[Federal Register Volume 82, Number 236 (Monday, December 11, 2017)]
[Rules and Regulations]
[Pages 58118-58122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26537]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2017-0667; FRL-9971-66-OAR]


Findings of Failure To Submit State Implementation Plan 
Submittals for the 2008 Ozone National Ambient Air Quality Standards 
(NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking final 
action to find that three states have failed to submit timely revisions 
to their state implementation plans (SIPs) as required to satisfy 
certain requirements under the Clean Air Act (CAA) for implementation 
of the 2008 ozone National Ambient Air Quality Standards (2008 ozone 
NAAQS). These findings of failure to submit apply to states with 
overdue SIP revisions (or attainment plans) for nonattainment areas 
reclassified from ``Marginal'' to ``Moderate'' in May 2016 because the 
areas failed to attain the 2008 ozone NAAQS by the Marginal area 
attainment date of July 20, 2015. The SIP revisions to address all 
applicable Moderate area attainment plan requirements for these areas 
were due on January 1, 2017. This action requires the affected states 
to timely submit a SIP revision consistent with the requirements of the 
CAA and the EPA regulations. If a state fails to make the required 
timely SIP submittal, or if a submitted SIP is incomplete, the CAA 
requires the imposition of sanctions for the affected area(s). In 
addition, the EPA is obligated to promulgate a federal implementation 
plan (FIP) to address any outstanding SIP requirements if a state does 
not submit, and the EPA does not approve, a state's submittal within 24 
months of the effective date of these findings.

DATES: The effective date of this action is January 10, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2017-0667. All documents in the docket are 
listed and publicly available at http://www.regulations.gov. Although 
listed in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically at http://www.regulations.gov or in 
hard copy at the EPA Docket Center (EPA/DC), EPA WJC West Building, 
Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Office 
of Air and Radiation Docket and Information Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Virginia Raps, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, U.S. 
Environmental Protection Agency, Mail Code: C539-01, 109 T.W. Alexander 
Drive, Research Triangle Park, NC 27711; by telephone (919) 541-4383; 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA\1\ provides that, when an agency for good 
cause finds that notice and public procedures are impracticable, 
unnecessary or contrary to the public interest, the agency may issue a 
rule without providing notice and an opportunity for public comment. 
The EPA has determined that there is good cause for making this final 
agency action without prior proposal and opportunity for comment 
because no significant EPA judgment is involved in making findings of 
failure to submit SIPs, or elements of SIPs. Rather, the findings are 
required by the CAA where states have made no submissions to meet the 
SIP requirements, or where the EPA has separately determined that they 
made incomplete submissions. Thus, notice and public procedures are 
unnecessary. The EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(3)(B).
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    \1\ See 5 U.S.C. 553(b)(3)(B).
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B. How can I get copies of this document and other related information?

    In addition to being available in the docket, an electronic copy of 
this action will be posted at https://www.epa.gov/ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment-actions.

[[Page 58119]]

C. Where do I go if I have a specific state question?

    For questions related to specific states mentioned in this notice, 
please contact the appropriate EPA Regional office:

------------------------------------------------------------------------
            Regional offices                          States
------------------------------------------------------------------------
EPA Region 2: Rick Ruvo, Chief, Air      New Jersey.
 Programs Branch, 290 Broadway, New
 York, NY 10007.
EPA Region 5: John Mooney, Chief, Air    Illinois.
 Programs Branch, 77 West Jackson Blvd,
 Chicago, IL 60604.
EPA Region 9: Doris Lo, Chief,           California.
 Rulemaking Office; Anita Lee, Acting
 Chief, Planning Office; or Gerardo
 Rios, Chief, Permits Office, 75
 Hawthorne Street, San Francisco, CA
 94105.
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D. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedure Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. Where do I go if I have a specific state question?
    D. How is the preamble organized?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a 
Moderate Nonattainment Area SIP Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Population and Low-Income 
Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

