[Federal Register Volume 87, Number 100 (Tuesday, May 24, 2022)]
[Proposed Rules]
[Pages 31510-31514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11027]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2018-0535; FRL-9690-01-R9]


Withdrawal and Partial Approval/Partial Disapproval of Clean Air 
Plans; San Joaquin Valley, California; Contingency Measures for 2008 
Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
withdraw the portion of the March 25, 2019 final action conditionally 
approving state implementation plan (SIP) submissions from the State of 
California under the Clean Air Act (CAA or ``Act'') to address 
contingency measure requirements for the 2008 ozone national ambient 
air quality standards (NAAQS or ``standards'') in the San Joaquin 
Valley, California ozone nonattainment area. The SIP revisions include 
the portions of the ``2016 Ozone Plan for the 2008 8-Hour Ozone 
Standard and the 2018 Updates to the California State Implementation 
Plan'' that address the contingency measure requirement for San Joaquin 
Valley. Simultaneously, the EPA is proposing a partial approval and 
partial disapproval of these SIP submissions. These proposed actions 
are in response to a decision issued by the U.S. Court of Appeals for 
the Ninth Circuit (Association of Irritated Residents v. EPA, Ninth 
Circuit, No. 19-71223, opinion filed August 26, 2021) remanding the 
EPA's conditional approval of the contingency measure SIP submissions.

DATES: Written comments must arrive on or before June 23, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0535 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Lawrence, EPA Region IX, (415) 
972-3407, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Background
II. Proposed Action and Clean Air Act Consequences
III. Request for Public Comment
IV. Statutory and Executive Order Reviews

I. Background

    Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight.\1\ These two pollutants, 
referred to as ozone precursors, are emitted by many types of sources, 
including on-and off-road motor vehicles and engines, power plants and 
industrial facilities, and smaller area sources such as lawn and garden 
equipment and paints. Scientific evidence indicates that adverse health 
effects occur following exposure to elevated levels of ozone, 
particularly in children and adults with lung disease. Breathing air 
containing ozone can reduce lung function and inflame airways, which 
can increase respiratory symptoms and aggravate asthma or other lung 
diseases.\2\
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    \1\ The State of California refers to reactive organic gases 
(ROG) rather than VOC in some of its ozone-related SIP submissions. 
As a practical matter, ROG and VOC refer to the same set of chemical 
constituents, and for the sake of simplicity, we refer to this set 
of gases as VOC in this proposed rule.
    \2\ See ``Fact Sheet--2008 Final Revisions to the National 
Ambient Air Quality Standards for Ozone'' dated March 2008.
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    Under section 109 of the CAA, the EPA promulgates NAAQS for 
pervasive air pollutants, such as ozone. The EPA has previously 
promulgated NAAQS for ozone in 1979 and 1997.\3\ In 2008, the EPA 
revised and further strengthened the ozone NAAQS by setting the 
acceptable level of ozone in the ambient air at 0.075 parts per million 
(ppm) averaged over an 8-hour period.\4\ Although the EPA further 
tightened the 8-hour ozone NAAQS to 0.070 ppm in 2015, this action 
relates to the requirements for the 2008 ozone NAAQS.\5\
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    \3\ The ozone NAAQS promulgated in 1979 was 0.12 parts per 
million (ppm) averaged over a 1-hour period. See 44 FR 8202 
(February 8, 1979). The ozone NAAQS promulgated in 1997 was 0.08 ppm 
averaged over an 8-hour period. See 62 FR 38856 (July 18, 1997).
    \4\ See 73 FR 16436 (March 27, 2008).
    \5\ Information on the 2015 ozone NAAQS is available at 80 FR 
65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, the EPA is 
required under CAA section 107(d) to designate areas throughout the 
country as attaining or not attaining the NAAQS. The EPA classifies 
ozone nonattainment areas under CAA section 181 according to the 
severity of the ozone pollution problem, with classifications ranging 
from ``Marginal'' to ``Extreme.'' State planning and emissions control 
requirements for ozone are determined, in part, by the nonattainment 
area's classification. The EPA designated the

[[Page 31511]]

