62902 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 

EPA-APPROVED REGULATIONS IN THE VIRGINIA SIP—Continued 

State citation 

(9 VAC 5 

Chapter 80) 

Title/subject State effective 

date EPA approval date Explanation [former SIP citation] 

5–80–1985 ........ Permit invalidation, revocation, and enforcement .... 9/1/06 10/22/08 [Insert page 

number where the document begins].

5–80–1950. Limited Approval. 

5–80–1995 ........ Existence of permit no defense ................................ 9/1/06 10/22/08 [Insert page 

number where the document begins].

New. Limited Approval. 

* * * * * * * 

[FR Doc. E8–25014 Filed 10–21–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2008–0452; FRL–8728–3] 

Completeness Findings for Section 

110(a) State Implementation Plans 

Pertaining to the Fine Particulate 

Matter (PM2.5) NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

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 

section 110(a)(2) of the Clean Air Act 

(CAA or Act) necessary to implement 

the 1997 Fine Particulate Matter (PM2.5) 

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 or determinations of 

incompleteness for all or a portion of a 

state’s SIP establish a 24-month 

deadline for EPA to promulgate a 

Federal Implementation Plan (FIP) 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 the CAA. 

DATES: The effective date of this rule is 

November 21, 2008. 

FOR FURTHER INFORMATION CONTACT: 

David Sanders, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division, Mail Code C539–01, 

Research Triangle Park, NC 27709; 

telephone (919) 541–3356; fax number 

(919) 541–0824; e-mail address: 

sanders.dave@epa.gov. 

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 action 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 below. 

Regional offices States 

Region I—Dave Conroy, Acting Branch Chief, Air Programs Branch, 

EPA New England, I Congress Street, Suite 1100, Boston, MA 

02203–2211.

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, 

and Vermont. 

Region II—Raymond Werner, Chief, Air Programs Branch, EPA Region 

II, 290 Broadway, 21st Floor, New York, NY 10007–1866.

New Jersey, New York, Puerto Rico, and Virgin Islands. 

Region III—Cristina Fernandez, Branch Chief, Air Quality Planning 

Branch, EPA Region III, 1650 Arch Street, Philadelphia, PA 19103– 

2187.

Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and 

West Virginia. 

Region IV—Richard A. Schutt, Chief, Regulatory Development Section, 

EPA Region IV, Sam Nun Atlanta Federal Center, 61 Forsyth Street, 

SW, 12th Floor, Atlanta, GA 30303.

Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, 

South Carolina, and Tennessee. 

Region V—Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 

West Jackson Street, Chicago, IL 60604.

Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. 

Region VI—Thomas Diggs, Associate Director Air Programs, EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202–2733.Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. 

Region VII—Joshua A. Tapp, Chief, Air Programs Branch, EPA Region 

VII, 901 North 5th Street, Kansas City, Kansas 66101–2907.

Iowa, Kansas, Missouri, and Nebraska. 

Region VIII—Cynthia Cody, Unit Leader, Air Quality Planning Unit, EPA 

Region VIII Air Program, 1595 Wynkoop St. (8P–AR), Denver, CO 

80202–1129.

Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming 

Region IX—Lisa Hanf, Air Planning Office, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105.American Samoa, Arizona, California, Commonwealth of Northern Mariana Islands, Guam, Hawaii, and Nevada. 


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Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 62903 

1The SHLs and associated requirements for 

developing Emergency Episode Plans are codified at 

40 CFR Part 51 Subpart H. Appendix L of Part 51, 

provides an example regulation intended as a guide 

for states that must develop emergency episode 

plans (51 FR 40668, November 7, 1986). Subpart H 

requires states to develop emergency episode plans 

(where appropriate) that, at a minimum, provide a 

set of actions that are necessary to prevent ambient 

pollutant concentrations from reaching levels that 

could cause significant harm and endangerment to 

the health of persons in the affected areas. 

2EPA 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). 

Regional offices States 

Region X—Mahbubul Islam, Manager, State and Tribal Air Programs, 

EPA Region X, Office of Air , Waste, and Toxics, Mail Code OAQ– 

107, 1200 Sixth Avenue, Seattle, WA 98101.

Alaska, Idaho, Oregon, and Washington. 

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 

D. Unfunded Mandates Reform Act of 1995 

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. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

J. National Technology Transfer 

Advancement Act 

K. Congressional Review Act 

L. Judicial Review 

I. Background 

On July 18, 1997, EPA promulgated a 

revised NAAQS for PM2.5. In that action, 

the annual PM2.5 standard was set at 15 

μg/m3, based on the 3-year average of 

annual arithmetic mean PM2.5

concentrations from single or multiple 

community-oriented monitors. The 24- 

hour PM2.5 standard was set at 65 μg/m3, 

based on the 3-year average of the 98th 

percentile of 24-hour PM2.5

concentrations at each populationoriented monitor within an area (see 62 

FR 38652). 

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. 

As of 2004, states had not submitted 

complete SIPs to satisfy all of the 

section 110(a)(2) requirements for the 

1997 PM2.5 NAAQS (as well as for the 

8-hour ozone NAAQS). 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 sign a notice for publication 

in the Federal Register no later than 

October 5, 2008, 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 PM2.5 NAAQS. 

Section 110(a)(2) lists specific 

elements that states must meet in the 

general infrastructure SIP submissions. 

The requirements include SIP 

infrastructure elements such as 

modeling, monitoring, and emissions 

inventories that are designed to assure 

attainment and maintenance of the 

NAAQS. In an October 2, 2007 

memorandum entitled, ‘‘Guidance on 

SIP Elements Required Under Section 

110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards,’’ EPA identified the 

specific requirements that are the 

subject of this action and provided 

additional guidance on meeting the 

requirements. 

Of special interest is section 

110(a)(2)(G) of the CAA which requires 

SIPs to provide authority for emergency 

episode plans comparable to that in 

section 303, as well as provide adequate 

contingency plans to implement such 

authority. On that authority, EPA 

previously established Significant Harm 

Levels (SHL) for five criteria 

pollutants—sulfur dioxide, inhalable 

particulate matter (PM10), nitrogen 

dioxide, carbon monoxide, and ozone. 

The SHL represents ambient 

concentrations of said pollutant that 

EPA determined, based on health effects 

data at that time, present an imminent 

and substantial endangerment to public 

health or welfare, or to the 

environment.1 Since EPA has yet to 

develop a SHL for PM2.5, states have 

been placed at a disadvantage in 

meeting this requirement under the 

CAA. Although EPA’s delay in 

developing a SHL for PM2.5 may have 

made it more difficult for states to meet 

the section 110(a)(2)(G) obligation, 

nonetheless, states are still required by 

statute to satisfy the obligation to have 

adequate authority to protect the public 

in the event of a dangerous PM2.5 air 

pollution episode and adequate 

contingency plans to implement that 

authority. In this notice, we make 

findings that some states have failed to 

make a submission addressing either 

statutory authority for emergency 

powers or adequate contingency plans, 

or both. 

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 the requirements in section 

110(a)(2)(D)(i), because EPA has 

previously addressed that requirement.2


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62904 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 

3For those submissions that were made more 

than 6 months ago, EPA’s deadline to take action 

to approve those submissions is 18 months from the 

date of submittal. 

II. This Action 

This notice reflects EPA’s 

determinations with respect to the 

section 110(a)(2) requirements for the 

1997 PM2.5 NAAQS only, based upon 

the submissions made by the states to 

fulfill the requirements, or certifying 

that they have already met the 

requirements, or both. For those states 

that have not yet made a submittal, EPA 

is making a finding of failure to submit, 

and for those states that made a 

submittal that was not complete with 

respect to each element of section 

110(a)(2), EPA is making an 

incompleteness finding. 

For those states that did not make any 

submittal, EPA is making a finding of 

failure to submit 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 the signature 

date of this notice. 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 

findings 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). 

For states receiving an 

incompleteness finding for certain 

elements in section 110(a)(2), EPA is 

also finding that the remaining elements 

of section 110(a)(2) are complete. For 

states which EPA has not made any 

findings of failure to submit for the 

section 110(a)(2) SIP elements, EPA is 

by this action making a finding of 

completeness for all 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).3

This action will be effective on 

November 21, 2008. 

A. Finding of Failure To Submit for 

States or Territories That Failed To 

Make a Submittal 

The following states or territories 

failed to make a submittal to satisfy the 

requirements of section 110(a)(2) as of 

the date of signature of this notice. The 

effective date of this action starts a 24- 

month FIP clock for EPA to approve a 

SIP for the affected states or territories 

that addresses section 110(a)(2) 

requirements, or for EPA to finalize a 

FIP. The states and territories that are 

affected by this finding of failure to 

submit are the following: 

Region I: Vermont 

Region VI: Oklahoma 

Region VIII: North Dakota 

Region IX: Hawaii, Guam, American 

Samoa, Commonwealth of the 

Northern Mariana Islands 

Region X: Alaska, 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 

as of the signature date of this notice. 

EPA is by this action identifying the 

specific elements for which states have 

not made a complete submission. The 

effective date of this action starts a 24- 

month FIP clock for EPA to approve a 

SIP for the affected states or territories 

that addresses these specific section 

110(a)(2) elements, or for EPA to finalize 

a FIP that does so: 

Region I 

Massachusetts: The State of 

Massachusetts has failed to submit a SIP 

addressing section 110(a)(2)(C) and (J) 

pertaining to 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 obligations. 

Region II 

New Jersey: The State of New Jersey 

has submitted a certification letter 

which fails to address the contingency 

plans portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. Also, 

the State of New Jersey has failed to 

submit a SIP addressing section 

110(a)(2)(C) and (J) pertaining to 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 obligations. 

New York: The State of New York has 

submitted a certification letter which 

fails to address the contingency plans 

portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. Also, 

the State of New York has failed to 

submit a SIP addressing section 

110(a)(2)(C) and (J) pertaining to 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 obligations. 

Puerto Rico: The Territory of Puerto 

Rico has submitted a certification letter 

which fails to address the contingency 

plans portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. Also, 

the Territory of Puerto Rico has failed to 

submit a SIP addressing section 

110(a)(2)(C) and (J) pertaining to 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 obligations. 

Virgin Islands: The Territory of the 

Virgin Islands has submitted a 

certification letter which fails to address 

the contingency plans portion of the 

section 110(a)(2)(G) element concerning 

emergency powers and adequate 

contingency plans. Also, the Territory of 

the Virgin Islands has failed to submit 

a SIP addressing section 110(a)(2)(C) 

and (J) pertaining to 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 obligations. 

Region III 

Washington, DC: The District of 

Columbia has failed to submit a SIP 

addressing section 110(a)(2)(C) and (J) 

pertaining to 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 obligations. 

Region V 

Illinois: The State of Illinois has failed 

to submit a SIP addressing section 

110(a)(2)(C) and (J) pertaining to 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 obligations. 

Michigan: The State of Michigan has 

submitted a certification letter which 

fails to address the contingency plans 

portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. 

Minnesota: The State of Minnesota 

has submitted a certification letter 

which fails to address the contingency 

plans portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. Also, 

the State of Minnesota has failed to 

submit a SIP addressing section 


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Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 62905 

110(a)(2)(C) and (J) pertaining to 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 obligations. 

Wisconsin: The State of Wisconsin 

has submitted a certification letter 

which fails to address the contingency 

plans portion of the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. 

Region IX 

Arizona: The State of Arizona has 

failed to submit a SIP addressing section 

110(a)(2)(C) and (J) pertaining to 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 obligations. Also, the 

State of Arizona has submitted a 

certification letter which fails to address 

the section 110(a)(2)(E)(i) and section 

110(a)(2)(E)(ii) concerning the necessary 

assurances of adequate resources and 

authority under state law and state 

compliance with requirements 

respecting state boards. The State of 

Arizona has submitted a certification 

letter which fails to address the section 

110(a)(2)(G) element concerning 

emergency powers and adequate 

contingency plans. 

California: The State of California has 

submitted a certification letter which 

fails to address the section 110(a)(2)(G) 

element concerning emergency powers 

and adequate contingency plans. The 

State of California has failed to submit 

a SIP addressing section 110(a)(2)(C) 

and (J) pertaining to the Part C PSD 

permit program that applies to some Air 

Districts within the State. However, this 

requirement has already been addressed 

by a FIP that remains in place, and 

therefore, this action will not trigger any 

additional FIP obligations. All other 

areas of the state, exclusive of these Air 

Districts have an approved PSD program 

in place. 

C. 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 

as of the signature date of this notice: 

Region I: Connecticut, Maine, New 

Hampshire, Rhode Island 

Region III: Delaware, Maryland, 

Pennsylvania, Virginia, West Virginia 

Region IV: Alabama, Florida, Georgia, 

Kentucky, Mississippi, North 

Carolina, South Carolina, Tennessee 

Region V: Indiana, Ohio 

Region VI: Arkansas, Louisiana, New 

Mexico, Texas 

Region VII: Iowa, Kansas, Missouri, 

Nebraska 

Region VIII: Colorado, Montana, South 

Dakota, Utah, Wyoming 

Region IX: Nevada 

Region X: Idaho, Oregon 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1230.3(b). 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 PM2.5 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 action does not 

establish any new information 

collection requirement apart from that 

already required by law. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

action subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the agency certifies 

that the action 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 action 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 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-forprofit enterprise which independently 

owned and operated is not dominate in 

its field. 

After considering the economic 

impacts of this final action on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final action will not impose any 

requirements on small entities. This 

action relates to the requirement in the 

CAA for states to submit SIPs under 

section 110(a) to satisfy certain 

infrastructure and general authorityrelated elements required under section 

110(a)(2) of the CAA for the 1997 PM2.5

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. 

D. Unfunded Mandates Reform Act of 

1995 (UMRA) 

This action contains no Federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1531–1538 for state, 

local, and tribal governments and the 

private sector. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of section 202 and 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action relates to the requirement in the 

CAA for states to submit SIPs under 

section 110(a) to satisfy certain 

infrastructure and general authorityrelated elements required under section 

110(a)(2) of the CAA for the 1997 PM2.5

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. 

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 


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62906 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Rules and Regulations 

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 action 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 action 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 action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). 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 PM2.5

NAAQS. Furthermore, this action does 

not affect the relationship or 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the Tribal Air Rule 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 action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 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 Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 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 PM2.5 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 action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

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 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 

action will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not 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 PM2.5

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 action 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 action 

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 action 

will be effective November 21, 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 days from the date final action 

is published in the Federal Register. 

Filing a petition for review by the 

Administrator of this final action does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review must be 

final, and shall not postpone the 

effectiveness of such action. 

Thus, any petitions for review of this 

action related to findings 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 PM2.5 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, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: October 3, 2008. 

Robert J. Meyers, 

Principal Deputy Assistant Administrator. 

[FR Doc. E8–25020 Filed 10–21–08; 8:45 am] 

BILLING CODE 6560–50–P 


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