[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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