
[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Rules and Regulations]
[Pages 71757-71761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22987]



[[Page 71757]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2023-0442; FRL-11287-01-OAR]
RIN 2060-AW03


Findings of Failure To Submit State Implementation Plan Revisions 
for Reclassified Moderate Nonattainment Areas for the 2015 Ozone 
National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that 11 States failed to submit State Implementation 
Plan (SIP) revisions required by the Clean Air Act (CAA) in a timely 
manner for certain nonattainment areas classified as Moderate for the 
2015 ozone National Ambient Air Quality Standards (NAAQS). The States 
that failed to submit the required SIP revisions for reclassified 
Moderate areas are Arizona, California, Connecticut, Delaware, 
Illinois, Indiana, Michigan, New Jersey, Nevada, Texas, and Wisconsin. 
This action triggers certain CAA deadlines for the imposition of 
sanctions if a State does not submit a complete SIP addressing the 
outstanding requirements and for the EPA to promulgate a Federal 
Implementation Plan (FIP) if the EPA does not approve the State's SIP 
revision addressing the outstanding requirements.

DATES: This final action is effective on November 17, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2023-0442. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Lingard, Office of Air Quality 
Planning and Standards, Air Quality Policy Division (C539-01), 
Environmental Protection Agency, Research Triangle Park, NC; telephone 
number: (919) 541-5272; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How is this Federal Register document organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. How is this Federal Register document organized?
    B. Notice and Comment Under the Administrative Procedure Act 
(APA)
    C. Where can I get a copy of this document and other related 
information?
    D. Where do I go if I have specific State questions?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for States That Failed To Make a 
Nonattainment Area SIP Submittal
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review, 
Executive Order 13563: Improving Regulation and Regulatory Review, 
and Executive Order 14094: Modernizing Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review

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

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), 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, required by 
the CAA, where States have made no submissions to meet the requirement. 
Thus, notice and public procedures are unnecessary to take this action. 
The EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(3)(B).

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at https://www.epa.gov/ground-level-ozone-pollution/findings-failure-submit-state-implementation-plan-revisions.

D. Where do I go if I have specific State questions?

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

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                   Regional offices                                              States
----------------------------------------------------------------------------------------------------------------
EPA Region 1: Mr. John Rogan, Chief, Air Quality        Connecticut.
 Branch, EPA Region 1, 1 Congress Street, Suite 1100,
 Boston, Massachusetts 02203. [email protected].
EPA Region 2: Mr. Kirk Wieber, Manager, Air Program     New Jersey.
 Branch, EPA Region 2, 290 Broadway, New York, New
 York 10007. [email protected].
EPA Region 3: Mr. Mike Gordon, Chief, Planning and      Delaware.
 Implementation Branch, EPA Region 3, 1600 JFK
 Boulevard, Philadelphia, Pennsylvania 19103.
 [email protected].
EPA Region 5: Mr. Doug Aburano, Manager, Air Programs   Illinois, Indiana, Michigan, Wisconsin.
 Branch, EPA Region 5, 77 West Jackson Boulevard (AR-
 18J), Chicago, Illinois 60604.
 [email protected].
EPA Region 6: Mr. Guy Donaldson, Manager, State         Texas.
 Planning and Implementation Branch, EPA Region 6,
 1201 Elm Street, Suite 500, Dallas, Texas 75270.
 [email protected].
EPA Region 9: Ms. Idalia Perez, Manager, Air Planning   Arizona, California, Nevada.
 Office, EPA Region 9, 75 Hawthorne Street, San
 Francisco, California 94105. [email protected].
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[[Page 71758]]

