                                                   Filed:     December 17, 1998

                       UNITED STATES COURT OF APPEALS

                           FOR THE FOURTH CIRCUIT


                                  No. 98-1013



West Virginia Chamber of Commerce, et al,

                                                                   Petitioners,

            versus


Carol M. Browner, etc., et al,

                                                                   Respondents.



                                   O R D E R



     The court amends its opinion filed December 1, 1998, as

follows:

     On    page   8,   footnote   6,   line    3   --   the    parenthetical    is

corrected    to   begin    “(Respondent’s      Mot.     to    Dismiss   Pet.   for

Review . . . .”).

                                               For the Court - By Direction



                                                /s/ Patricia S. Connor
                                                         Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WEST VIRGINIA CHAMBER OF COMMERCE;
WEST VIRGINIA MANUFACTURERS
ASSOCIATION; VIRGINIA CHAMBER OF
COMMERCE,
Petitioners,

BUSINESS COUNCIL OF ALABAMA,
Intervenor,

v.

CAROL M. BROWNER, in her official
                                                               No. 98-1013
capacity as Administrator of the United
States Environmental Protection
Agency; THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.

WEST VIRGINIA COAL ASSOCIATION;
WEST VIRGINIA MINING AND
RECLAMATION ASSOCIATION; STATE OF
WEST VIRGINIA,
Amici Curiae.

On Petition for Review of an Order
of the Environmental Protection Agency.

Argued: September 23, 1998

Decided: December 1, 1998

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________
Transferred to the District of Columbia Court of Appeals by unpub-
lished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Earle Duncan Getchell, Jr., MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Washington, D.C., for Petitioners. Robert
Geoffrey Dreher, ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., for Respondents. ON BRIEF: Michael H. Levin,
James L. Sanderlin, Neal J. Cabral, MCGUIRE, WOODS, BATTLE
& BOOTHE, L.L.P., Washington, D.C., for Petitioners. Lois J. Schif-
fer, Assistant Attorney General, Environment & Natural Resources
Division, Karen L. Egbert, Environmental Defense Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jan
Tierney, Nancy Ketcham-Colwill, Office of General Counsel, ENVI-
RONMENTAL PROTECTION AGENCY, Washington, D.C., for
Respondents. Earle Duncan Getchell, Jr., Michael H. Levin, James L.
Sanderlin, Neal J. Cabral, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Washington, D.C., for Intervenor. Marcus A.
Spatafore, David M. Flannery, JACKSON & KELLY, Charleston,
West Virginia; Michael H. Levin, James L. Sanderson, Neal J. Cabral,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Washington,
D.C., for Amici Curiae Coal Association and Reclamation Associa-
tion. Thomas H. Zerbe, Assistant Chief, Office of Legal Services,
DIVISION OF ENVIRONMENTAL PROTECTION, Charleston,
West Virginia, for Amicus Curiae State of West Virginia.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

                    2
OPINION

PER CURIAM:

This case began in a unique procedural posture. Petitioners West
Virginia Chamber of Commerce, West Virginia Manufacturers Asso-
ciation and Virginia Chamber of Commerce1 filed a petition for
review of a certification made in a proposed rule by the Environmen-
tal Protection Agency (EPA) that the EPA was exempt from the
requirements of the Regulatory Flexibility Act with respect to the
rulemaking process for the proposed rule. The Environmental Protec-
tion Agency certified that the proposed rule, if promulgated, would
not have a "significant economic impact upon a substantial number of
small entities." Respondents, Carol M. Browner and the Environmen-
tal Protection Agency (collectively "EPA"), challenged the petition on
several grounds. The EPA maintained that this Court lacked jurisdic-
tion over Petitioners' complaint because (1) Petitioners' complaint
was not ripe for review since no final agency action was involved, (2)
Petitioners had not exhausted their administrative remedies since they
could make comments on the certification during the notice and com-
ment period, and (3) the statute under which the EPA promulgated the
proposed rule does not provide for judicial review of this type of
agency action. The EPA also argued, inter alia, that this Court is the
improper venue for a challenge to EPA action under the Clean Air
Act; that instead the Court of Appeals for the D.C. Circuit is the
appropriate venue. The EPA filed a Motion to Dismiss for Lack of
Jurisdiction; the Court deferred ruling on that Motion until after oral
argument. In the interim, the EPA finalized the rule at issue, resolving
many of the most troublesome questions facing us. The Court now
holds that proper venue for this claim lies in the Court of Appeals for
the D.C. Circuit and finds that a transfer to that court is in the interests
of justice and in accord with sound principles of judicial administra-
tion.
_________________________________________________________________

