
[Federal Register: March 24, 2008 (Volume 73, Number 57)]
[Rules and Regulations]               
[Page 15416-15421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr08-9]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2008-0072; FRL-8545-5]

 
Finding of Failure To Submit State Implementation Plans Required 
for the 1997 8-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is taking a final action finding that several states 
have failed to submit State Implementation Plans (SIPs) to satisfy 
certain requirements of the Clean Air Act (CAA) for the 1997 8-hour 
ozone National Ambient Air Quality Standards (NAAQS). Under the CAA and 
EPA's implementing regulations, states with nonattainment areas 
classified as moderate, serious, severe or extreme were required to 
submit by June 15, 2007, SIPs: Demonstrating how each nonattainment 
area would attain the 1997 8-hour ozone standard as expeditiously as 
practicable but no later than the applicable dates established in the 
implementing regulations; and demonstrating reasonable further progress 
(RFP). Additionally, states were required by September 15, 2006, to 
submit for these same areas SIPs demonstrating that sources specified 
under the CAA were subject to reasonably available control technology 
requirements (RACT). States that are part of the Ozone Transport Region 
(OTR) were required to submit SIPs to meet the 1997 8-hour ozone RACT 
requirement for the entire state by September 15, 2006. The RACT 
requirement applies to all areas within the Ozone Transport Region, 
regardless of the area's designation for the 1997 8-hour ozone 
standard. Some states have not yet submitted SIPs to satisfy these 
requirements. The EPA is by this action making a finding of failure to 
submit for those nonattainment areas and OTR areas that have not made 
the required SIP submission(s). If EPA has not affirmatively found that 
the state has submitted the required plan or plans within 18 months, 
the offset sanction applies in the area. If within 6 additional months 
EPA has still not affirmatively determined that the state has submitted 
the required plan, the highway funding sanction applies in an area if 
it is designated nonattainment. No later than 2 years after EPA makes 
the finding, EPA must promulgate a Federal Implementation Plan if the 
state has not submitted and EPA has not approved the required SIP.

DATES: Effective Date: This action is effective on March 24, 2008.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Mr. Butch Stackhouse, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code: 
C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709; 
telephone (919) 541-5208.

SUPPLEMENTARY INFORMATION: For questions related to a specific state 
please contact the appropriate regional office:

------------------------------------------------------------------------
            Regional offices                          States
------------------------------------------------------------------------
Dave Conroy, Branch Chief, Air Programs  Maine, New Hampshire, Rhode
 Branch, EPA New England, I Congress      Island, and Vermont.
 Street, Suite 1100, Boston, MA 02203-
 2211.
Raymond Werner, Chief, Air Programs      New York.
 Branch, EPA Region II, 290 Broadway,
 25th Floor, New York, NY 10007-1866.
Christina Fernandez, Acting Branch       Virginia.
 Chief, Air Quality Planning Branch,
 EPA Region III, 1650 Arch Street,
 Philadelphia, PA 19103-2187.
Jay Bortzer, Chief, Air Programs         Illinois, Indiana, Ohio, and
 Branch, EPA Region V, 77 West Jackson    Wisconsin.
 Street, Chicago, IL 60604.
Dave Jesson, Air Planning Office, EPA    California.
 Region IX, 75 Hawthorne Street, San
 Francisco, CA 94105.
------------------------------------------------------------------------

Table of Contents

I. Background
    A. Statutory Requirements
    B. Consequences of Findings of Failure to Submit
II. This Action
    A. Clean Air Determination Areas Receiving a Finding of Failure 
to Submit
    B. OTR Attainment Areas Receiving a Finding of Failure to Submit
    C. Finding of Failure to Submit RFP Plans in California
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act
    B. Effective Date Under the Administrative Procedures Act
    C. Executive Order 12866: Regulatory Planning and Review
    D. Paperwork Reduction Act
    E. Regulatory Flexibility Act (RFA)
    F. Unfunded Mandates Reform Act
    G. Executive Order 13132: Federalism
    H. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    I. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    J. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    K. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. National Technology Transfer Advancement Act
    M. Congressional Review Act

[[Page 15417]]

    N. Judicial Review

I. Background

    The CAA requires states with areas that are designated 
nonattainment for the 1997 8-hour ozone NAAQS to develop a SIP 
providing how the state will attain and maintain the NAAQS. Part D of 
title I of the CAA specifies the required elements of a SIP for an area 
designated nonattainment. These requirements include, but are not 
limited to, RFP, RACT, and an attainment demonstration. See CAA 
sections 172 and 182. In addition, states that are part of the Ozone 
Transport Region (OTR) must submit SIPs meeting the 1997 8-hour ozone 
RACT requirement for the entire state or the portion of the state in 
the OTR. A number of states have submitted RFP, RACT and attainment 
demonstration SIPs as required under the CAA and EPA's implementing 
regulations, but at present, some states have not yet submitted SIPs to 
satisfy these requirements of the CAA. The EPA is by this action making 
a finding of failure to submit for those areas that have not yet 
submitted these required SIPs.

