Completeness Findings for Section 110(a) State Implementation Plans; 8-hour Ozone NAAQS

Federal Register: March 27, 2008 (Volume 73, Number 60)

Rules and Regulations

Page 16205-16211

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr27mr08-5

ENVIRONMENTAL PROTECTION AGENCY 40 CFR PART 52

EPA-HQ-OAR-2007-1173, FRL-8545-6

RIN 2060-APO3

Completeness Findings for Section 110(a) State Implementation

Plans for the 8-hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is making a finding concerning whether or not each

State has submitted a complete State Implementation Plan (SIP) that provides the basic program elements specified in Clean Air Act (Act or

CAA) section 110(a)(2) necessary to implement the 1997 8-hour ozone

National Ambient Air Quality Standards (NAAQS). By this action, EPA is identifying those States that: Have failed to make a complete submission for all requirements; have failed to make a complete submission for specific requirements; or have made a complete submission. The findings of failure to submit for all or a portion of a

State's SIP establish a 24-month deadline for EPA to promulgate Federal

Implementation Plans (FIPs) to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs. The findings that all, or portions of a

State's SIP submission, are complete establish a 12-month deadline for

EPA to take action upon the complete SIP elements in accordance with section 110(k).

DATES: The effective date of this rule is April 28, 2008.

FOR FURTHER INFORMATION CONTACT: General questions concerning this notice should be addressed to Mr. Larry D. Wallace, PhD, Office of Air

Quality Planning and Standards, Air Quality Policy Division, Mail Code

C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone (919) 541-0906.

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures

Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions, or incomplete submissions, to meet the requirement by the statutory date. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

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

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Regional offices

States

Dave Conroy, Acting Branch Chief, Air

Connecticut, Maine,

Programs Branch, EPA New England, 1

Massachusetts, New Hampshire,

Congress Street, Suite 1100, Boston,

Rhode Island, and Vermont.

MA 02203-2211.

Raymond Werner, Chief, Air Programs

New Jersey, New York, Puerto

Branch, EPA Region II, 290 Broadway,

Rico, and the Virgin Islands. 21st Floor, New York, NY 10007-1866.

Christina Fernandez, Acting Branch

Delaware, District of Columbia,

Chief, Air Quality Planning Branch,

Maryland, Pennsylvania,

EPA Region III, 1650 Arch Street,

Virginia, and West Virginia.

Philadelphia, PA 19103-2187.

Dick A. Schutt, Chief, Regulatory

Alabama, Florida, Georgia,

Development Section, EPA Region IV,

Kentucky, Mississippi, North

Sam Nunn, Atlanta Federal Center, 61

Carolina, South Carolina, and

Forsyth Street, SW., 12th Floor,

Tennessee.

Atlanta, GA 30303.

Jay Bortzer, Chief, Air Programs

Illinois, Indiana, Michigan,

Branch, EPA Region V, 77 West Jackson

Minnesota, Ohio, and

Street, Chicago, IL 60604.

Wisconsin.

Tom Diggs, Acting Associate Director

Arkansas, Louisiana, New

Air Programs, EPA Region VI, 1445 Ross Mexico, Oklahoma, and Texas.

Avenue, Dallas, TX 75202-2733.

Joshua A. Tapp, Chief, Air Programs

Iowa, Kansas, Missouri, and

Branch, EPA Region VII, 901 North 5th

Nebraska.

Street, Kansas City, Kansas 66101-2907.

Cynthia Cody, Unit Leader, Air Quality Colorado, Montana, North

Planning Unit, EPA Region VIII Air

Dakota, South Dakota, Utah,

Program, 1595 Wynkoop St. (8P-AR),

and Wyoming.

Denver, CO 80202-1129.

Lisa Hanf, Air Planning Office, EPA

Arizona, California, Guam,

Region IX, 75 Hawthorne Street, San

Hawaii, and Nevada.

Francisco, CA 94105.

Mahbubul Islam, Manager, State and

Alaska, Idaho, Oregon, and

Tribal Air Programs, EPA Region X,

Washington.

