

[Federal Register: February 8, 2006 (Volume 71, Number 26)]
[Rules and Regulations]
[Page 6347-6350]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe06-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[Docket No. OAR-2005-0154; FRL-8028-8]


Final Rule Making Findings of Failure To Submit Required State
Implementation Plans for Phase II of the NOX SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action making findings, under the
Clean Air Act (CAA), that Indiana, Illinois, Kentucky, Michigan, and
Virginia failed to make complete State implementation plan (SIP)
submittals required under the CAA. Under the CAA and Phase II of EPA's
nitrogen oxides (NOX) SIP Call regulations, these States
were required to submit SIP measures providing for reductions in the
emissions of NOX, an ozone precursor.

DATES: Effective Date: This final rule is effective on March 10, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-OAR-2005-0514. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are

[[Page 6348]]

available either electronically through http://www.regulations.gov or

in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 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 holidays.
The telephone number for the public reading room is (202) 566-1744, and
the Air Docket telephone number is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Jan King, Office of Air Quality Planning
and Standards, Air Quality Strategies and Standards Division, C539-02,
Research Triangle Park, NC 27711; telephone number (919) 541-5665; fax
number (919) 541-0824; e-mail king.jan@epa.gov. Legal questions should
be addressed to Winifred Okoye, Office of General Counsel, (2344A),
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number:
(202) 564-5446; e-mail okoye.winifred@epa.gov.

SUPPLEMENTARY INFORMATION:

Outline

I. Background
II. What Action Is EPA Taking Today?
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act
    B. Executive Order 12866: Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    J. National Technology Transfer Advancement Act
    K. Congressional Review Act

I. Background

    On October 27, 1998 (63 FR 57356), we took final action in the
NOX SIP Call Rule, under sections 110(a)(2)(D) and 110(k)(5)
of the CAA, to prohibit specified amounts of emissions of one of the
main precursors of ground-level ozone, NOX, in order to
reduce ozone transport across State boundaries in the eastern half of
the United States. Based on extensive air quality modeling and
analyses, we found that sources in 22 States and the District of
Columbia (DC) (23 States) emit NOX in amounts that
significantly contribute to nonattainment of both the 1-hour and 8-hour
ozone national ambient air quality standards (NAAQS) in downwind
States. We set forth requirements for each of the affected upwind
States to submit SIP revisions prohibiting those amounts of
NOX emissions which significantly contribute to downwind air
quality problems. In the NOX SIP Call Rule, as modified by
the March 2, 2000, technical amendments (65 FR 11222), we also
established statewide NOX emissions budgets for the affected
States. The budgets were calculated by assuming the emissions
reductions that would be achieved by applying available, highly cost-
effective controls to source categories of NOX emissions.
States had the flexibility to adopt the appropriate mix of controls to
meet their statewide NOX emissions budgets.
    A number of parties, including certain States as well as industry
and labor groups, challenged our NOX SIP Call Rule by filing
petitions for review in the U.S. Court of Appeals for the District of
Columbia (DC Circuit or Court). On March 3, 2000, the DC Circuit issued
an opinion, largely upholding the 1-hour basis for the NOX
SIP Call.\1\
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    \1\ In light of various legal challenges to our promulgation of
the 8-hour ozone NAAQS (62 FR 38856; July 18, 1997), we requested,
and the Court granted our motion to stay consideration of issues
regarding the 8-hour basis for the NOX SIP Call.
Additionally, on September 18, 2000, we stayed the 8-hour basis for
the NOX SIP Call indefinitely. (65 FR 56245). See also 40
CFR 51.121(q).
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    In response to the Court decision, EPA divided the NOX
SIP Call Rule into two phases, now known as Phase I and Phase II. Under
Phase I of the rule, EPA moved ahead with implementing those aspects of
the rule that were upheld by the Court for 19 States and the District
of Columbia. The EPA required these States to submit SIPs that comply
with Phase I by October 30, 2000. Because the Court vacated the rule as
to Wisconsin, Georgia, and Missouri, these States were not required to
submit Phase I SIPs.
    On April 21, 2004, EPA published a final response to the Court
decision that addressed the outstanding issues remanded or otherwise
vacated by the Court, and which is Phase II of the NOX SIP
Call rule. The affected States were required to submit Phase II SIPs by
April 1, 2005.\2\
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    \2\ The States which are required to submit Phase II SIPs are
Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri,
Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West
Virginia. With respect to Georgia, however, EPA has stayed this
requirement in order to respond to a petition of reconsideration
filed by the Georgia Coalition for Sound Environmental Policy. (70
FR 5159; August 31, 2005).
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II. What Action Is EPA Taking Today?