A. Statutory Requirements

    On July 18, 1997, EPA issued a revised ozone standard. At that 
time, the ozone standard was 0.12 ppm measured over a 1-hour period. 
EPA revised the NAAQS to rely on an 8-hour averaging period (versus 1 
hour for the previous NAAQS), and the level of the standard was changed 
from 0.12 ppm to 0.08 ppm (62 FR 38856). EPA's initial implementation 
strategy for the 1997 8-hour standard was vacated and remanded by the 
Supreme Court. Whitman v. American Trucking Associations, Inc., 531 
U.S. 457 (2001). On April 30, 2004 (69 FR 23951) and on November 29, 
2005 (70 FR 71612), EPA published final rules that addressed the 
elements related to implementation of the 1997 8-hour ozone NAAQS 
(Phase 1 and Phase 2 Implementation Rules). In an April 30, 2004 
rulemaking (69 FR 23858) EPA designated attainment and nonattainment 
areas for the 1997 8-hour ozone standard, and specified the 
classification for each nonattainment area. The 1997 8-hour ozone 
designations took effect on June 15, 2004. The November 30, 2005 Phase 
2 implementation rule set forth deadlines for state and local 
governments to develop and submit to EPA implementation plans designed 
to meet the 1997 8-hour standard by reducing air pollutant emissions 
contributing to ground-level ozone concentrations. The Phase 2 Rule 
required states with nonattainment areas to submit SIPs by June 15, 
2007 demonstrating how each nonattainment area would attain the 1997 8-
hour ozone standard as expeditiously as practicable but no later than 
specified dates and demonstrating how the area would make reasonable 
further progress toward attainment in the years prior to the attainment 
year. Additionally, the Phase 2 Rule required states to submit SIPs 
requiring RACT for nonattainment areas and for areas within the OTR by 
September 15, 2006.

B. Consequences of Findings of Failure To Submit

    The CAA establishes specific consequences if EPA finds that a state 
has failed to submit a SIP or, with regard to a submitted SIP, EPA 
determines it is incomplete or disapproves it. CAA section 179(a)(1). 
Additionally, any of these findings also triggers an obligation for EPA 
to promulgate a Federal Implementation Plan (FIP) if the states have 
not submitted and EPA has not approved the required SIP within 2 years 
of the finding. CAA section 110(c). The first finding, that a state has 
failed to submit a plan or one or more elements of a plan required 
under the CAA, is the finding relevant to this rulemaking.
    EPA is finding that 11 states have failed to make required SIP 
submissions for 11 nonattainment areas and 3 states or portions of 
states in the Ozone Transport Region. If EPA has not affirmatively 
determined that a state has made the required complete submittals for 
an area within 18 months of the effective date of this rulemaking, 
pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset 
sanction identified in CAA section 179(b)(2) will apply in the area 
subject to the finding. If EPA has not affirmatively determined that 
the state has made a complete submission within 6 months after the 
offset sanction is imposed, then the highway funding sanction will 
apply in areas designated nonattainment, in accordance with CAA section 
179(b)(1) and 40 CFR 52.31.\1\ The 18-month clock will stop and the 
sanctions will not take effect if, within 18 months after the date of 
the finding, EPA finds that the state has made a complete submittal as 
to each of the SIPs for which these findings are made. In addition, EPA 
is not required to promulgate a FIP if the state makes the required SIP 
submittal and EPA takes final action to approve the submittal within 2 
years of EPA's finding.
---------------------------------------------------------------------------

    \1\ In accordance with section 179(b)(1)(A), the highway funding 
sanction only applies in areas designated nonattainment for the 
relevant standard and thus would not apply in the portions of the 
OTR subject to RACT, but not designated nonattainment.
---------------------------------------------------------------------------

    At approximately the same time as the signing of this notice, EPA 
Regional Administrators are sending letters to the states informing 
each state identified below that EPA is determining that they have 
failed to make one or more of the required SIP submissions for the 
specified areas. These letters, and any accompanying enclosures, have 
been included in the docket to this rulemaking.