II. Background

    On March 27, 2008, the EPA issued its final rule to revise the 
ozone NAAQS establishing new 8-hour standards to provide the necessary 
protection of public health and welfare.\2\ In that action, the EPA 
promulgated identical standards of 0.075 parts per million (ppm) for 
the primary and secondary standards.\3\ Those standards are met when 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.075 ppm.\4\
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    \2\ National Ambient Air Quality Standards for Ozone; final rule 
(73 FR 16436; March 27, 2008).
    \3\ Since the 2008 primary and secondary NAAQS for ozone are 
identical, the EPA refers to both as the ``2008 ozone NAAQS.''
    \4\ See 40 CFR 50.15. The 8-hour primary and secondary ozone 
standards are met at an ambient air quality monitoring site when the 
3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.075 ppm.
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    Promulgation of a revised NAAQS triggers a requirement for the EPA 
to designate areas of the country as nonattainment, attainment, or 
unclassifiable for the standards. For any revised ozone NAAQS, the EPA 
must classify each nonattainment area based on the severity of the 
ozone levels.\5\ The severity of ozone levels is determined based on an 
area's ``design value,'' which is an indicator of the ozone levels in 
the area during the most recent 3 years.\6\ The possible 
classifications for ozone nonattainment areas are, in order from 
``lowest'' to ``highest'' diversion from the standard, Marginal, 
Moderate, Serious, Severe and Extreme.\7\ Nonattainment areas with a 
``lower'' classification have ozone levels that are closer to the 
standard than areas with a ``higher'' classification.
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    \5\ See CAA section 107(d)(1) and CAA section 181(a)(1).
    \6\ The 8-hour ozone design value occurs at the area's ambient 
air quality monitoring site having the highest fourth-highest 8-hour 
concentration of ozone during a 3-year period.
    \7\ See CAA section 181(a)(1).
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    On May 21, 2012, and June 11, 2012, the EPA issued rules 
designating 46 areas throughout the country as nonattainment for the 
2008 ozone NAAQS (both rules were effective July 20, 2012), and 
establishing classifications for the designated nonattainment areas.\8\ 
Thirty-six of these areas were classified as Marginal; the remaining 10 
areas were classified as Moderate or higher. All 46 areas are subject 
to the general nonattainment area planning requirements of CAA section 
172 and also to the ozone-specific planning requirements of CAA section 
182.\9\
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    \8\ Air Quality Designations for the 2008 Ozone National Ambient 
Air Quality Standards; final rule (77 FR 30088; May 21, 2012 and 77 
FR 34221; June 11, 2012).
    \9\ States within the Ozone Transport Region are further subject 
to CAA section 184.
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    Ozone nonattainment areas of lower classifications have fewer and 
less stringent mandatory air quality planning and control requirements 
than those of higher classifications. For a Marginal area, a state is 
required to provide a baseline emissions inventory, adopt regulations 
to receive emissions statements from major stationary sources, and 
implement a nonattainment New Source Review (NSR) program for the 
relevant ozone standard.\10\ For a Moderate area, a state is required 
to comply with all the Marginal area requirements and, in addition, 
submit an analysis demonstrating how the area will attain the 2008 
ozone NAAQS no more than 6 years from the effective date of initial 
designation to nonattainment. A state is also required to adopt and 
implement certain emissions controls, such as Reasonably Available 
Control Technology (RACT), for new or modified major stationary 
sources, apply greater emissions offsets than required for a Marginal 
area under the state's nonattainment NSR program, develop a basic 
vehicle inspection and maintenance program consistent with established 
population criteria, meet certain Rate of Progress or Reasonable 
Further Progress (RFP) requirements, and develop contingency measures 
for failure to meet RFP or timely attain the NAAQS.
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    \10\ See CAA section 182(a).
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    On March 6, 2015, the EPA established a final implementation rule 
for the 2008 ozone NAAQS (2008 Ozone SIP Requirements Rule).\11\ That 
action detailed the attainment planning and control requirements 
applicable to

[[Page 58120]]

ozone nonattainment areas and also established timelines for SIP 
submittals and compliance dates for implementing RACT in areas 
classified Moderate and above.
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    \11\ Implementation of the 2008 National Ambient Air Quality 
Standards for Ozone: State Implementation Plan Requirements; final 
rule (80 FR 12264; March 6, 2015).
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    The attainment date for the 36 nonattainment areas initially 
classified as Marginal for the 2008 ozone NAAQS was July 20, 2015. On 
May 4, 2016, the EPA determined that for 11 of these areas, states 
failed to attain the standard by the attainment date and did not 
qualify for a 1-year attainment date extension. By operation of law, 
such areas were reclassified to Moderate. In the same action, the EPA 
established January 1, 2017, as the deadline for states to submit 
Moderate area attainment plans for those reclassified areas and for 
implementing RACT.\12\ The EPA reclassified two additional areas from 
Marginal to Moderate in December 2016, both of which were also subject 
to the January 1, 2017, SIP submission and RACT compliance due 
dates.13 14
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    \12\ See 80 FR 12264; March 6, 2015, Section III.D.1.b., What 
are the SIP requirements for the 2008 ozone NAAQS?
    \13\ Determination of Nonattainment and Reclassification of the 
Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; 
Texas; final rule (81 FR 90207; December 14, 2016).
    \14\ Reclassification of the Sheboygan, Wisconsin Area to 
Moderate Nonattainment for the 2008 Ozone National Ambient Air 
Quality Standards; final rule (81 FR 91841; December 19, 2016).
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III. Consequences of Findings of Failure To Submit