Office of Air, Waste, and Toxics, Mail

Code OAQ-107, 1200 Sixth Avenue,

Seattle, WA 98101.

Table of Contents

I. Background

II. This Action

1. Finding of Failure To Submit for States that Failed To Make a

   Submittal

2. Finding of Failure To Submit Specific Elements of Section 110(a)(2)

3. List of States That Submitted Complete Submissions To Satisfy the Section 110(a)(2) Requirements

   III. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review

2. Paperwork Reduction Act

3. Regulatory Flexibility Act (RFA)

4. Unfunded Mandates Reform Act of 1995 (UMRA)

5. Executive Order 13132: Federalism

6. Executive Order 13175: Consultation and Coordination With

   Indian Tribal Governments

7. Executive Order 13045: Protection of Children From

   Environmental Health and Safety Risks

8. Executive Order 13211: Actions That Significantly Affect

   Energy Supply, Distribution, or Use

   I. National Technology Transfer Advancement Act

10. Executive Order 12898: Federal Actions To Address

    Environmental Justice in Minority and Low Income Populations

11. Congressional Review Act

    L. Judicial Review

    I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8- hour average concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 ppm to 0.08 ppm (62 FR 38,856).

    The CAA section 110(a) requires States to submit SIPs that provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within 3 years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon States to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the State develops and submits the SIP for a new or revised NAAQS necessarily affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the State's existing SIP already contains. In the case of the 1997 8-hour ozone NAAQS, States typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards.

    Section 110(a)(2) lists specific elements that States must meet in these SIP submissions. The requirements include SIP infrastructure elements such as requirements for modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this action are listed in EPA's October 2, 2007 memorandum entitled ``Guidance on SIP

    Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour

    Ozone and PM-2.5 National Ambient Air Quality Standards.''

    Two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (ii) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA.

    Therefore, this action does not cover these specific SIP elements. This action also does not pertain to section 110(a)(2)(D), because EPA has previously addressed that requirement.\1\

    \1\ EPA published a finding that all States had failed to submit

    SIPs addressing interstate transport for the 8-hour ozone and

    PM2.5NAAQS, as required by section 110(a)(2)(D)(i). See 70 FR 21,147 (April 25, 2005).

    As of 2004, States had not submitted complete SIPs to satisfy all of the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS revision. On March 4, 2004, Earth Justice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to these requirements. Subsequently, EPA entered into a Consent

    Decree with Earth Justice which required EPA, among other things, to complete a Federal Register notice announcing EPA's determinations pursuant to section 110(k)(1)(B) as to whether each State has made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to complete this Federal Register notice until March 17, 2008, based upon an

    Page 16207

    agreement to make the findings with respect to submissions made by

    January 7, 2008. In accordance with the Consent Decree, EPA is making completeness findings for each State based upon what the Agency received from each State as of January 7, 2008. This notice reflects

    EPA's determinations with respect to the section 110(a)(2) requirements, based upon the submissions made by the States, either certifying that they have already met the requirements, making a submission to meet any outstanding requirements, or both.

    For those States that have not yet made a submittal, or that made a submittal that was not complete with respect to each element of section 110(a)(2), EPA is making a finding of failure to submit. For those

    States that did not make any submittal by January 7, 2008, EPA is making a finding with respect to all of the section 110(a)(2) SIP elements. For those States that did not make a submittal that addressed all of the section 110(a)(2) elements, EPA is making these findings only with respect to those specific section 110(a)(2) SIP elements which a State has not certified that it has met, or not made a SIP submission to meet, as of January 7, 2008. These findings establish a 24 month deadline for the promulgation by EPA of a FIP, in accordance with section 110(c)(1). These findings of failure to submit do not impose sanctions, or set deadlines for imposing sanctions as described in section 179 of the CAA, because these finding do not pertain to the elements of a Title I part D plan for nonattainment areas as required under section 110(a)(2)(I), and because this action is not a SIP call pursuant to section 110(k)(5).