II. This Action

    In this action, EPA is making a finding of failure to submit for 
states that have failed to make certain required SIP submittals. This 
finding starts the 18-month emission offset sanctions clock, 24-month 
highway funding sanctions clock and a 24-month clock for the 
promulgation by EPA of a FIP. This action will be effective on March 
24, 2008. The following states failed to make an attainment 
demonstration, reasonable further progress, or reasonably available 
control technology submittal required under Part D of Title 1 of the 
CAA for the specific area(s) identified below.
    The areas for which states that did not submit the RACT SIP, RFP 
SIP, and/or the attainment demonstration SIP are as follows:

Attainment Demonstrations \2\
---------------------------------------------------------------------------

    \2\ This finding is for the attainment demonstration requirement 
in section 182(b)(1), 182(c)(2)(A) and 182(d) and 40 CFR 51.908.
---------------------------------------------------------------------------

NH, Boston-Manchester-Portsmouth (SE) Area
NY, Jefferson County Area
RI, Providence (all of RI) Area
IL, Chicago-Gary-Lake County Area
IN, Chicago-Gary-Lake County Area
WI, Milwaukee-Racine Area
WI, Sheboygan Area

RACT SIPs \3\
---------------------------------------------------------------------------

    \3\ Except as noted, this finding is for the RACT SIPs required 
under CAA section 182(b)(2) for VOC and section 182(f) for 
NOX. This requirement applies to moderate areas under 
182(b)(2) and applies to serious, severe and extreme areas as 
provided in CAA section 182(c), (d) and (e), respectively.
---------------------------------------------------------------------------

RI, Providence (all of RI) Area
VT, entire state in Ozone Transport Region
ME, entire state of Maine for the OTR VOC RACT requirement
ME, entire state of Maine for the OTR NOX RACT 
requirement, with the exception of those areas that received a 
NOX waiver \4\
---------------------------------------------------------------------------

    \4\ On February 3, 2006 (71 FR 5791), EPA approved a 
NOX waiver for Northern Maine (specifically, Oxford, 
Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook, 
and portions of Hancock and Waldo Counties). This approval exempts 
major sources of NOX in this area from the requirements 
to implement controls meeting RACT.

---------------------------------------------------------------------------

[[Page 15418]]

VA, Stafford County
IL, Chicago-Gary-Lake County Area
IL, St. Louis Area for NOX RACT requirement
IN, Chicago-Gary-Lake County Area
OH, Cleveland-Akron-Lorain Area for VOC RACT requirement

RFP SIPs \5\
---------------------------------------------------------------------------

    \5\ This finding is for the RFP requirement under CAA sections 
172(c)(2) and 182(b)(1). See also 40 CFR 51.910.
---------------------------------------------------------------------------

RI, Providence (all of RI) Area
NH, Boston-Manchester-Portsmouth (SE) Area
NY, Jefferson County Area
IL, Chicago-Gary-Lake County Area
IN, Chicago-Gary-Lake County Area
WI, Milwaukee-Racine Area
WI, Sheboygan Area
CA, Western Mojave Desert
CA, Sacramento Metro Area
CA, Ventura County (part) Area

