[Federal Register Volume 73, Number 60 (Thursday, March 27, 2008)]
[Rules and Regulations]
[Pages 16205-16211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6176]
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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.
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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:
[[Page 16206]]
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Regional offices States
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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.
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Table of Contents
I. Background
II. This Action
A. Finding of Failure To Submit for States that Failed To Make a
Submittal
B. Finding of Failure To Submit Specific Elements of Section
110(a)(2)
C. List of States That Submitted Complete Submissions To Satisfy
the Section 110(a)(2) Requirements
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
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 Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority and Low Income Populations
K. 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\
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\1\ EPA published a finding that all States had failed to submit
SIPs addressing interstate transport for the 8-hour ozone and
PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). See
70 FR 21,147 (April 25, 2005).
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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.
A. 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.
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\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.
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Region X: Alaska, Idaho, Oregon, Washington.
B. 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 NOX a 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 NOX a 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.
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\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.
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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 NOX a 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 NOX a 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 NOX a precursor
for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR
52.21.\4\
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\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.
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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 NOX a precursor for ozone
in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.\5\
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\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.
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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 NOX a 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 NOX a 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 NOX a 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.
C. 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
A. 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.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
J. 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.
K. 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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