    With respect to the remaining section 110(a)(2) SIP elements in those States in which EPA has identified specific findings of failure to submit, EPA is by this action making a finding that the remainder of such SIPs are complete. Likewise, with respect to those States for which EPA has not made any finding of failure to submit concerning the section 110(a)(2) SIP elements, EPA is by this action making a finding that such SIPs are complete for all such elements. These full and partial completeness findings establish a 12-month deadline for EPA to take action upon such SIPs in accordance with section 110(k).

    II. This Action

    The EPA is making a finding concerning whether each State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. For those States that have not yet made a complete submission, or that have not made a submission that is complete for each element of section 110(a)(2), these findings establish a 24-month deadline for the promulgation by EPA of a FIP addressing these specific

    SIP elements, in accordance with section 110(c)(1). For those States that have submitted a complete SIP, and for those elements of SIPs in

    States for which EPA has identified only partial incompleteness, these findings establish a 12-month deadline for action upon the SIP, in accordance with section 110(k). This action will be effective on April 28, 2008.

1. Finding of Failure To Submit for States That Failed to Make a

   Submittal

   The following States failed to make a complete submittal to satisfy the requirements of section 110(a)(2) by January 7, 2008. EPA is by this action starting a 24-month deadline by which time EPA must promulgate a FIP for the affected States to address section 110(a)(2) requirements, if the affected States fail to submit, and obtain EPA approval of, the SIP revisions necessary to address these requirements.

   The States and territories that are affected by this finding of failure to submit are the following:

   Region I: Vermont

   Region VI: Texas

   Region VIII: North Dakota

   Region IX: Arizona, Hawaii, Nevada,\2\ Guam, American Samoa,

   Commonwealth of the Northern Mariana Islands.

   \2\ It should be noted that, while the State of Nevada did not make the submittal addressing the requirements of section 110(a)(2) by the January 7, 2008 timeframe specified in the amended Consent

   Decree with Earth Justice, the State has subsequently made a submittal to address these requirements on February 1, 2008 and EPA is currently reviewing the submittal for completeness and approvability.

   Region X: Alaska, Idaho, Oregon, Washington.

2. Finding of Failure To Submit Specific Elements of Section 110(a)(2)

   The following States made submissions that address some, but not all of the section 110(a)(2) requirements, by January 7, 2008. EPA is by this action identifying the specific elements for which States have not made a complete submission:

   Region I:

   Massachusetts: The State of Massachusetts has failed to submit a

   SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Region II:

   New York: The State of New York has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   New Jersey: The State of New Jersey has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Puerto Rico: The Commonwealth of Puerto Rico has failed to submit a

   SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Virgin Islands: The Virgin Islands has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Region III:

   Maryland: As required by sections 110(a)(2)(C) and (J), the State of Maryland has failed to submit a SIP addressing changes to its part C

   PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Pennsylvania: The Commonwealth of Pennsylvania has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) for only the Allegheny County portion of the Commonwealth. However, this requirement has already been addressed by a FIP (Implementation of the Federal PSD program has been delegated to the Allegheny County

   Health Department) that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the

   Commonwealth, exclusive of Allegheny County, has a SIP approved PSD program in place.

   Virginia: The Commonwealth of Virginia has failed to submit a SIP addressing the part C PSD permit program, which consists of changes required by the November 29, 2005 (70 FR 71612 page 71699) final rule that

   Page 16208

   made NOXa precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Washington, DC: The District of Columbia has failed to submit a SIP addressing sections 110(a)(2)(B), (C) (the Part C PSD permit program),

   (E)(i), (F) (the public availability of reports), (H), and (J) (with respect to a part C Prevention of Significant Deterioration (PSD) permit program and to public notification under section 127).\3\ The section 110(a)(2)(C) (the Part C PSD permit program) requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation with respect to this requirement.

