										6560-50-P	 

			ENVIRONMENTAL PROTECTION AGENCY

	40 CFR PART 52

						[FRL-          ]

Finding of Failure to Submit State Implementation Plans Required 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:  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 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 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 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.

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

Dave Conroy, Branch Chief, Air Programs Branch, EPA New England, I
Congress Street, Suite 1100, Boston, MA 02203-2211.	Maine, New
Hampshire, Rhode Island, and Vermont.

Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 Broadway,
25th Floor, New York, NY 10007-1866.	New York.

Christina Fernandez, Acting Branch Chief, Air Quality Planning Branch,
EPA Region 111, 1650 Arch Street, Philadelphia, PA 19103-2187.	Virginia.

Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West Jackson
Street, Chicago, IL 60604.	Illinois, Indiana, Ohio, and Wisconsin.



Dave Jesson, Air Planning Office, EPA Region IX, 75 Hawthorne Street,
San Francisco, CA 94105.	California.

 

 Table of Contents:

	Background

	A.	Statutory Requirements

	B. 	Consequences of Findings of Failure to Submit 

		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. 	Further Progress Plans Receiving Finding of Failure to Submit 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

	N.  	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.  In addition,
States that are part of the Ozone Transport Region (OTR) must submit
SIPs meeting the 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 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 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 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 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.  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 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 area(s) identified below.    

	The areas for which States 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:

Attainment Demonstrations

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  

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 

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 

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

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.  EPA believes that both areas are in attainment, and
therefore, pursuant to 40 CFR 51.918,  the States’ obligation to
submit the reasonable further progress requirement and an attainment
demonstration will be stayed if EPA makes a final approval of the clean
air determination for these areas, for so long as the area remains in
attainment.  EPA has published proposed determinations that these areas
have attained the 8-hour ozone NAAQS, see 73 FR 7234 (Feb. 7, 2008), and
73 FR 8637 (Feb. 14, 2008). The EPA expects to take final rulemaking
action on both of the proposed determinations of attainment before the
18-month 2:1 emission offset sanction clock expires.  

		For areas designated as “moderate nonattainment” areas, the Clean
Air Act 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.”   In consideration of the
air quality data and in consultation with the States, EPA is proceeding
with rulemaking on clean data determinations for these two areas.  A
final determination of attainment would suspend the requirements to
submit  the attainment demonstration and RFP SIP requirements. 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
8-hour ozone standard.  The clocks will be permanently turned off if the
areas are 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.    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 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 prior 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)).

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 8-hour NAAQS
set forth a policy that emission reductions from outside a nonattainment
area could be credited toward the 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.   Because the PM2.5 

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 State implementation plans (SIPs) that
obtained VOC or NOx reductions from outside the nonattainment area until
the new rulemaking was finalized.   

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

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

1994). 

B.   Effective Date Under the Administrative Procedure 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 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 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.  Executive Order 12898:  Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	Executive Order (EO) 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 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 State 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 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.

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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]

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 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 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. 

Finding of Failure to Submit State Implementation Plans Required for
Nonattainment Areas for the 8-hour Ozone NAAQS - Page 24 of 24

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.

		

 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.

 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.

 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.

 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.

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

 The remaining portion of Virginia that is in the OTR is also part of
the Washington DC-MD-VA moderate 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 8-hour ozone
nonattainment area.

 "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).)

 “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.

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