II. Background

    On October 1, 2015, the EPA revised the NAAQS for ozone to 
establish new 8-hour standards.\1\ In that action, the EPA promulgated 
identical revised primary and secondary ozone standards, designed to 
protect public health and welfare, of 0.070 parts per million (ppm). 
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 0.070 ppm.\2\
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    \1\ 80 FR 65292 (October 1, 2015).
    \2\ 40 CFR 50.15.
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    Promulgation of revised NAAQS triggers a requirement for the EPA to 
designate areas of the country as nonattainment, attainment, or 
unclassifiable for the standards; for the ozone NAAQS, this also 
involves classifying any nonattainment areas at the time of initial 
area designation.\3\ Ozone nonattainment areas are classified based on 
the severity of their ambient ozone levels (as determined based on an 
area's ``design value,'' which represents air quality in the area for 
the most recent 3 years). The possible classifications for ozone 
nonattainment areas are Marginal, Moderate, Serious, Severe, and 
Extreme.\4\ Nonattainment areas with a ``lower'' classification (e.g., 
Marginal) have ozone levels that are closer to the standards than areas 
with a ``higher'' classification (e.g., Severe).\5\
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    \3\ CAA sections 107(d)(1) and 181(a)(1).
    \4\ CAA section 181(a)(1).
    \5\ See 40 CFR 51.1303 for the design value thresholds for each 
classification for the 2015 ozone NAAQS.
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    The EPA finalized the air quality thresholds corresponding with, 
and attainment dates for, each level of nonattainment area 
classification for the 2015 ozone NAAQS on March 9, 2018.\6\ In 
multiple separate rules, the EPA cumulatively designated 53 areas 
throughout the country as nonattainment for the 2015 ozone NAAQS and 
established classifications for the designated nonattainment areas.\7\ 
On October 7, 2022, the EPA determined that 22 areas or portions of 
areas classified as Marginal under the 2015 ozone NAAQS failed to 
attain the standards by the applicable attainment date and were 
reclassified as Moderate, effective November 7, 2022.\8\ Separately, on 
January 5, 2023, the EPA determined that the Las Vegas, Nevada, area 
classified as Marginal under the 2015 ozone NAAQS failed to attain the 
standards by the August 3, 2021, attainment date and was reclassified 
as Moderate, effective the same day.\9\
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    \6\ 83 FR 10376 (March 9, 2018).
    \7\ 83 FR 25776 (June 4, 2018), effective August 3, 2018; 83 FR 
35136 (July 25, 2018), effective September 24, 2018; 86 FR 31438 
(June 14, 2021), effective July 14, 2021.
    \8\ 87 FR 60897 (October 7, 2022). The applicable Marginal area 
attainment date was August 3, 2021, except for the San Antonio, 
Texas, area, which was September 24, 2021.
    \9\ 88 FR 775 (January 5, 2023). The applicable Marginal area 
attainment date was August 3, 2021.
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    Responsible State air agencies with nonattainment areas classified 
as Moderate for the 2015 ozone NAAQS are required to submit a SIP 
revision that satisfies the air quality planning requirements for a 
Moderate area under sections 172, 182(b), and 182(f) of the CAA. The 
required SIP elements include: nonattainment new source review (NNSR); 
reasonable further progress (RFP); ozone attainment demonstration (AD); 
reasonably available control measures (RACM); reasonably available 
control technology (RACT); contingency measures (CM); and Basic motor 
vehicle inspection and maintenance (I/M Basic) where required. Included 
within RACT are provisions to require the implementation of RACT for 
each category of volatile organic compound (VOC) sources in the area 
covered by any control techniques guideline (CTG), for major stationary 
sources of VOC not covered by a CTG, and for major stationary sources 
of NOX.\10\ The SIP revisions for the nonattainment areas 
reclassified as Moderate, effective November 7, 2022, were due no later 
than January 1, 2023.\11\
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    \10\ See CAA sections 182(b)(2) and 182(f). The EPA's CTGs may 
be accessed at https://www.epa.gov/ground-level-ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques.
    \11\ 87 FR 60897, 60907 (October 7, 2022).
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    Pursuant to CAA section 110(k)(1)(B), the EPA must determine no 
later than 6 months after the date by which a State is required to 
submit a SIP whether a State has made a submission that meets the 
minimum completeness criteria established pursuant to CAA section 
110(k)(1)(A). These criteria are set forth at 40 CFR part 51, appendix 
V. For those States that have not yet made a submittal that was 
complete with respect to the applicable minimum completeness criteria, 
the EPA is making a finding of failure to submit a complete SIP.
    Based on a review of SIP submittals received and deemed complete as 
of the date of this final action, the EPA is finding that the States 
listed in Table 1 have failed to submit specific required SIP elements, 
which were due no later than January 1, 2023.