San Joaquin Valley as nonattainment for the 2008 8-hour ozone NAAQS on 
May 21, 2012, and classified the area as Extreme.\6\
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    \6\ See 77 FR 30088 (May 21, 2012).
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    The San Joaquin Valley nonattainment area for the 2008 8-hour ozone 
NAAQS consists of San Joaquin, Stanislaus, Merced, Madera, Fresno, 
Tulare, and Kings counties, and the western portion of Kern County. The 
San Joaquin Valley nonattainment area stretches over 250 miles from 
north to south, averages a width of 80 miles, and encompasses over 
23,000 square miles. It is partially enclosed by the Coast Mountain 
range to the west, the Tehachapi Mountains to the south, and the Sierra 
Nevada range to the east.\7\ The population of the San Joaquin Valley 
in 2015 was estimated to be nearly 4.2 million people and is projected 
to increase by 25.3 percent by 2030 to over 5.2 million people.\8\
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    \7\ For a precise definition of the boundaries of the San 
Joaquin Valley 2008 ozone nonattainment area, see 40 CFR 81.305.
    \8\ The population estimates and projections include all of Kern 
County, not just the portion of Kern County within the jurisdiction 
of the SJVAPCD. See Chapter 1 and table 1-1 of the District's 2016 
Ozone Plan for the 2008 8-Hour Ozone Standard.
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    In California, the California Air Resources Board (CARB or 
``State'') is the state agency responsible for the adoption and 
submission to the EPA of California SIP submissions, and it has broad 
authority to establish emissions standards and other requirements for 
mobile sources. Under California law, local and regional air pollution 
control districts in California are responsible for the regulation of 
stationary sources and are generally responsible for the development of 
regional air quality plans. In the San Joaquin Valley, the San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD or 
``District'') develops and adopts air quality management plans to 
address CAA planning requirements applicable to that region. The 
District then submits such plans to CARB for adoption and submission to 
the EPA as proposed revisions to the California SIP.
    Under the CAA, after the EPA designates areas as nonattainment for 
a NAAQS, states with nonattainment areas are required to submit SIP 
revisions. With respect to areas designated as nonattainment, states 
must implement the 2008 8-hour ozone NAAQS under Title 1, part D of the 
CAA, which includes section 172 (``Nonattainment plan provisions in 
general'') and sections 181-185 of subpart 2 (``Additional Provisions 
for Ozone Nonattainment Areas''). To assist states in developing 
effective plans to address ozone nonattainment problems, in 2015, the 
EPA issued a SIP Requirements Rule (SRR) for the 2008 8-hour ozone 
NAAQS (``2008 Ozone SRR'') that addressed implementation of the 2008 
standards, including attainment dates, requirements for emissions 
inventories, attainment and reasonable further progress (RFP) 
demonstrations, as well as the transition from the 1997 8-hour ozone 
NAAQS to the 2008 8-hour ozone NAAQS and associated anti-backsliding 
requirements.\9\ The 2008 Ozone SRR is codified at 40 CFR part 51, 
subpart AA.
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    \9\ See 80 FR 12264, March 6, 2015.
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    In 2017 and 2018, CARB submitted SIP revisions to address the 
nonattainment planning requirements for San Joaquin Valley for the 2008 
ozone NAAQS, including the District's ``2016 Ozone Plan for the 2008 8-
Hour Ozone Standard'' (``2016 Ozone Plan'') and CARB's ``2018 Updates 
to the California State Implementation Plan'' (``2018 SIP Update''). In 
two separate final rules, we approved the 2016 Ozone Plan and the 2018 
SIP Update as meeting all the applicable statutory and regulatory 
requirements for the San Joaquin Valley Extreme nonattainment area for 
the 2008 ozone NAAQS, with the exception of the contingency measure 
requirement.\10\ For the contingency measure requirement, we issued a 
conditional approval that relied upon a commitment by the District to 
amend the District's architectural coatings rule to include contingency 
provisions and a commitment by CARB to submit the amended District rule 
to the EPA within a year of final conditional approval of the 
contingency measure element for the San Joaquin Valley.\11\
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    \10\ 84 FR 3302 (February 12, 2019), corrected at 84 FR 19680 
(May 3, 2019); and 84 FR 11198 (March 25, 2019).
    \11\ 84 FR 11198 (March 25, 2019).
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    Under the CAA, ozone nonattainment areas classified under subpart 2 
as ``Serious'' or above must include in their SIPs contingency measures 
consistent with sections 172(c)(9) and 182(c)(9). Contingency measures 
are additional controls or measures to be implemented in the event the 
area fails to make RFP or to attain the NAAQS by the attainment date. 
Contingency measures must be designed so as to be implemented 
prospectively; already-implemented control measures may not serve as 
contingency measures even if they provide emissions reductions beyond 
those needed for any other CAA purpose.\12\ The SIP should contain 
trigger mechanisms for the contingency measures, specify a schedule for 
implementation, and indicate that the measure will be implemented 
without significant further action by the state or the EPA.\13\ Neither 
the CAA nor the EPA's implementing regulations establish a specific 
amount of emissions reductions that implementation of contingency 
measures must achieve, but the 2008 Ozone SRR reiterates the EPA's 
guidance recommendation that contingency measures should provide for 
emissions reductions approximately equivalent to one year's worth of 
RFP, thus amounting to reductions of 3 percent of the baseline 
emissions inventory for the nonattainment area.\14\
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    \12\ See Bahr v. EPA, 836 F.3d 1218, at 1235-1237 (9th Cir. 
2016).
    \13\ See 70 FR 71612 (November 29, 2005); see also 2008 Ozone 
SRR, 80 FR 12264 at 12285 (March 6,2015).
    \14\ 80 FR 12264 at 12285 (March 6, 2015).
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    The contingency measure element of the 2016 Ozone Plan, as modified 
by the 2018 SIP Update, includes a CARB measure referred to as the 
``Enhanced Enforcement Activities Program'' and an evaluation of the 
surplus emissions reductions from already-implemented measures.\15\ In 
this context, ``surplus'' emissions reductions refer to emissions 
reductions that are not needed to meet other SIP requirements, such as 
the RFP and attainment demonstrations. In addition, the District and 
CARB made commitments to adopt and submit a contingency provision \16\ 
as part of the District's architectural coatings rule within a year of 
the final conditional approval. Once adopted, submitted, and approved, 
the contingency provision in the architectural coatings rule would 
become a third part of the contingency measure element. The EPA 
estimated that the contingency measure, i.e., the contingency provision 
in the architectural coatings rule, would achieve approximately 9 
percent of one year's worth of RFP.
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    \15\ 83 FR 61346, at 61356 (November 29, 2018).
    \16\ The specific contingency provision that the District 
committed to adopt is the removal of the exemption for architectural 
coatings that are sold in containers with a volume of one liter 
(1.057 quarts) or less, i.e., if triggered by an EPA determination 
of failure to meet an RFP milestone or failure to attain the 2008 
ozone NAAQS by the applicable attainment date.
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    In our March 25, 2019 final rule, we conditionally approved the 
contingency measure element and found that the one contingency measure 
(i.e., once adopted, submitted, and approved by the EPA) would be 
sufficient for the State and District to meet the contingency measure 
requirement for San Joaquin Valley for the 2008 ozone NAAQS, 
notwithstanding expected emissions reductions from the measure 
equivalent to only a fraction of one