1 The Business Council of Alabama was given leave to intervene by
Order dated March 5, 1998. The State of West Virginia and the West
Virginia Coal Association with the West Virginia Mining and Reclama-
tion Association filed briefs as amici curiae in support of Petitioners.

                    3
I. FACTUAL BACKGROUND

The Clean Air Act, 42 U.S.C. §§ 7401-7671q (1994), establishes a
comprehensive program for controlling and improving the nation's air
quality through both state and federal regulation. Under sections 108
and 109 of the Clean Air Act, 42 U.S.C. §§ 7408, 7409, the EPA is
charged with identifying air pollutants that endanger the public health
and welfare, and with formulating National Ambient Air Quality
Standards ("NAAQS") that specify the maximum permissible concen-
trations of those pollutants in the ambient air. One of the pollutants
for which the EPA has promulgated NAAQS is ozone. 40 C.F.R. Pt.
50 (1997).

Under the Clean Air Act, states are given the primary responsibility
for ensuring that the ambient air meets the NAAQS, subject to EPA
approval and potential displacement. See 42 U.S.C. §§ 7404(a),
§ 7401(a)(3), 7410(c)(1), (m). After the EPA promulgates or revises
a NAAQS, each state must draft state implementation plans ("SIPs")
that provide for the implementation, maintenance, and enforcement of
the NAAQS within the state.

The Clean Air Act specifies the various general elements that all
SIPs must contain. 42 U.S.C. § 7410(a)(2). Each SIP must include
enforceable emission limitations and other control measures as neces-
sary to meet the requirements of the Clean Air Act, 42 U.S.C.
§ 7410(a)(2)(A), as well as adequate provisions prohibiting any
source or other type of emissions activity within the state from emit-
ting any air pollutant in amounts which will "contribute significantly
to non-attainment in, or interfere with maintenance by, any other State
with respect to any such national primary or secondary ambient air
quality standard." 42 U.S.C. § 7410(a)(2)(D)(I)(I).

If the EPA determines that a SIP complies with the Clean Air Act,
the EPA must approve it and the state regulations become enforceable
as federal law. 42 U.S.C. §§ 7410(a), (k). If the EPA determines that
a SIP is inadequate to attain the NAAQS or otherwise does not com-
ply with the Clean Air Act, or if the EPA designates an area of a state
as "non-attainment" for ozone, or reclassifies the area, it must require
the state to submit a revised SIP to correct the inadequacy (a "call"
on the state to revise its SIP, or a "SIP Call"). Id. If the state does not

                     4
timely submit an approvable revised SIP or adequately implement an
approved revision, the EPA must impose specified sanctions within
fixed deadlines, and must eventually promulgate its own Federal
Implementation Plan ("FIP") imposing sufficient reduction mandates
on sources within the state. 42 U.S.C. §§ 7410(c), 7509(a)-(b).

Many states were unable to complete their SIPs for ozone within
the original schedules prescribed in the Clean Air Act because they
lacked important information on interstate ozone transport. See 62
Fed. Reg. 1420, 1421 (Jan. 10, 1997). To provide that information,
the EPA and the states began a two-year process to assess interstate
ozone transport. This process began in 1995 with the formation of a
workgroup, the Ozone Transport Assessment Group ("OTAG"),
which included representatives from the EPA, 37 states east of the
Rocky Mountains, industry, and environmental groups. See 61 Fed.
Reg. 2428, 2431 (Jan. 26, 1996).