          Table 1--Findings of Failure To Submit Certain Required SIP Elements for the 2015 Ozone NAAQS
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                                                                                          Required Moderate area
       Region                 State                          Area name                        SIP element *
----------------------------------------------------------------------------------------------------------------
1...................  CT..................  Greater Connecticut........................  RFP, Ozone AD, CM, I/M
                                                                                          Basic.
2...................  NJ..................  Philadelphia-Wilmington-Atlantic City......  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
3...................  DE..................  Philadelphia-Wilmington-Atlantic City......  RFP, Ozone AD, RACM,
                                                                                          VOC CTG RACT, Non-CTG
                                                                                          VOC RACT for major
                                                                                          sources, NOX RACT for
                                                                                          major sources, CM, I/M
                                                                                          Basic.
5...................  IL..................  Chicago....................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
5...................  IL..................  St. Louis..................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
5...................  IN..................  Chicago....................................  NOX RACT for major
                                                                                          sources.
5...................  MI..................  Allegan County.............................  RFP, Ozone AD, RACM,
                                                                                          VOC CTG RACT, Non-CTG
                                                                                          VOC RACT for major
                                                                                          sources, NOX RACT for
                                                                                          major sources, CM.
5...................  MI..................  Berrien County.............................  RFP, Ozone AD, RACM,
                                                                                          VOC CTG RACT, Non-CTG
                                                                                          VOC RACT for major
                                                                                          sources, NOX RACT for
                                                                                          major sources, CM.
5...................  MI..................  Muskegon County............................  RFP, Ozone AD, RACM,
                                                                                          VOC CTG RACT, Non-CTG
                                                                                          VOC RACT for major
                                                                                          sources, NOX RACT for
                                                                                          major sources, CM.
5...................  WI..................  Chicago....................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
5...................  WI..................  Milwaukee..................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.

[[Page 71759]]

 
5...................  WI..................  Sheboygan County...........................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM.
6...................  TX..................  Dallas-Fort Worth..........................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
6...................  TX..................  Houston-Galveston-Brazoria.................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
6...................  TX..................  San Antonio................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
9...................  AZ..................  Phoenix-Mesa...............................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,**
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources,** NOX
                                                                                          RACT for major
                                                                                          sources,** CM, I/M
                                                                                          Basic.
9...................  CA..................  Mariposa County............................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
9...................  NV..................  Las Vegas..................................  NNSR, RFP, Ozone AD,
                                                                                          RACM, VOC CTG RACT,
                                                                                          Non-CTG VOC RACT for
                                                                                          major sources, NOX
                                                                                          RACT for major
                                                                                          sources, CM, I/M
                                                                                          Basic.
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* Listed SIP elements are to satisfy the air quality planning requirements for Moderate areas under CAA sections
  172, 182(b), and 182(f), which were due for the listed areas no later than January 1, 2023.
** The Arizona Department of Environmental Quality submitted a RACT SIP for the Maricopa County portion of the
  Phoenix-Mesa Moderate area on May 4, 2023, and EPA determined the submittal was complete on September 12,
  2023.

    The Kentucky portion of the Louisville, Kentucky-Indiana, area is 
not included in this action because the State of Kentucky submitted a 
complete request for the EPA to redesignate its area portion to 
attainment for the 2015 ozone NAAQS, and this request was received 
before the January 1, 2023, SIP submittal deadline for reclassified 
Moderate areas.\12\ The Washington, District of Columbia-Maryland-
Virginia, area is not included in this action because the EPA has 
proposed a clean data determination for the area for the 2015 ozone 
NAAQS.\13\ Finally, the Pechanga Band of Luise[ntilde]o Mission Indians 
of the Pechanga Reservation area is not included in this action because 
CAA provisions mandating the submission of State implementation plans 
do not apply to tribes.\14\
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    \12\ The EPA proposed but has not yet finalized action on a 
redesignation request for Kentucky's portion of the Louisville area 
received September 6, 2022 (88 FR 23598, April 18, 2023). No 
requirements under CAA section 182(b) became due prior to Kentucky's 
submittal of a complete redesignation request and, therefore, none 
will be applicable for purposes of any final redesignation. The 
Indiana portion of the Louisville area was redesignated to 
attainment for the 2015 ozone NAAQS effective July 11, 2022 (87 FR 
39750, July 11, 2022).
    \13\ 88 FR 6688 (February 1, 2023).
    \14\ 40 CFR 49.4.
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III. Consequences of Findings of Failure To Submit

    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(a) establishes specific consequences, after a period of time, 
including the imposition of mandatory sanctions for the affected area. 
Additionally, such a finding triggers an obligation under CAA section 
110(c) for the EPA to promulgate a FIP no later than 2 years after 
issuance of the finding of failure to submit if the affected State has 
not submitted, and the EPA has not approved, the required SIP 
submittal.
    If the EPA has not affirmatively determined that a State has made 
the required complete SIP submittal for an area within 18 months of the 
effective date of this action, 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 made the required 
complete SIP submittal within 6 months after the offset sanction is 
imposed, 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 sanctions will not take effect if, within 18 months after 
the effective date of these findings, the EPA affirmatively determines 
that the State has made a complete SIP submittal addressing the 
deficiency for which the finding was made. Additionally, if the State 
makes the required SIP submittal and the EPA takes final action to 
approve the submittal within 2 years of the effective date of these 
findings, the EPA is not required to promulgate a FIP for the affected 
nonattainment area.