A. Clean Air Determination Areas Receiving a Finding of Failure To 
Submit

    For areas designated as ``moderate nonattainment'' areas, the CAA 
requires states to develop SIPs describing how the state will attain 
and maintain the ozone standard; such SIPs were to have been submitted 
to EPA by June 15, 2007. The Boston-Manchester-Portsmouth (SE) area in 
NH and Jefferson County, NY are designated ``moderate nonattainment.'' 
EPA has published proposed determinations that both areas are in 
attainment of the 1997 8-hour ozone NAAQS. See 73 FR 7234 (February 7, 
2008), and 73 FR 8637 (February 14, 2008). These actions were taken in 
consideration of several years of air quality data in these areas 
showing attainment of the NAAQS and in consultation with the states. In 
the case of Jefferson County, on June 14, 2007 New York submitted to 
EPA a formal clean data request.
    EPA is proceeding with rulemaking on the clean data determinations 
for these two areas. A final determination of attainment would suspend 
the attainment demonstration and RFP SIP requirements of 40 CFR 50.918. 
EPA expects to take final action on these determinations as soon as 
possible. If EPA issues a final determination of attainment, it will 
stay the sanctions and FIP clocks. The stay for the 2:1 emission offset 
sanction, highway sanction and FIP promulgation clocks will continue 
for as long as the area air quality continues to attain the 1997 8-hour 
ozone standard. The clocks will be permanently turned off if the areas 
are redesignated to attainment.
    EPA is issuing findings of failure to submit to New Hampshire for 
the Boston-Manchester-Portsmouth (SE) area and to New York for the 
Jefferson County Area. As noted earlier, EPA has published proposed 
determinations that both areas are in attainment of the 1997 8-hour 
ozone NAAQS. Pursuant to 40 CFR 51.918, the states' obligation to 
submit the reasonable further progress and attainment demonstrations 
will be stayed as of the effective date of a final approval of the 
clean air determination for these areas. This stay will remain in 
effect for so long as the area remains in attainment and will no longer 
apply if the area is redesignated to attainment.

B. OTR Attainment Areas Receiving a Finding of Failure To Submit

    The states of Maine and Vermont and Stafford County, VA have 8-hr 
ozone RACT requirements because they are part of the OTR.\6\ The EPA is 
issuing a finding of failure to submit to Maine, Vermont and Virginia 
because they have not met the requirement (40 CFR 51.916(b)). EPA 
understands that these three states are each working on a certification 
that the RACT rules the states adopted and EPA approved under the 1-
hour ozone standard meet the RACT requirements applicable for the 1997 
8-hour ozone standard. The FIP clocks will be stopped when the states 
submit and EPA approves the RACT SIP. This is a formal SIP submittal 
and the states must complete their notice-and-comment process prior to 
submission. Maine, Vermont and Virginia should be able to complete the 
process and submit the SIPs in time for EPA to take rulemaking action 
on the submissions before the 24-month FIP clock expires. These OTR 
areas are subject to nonattainment NSR and, therefore, would be subject 
to the 2:1 emission offset sanctions if they fail to submit RACT rules 
EPA affirmatively determines are complete within 18 months of this 
finding. Because the areas are in attainment, the highway funding 
sanction would not apply (40 CFR 52.31(e)(2)).
---------------------------------------------------------------------------

    \6\ The remaining portion of Virginia that is in the OTR is also 
part of the Washington DC-MD-VA moderate 1997 8-hour ozone 
nonattainment area. EPA has received a RACT SIP addressing 
Virginia's OTR and moderate RACT requirements for the Washington DC-
MD-VA moderate 1997 8-hour ozone nonattainment area.
---------------------------------------------------------------------------

C. Findings of Failure To Submit RFP Plans in California

    EPA is making findings of failure to submit RFP plans for the 
following three areas in California: Los Angeles-San Bernardino 
Counties (Western Mojave Desert), Ventura, and Sacramento Metro 
nonattainment areas. The findings of failure to submit are being made 
because these areas did not submit the RFP plans that were due on June 
15, 2007. On February 14, 2008, the state submitted a formal request to 
EPA to voluntarily reclassify: (1) Western Mojave Desert from moderate 
to severe-17; (2) Ventura from moderate to serious; and (3) Sacramento 
Metro from serious to severe-15. Although EPA must grant such voluntary 
reclassification, a reclassification does not provide a basis for 
extending the submittal deadlines for SIP elements that were due for 
these areas' initial classifications. Consequently this finding of 
failure to submit is based on the states' failure to submit the RFP 
plans that were due on June 15, 2007 for the area's current 
classification; this finding does not apply with regard to any 
additional RFP obligations that would be triggered by the 
reclassification of these areas. The February 14, 2008 letter included 
a commitment to submit to EPA the RFP for the current classifications 
for the three areas, as well as the RFP and attainment requirements for 
the requested higher classification for the Western Mojave Desert and 
Ventura areas by April 30, 2008. With respect to the Sacramento Metro 
area, we note that the state has submitted an RFP SIP for the 2008 
milestone. Thus the finding applies only to the RFP component required 
for the 2011 milestone.
    Both the Ventura and Western Mojave Desert areas are downwind from 
the South Coast Air Basin (metropolitan Los Angeles), and the state has 
indicated that RFP in the areas must depend in part upon reductions in 
the South Coast area. The Phase 2 Rule to implement the 1997 8-hour 
NAAQS set forth a policy that emission reductions from outside a 
nonattainment area could be credited toward the 1997 8-hour ozone RFP 
requirement. The rule stated that credit could be taken for VOC and NOX 
emission reductions within 100 km and 200 km respectively outside the 
nonattainment area (70 FR 71647; November 29, 2005). However, if a 
regional NOX control strategy were in place in the state, reductions 
could be taken from within the state. On July 17, 2007, EPA requested a 
partial voluntary remand from the Court of Appeals for the District of 
Columbia Circuit on this policy provision. This provision was 
challenged by the Natural Resources Defense Council (NRDC). EPA's 
PM2.5 Implementation Rule (72 FR 20586, April 25, 2007) 
adopted a different approach for crediting reductions of precursor 
pollutants from ``outside'' the nonattainment area for ROP/RFP 
purposes.\7\ Because the PM2.5