[[Page 31512]]

year's worth of RFP.\17\ We found the reductions from the one 
contingency measure to be sufficient when considered together with the 
substantial surplus emissions reductions we anticipate to occur in the 
future from already-implemented measures and from other approved 
measures in the plan.\18\ In our March 25, 2019 final rule, we approved 
CARB's Enhanced Enforcement Activities Program measure as a ``SIP-
strengthening'' measure rather than as a contingency measure.\19\
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    \17\ 84 FR 11198, at 11206.
    \18\ Id.
    \19\ Id.
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    An environmental organization filed a petition for review of the 
EPA's March 25, 2019 conditional approval of the contingency measure 
element for San Joaquin Valley for the 2008 ozone NAAQS, arguing, among 
other things, that the EPA had abandoned, without providing a reasoned 
explanation for the change, its longstanding interpretation of the CAA 
that contingency measures must provide for emissions reductions 
equivalent to one year's worth of progress. The petitioners also argued 
that the EPA had violated the CAA by approving CARB's Enhanced 
Enforcement Activities Program as SIP-strengthening because it is 
unenforceable.\20\
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    \20\ Association of Irritated Residents v. EPA, Ninth Circuit 
Court of Appeals, Case No. 19-71223, Petitioner's Opening Brief, 
Docket Entry 18-1, filed September 3, 2019, 2.
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    On August 26, 2021, the U.S. Court of Appeals for the Ninth Circuit 
granted the petition in part and denied the petition in part, holding 
that the EPA's conditional approval of the contingency measure element 
was arbitrary and capricious because, in the court's view, the Agency 
had changed its position by accepting a contingency measure that would 
achieve far less than one year's worth of RFP, as meeting the 
contingency measure requirement without a reasoned explanation.\21\ The 
court found that by taking into account the emissions reductions from 
already-implemented measures to find that the contingency measure would 
suffice to meet the applicable requirement, the EPA was circumventing 
the court's 2016 holding in Bahr v. EPA. The court rejected the EPA's 
arguments that the Agency's approach was grounded in its long-standing 
guidance and was consistent with the court's 2016 Bahr v. EPA decision. 
With respect to CARB's Enhanced Enforcement Activities program measure, 
the court upheld the EPA's approval of it as SIP-strengthening and held 
that the measure was enforceable according to its terms. The court 
remanded the conditional approval action back to the Agency for further 
proceedings consistent with the decision.
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    \21\ Association of Irritated Residents. v. EPA, 10 F.4th 937 
(9th Cir. 2021).
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II. Proposed Action and Clean Air Act Consequences

