										6560-50-P	 

			ENVIRONMENTAL PROTECTION AGENCY

	40 CFR PART 52

						[FRL-          ]

Finding of Failure to Submit State Implementation Plans Required for
Nonattainment Areas for the 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 nonattainment area requirements of the Clean Air Act (CAA) for
the 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:  (1) demonstrating how each
nonattainment area would attain the 8-hour ozone standard as
expeditiously as practicable but no later than the applicable dates
established in the implementing regulations and (2) 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).   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 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 specified in section
179(b)(2) 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 specified in section
179(b)(1) applies in the area.  No later than two 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.

EFFECTIVE DATE:  This action is effective on  [INSERT DATE OF
PUBLICATION IN THE FEDERAL REGISTER].

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, N.C. 27709;
telephone (919) 541-5208.

SUPPLEMENTARY INFORMATION:

	For questions related to a specific State please contact the
appropriate regional office:

Regional Offices	States



List of State with the Regional Office management contact for the States
will be provided by February 15, 2008 Table of Contents:

	Background

	A.	Statutory Requirements

	B. 	Consequences of Findings of Failure to Submit 

	This Action

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.	National Technology Transfer Advancement Act

	L.	Congressional Review Act

	M.  	Judicial Review

I.  Background

	The CAA requires States with areas that are designated nonattainment
for the 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.  A number of
States have submitted RFP, RACT and attainment demonstration SIPs for
nonattainment areas 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 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 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 8-hour ozone
standard, and specified the classification for each nonattainment area. 
The 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 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
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 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 FIP if the States has not submitted and EPA has not
approved the required SIP within two 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 XX States have failed to make required SIP
submissions for XX nonattainment areas.   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.  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 the affected areas, in
accordance with CAA section 179(b)(1) and 40 CFR 52.31.  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. 

	     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
nonattainment 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 [INSERT DATE OF PUBLICATION
IN THE FEDERAL REGISTER].  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 nonattainment area(s) identified. EPA is by
this action making a finding that the States listed below failed to make
the required SIP submission for the nonattainment areas identified
below.  This finding starts a sanctions clocks and a clock by which time
EPA must promulgate a FIP.  If the affected States do not make a the
required submission, which EPA affirmatively finds complete the offset
sanction will apply 18 months after this finding and the highway
sanction will apply six months after the offset sanction applies.  If
the State has not submitted and EPA has not approved the required
submission within two years after the finding, EPA must promulgate a
FIP.   

	The States and nonattainment areas that did not submit the reasonably
available control technology (RACT) SIP, the reasonable further progress
(RFP) SIP, and/or the attainment demonstration SIP are as follows:

Table of Areas by Region, State & SIP Element Required will be provided
by February 15, 2008

 

III.  Statutory and Executive Order Reviews

  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).  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 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4,

1994). 

B.   Effective Date Under the Administrative Procedures Act 

This action will be effective on [INSERT DATE OF PUBLICATION IN THE
FEDERAL REGISTER].   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 the action
it is taking in 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 (EO) 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the EO.  However, the EPA
submitted this action to the Office of Management and Budget (OMB) for
review on February xx, 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 February xx, 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 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)

	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
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 USC 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 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 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 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 State
Implementation Plans (SIPs) to satisfy certain nonattainment area
requirements of the Clean Air Act (CAA) for the 8-hour ozone National
Ambient Air Quality Standards (NAAQS).

K.  	National Technology Transfer Advancement Act

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

L. 	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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]

M.	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 is
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 XXX 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 51

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

___________________________________

Dated:

____________________________________

Robert J. Meyers,

Principal Deputy Assistant Administrator.

		

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