In July 1997, OTAG completed its work and forwarded recommen-
dations to the EPA concerning the levels of emissions reductions
needed to eliminate transported ozone as an obstacle to attainment in
downwind states. Based on these recommendations and other infor-
mation, the EPA issued a Notice of Proposed Rulemaking ("NPRM")
on November 7, 1997. 62 Fed. Reg. 60,318 (Nov. 7, 1997).

In the NPRM, the EPA proposed to declare inadequate 23 SIPs,
and require their revision within a year (the "Ozone Transport SIP
Call"). Specifically, the EPA proposed to find that the transport of
ozone from 22 states and the District of Columbia significantly con-
tributes to non-attainment of the ozone NAAQS or interferes with
maintenance of the NAAQS in downwind states. 62 Fed. Reg. at 60,310.2
This finding by the EPA would require those states to revise their
SIPs to meet the requirements of section 42 U.S.C.§ 7410(a)(2)(D)
to prohibit ozone precursor emissions from sources or activities in
those states from "contribut[ing] significantly to non-attainment in, or
_________________________________________________________________

2 The states covered by EPA's findings are Alabama, Connecticut, Del-
aware, Georgia, Illinois, Indiana, Kentucky, Maryland, Massachusetts,
Michigan, Missouri, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West
Virginia, and Wisconsin. Id.

                    5
interfer[ing] with maintenance by," a downwind state of the ozone
NAAQS. 62 Fed. Reg. at 60,320. In particular, the EPA proposed to
assign to each state emissions budgets for NOx that each of the identi-
fied states must meet through adoption of SIP measures. For example,
the original NOx budget for West Virginia required a substantial 44%
reduction in overall NOx emissions, and the original NOx budget for
Alabama required a 36% reduction in overall NOx emissions. The
EPA's proposed rule would impose different NOx reductions require-
ments on each state, and on emitting sources within each state. As
EPA explained in the rulemaking proposal, "this requirement permits
each State to choose for itself what measures to adopt to meet the nec-
essary emission budget." 62 Fed. Reg. at 60,320. At the same time,
EPA encouraged the states to consider electric utility and large boiler
controls as the most cost-effective strategy. Id.

The Regulatory Flexibility Act ("RFA"), Pub. L. No. 96-354, 94
Stat. 1165 (1980), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, Pub. L. No. 104-121, 110 Stat.
864 (1996) (codified as amended at 5 U.S.C. § 601-612 (Supp. II
1996)), originally enacted in 1980, requires an agency to identify the
potential economic impact of proposed and final rules on small enti-
ties that will be subject to the rule's requirements.3 Under section 603,
whenever an agency is required by the Administrative Procedure Act
(APA) or any other law to publish a notice of proposed rulemaking,
it must prepare and make available for public comment an initial reg-
ulatory flexibility analysis. 5 U.S.C. § 603(a). Section 604 also pro-
vides that when an agency promulgates a final rule, after being
required either by the APA or another law to publish a general notice
of proposed rulemaking, it must prepare a final regulatory flexibility
analysis. 5 U.S.C. § 604. However, the requirements for initial and
final RFA analyses "shall not apply to any proposed or final rule if
the head of the agency certifies that the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities." 5 U.S.C. § 605(b).
_________________________________________________________________

3 "Small entities" include small businesses, as well as "small govern-
mental jurisdictions," which include "cities, counties, towns, townships,
villages, school districts, or special districts, with a population of less
than fifty thousand. . . ." 5 U.S.C. § 601(5). Under this definition, states
are not considered "small entities" within the meaning of the RFA.

                     6
The RFA was amended by the Small Business Regulatory Enforce-
ment Fairness Act of 1996 ("SBREFA"), Pub. L. 104-121, Title II,
201-253, 110 Stat. 847, 857-74 (5 U.S.C. § 601-612 (Supp. II 1996)).
Legislative history of SBREFA indicates that the 104th Congress was
concerned that agencies had been neglecting their duties under the
RFA through casual agency certifications of non-applicability or
insufficient analyses. Towards that end, SBREFA amended RFA's
judicial review provision to allow for judicial review of compliance
with certain sections of the RFA. See 142 Cong. Rec. S3242, S3245
(daily ed. Mar. 29, 1996) (judicial review provision was added in
response to small business complaints that "agencies have given lip
service at best to RFA"); 5 U.S.C. § 611(a). In addition to the judicial
review provision, Congress also required a new statement of factual
basis supporting any certification that the RFA was nonapplicable
under 5 U.S.C. § 605(b).4 Finally, Congress added several small entity
"outreach" requirements specifically applicable only to the EPA and
the Occupational Safety and Health Administration. These require-
ments apply before the EPA proposes a rule, and include giving
detailed notice to the Small Business Administration, convening a
small business Review Panel, and completing that Review Panel's
report. See 5 U.S.C. § 609(b) (1996).