    As noted above, the Ninth Circuit rejected the EPA's rationale for 
conditional approval of the contingency measure element of the 2016 
Ozone Plan, as modified by the 2018 SIP Update, for San Joaquin Valley 
for the 2008 ozone NAAQS. Specifically, the court found that the EPA 
could not rely on surplus emissions reductions from already-implemented 
measures to justify approval of a contingency measure that would 
provide only a fraction of one year's worth of RFP as meeting the 
contingency measure requirement. In this case, if we do not take into 
account surplus emissions reductions, then the one contingency measure 
supporting the conditional approval must shoulder the entire burden of 
achieving roughly one year's worth of RFP (if triggered). As noted 
previously, the one contingency measure, i.e., the contingency 
provision in the District's architectural coatings rule to which the 
District has committed, would provide approximately 9 percent of one 
year's worth of progress. Because the contingency measure would not 
provide reductions roughly equivalent to one year's worth of RFP, we 
find that the conditional approval can no longer be supported. We are 
therefore proposing to withdraw our March 25, 2019 conditional approval 
of the contingency measure element.
    In light of the decision in the Association of Irritated Residents 
v. EPA, we are proposing to partially approve and partially disapprove 
the contingency measure element of the 2016 Ozone Plan, as modified by 
the 2018 SIP Update, with respect to the contingency measure 
requirements under CAA section 172(c)(9) and 182(c)(9). For the reasons 
discussed above justifying withdrawal of the conditional approval, we 
are proposing to disapprove the contingency measure element except for 
the Enhanced Enforcement Activities Program measure.
    With respect to the Enhanced Enforcement Activities Program 
measure, we are proposing approval for the same reasons that we 
provided in the March 25, 2019 final rule and that were upheld by the 
Ninth Circuit.\22\ Namely, while we find that the Enhanced Enforcement 
Activities Program measure fails to meet the requirements for a stand-
alone contingency measure, we also find that it strengthens the SIP by 
triggering certain actions upon a failure to meet RFP or attainment by 
the applicable attainment date that may lead to emissions reductions 
that would not otherwise be achieved and thereby contribute in part to 
any remedy for an RFP shortfall or failure to attain.
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    \22\ CARB has confirmed that it has decided to retain the 
Enhanced Enforcement Activities Program measure in the San Joaquin 
Valley portion of the California SIP for the purposes of the 2008 
ozone NAAQS. See email correspondence dated February 24, 2022, from 
Sylvia Vanderspek, Chief, Air Quality Planning Branch, CARB, to 
Anita Lee, EPA Region IX.
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    This proposed withdrawal and partial disapproval, if finalized, 
would have the effect of removing the contingency measure element of 
the 2016 Ozone Plan, as modified by the 2018 SIP Update, from the 
applicable California SIP, except for the Enhanced Enforcement 
Activities Program measure, and removing the corresponding provisions 
in 40 CFR 52.220(c) where the EPA's approval of the contingency measure 
element is currently codified.\23\ Lastly, if the EPA finalizes the 
proposed partial disapproval of the contingency measure element of the 
2016 Ozone Plan, as modified by the 2018 SIP Update, the area would be 
eligible for a protective finding under the transportation conformity 
rule because the 2016 Ozone Plan, as modified by the 2018 SIP Update, 
reflects adopted control measures and contains enforceable commitments 
that fully satisfy the emissions reductions requirements for RFP and 
attainment for the 2008 Ozone NAAQS.\24\
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    \23\ The affected paragraphs include 40 CFR 
52.220(c)(496)(ii)(B)(4) and (514)(ii)(A)(2).
    \24\ 40 CFR 93.120(a)(3). Without a protective finding, the 
final disapproval would result in a conformity freeze, under which 
only projects in the first four years of the most recent conforming 
Regional Transportation Plan (RTP) and Transportation Improvement 
Programs (TIP) can proceed. Generally, during a freeze, no new RTPs, 
TIPs, or RTP/TIP amendments can be found to conform until another 
control strategy implementation plan revision fulfilling the same 
CAA requirements is submitted, the EPA finds its motor vehicle 
emissions budget(s) adequate pursuant to Sec.  93.118 or approves 
the submission, and conformity to the implementation plan revision 
is determined. Under a protective finding, the final disapproval of 
the contingency measures element would not result in a 
transportation conformity freeze in the SJV ozone nonattainment area 
and the metropolitan planning organizations may continue to make 
transportation conformity determinations.
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    If we finalize the proposed partial disapproval of the contingency 
measure