    For plan requirements under subpart D, title I of the CAA, such as 
those for ozone nonattainment areas, if the EPA finds that a state has 
failed to make the required SIP submittal or that a submitted SIP is 
incomplete, then CAA section 179 establishes specific consequences, 
including the eventual imposition of mandatory sanctions for the 
affected area(s).\15\ Additionally, such a finding triggers an 
obligation under CAA section 110(c) for the EPA to promulgate a FIP no 
later than 2 years from the effective date of the finding, if the 
affected state has not submitted, and the EPA has not approved, the 
required SIP submittal.\16\
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    \15\ See 42 U.S.C. 7509.
    \16\ See 42 U.S.C. 7410(c).
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    If the EPA has not affirmatively determined that a state has 
submitted a complete SIP addressing the deficiency that is the basis 
for these findings within 18 months of the effective date of this 
rulemaking, or the submittal has not become complete by operation of 
law 6 months after submittal, then 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 affected nonattainment area. If the EPA has 
not affirmatively determined that the state has submitted a complete 
SIP addressing the deficiencies that are the basis for these findings 
within 6 months after the offset sanction is imposed, or the submittal 
has not become complete by operation of law 6 months after submittal, 
then the highway funding sanction will apply in the affected 
nonattainment area, in accordance with CAA section 179(b)(1) and 40 CFR 
52.31. The state must make the required SIP submittal and the EPA must 
take final action to approve the submittal within 2 years of the 
effective date of these findings; otherwise, the EPA is required to 
promulgate a FIP. This is required pursuant to CAA section 110(c), for 
the affected nonattainment area.

IV. Findings of Failure To Submit for States That Failed To Make a 
Moderate Nonattainment Area SIP Submittal

    Based on a review of SIP submittals received as of the date of this 
final action, the EPA is finding that the states listed in Table 1 have 
failed to submit specific SIP elements for the 2008 ozone NAAQS 
required under subpart 2 of part D of title 1 of the CAA.

Table 1--Findings of Failure To Submit Certain Required SIP Elements for
                  2008 Ozone NAAQS Nonattainment Areas
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       Region           State       Area name      Required SIP elements
------------------------------------------------------------------------
2...................  NJ        New York-N. New     Contingency
                                 Jersey-Long        measures for
                                 Island.            volatile organic
                                                    compounds (VOC) and
                                                    oxides of nitrogen
                                                    (NOX);
                                                    Ozone
                                                    attainment
                                                    demonstration;
                                                    RACT Non-
                                                    Control Techniques
                                                    Guidelines for major
                                                    stationary sources
                                                    of VOC;
                                                    RACT for
                                                    major stationary
                                                    sources of NOX; and
                                                    RFP for VOC
                                                    and NOX for Moderate
                                                    nonattainment area.
5...................  IL        Chicago-            Basic
                                 Naperville.        Vehicle Inspection
                                                    and Maintenance (I/
                                                    M) program;
                                                    Contingency
                                                    measures for VOC and
                                                    NOX;
                                                   
                                                    Nonattainment NSR
                                                    program for Moderate
                                                    nonattainment area;
                                                    Ozone
                                                    attainment
                                                    demonstration;
                                                    RACT Non-
                                                    Control Techniques
                                                    Guidelines for major
                                                    stationary sources
                                                    of VOC;
                                                    RACT for
                                                    major stationary
                                                    sources of NOX; and
                                                    RFP for VOC
                                                    and NOX for Moderate
                                                    nonattainment area.
9...................  CA        Kern County        
                                 (Eastern Kern).    Nonattainment NSR
                                                    program for Moderate
                                                    nonattainment area;
                                                    and
                                                    RACT for
                                                    major sources of
                                                    NOX.
9...................  CA        Mariposa County..   Emissions
                                                    Statement; and
                                                   
                                                    Nonattainment NSR
                                                    for Moderate
                                                    nonattainment area.
9...................  CA        Nevada County       Contingency
                                 (Western part).    measures for VOC and
                                                    NOX;
                                                    Emissions
                                                    statement;
                                                    Ozone
                                                    attainment
                                                    demonstration;
                                                    RACT Non-
                                                    Control Techniques
                                                    Guidelines for major
                                                    stationary sources
                                                    of VOC;
                                                    RACT for
                                                    major stationary
                                                    sources of NOX; and
                                                    RFP for VOC
                                                    and NOX for Moderate
                                                    nonattainment area.
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[[Page 58121]]