In the Ozone Transport SIP Call at issue, the EPA certified, under
RFA section 605(b), that the underlying rule, if promulgated, "will
not have a significant economic impact on a substantial number of
small entities" because it "simply requires States to develop, adopt,
and submit SIP revisions, and does not directly regulate any entities"
(the "RFA certification"). 62 Fed. Reg. at 60,375. The EPA further
explained that because affected States will have discretion to choose
which sources to regulate and how much emission reductions each
selected source must achieve, the EPA "cannot now predict the effect
of this rule on small entities." Id. Finally, the EPA noted that if States
adopt the control measures that the EPA suggested and that were the
basis of each State's proposed budget, "there will be little, if any,
effect on small businesses." Id.
_________________________________________________________________

4 See 142 Cong. Rec. S3242, S3245 (daily ed. Mar. 29, 1996) ("The bill
requires agencies to publish their factual, policy and legal reasons when
making a certification").

                    7
On January 6, 1998, Petitioners filed this petition for review, chal-
lenging the EPA's RFA certification in the notice of proposed rule-
making for the Ozone Transport SIP Call.5

The EPA has since published a notice of additional items related
to the NPRM, see 63 Fed. Reg. 17349 (Apr. 9, 1998), and a supple-
mental notice of proposed rulemaking, 63 Fed. Reg. 25902 (May 11,
1998). Just recently, on September 24, 1998, the day after oral argu-
ment, the EPA finalized and signed the Ozone Transport SIP Call, see
<http://www.epa.gov/ttn/oarpg/tlpfpr.html> [hereinafter Sept. 24,
1998 action], although for some reason the EPA has not yet published
that final rule in the Federal Register. In each of these follow-ups to
the Ozone Transport SIP Call NPRM, the EPA reiterated its RFA
Certification from the Ozone Transport SIP Call NPRM, and there-
fore continued to claim an exemption from the dictates of the RFA
under 5 U.S.C. § 605(b).

II. DISCUSSION

The EPA has raised numerous challenges to the petition for review.
Since we find that venue is inappropriate in this Court, we do not
reach the majority of these challenges.6 One issue which the EPA
raised by motion, which we would normally need to address as a pre-
requisite to passing on the other issues, is the question of our subject
matter jurisdiction. We need not address our subject matter jurisdic-
tion, however. If we were to find that we lacked subject matter juris-
diction, we could transfer the case to a court that did have subject
matter jurisdiction (and venue) in the interests of justice pursuant to
28 U.S.C. § 1631. On the other hand, if we were to find that we did
have subject matter jurisdiction, but venue was improper, then we
could still transfer the case to a court where venue was proper upon
_________________________________________________________________

5 According to Respondents, at public hearings on the proposed rule
Petitioners presented oral and written testimony on aspects of the pro-
osed rule, including the EPA's RFA certification of the rule.

6 Although the EPA did not make a formal motion of improper venue
under Fed. R. Civ. P. 12(b)(3), the EPA did raise the venue issue in its
Motion to Dismiss. (Respondent's Mot. to Dismiss Pet. for Review
for Lack of Jurisdiction at 8 n.5.) We hereby construe this as a motion
to dismiss or transfer for lack of venue.

                    8
a finding that such transfer was in the interests of justice and in
accord with sound principles of judicial administration. See, e.g.,
Clark & Reid, 804 F.2d 3, 7 (1st Cir. 1986); Dornbusch v. C.I.R., 860
F.2d 611, 614-15 (5th Cir. 1988); Alexander v. C.I.R., 825 F.2d 499,
501-02 (D.C. Cir. 1987); Panhandle Eastern Pipeline Co. v. Federal
Power Com., 337 F.2d 249, 252 (10th Cir. 1964); Pearce v. Director,
Office of Workers' Compensation Programs, 603 F.2d 763, 771 n. 3
(9th Cir. 1979) (listing cases in eight circuits holding that courts of
appeals have inherent power to transfer cases).

It is worth addressing one subset of issues on subject matter juris-
diction raised by the EPA. The EPA argued at great length before this
Court that we lacked subject matter jurisdiction over the petition for
review because there had not yet been a final agency action, the con-
troversy was not ripe for review, and Petitioners had not exhausted
their administrative remedies. While we might have been inclined to
address the merits of each of these arguments so as to avoid sending
an empty package to the D.C. Circuit, we need not do so now. We
find that all of these arguments have become mooted by the EPA's
issuance of the finalized version of the Ozone Transit SIP Call on
September 24, 1998. There has now been final agency action; the case
is now ripe for review; and the administrative remedies that the EPA
claimed required exhausting have now been exhausted. 7

Therefore, we will begin and end the opinion with an examination
of venue. Because the EPA has finalized a rule under the Clean Air
Act, the jurisdictional provision of the Clean Air Act, 42 U.S.C.
§ 7607(b)(1), governs this case. See 5 U.S.C. § 611(2);
Commonwealth of Va. v. United States, 74 F.3d 517, 522, 523 (4th
Cir. 1996) (collateral attacks on the validity of final EPA action under
the Clean Air Act governed by section 307(b); State of Missouri v.
United States, 109 F.3d 440, 441-42 (8th Cir. 1997), reh'g and sug-
gestion for reh'g en banc denied June 12, 1997 (similar holding). Cf.
City of Alexandria v. Helms, 728 F.2d 643, 646 (4th Cir. 1984) (when
an agency's determination under a generally applicable statute is
made incident to action authorized under the agency's organic statute,
_________________________________________________________________

7 We express no opinion on whether, in the absence of the issuance of
a finalized rule, the EPA's arguments of ripeness, lack of finality, and
exhaustion of administrative remedies would have been meritorious.

                    9
review of the determination is subject to the judicial review provi-
sions of the organic statute); City of Rochester v. Bond, 603 F.2d 927,
936 (D.C. Cir. 1979) (similar holding). 42 U.S.C.§ 7607(b)(1) states:

           (1) A petition for review of action of the Administrator
          in promulgating any national primary or secondary ambient
          air quality standard, [certain other standards, determinations,
          controls, prohibitions, rules], or any other nationally appli-
          cable regulations promulgated, or final action taken, by the
          Administrator under this chapter may be filed only in the
          United States Court of Appeals for the District of Columbia.
          A petition for review of the Administrator's action in
          approving or promulgating [certain implementation plans or
          orders]8, or [of the EPA's] action under [certain sections of
          the Clean Air Act or regulations thereunder], or any other
          final action of the Administrator under this chapter... which
          is locally or regionally applicable may be filed only in the
          United States Court of Appeals for the appropriate circuit.
          Notwithstanding the preceding sentence a petition for
          review of any action referred to in such sentence may be
          filed only in the United States Court of Appeals for the Dis-
          trict of Columbia if such action is based on a determination
          of nationwide scope or effect and if in taking such action the
          Administrator finds and publishes that such action is based
          on such a determination.

According to the dictates of this statute, we must decide whether the
Ozone Transport SIP Call is "nationally applicable" or "locally or
regionally applicable"; or if the Ozone Transport SIP Call is based on
a determination of nationwide scope or effect and the EPA properly
published such a determination.9
_________________________________________________________________

8 This omission includes reference to section 110 of the Clean Air Act.
Neither party has suggested that EPA's action is one"approving or pro-
mulgating" an implementation plan under section 110 of the Clean Air
Act. We find that the Ozone Transport SIP Call is not such an action.

9 Because we do not decide whether or not we have subject matter
jurisdiction, we do not reach the question whether 42 U.S.C.
§ 7607(b)(1)'s allocation between the "appropriate circuit" courts and the

                    10
A. Nationally Applicable versus Locally
         or Regionally Applicable

The EPA argues that the Ozone Transport SIP Call is nationally
applicable because (1) it sets forth EPA's national approach for deal-
ing with the problem of the interstate transport of ozone; (2) it affects
22 states and the District of Columbia, spanning eight different fed-
eral judicial circuits, (3) the rule is based on a common core of factual
information and analyses concerning the long-range transport of
ozone and ozone precursors over numerous states, (4) the EPA
expects to establish uniform approvability criteria to be applied to all
the states subject to the Ozone Transport SIP Call, and (5) through the
rule, the EPA interprets section 110 of the Clean Air Act in a way that
could affect future actions regulating the transport of pollutants. In
fact, the EPA is so sure that this rule is nationally applicable that it
has declared the Ozone Transport SIP Call to be of "nationwide scope
and effect." See 63 Fed. Reg. at 25969; Sept. 24, 1998 action, at 639-
41.

Petitioners argue that the Ozone Transport SIP Call is regional or
local because it is nothing more than numerous separate EPA actions
on state-specific implementation plans, each based upon local factors
and conditions. Petitioners argue that the EPA cannot turn several
separate "avowedly local" actions, see Madison Gas & Electric Co.
v. E.P.A., 4 F.3d 529, 530 (7th Cir. 1993), into a national one merely
by bundling them together. Petitioners further point out that through-
out the Ozone Transport SIP Call NPRM, the EPA itself noted the
regional nature of the proposed rule. See, e.g., 62 Fed. Reg. at 60320,
cols. 1, 3; id. at 60322, col. 1; id. at 60323, col. 1. Petitioners also take
_________________________________________________________________

D.C. Circuit is a jurisdictional or venue provision. Compare
Monongahela Power Co. v. Reilly, 980 F.2d 272, 275 (4th Cir. 1998)
(jurisdictional) with State of New York v. E.P.A., 133 F.3d 987, 989 (7th
Cir. 1998) (venue); Texas Mun. Power Agency v. E.P.A., 89 F.3d 858,
867 (D.C. Cir. 1996) (per curiam) (venue; citing"unequivocal" legisla-
tive history); Harrison v. PPG Indus., Inc., 446 U.S. 578, 590-91 (1980)
(venue; citing legislative history); Sprague v. King, 23 F.2d 185, 188 (7th
Cir. 1994) (venue; different statute); Bywater Neighborhood Ass'n v.
Tricarico, 879 F.2d 165, 169 (5th Cir. 1989) (venue; different statute).

                    11
issue with the EPA's argument that a rule is nationally applicable
merely because it articulates precedent that could have national
effects.

Very few cases have addressed whether a particular EPA action
was nationally or regionally applicable. There are certain types of
actions that are clearly nationally applicable, for instance, when the
EPA issues a rule which applies uniformly nationwide. See N.R.D.C.
v. Thomas, 838 F.2d 1224, 1249 (D.C. Cir. 1988) (nationwide regula-
tion); Motor Vehicle Mfrs. Ass'n v. Costle, 647 F.2d 675, 677 (6th
Cir. 1981) (nationwide regulation of manufacturers); Dow Chemical
USA v. E.P.A., 491 F.Supp. 428, 431 (M.D. La. 1980) (nationwide
standards of performance). On the other hand, certain types of actions
are clearly regionally applicable, for instance, when the EPA brings
an enforcement action against or makes a determination with respect
to a particular facility. See Harrison v. PPG Indus., Inc., 446 U.S. 578
(1980) (determining applicability of standards to specific facility);
Illinois E.P.A. v. U.S.E.P.A., 947 F.2d 283, 288-289 (7th Cir. 1991)
(denial of a grant request). Action with respect to a single SIP, see
Madison Gas, 4 F.3d at 530, or only a few states, State of New York
v. E.P.A., 133 F.3d 987, 989 (7th Cir. 1998), are also clearly region-
ally or locally applicable.

The current EPA rulemaking falls somewhere in between these two
sets of clear cases. The Ozone Transport SIP Call is not merely action
on a single state implementation plan or a few state implementation
plans. It represents a coordinated effort to attack a problem that
ignores state boundaries, and is based upon a common core of infor-
mation and analysis involving 37 states, see 62 Fed. Reg. at 60318.
On the other hand, the Ozone Transport SIP Call does not create rules
for the entire country, and does operate via state-specific budgets.

We are not phased by these facts, though. An EPA rule need not
span "from sea to shining sea"10 to be nationally applicable. Here, the
Ozone Transport SIP Call seeks to tackle a problem affecting two-
thirds of the country by regulating somewhat less than one half of the
states. Contrary to Petitioners' arguments, these SIP calls are not truly
_________________________________________________________________

10 With apologies to Alaska, Hawaii, and the territories and protector-
ates.

                    12
separate and independent. The problem of ozone pollution and ozone
transport is such that the efforts of each state in complying with the
Ozone Transport SIP Call will have interconnected effects on the abil-
ity of other states to comply with the requirements of the rule and the
Clean Air Act throughout the country. Cf. State of New York v.
E.P.A., 133 F.3d at 989 (noting that local reductions in ozone precur-
sors will reduce ozone in downwind states and increase ozone in sur-
rounding areas). These effects are not speculative. See Madison Gas,
4 F.3d at 529. We acknowledge that precedent from other circuits
indicates that the nationally applicable versus regionally applicable
analysis should focus on who is regulated, not the effects of the regu-
lation. See State of New York v. E.P.A., 133 F.3d at 990; cf. N.R.D.C.
v. Thomas, 838 F.3d at 1249 ("nationwide scope of the regulation is
controlling .... If the jurisdiction provision turns on the de facto scope
of the regulation, choice of the correct forum might raise complex
factual and line-drawing problems."). We conclude, though, that the
nationwide scope and interdependent nature of the problem, the large
number of states, spanning most of the country, being regulated, the
common core of knowledge and analysis involved in formulating the
rule, and the common legal interpretation advanced of section 110 of
the Clean Air Act, all combine to make this a nationally applicable
rule.

Deciding that the Ozone Transport SIP Call is nationally applicable
does not settle the matter, however. If Petitioners are challenging a
"local factor" of the national program, then venue may still be proper
in this Court. See Madison Gas, 4 F.3d at 530. For instance, if Peti-
tioners had challenged the requirements the EPA sought to impose
that were unique to West Virginia's NOx budget, then venue might
lie in this Court. But Petitioners have challenged a national feature of
this nationally applicable action. The RFA certification being chal-
lenged by Petitioners is a nationally applicable legal determination,
affecting small entities uniformly from Madison, Wisconsin to
Worcester, Massachusetts and from Mobile, Alabama to New York
City, New York. Cf. Texas Mun. Power Agency v. E.P.A., 89 F.3d
858, 866 n.5 (D.C. Cir. 1996) (per curiam) (challenges to factual
determinations more likely to be regionally applicable, while legal
challenges likely to be nationally applicable).

                     13
Petitioners have challenged a national aspect of a nationally appli-
cable rule under the Clean Air Act; therefore, proper venue lies in the
Court of Appeals for the D.C. Circuit.

B. "Of Nationwide Scope or Effect"

Since we reach the conclusion that the Ozone Transport SIP Call
is nationally applicable we need not address the EPA's contention that
the rule is "of nationwide scope and effect." This argument by the
EPA raised some troubling issues, especially given that the EPA first
came to the conclusion that the Ozone Transport SIP Call was of
nationwide scope and effect only after this litigation was well under
way. We would be hesitant to allow proper venue to be wholly con-
tingent upon such a post hoc determination by the EPA.

III. CONCLUSION AND ORDER

We find that proper venue to challenge a national aspect of this
nationally applicable action of the EPA lies in the D.C. Circuit. Peti-
tioners may have some concerns about the timeliness of a challenge
to the RFA certification in the NPRM if we were to dismiss the case.
See 42 U.S.C. § 7607(b)(1) (action must be filed sixty days after
agency action). We therefore find that it is in the interests of justice
and in accord with principles of sound judicial administration to trans-
fer this case to the D.C. Circuit.

IT IS SO ORDERED

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