   \3\ While the District of Columbia did not make the submittal addressing the aforementioned requirements by the January 7, 2008 timeframe called for under the Consent Decree with Earth Justice, the District of Columbia subsequently made a submittal on January 11, 2008 that addresses the requirements related to sections 110(a)(2)(B), (E)(i), (F) (with respect to the public availability of reports), (H), and (J) (with respect to public notification under section 127). The EPA is currently reviewing the submittal for completeness. The District of Columbia has not submitted a part C

   PSD permit program required under sections 110(a)(2)(C) and (J). It should be noted, however, that the District of Columbia is already subject to a FIP for a PSD permit program pursuant to 40 CFR 52.499.

   West Virginia: The State of West Virginia has failed to make a submittal with respect to sections 110(a)(2)(B), (E)(i), (G) (with respect to authority comparable to section 303), (H) and (J) (relating to public notification under section 127) and (M). The State of West

   Virginia has also failed to submit a SIP addressing changes to the part

   C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Delaware: As required by sections 110(a)(2)(C) and (J), the State of Delaware has failed to submit a SIP addressing changes to its part C

   PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the

   Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Region IV:

   Florida: The State of Florida has failed to submit a SIP addressing the emergency episode plan requirement of section 110(a)(2)(G).

   Georgia: The State of Georgia has failed to submit a SIP addressing the emergency episode plan requirements of section 110(a)(2)(G).

   North Carolina: As required by sections 110(a)(2)(C) and (J), the

   State of North Carolina has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70

   FR 71612, page 71699) final rule that made NOXa precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.\4\

   \4\ The State of North Carolina is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008.

   Tennessee: As required by sections 110(a)(2)(C) and (J), the State of Tennessee has failed to submit a SIP addressing changes to its part

   C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.\5\

   \5\ The State of Tennessee is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008.

   Region V:

   Illinois: The State of Illinois has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Minnesota: The State of Minnesota has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).

   However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

   Region VI:

   Arkansas: As required by section 110(a)(2)(C) and (J), the State of

   Arkansas has failed to submit a SIP addressing changes to the part C

   PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   New Mexico: As required by section 110(a)(2)(C) and (J), the State of New Mexico has failed to submit a SIP addressing changes to the part

   C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Oklahoma: As required by section 110(a)(2)(C) and (J), the State of

   Oklahoma has failed to submit a SIP addressing changes to the part C

   PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOXa precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

   Region IX:

   California: The State of California has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) that applies to some Air Districts within the State. However, this requirement has already been addressed for these Air Districts by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the State, exclusive of these Air Districts have an approved PSD program in place.

3. List of States That Submitted Complete Submissions to Satisfy the

   Section 110(a)(2) Requirements

   The following States have been determined by EPA to have made complete SIP submissions that address all of the section 110(a)(2) requirements by January 7, 2008:

   Region I: Maine, Rhode Island, Connecticut, and New Hampshire.

   Region IV: Alabama, Kentucky, Mississippi, and South Carolina.

   Region V: Indiana, Ohio, Michigan, and Wisconsin.

   Region VI: Louisiana.

   Region VII: Iowa, Kansas, Nebraska, and Missouri.

   Region VIII: Colorado, Montana, South Dakota, Utah, and Wyoming.

   III. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review

   Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a ``significant regulatory action'' because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.

2. Paperwork Reduction Act

   This action does not impose an information collection burden under the

   Page 16209

   provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This rule relates to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as

   EPA may provide. The present final rule does not establish any new information collection requirement apart from that already required by law. Burden means that total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in the

   CFR are listed in 40 CFR part 9.

3. Regulatory Flexibility Act (RFA)

   The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative

   Procedures Act (APA) or any other statute 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 organizations, and small governmental jurisdictions.

   For the purpose of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that is a small industry entity as defined in the U.S. Small Business

   Administration (SBA) size standards (See 13 CFR 121); (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 independently owned and operated is not dominant in its field.

   After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities.

4. Unfunded Mandates Reform Act of 1995 (UMRA)

   Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public

   Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandate'' that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify, and consider, a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the

   Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small government on compliance with regulatory requirements.

   EPA has determined that this action does not contain a Federal mandate that may result in expenditures of $100 million or more for

   State, local and tribal governments, in the aggregate, or the private sector in any 1 year. It does not create any additional requirements beyond those of the 1997 8-hour ozone NAAQS (62 FR 38652; 62 FR 38856,

   July 18, 1997). This rule responds to the requirement in the CAA for

   States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as EPA may provide. The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this action is not subject to the requirements of section 202 and 205 of the UMRA.

5. Executive Order 13132: Federalism

   Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure

   ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.''

   ``Policies that have federalism implications'' is defined in the

   Executive Order to include regulations that have ``substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.''

   This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS.

   This rule will not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive

   Order 13132 does not apply to this rule.

6. Executive Order 13175: Consultation and Coordination With Indian

   Tribal Governments

   Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by

   Page 16210

   Tribal officials in the development of regulatory policies that have

   Tribal implications.'' This final rule does not have Tribal implications, as specified in Executive Order 13175. This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that provide for implementation, maintenance, and enforcement of a new or revised NAAQS, and which satisfy the applicable requirements of section 110(a)(2), within 3 years of promulgation of such standard, or within shorter period as EPA may provide. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The regulations clarify the statutory obligations of States and Tribes that develop plans to implement this rule. The Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and implement CAA programs, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, the

   Tribe will adopt.

   This rule does not have Tribal implications as defined by Executive

   Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, because no Tribe has implemented an air quality management program related to the 1997 8-hour ozone NAAQS. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The

   CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this rule.

7. Executive Order 13045: Protection of Children From Environmental

   Health and Safety Risks

   EPA interprets EO 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 EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is making findings concerning whether or not each

   State has submitted a complete SIP that provides the basic program elements specified in CAA section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. The findings of failure to submit for all or a portion of a State's SIP establish a 24-month deadline for EPA to promulgate FIPs to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs.

8. Executive Order 13211: Actions That Significantly Affect Energy

   Supply, Distribution, or Use

   This rule is not a ``significant energy action'' as defined in

   Executive Order 13211, ``Actions Concerning Regulations That

   Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355

   (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. At the time of proposal of the implementation rule for the 1997 8-hour ozone standard, information on the methodology and data regarding the assessment of potential energy impacts regarding implementation of the 1997 8-hour standard was addressed in Chapter 6 of U.S. EPA 2003, Cost, Emission

   Reduction, Energy, and Economic Impact Assessment of the Proposed Rule

   Establishing the Implementation Framework for the 1997 8-Hour, 0.08 ppm

   Ozone National Ambient Air Quality Standard, prepared by the Innovative

   Strategies and Economics Group, Office of Air Quality Planning and

   Standards, Research Triangle Park, NC, April 24, 2003. Subsequently,

   EPA issued an Addendum 1 to that analysis for the Phase 1 final rule

   (April 30, 2004 (69 FR 33951)) and designated nonattainment areas. By adopting the more flexible approaches while providing for attainment and maintenance of the 8-hour NAAQS as required by the CAA for the areas covered by this rulemaking, additional energy cost associated with more extensive use of less flexible approaches would be averted.

   I. National Technology Transfer Advancement Act

   Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards

   (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The

   NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

   This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS.

10. Executive Order 12898: Federal Actions To Address Environmental

    Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes

    Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

    EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not directly affect the level of protection provided to human health or the environment. This notice is making a finding concerning whether each

    State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS.

11. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

    Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the

    United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of

    Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal

    Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be effective April 28, 2008.

    L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date final action is published in the Federal Register. Filing a petition for review by the Administrator of this

    Page 16211

    final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action.

    Thus, any petitions for review of this action related to a finding of failure to submit related to the requirements of section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

    List of Subjects in 40 CFR Part 52

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

    Dated: March 17, 2008.

    Robert J. Meyers,

    Principal Deputy Assistant Administrator.

    FR Doc. E8-6176 Filed 3-26-08; 8:45 am

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