V. Environmental Justice Considerations

    The EPA believes that the human health or environmental risks 
addressed by this action will not have disproportionately high or 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations. This is because it does not directly affect 
the level of protection provided to human health or environment under 
the ozone NAAQS. The purpose of this rule is to make findings that 
three states have failed to provide the EPA with the identified SIP 
submissions, which are required by the CAA for purposes of implementing 
the 2008 ozone NAAQS. As such, this action does not directly affect the 
level of protection provided for human health or the environment. 
Moreover, it is intended that the actions and deadlines resulting from 
this notice will lead to greater protection for United States citizens, 
including minority, low-income, or indigenous populations by ensuring 
that states meet their statutory obligation to develop and submit SIPs 
to ensure that areas make progress toward attaining the 2008 ozone 
NAAQS.

VI. Statutory and Executive Order Reviews

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

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA. This final rule does not establish any new 
information collection requirement apart from what is already required 
by law. This rule relates to the requirement in the CAA for states to 
submit SIPs under sections 172 and 182 which address the statutory 
requirements that apply to areas designated as Moderate nonattainment 
for the ozone NAAQS.

D. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The rule is 
a finding that the named states have not submitted the necessary SIP 
revisions.

E. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action 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.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule finds that several states have failed 
to submit SIP revisions that satisfy the nonattainment area planning 
requirements under sections 172 and 182 of the CAA for the 2008 ozone 
NAAQS. No tribe is subject to the requirement to submit an 
implementation plan under section 172, or under subpart 2 of part D of 
Title I of the CAA. Thus, Executive Order 13175 does not apply to this 
action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that the EPA has 
reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because it is a finding that several states have failed to submit SIP 
revisions that satisfy the Moderate nonattainment area planning 
requirements under sections 172 and 182 of the CAA for the 2008 ozone 
NAAQS and does not directly or disproportionately affect children.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations. In finding that several states have failed 
to submit SIP revisions that satisfy the Moderate nonattainment area 
planning requirements under sections 172 and 182 of the CAA for the 
2008 ozone NAAQS, this action does not directly affect the level of 
protection provided to human health or the environment. The results of 
this evaluation are contained in Section V of this preamble titled 
``Environmental Justice Considerations.''

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

M. Judicial Review

    Section 307(b)(l) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final agency actions by 
the EPA under the CAA. This section provides, in part, that petitions 
for review must be filed in the United States Court of Appeals for the 
District of Columbia Circuit, (i) when the agency action consists of 
``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator,'' or (ii) when such action is locally or 
regionally applicable, if ``such action is based on a determination of 
nationwide scope or effect and if in taking such action the 
Administrator finds and publishes that such action is based on such a 
determination.''
    The EPA has determined that this final rule consisting of findings 
of failure to submit certain of the required SIP revisions is 
``nationally applicable'' within the meaning of section 307(b)(1) of 
the CAA. This final agency action affects three states with Moderate 
nonattainment areas located in three of the ten EPA Regional offices, 
and in

[[Page 58122]]

three different U.S. Federal Circuit Courts (3rd Circuit for New 
Jersey; 7th Circuit for Illinois; and 9th Circuit for California).
    In addition, the EPA has determined that this rule has nationwide 
scope or effect because it addresses a common core of knowledge and 
analysis involved in formulating the decision and a common 
interpretation of the requirements of 40 CFR 51 appendix V applied to 
determining the completeness of SIPs in states across the country. This 
determination is appropriate because, in the 1977 CAA Amendments that 
revised CAA section 307(b)(l), Congress noted that the Administrator's 
determination that an action is of ``nationwide scope or effect'' would 
be appropriate for any action that has ``scope or effect beyond a 
single judicial circuit.'' H.R. Rep. No. 95-294 at 323-324, reprinted 
in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this action 
extends to the three judicial circuits that include the states across 
the country affected by this action. In these circumstances, CAA 
section 307(b)(1) and its legislative history authorize the 
Administrator to find the rule to be of ``nationwide scope or effect'' 
and, thus, to indicate that venue for challenges lies in the District 
of Columbia Circuit. Accordingly, the EPA is determining that this rule 
is of nationwide scope or effect.
    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 within 60 days from the date this 
final action is published in the Federal Register. Filing a petition 
for review by the Administrator of this final action does not affect 
the finality of the action 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Approval and promulgation of 
implementation plans, Administrative practice and procedures, 
Incorporation by reference, Air pollution control, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

    Dated: November 29, 2017.
William L. Wehrum,
Assistant Administrator.
[FR Doc. 2017-26537 Filed 12-8-17; 8:45 am]
 BILLING CODE 6560-50-P