[[Page 15419]]

Implementation Rule significantly modified the policy regarding which 
emissions reductions are eligible to be credited towards a 
nonattainment area's RFP requirement, EPA asked for a partial voluntary 
remand of the Phase 2 Ozone Rule to consider whether it should be 
revised for consistency with the PM2.5 Implementation Rule. 
In response to EPA's request for a partial voluntary remand of the 
Phase 2 Ozone Rule, NRDC asked the court for a vacatur, i.e., to 
nullify this provision. The Court ultimately granted NRDC's petition 
for vacatur. EPA issued a memorandum on October 11, 2007 stating that 
we: (1) Sought a voluntary remand, (2) would be revising the rule, and 
(3) advised the Regional Offices not to approve ROP/RFP SIPs that 
obtained VOC or NOX reductions from outside the nonattainment area 
until the new rulemaking was finalized.\8\
---------------------------------------------------------------------------

    \7\ ``If the state justifies consideration of precursor 
emissions for an area outside the nonattainment area, EPA will 
expect state RFP assessments to reflect emissions changes from all 
sources in this area. The State cannot include only selected sources 
providing emission reductions in the analysis.'' (72 FR at 20636 (4/
25/07).)
    \8\ ``Partial Voluntary Remand Sought in the Ozone Phase 2 Rule 
Concerning Rate of Progress (ROP) Reductions Obtained From Outside a 
Nonattainment Area'' Memorandum of October 11, 2007.
---------------------------------------------------------------------------

    EPA is currently developing a proposed rule to address the court's 
vacatur of the provision in the Phase 2 Ozone Implementation Rule that 
allowed nonattainment areas to take credit for emission reductions 
outside the nonattainment area from selected sources which differed 
from what was in the PM2.5 Implementation Rule. Until we 
issue that final rule, we could take rulemaking action on the RFP SIPs 
on a case-by-case basis. We plan to issue the final rule as soon as 
possible. However, sanctions clocks will terminate when states make 
submittals that EPA affirmatively determines are complete and the FIP 
clocks can be turned off if we take final action to approve the RFP 
plans.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedure Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedure Act (APA), 5 
U.S.C. 553(b). EPA believes that because of the limited time provided 
to make findings of failure to submit regarding SIP submissions, 
Congress did not intend such findings to be subject to notice-and-
comment rulemaking. However, to the extent such findings are subject to 
notice-and-comment rulemaking, EPA invokes the good cause exception 
pursuant to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are 
unnecessary because no EPA judgment is involved in making a 
nonsubstantive finding of failure to submit elements of SIP submissions 
required by the CAA. Furthermore, providing notice and comment would be 
impracticable because of the limited time provided under the statute 
for making such determinations. Finally, notice and comment would be 
contrary to the public interest because it would divert agency 
resources from the critical substantive review of complete SIPs. See 58 
FR 51270, 51272, n.17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 
1994).

B. Effective Date Under the Administrative Procedure Act

    This action will be effective on March 24, 2008. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if the agency has 
good cause to specify an earlier effective date. This action concerns 
SIP submissions that are already overdue; and EPA previously cautioned 
the affected states that the SIP submissions were overdue and that EPA 
was considering taking this action. In addition, this action simply 
starts a ``clock'' that will not result in sanctions against the states 
for 18 months, and that the states may ``turn off'' through the 
submission of complete SIP submittals. These reasons support an 
effective date prior to 30 days after the date of publication.

C. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order. However, the 
EPA submitted this action to the Office of Management and Budget (OMB) 
for review on February 12, 2008 and any changes made in response to 
OMB's recommendations have been documented in the docket for this 
action. The OMB released it on March 14, 2008.

D. 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. 
This rule relates to the requirement in the CAA for states to submit 
SIPs under section Part D of title I of the CAA to satisfy elements 
required for the 1997 8-hour ozone NAAQS. The present final rule does 
not establish any new information collection requirement. Burden means 
that total time, effort, or financial resources expended by persons to 
generate, maintain, retain, or disclose or provide information to or 
for a Federal agency. This includes the time needed to review 
instructions; develop, acquire, install, and utilize technology and 
systems for the purposes of collecting, validating, and verifying 
information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information. An Agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations in the CFR are listed in 
40 CFR part 9.

E. Regulatory Flexibility Act (RFA)

    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 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.

F. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandate 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 mandate'' 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

[[Page 15420]]

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.
    This action does not include a Federal mandate within the meaning 
of UMRA 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, and therefore, is not subject to the 
requirements of sections 202 and 205 of the UMRA. It does not create 
any additional requirements beyond those of the 1997 8-hour ozone NAAQS 
(62 FR 38652; 62 FR 38856, July 18, 1997), therefore, no UMRA analysis 
is needed. EPA has determined that this action is not a Federal 
mandate. The CAA provisions requires states to submit SIPs. This notice 
merely provides a finding that the states have not met the requirement 
to submit certain SIPs and begins a clock that could result in the 
imposition of sanctions if the states continue to not meet this 
statutory obligation. This notice does not, by itself, require any 
particular action by any state, local, or Tribal government; or by the 
private sector. For the same reasons, EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments.
    The EPA believes that any new controls imposed as a result of this 
action will not cost in the aggregate $100 million or more annually. 
Thus, this Federal action will not impose mandates that will require 
expenditures of $100 million or more in the aggregate in any 1 year.

G. 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. The CAA establishes the scheme 
whereby states take the lead in developing plans to meet the NAAQS and 
the Federal Government acts as a backstop where states fail to take the 
required actions. This rule will not modify the relationship of the 
states and EPA for purposes of developing programs to implement the 
NAAQS. Thus, Executive Order 13132 does not apply to this rule.

H. 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.''
    EPA has concluded that this final rule will not have Tribal 
implications. It will neither impose substantial direct compliance 
costs on Tribal governments, nor preempt Tribal law. This rule responds 
to the requirement in the CAA for states to submit SIPs to satisfy the 
nonattainment area requirements of the CAA for the 1997 8-hour ozone 
NAAQS. The CAA requires states with areas that are designated 
nonattainment for the NAAQS to develop a SIP describing how the state 
will attain and maintain the NAAQS. There are Tribal governments within 
certain nonattainment areas for which this rule turns on a sanctions 
clock. However, this rule does not have Tribal implications because it 
does not impose any compliance costs on Tribal governments nor does it 
pre-empt Tribal law. The rule will not have a substantial direct effect 
on one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes, as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

I. Executive Order 13045: Protection of Children from Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks 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 or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency 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 the Agency.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action should reduce the levels 
of harmful pollutants in the air that should reduce harmful effects on 
children.

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. In this action, 
EPA is finding that several states have failed to submit SIPs to 
satisfy certain nonattainment area requirements of the Clean Air Act 
(CAA) for the 1997 8-hour ozone National Ambient Air Quality Standards 
(NAAQS).

[[Page 15421]]

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

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. 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 
does not directly affect the level of protection provided to human 
health or the environment. This notice finds that certain states have 
not met the requirement to submit one or more SIPs and begins a clock 
that could result in the imposition of sanctions if the states continue 
to not meet this statutory obligation. If the states fail to submit the 
required SIPs or if they submit SIPs that EPA cannot approve, then EPA 
will be required to develop the plans in lieu of the states.

L. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, (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. VCS 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 the 
Agency 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.

M. 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. 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 24, 2008.

N. Judicial Review

    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 Court within 60 days from the date 
final action is published in the Federal Register. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
must be filed, and shall not postpone the effectiveness of such rule or 
action.
    Thus, any petitions for review of this action making findings of 
failure to submit RACT, RFP, and attainment demonstration SIPs for the 
nonattainment areas identified in section II above, 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 52

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

    Dated: March 17, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
[FR Doc. E8-5807 Filed 3-21-08; 8:45 am]

BILLING CODE 6560-50-P
