[Federal Register Volume 67, Number 141 (Tuesday, July 23, 2002)]
[Rules and Regulations]
[Pages 48032-48033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18581]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[FRL-7249-5]


Notice of Halting the Sanctions Clocks for the Commonwealth of 
Virginia's Failure To Submit Required State Implementation Plan for the 
NOX SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Determination regarding state implementation plan; notice of 
halting the sanctions clocks.

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SUMMARY: The EPA is announcing that the State Implementation Plan (SIP) 
revision in response to the Nitrogen Oxides (NOX) SIP Call 
submitted by the Commonwealth of Virginia (Virginia) is complete, 
thereby halting the sanctions clocks. Under the Clean Air Act (CAA) and 
EPA's NOX SIP Call regulations, Virginia was required to 
submit SIP measures providing for NOX emissions reductions, 
by October 30, 2000. On December 26, 2000, EPA made a finding that 
Virginia had failed to submit a SIP in response to the NOX 
SIP Call, thus starting the 18-month and 24-month clocks, respectively, 
for the mandatory imposition of sanctions and the obligation for EPA to 
promulgate a Federal Implementation Plan (FIP). On June 30, 2002, 
Virginia submitted, as a SIP revision, its NOX Budget 
Trading Program, in response to the NOX SIP Call. On July 
16, 2002, EPA found Virginia's SIP submission to be complete. The 
approval of the Virginia SIP revision in response to the NOX 
SIP Call will be addressed in a separate rulemaking action.

EFFECTIVE DATE: July 23, 2002.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On October 27, 1998 (63 FR 57356), EPA 
published a final rule entitled, ``Finding of Significant Contribution 
and Rulemaking for Certain States in the Ozone Transport Assessment 
Group Region for Purposes of Reducing Regional Transport of Ozone,'' 
otherwise known as the ``NOX SIP Call.'' On March 2, 2000 
(65 FR 11222), the NOX SIP Call rule was modified 
establishing emissions budgets for NOX that each of the 
identified States must meet through enforceable SIP measures. Various 
industries and States challenged the final NOX SIP Call rule 
by filing petitions for review in the U.S. Court of Appeals for the 
District of Columbia (D.C. Circuit). State Petitioners challenging the 
NOX SIP Call filed a motion requesting the Court to stay the 
submission schedule until April 27, 2000. In response, in May 1999, the 
DC Circuit issued a stay of the SIP submission deadline pending further 
order of the Court. Michigan v. EPA, No. 98-1497 (D.C. Cir., May 25, 
1999) (order granting stay in part). On March 3, 2000, the Court of 
Appeals issued an opinion, largely upholding the NOX SIP 
Call regulations. On April 11, 2000, EPA filed a motion with the Court 
to lift the stay of the SIP submission date. The EPA requested that the 
Court lift the stay as of April 27, 2000. On June 22, 2000, the Court 
ordered that EPA allow the States 128 days from the June 22, 2000 date 
of the order to submit their SIPs. Therefore, SIPs were due October 30, 
2000.
    On December 26, 2000 (65 FR 81366), EPA issued findings of failure 
to officially submit complete submissions to their SIPs, including 
adopted rules, in response to the SIP Call. The States that received 
these findings are Virginia, West Virginia, Alabama, Kentucky, North 
Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Ohio, 
and the District of Columbia. These findings started an 18-month 
sanctions clock; if the State failed to make the required submittal 
which EPA determined to be complete within that period, the emissions 
offset sanction would apply in accordance with 40 CFR 51.121(n) and 
52.31. If the State still had not made a complete submittal which EPA 
determined to be complete within six months after the sanction is 
imposed, limitations on the approval of Federal highway funds would 
apply in accordance with 40 CFR 51.212(a) and 52.31. Conversely, when 
EPA finds that the State has made a complete SIP submittal under the 
SIP Call, then the 18-month clock, or additional 6-month clock, stops 
and the sanctions would be lifted. In addition, CAA section 110(c) 
provides that EPA can promulgate a FIP immediately after making the 
findings, as late as two years after making the findings, or any time 
in between. On July 16, 2002, EPA determined that the Virginia SIP 
submission is complete; therefore, the sanctions clocks will not take 
effect.

Administrative Requirements

A. Notice and Comment Under the Administrative Procedure Act

    This document is final agency action but is not subject to notice-
and-comment requirements of the Administrative Procedures Act (APA), 5 
U.S.C. 553(b). The EPA invokes,

[[Page 48033]]

consistent with past practice (for example, 61 FR 36294), the good 
cause exception pursuant to the APA, 5 U.S.C. 553(b)(3)(B). The EPA 
believes that because of the limited time provided to make findings of 
failure to submit and findings of incompleteness regarding SIP 
submissions or elements of SIP submission requirements, Congress did 
not intend such findings to be subject to notice-and-comment 
rulemaking. Notice and comment are unnecessary because no significant 
EPA judgment is involved in making a nonsubstantive finding of failure 
to submit SIPs or elements of SIP submissions required by the CAA. 
Furthermore, providing notice and comment would be impracticable 
because of the limited time provided under the statute for making such 
determinations. Finally, notice and comment would be contrary to the 
public interest because it would divert agency resources from the 
critical substantive review of complete SIPs. See 58 FR 51270, 51272 
(October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

B. Executive Order 12866 (Regulatory Planning and Review)

    This action is exempt from OMB review under Executive Order 12866.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact on 
small entities of any rule subject to the notice-and-comment rulemaking 
requirements. Because this action is exempt from such requirements, as 
described under (A) above, it is not subject to the RFA.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates 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 mandates'' 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. 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, enabling 
officials of 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 governments on compliance with the regulatory 
requirements. Today's document contains no Federal mandates (under the 
regulatory provisions of title II of the UMRA) for State, local, or 
tribal governments or the private sector. The various CAA provisions 
discussed in this document require the States to submit SIPs. This 
document merely provides a finding that the States have not met those 
requirements. This document does not, by itself, require any particular 
action by any State, local, or tribal government, or by the private 
sector. For the same reasons, EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments.

E. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the APA, as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA 
submitted, by the effective date of this rule, 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 General 
Accounting Office. This rule is not a ``major rule'' as defined by APA 
section 804(2), as amended. The EPA is issuing this action as a 
rulemaking. There is a question as to whether this action is a rule of 
``particular applicability'' under [[Page 81369]] section 804(3)(A) of 
the APA as amended by SBREFA, and thus exempt from the congressional 
submission requirements, because this rule applies only to named 
States. In this case, EPA has decided to err on the side of submitting 
this rule to Congress, but will continue to consider this issue of the 
scope of the exemption for rules of ``particular applicability.''

F. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

G. Judicial Review

    Under CAA section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the District of Columbia 
within 60 days of July 23, 2002.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: July 16, 2002.
Abraham Ferdas,
Acting Regional Administrator, Region III.
[FR Doc. 02-18581 Filed 7-22-02; 8:45 am]
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