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element, the EPA must promulgate a Federal implementation plan (FIP) 
under section 110(c) unless we approve subsequent SIP revisions that 
correct the rule deficiencies within 24 months. In addition, under 40 
CFR 52.35, the offset sanction in CAA section 179(b)(2) will be imposed 
18 months after the effective date of this action, and the highway 
funding sanction in CAA section 179(b)(1) six months after the offset 
sanction is imposed. A sanction will not be imposed if the EPA 
determines that a subsequent SIP submission corrects the identified 
deficiencies before the applicable deadline.

III. Request for Public Comment

    The EPA is soliciting public comments on the issues discussed in 
this document. We will accept comments from the public on this proposal 
for the next 30 days and will consider comments before taking final 
action.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

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

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., because this proposed SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new information collection burdens but simply disapproves 
certain state requirements submitted for inclusion into the SIP. Burden 
is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of this rulemaking 
on small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed action on 
small entities, I certify that this proposed action will not have a 
significant impact on a substantial number of small entities. This 
rulemaking does not impose any requirements or create impacts on small 
entities. This proposed SIP disapproval under section 110 and 
subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new requirements but simply disapproves certain state 
requirements submitted for inclusion into the SIP. Accordingly, it 
affords no opportunity for the EPA to fashion for small entities less 
burdensome compliance or reporting requirements or timetables or 
exemptions from all or part of the rule. The fact that the Clean Air 
Act prescribes that various consequences (e.g., higher offset 
requirements) may or will result from disapproval actions does not mean 
that the EPA either can or must conduct a regulatory flexibility 
analysis for this proposed action. Therefore, this proposed action will 
not have a significant economic impact on a substantial number of small 
entities.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or 
the private sector. The EPA has determined that the proposed 
disapproval action does not include a Federal mandate that may result 
in estimated costs of $100 million or more to either state, local, or 
tribal governments in the aggregate, or to the private sector. This 
action proposes to disapprove pre-existing requirements under state or 
local law and imposes no new requirements. Accordingly, no additional 
costs to state, local, or tribal governments, or to the private sector, 
result from this proposed action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the 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, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This 
proposed 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, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this proposed action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP that the EPA is proposing to disapprove would not apply 
on any Indian reservation land or in any other area where the EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction, and the 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law. Thus, Executive Order 13175 does not 
apply to this proposed action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive order has the potential to influence the regulation. This 
proposed action is not subject to Executive Order 13045 because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
regulations but simply disapproves

[[Page 31514]]

certain state requirements submitted for inclusion into the SIP.

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

    This proposed action is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. The EPA 
believes that this proposed action is not subject to requirements of 
section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

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

    Executive Order 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. The EPA lacks the discretionary 
authority to address environmental justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 16, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-11027 Filed 5-23-22; 8:45 am]
BILLING CODE 6560-50-P