    Today, EPA is making findings of failure to submit complete SIP
revisions, including adopted rules, in response to Phase II of the
NOX SIP Call.\3\ The States that are receiving findings of
failure to submit Phase II SIP revisions are Indiana, Illinois,
Kentucky, Michigan, and Virginia. This finding defines the start of a
clock for EPA to develop a federal implementation plan (FIP) under
section 110(c) of the CAA.
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    \3\ Our stay of the 8-hour basis of the NOX SIP Call
Rule is with respect to all aspects of the rule as they relate to
the 8-hour requirements, thus, the affected States remain under no
obligation to submit SIP revisions that address the 8-hour basis for
the NOX SIP Call. Today's findings, therefore, are only
for purposes of the 1-hour basis, and not the 8-hour basis of the
NOX SIP Call Rule.
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    Recently, EPA sent letters to State officials of the affected
States describing the status of the States' effort in completing a
Phase II SIP. The letters also noted that we would be publishing
findings of failure to submit in the Federal Register. (These letters
are included in the docket for this rulemaking). The EPA intends to
continue working with these States so that they can submit approvable
adopted rules as soon as possible.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedures Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedures Act (APA), 5
U.S.C. 553(b). The EPA invokes, consistent with past practice (see for
example, 61 FR 36294, July 10, 1996), the good cause exception pursuant
to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary
because no significant EPA judgment is involved in making a finding of
failure to submit SIPs or elements of SIPs required by the CAA, where
States have made no submissions to meet the requirement by the
statutory date.

B. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the Executive
Order. The order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;

[[Page 6349]]

    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    Pursuant to the terms of Executive Order 12866, a determination has
been made that this rule is not a ``significant regulatory action''
because none of the above factors apply. As such, this final action was
not formally submitted to the Office of Management and Budget (OMB) for
review.

C. 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.

D. Regulatory Flexibility Act

    Today's 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 APA or any other statute. This rule is not subject to notice-and-
comment requirements under the APA or any other statute because
although the rule is subject to the APA, the Agency has invoked the
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not
subject to the notice and comment requirement.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small government on compliance with
regulatory requirements.
    The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more in any
1 year by either State, local, or Tribal governments in the aggregate
or to the private sector in any 1 year. It does not create any
additional requirements beyond those of the NOX SIP Call (63
FR 57356). This rule responds to the requirement in the CAA for States
to submit SIPs to satisfy requirements of the NOX SIP Call.
This action simply finds that States have failed to submit SIPs to
address a pre-existing statutory requirement under the CAA. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the UMRA.

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, or the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    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.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This final rule does not have
``Tribal implications'' as specified in Executive Order 13175. This
rule responds to the requirement in the CAA for States to submit SIPs
to satisfy certain elements required under section 110(a)(2) of the CAA
for the NOX SIP Call. Thus, Executive Order 13175 does not
apply to this rule.

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

    Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health and safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not have reason to believe that the environmental
health risks or safety risks addressed by this rule present a
disproportionate risk or safety risk to children.

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

    This rule is not subject to Executive Order 13211, ``Actions That
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.

J. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act

[[Page 6350]]

of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272
note) directs 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 EPA to provide
Congress, through OMB, explanations when EPA decides not to use
available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any VCS.

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
United States. 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 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). This rule will be effective March 10, 2006.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Ozone, Reporting
and recordkeeping requirements.

    Dated: January 27, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 06-1175 Filed 2-7-06; 8:45 am]

BILLING CODE 6560-50-P
