone NAAQS.

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

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

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

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.

The CAA requires that the EPA designate as nonattainment “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” By designating as nonattainment all areas where available information indicates a violation of the ozone NAAQS or a contribution to a nearby violation, this action protects all those residing, working, attending school, or otherwise present in those areas regardless of minority or economic status.

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

K. Congressional Review Act

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 U.S. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. 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). This rule will be effective July 20, 2012.

L. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of 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, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This rule designating areas for the 2008 ozone NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2008 ozone NAAQS. At the core of this rulemaking is the EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR Part 81, is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

Subpart C-Section 107 Attainment Status Designations

2. Section 81.301 is amended as follows:

a. By revising the table heading for “Alabama—Ozone (8-Hour Standard)” to read “Alabama—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Alabama—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table ” Alabama—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

3. Section 81.302 is amended as follows:

a. By revising the table heading for “Alaska—Ozone (8-Hour Standard)” to read “Alaska—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Alaska—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Alaska—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

4. Section 81.303 is amended as follows:

a. By revising the table heading for “Arizona—Ozone (8-Hour Standard)” to read “Arizona—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Arizona—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Arizona—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

5. Section 81.304 is amended as follows:

a. By revising the table heading for “Arkansas—Ozone (8-Hour Standard)” to read “Arkansas—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Arkansas—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Arkansas—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

6. Section 81.305 is amended as follows:

a. By revising the table heading for “California—Ozone (8-Hour Standard)” to read “California—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “California—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “California—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

7. Section 81.306 is amended as follows:

a. By revising the table heading for “Colorado—Ozone (8-Hour Standard)” to read “Colorado—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Colorado—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Colorado—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

8. Section 81.307 is amended as follows:

a. By revising the table heading for “Connecticut—Ozone (8-Hour Standard)” to read “Connecticut—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Connecticut—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Connecticut—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

9. Section 81.308 is amended as follows:

a. By revising the table heading for “Delaware—Ozone (8-Hour Standard)” to read “Delaware—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Delaware—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Delaware—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

10. Section 81.309 is amended as follows:

a. By revising the table heading for “District of Columbia—Ozone (8-Hour Standard)” to read “District of Columbia—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “District of Columbia—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “District of Columbia—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

11. Section 81.310 is amended as follows:

a. By revising the table heading for “Florida—Ozone (8-Hour Standard)” to read “Florida—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Florida—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Florida—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

12. Section 81.311 is amended as follows:

a. By revising the table heading for “Georgia—-Ozone (8-Hour Standard)” to read “Georgia—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Georgia—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Georgia—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

13. Section 81.312 is amended as follows:

a. By revising the table heading for “Hawaii—Ozone (8-Hour Standard)” to read “Hawaii—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Hawaii—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Hawaii—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

14. Section 81.313 is amended as follows:

a. By revising the table heading for “Idaho—Ozone (8-Hour Standard)” to read “Idaho—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Idaho—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table ” Idaho—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

15. Section 81.314 is amended as follows:

a. By revising the table heading for “Illinois—Ozone (8-Hour Standard)” to read “Illinois—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Illinois—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Illinois—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

16. Section 81.315 is amended as follows:

a. By revising the table heading for “Indiana—Ozone (8-Hour Standard)” to read “Indiana—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Indiana—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Indiana—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

17. Section 81.316 is amended as follows:

a. By revising the table heading for “Iowa—Ozone (8-Hour Standard)” to read “Iowa—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Iowa—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Iowa—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

18. Section 81.317 is amended as follows:

a. By revising the table heading for “Kansas—Ozone (8-Hour Standard)” to read “Kansas—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Kansas—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Kansas—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

19. Section 81.318 is amended as follows:

a. By revising the table heading for “Kentucky—Ozone (8-Hour Standard)” to read “Kentucky—1997 8-Hour Ozone NAAQS (Primary and Secondary)”

b. By adding a new table entitled “Kentucky—2008 8-Hour Ozone NAAQS (Primary and Secondary)” following the newly designated table “Kentucky—1997 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows: