E7-18835. Technical Amendments to Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Correction of Effective Date Under Congressional Review Act

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; correction of effective date under Congressional Review Act.

SUMMARY:

On July 25, 2007 (72 FR 40746), the EPA published in the Federal Register a final rule that approved a request that the Franklin County nonattainment area (“Franklin County Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS) and that approved the maintenance plan and the 2002 base-year emissions inventory as revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA). That July 25, 2007 final rule established an effective date of July 25, 2007. This document corrects the effective date of the rule to July 27, 2007 to be consistent with sections 801 and 808 of the Congressional Review Act, enacted as part of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 801 and 808.

EFFECTIVE DATE:

This rule is effective on September 25, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0174. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:

Christopher Cripps, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

Section 801 of the Congressional review Act precludes a rule from taking effect until the agency promulgating the rule submits a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the Government Accountability Office (GAO). After publication of the July 25, 2007 final rule (72 FR 40746) EPA discovered that it had inadvertently failed to submit the above rule as required; thus, although the rule was promulgated on July 25, 2007 (72 FR 40746), by operation of law, the rule did not take effect on July 25, 2007, as stated therein. After EPA discovered this error, EPA complied with its obligations under the Congressional Review Act by submitting the rule to both Houses of Congress and the GAO on July 27, 2007. This document corrects certain dates displayed in 40 CFR parts 52 and 81 to reflect the date on which EPA satisfied the procedural requirements of the Congressional Review Act.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, an agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA merely is memorializing in this action that EPA's compliance with the congressional review requirements of the Congressional Review Act, has as a matter of law, changed the effective date of the July 25, 2007 action, and EPA has no discretion in this matter. Thus, notice and public procedure are unnecessary. The Agency finds that this constitutes good cause under 5 U.S.C. 553(b)(B). Moreover, because today's action does not create any new regulatory requirements and the submittal of the rule to Congress has, by operation of law, changed the effective date of the July 25, 2007 rule to July 27, which this action merely memorializes, EPA finds that good cause exists to provide for an immediate effective date pursuant to 5 U.S.C. 553(d)(3). Because the delay in the effective date was caused by EPA's inadvertent failure to submit the rule under the Congressional Review Act, EPA does not believe that affected entities that acted in good faith relying upon the effective date stated in the July 25, 2007, Federal Register should be penalized if they were complying with the rule as promulgated.

II. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources.

Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Because this action allows the state to avoid adopting or implementing other requirements, affects the status of a geographical area, or does not impose any new requirements on sources, this action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

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. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

This final rule only amends the effective date of the underlying rule as promulgated on July 25, 2007 (72 FR 40746); it does not amend any substantive requirements contained in the rule. Accordingly, to the extent it is available, judicial review of today's final rule is limited to the amended effective date. Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2007. Filing a petition for reconsideration by the Administrator of this 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 may be filed, and shall not postpone the effectiveness of such rule or action.

This action amending consistent with the provisions of the Congressional Review Act the effective date of the July 25, 2007 (72 FR 40746) rule approving the redesignation of the Franklin County Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year emissions inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements.

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

Dated: September 14, 2007.

Donald S. Welsh,

Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart NN—Pennsylvania

2. In § 52.2020, the table in paragraph (e)(1) is amended by revising the entry for the 8-Hour Ozone Maintenance Plan and the 2002 Base Year Emissions Inventory for the Franklin County, Pennsylvania Area to read as follows:

§ 52.2020

Identification of plan.

* * * * *

(e) * * *

(1) * * *

Name of non-regulatory SIP revision	Applicable geographic area	State submittal date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory	Franklin County Area (Franklin County)	9/20/06, 11/08/06	7/25/07, 72 FR 40746	The SIP effective date is 7/27/07.
*         *         *         *         *         *         *

3. Section 52.2037 is amended by revising paragraph (m) to read as follows:

§ 52.2037

Control strategy plans for attainment and rate-of-progress: Ozone.

* * * * *

(m) Determination—EPA has determined that, as of July 27, 2007, the Franklin County ozone nonattainment area has attained the 1-hour ozone standard and that the following requirements of section 172(c)(2) of the Clean Air Act do not apply to this area for so long as the area does not monitor any violations of the 1-hour ozone standard of 40 CFR 50.9: the attainment demonstration and reasonably available control measure requirements of section 172(b)(1), the reasonable further progress requirement of section 172(b)(2), and the related contingency requirements of section 172(c)(9). If a violation of the 1-hour ozone NAAQS is monitored in the Franklin County 1-hour ozone nonattainment area, these determinations shall no longer apply.

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

2. In § 81.339, the table entitled “Pennsylvania-Ozone (8-Hour Standard)” is amended by revising the entry for the Franklin County, PA Area to read as follows:

§ 81.339

Pennsylvania.

* * * * *

Pennsylvania—Ozone (8-Hour Standard)

Designated area	Designation a		Category/classification
	Date 1	Type	Date 1	Type
*         *         *         *         *         *         *
Franklin Co., PA: Franklin County	July 27, 2007	Attainment
*         *         *         *         *         *         *
a Includes Indian County located in each county or area, except otherwise noted.
1 This date is June 15, 2004, unless otherwise noted.

* * * * *