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

    Based on a review of SIP submittals received and deemed complete as 
of the date of signature of this action, the EPA finds that the States 
listed in Table 1 above failed to submit the indicated SIP elements 
required under sections 172, 182(b), and 182(f) of the CAA and that 
were due no later than January 1, 2023, for the listed nonattainment 
areas.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review, and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act (PRA)

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

C. Regulatory Flexibility Act (RFA)

    I certify that this action 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. This action 
is a finding that the named States have not made the necessary SIP 
submission for certain nonattainment areas to meet the requirements of 
part D of title I of the CAA.

[[Page 71760]]

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no new enforceable duty on any State, local or Tribal governments or 
the private sector.

E. 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.

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

    This action does not have Tribal implications as specified in 
Executive Order 13175. This action 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. 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.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks 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 failed to submit SIP 
revisions that satisfy the nonattainment area planning requirements 
under sections 172 and 182 of the CAA and does not concern an 
environmental health risk or safety risk.

H. 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

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

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The EPA did not perform an EJ analysis and did not consider EJ in 
this action. Due to the nature of the action being taken here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, which finds that certain States have failed to 
submit SIP revisions that satisfy the nonattainment area planning 
requirements under sections 172 and 182 of the CAA, and there is no 
information in the record inconsistent with the stated goal of E.O. 
12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.

K. 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).

L. Determinations Under CAA Section 307(b)(1) and (d)

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. 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 if (i) the agency action consists of 
``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator,'' or (ii) such action is locally or 
regionally applicable, but ``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.'' For locally or regionally applicable final actions, 
the CAA reserves to the EPA complete discretion whether to invoke the 
exception in (ii).
    This rulemaking is ``nationally applicable'' within the meaning of 
CAA section 307(b)(1). In this final action, the EPA is applying a 
uniform legal interpretation with respect to findings of failure to 
submit required SIPs for reclassified Moderate areas under the 2015 
ozone NAAQS from 11 States with nonattainment areas, located in six of 
the 10 EPA Regions, and in the 2nd, 3rd, 5th, 6th, 7th, and 9th 
Circuits. This final action is also based on a common core of factual 
findings concerning the receipt and completeness of the relevant SIP 
submittals. For these reasons, this is a ``nationally applicable'' 
action within the meaning of CAA section 307(b)(1).
    In the alternative, to the extent a court finds this action to be 
locally or regionally applicable, the Administrator is exercising the 
complete discretion afforded to him under the CAA to make and publish a 
finding that this action is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1).\15\ In 
this final action, the EPA is applying a uniform legal interpretation 
with respect to findings of failure to submit required SIPs for 
reclassified Moderate areas under the 2015 ozone NAAQS, based on a 
common core of factual findings concerning the receipt and completeness 
of the relevant SIP submittals. In deciding to invoke this exception, 
the Administrator has taken into account a number of policy 
considerations, including his judgment regarding the benefit of 
obtaining the D.C. Circuit's authoritative centralized review, rather 
than allowing development of the issue in other contexts, in order to 
ensure consistency in the Agency's approach to implementation of the 
2015 ozone

[[Page 71761]]

NAAQS in the majority of the nonattainment areas nationwide for the 
2015 ozone NAAQS. This final action treats all of the identified States 
with reclassified Moderate nonattainment areas consistently, in making 
findings of failure to submit required SIPs.
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    \15\ In the report on the 1977 Amendments that revised CAA 
section 307(b)(1), Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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    The Administrator finds that this is a matter on which national 
uniformity is desirable to take advantage of the D.C. Circuit's 
administrative law expertise and facilitate the orderly development of 
the basic law under the CAA. The Administrator also finds that 
consolidated review of this action in the D.C. Circuit will avoid 
piecemeal litigation in the regional circuits, further judicial 
economy, and eliminate the risk of inconsistent results for different 
States. The Administrator also finds that a nationally consistent 
approach to the CAA's mandate concerning reclassification of areas that 
fail to attain the 2015 ozone NAAQS constitutes the best use of agency 
resources. The Administrator is publishing his finding that this action 
is based on a determination of nationwide scope or effect in the 
Federal Register as part of this final action.
    For these reasons, this final action is nationally applicable or, 
alternatively, the Administrator is exercising the complete discretion 
afforded to him by the CAA and finds that this final action is based on 
a determination of nationwide scope or effect for purposes of CAA 
section 307(b)(1) and is publishing that finding in the Federal 
Register. 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 by December 18, 2023.

List of Subjects in 40 CFR Part 52

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

Joseph Goffman,
Principal Deputy Assistant Administrator.
[FR Doc. 2023-22987 Filed 10-17-23; 8:45 am]
BILLING CODE 6560-50-P


