+(,121/,1(

Citation: 73 Fed. Reg. 66182 2008 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Fri Jul 30 18:23:04 2010

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
66182 Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations I

digital transmission of a sound

recording which results in a specifically

identifiable reproduction by or for any

transmission recipient of a phonorecord

of that sound recording, regardless of

whether the digital transmission is also

a public performance of the sound

recording or any nondramatic musical

work embodied therein. The

reproduction of the phonorecord must

be sufficiently permanent or stable to

permit it to be perceived, reproduced, or

otherwise communicated for a period of

more than transitory duration. Such a

phonorecord may be permanent or it

may be made available to the

transmission recipient for a'limited

period of time or for a specified number

of performances. A digital phonorecord

delivery includes all phonorecords that

are made for the purpose of making the

digital phonorecord delivery.

PART 255-ADJUSTMENT OF

ROYALTY PAYMENTS UNDER

COMPULSORY LICENSE FOR MAKING

AND DISTRIBUTING PHONORECORDS

* 4. The authority citation for part 255

continues to read as follows:

Authority: 17 U.S.C. 702.

0 5. Section 255.4 is revised to read as

follows:

§ 255.4 Definition of digital phonorecord

delivery.

A "digital phonorecord delivery" is

each individual delivery of a

phonorecord by digital transmission of

a sound recording which results in a

specifically identifiable reproduction by

or for any transmission recipient of a

phonorecord of that sound recording,

regardless of whether the digital

transmission is also a public

performance of the sound recording or

any nondramatic musical work

embodied therein. The reproduction of

the phonorecord must be sufficiently

permanent or stable to permit it to be

perceived, reproduced, or otherwise

communicated for a period of more than

transitory duration. Such a phonorecord

may be permanent or it may be made

aval1able to the transmission recipient

for a limited period of time or for a

specified number of performances. A

digital phonorecord delivery includes

all phonorecords that are made for the

purpose of making the digital

phonorecord delivery.

Dated: October 22, 2008.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. E8-26666 Filed 11-6-08 8:45 am]

BILLING CODE 1410-30-S

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0728; FRL-8729-1]

Approval and Promulgation of

Implementation Plans; Revisions to the

Nevada State Implementation Plan;

Clark County

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: Under the Clean Air Act, EPA

is taking direct final action to approve

a revision to the Clark County portion

of the Nevada State Implementation

Plan (SIP). This revision consists of

transportation conformity criteria and

procedures related to interagency

consultation and enforceability of

certain transportation-related control

measures and mitigation measures. The

intended effect is to include the

transportation conformity criteria and

procedures in the applicable SIP.

DATES: This rule is effective on January

6, 2009, without further notice, unless

EPA receives adverse comments by

December 8, 2008. If we receive such

comments, we will publish a timely

withdrawal in the Federal Register to

notify the public that this direct final

rule will not take effect.

ADDRESSES: Submit comments,

identified by docket number EPA-R09-

OAR-2008-0728, by one of the

following methods: 1. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the

on-line instructions.

2. E-mail: vagenas.ginger@epa.gov.

3. Mail or deliver: Ginger Vagenas

(AIR-2), U.S. Environmental Protection

Agency Region IX, 75 Hawthorne Street,

San Francisco, CA 94105-3901.

Instructions: All comments will be

included in the public docket without

change and may be made available

online at http://www.regulations.gov,

including any personal information

provided, unless the comment includes

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by statute. Information that

you consider CBI or otherwise protected

should be clearly identified as such and

should not be submitted through

http://www.regulations.gov or e-mail.

The http://www.regulations.gov portal is

an "anonymous access" system, and

EPA will not know your identity or

contact information unless you provide

it in the body of your comment. If you

send e-mail directly to EPA, your e-mail.

address will be automatically captured

and included as part of the public

comment. If EPA cannot read your

comment due to technical difficulties

and cannot contact you for clarification,

EPA may not be able to consider your

comment.

Docket: The index to the docket for

this action is available electronically at

http://www.regulations.gov and in hard

copy at EPA Region IX, 75 Hawthorne

Street, San Francisco, California. While

all documents in the docket are listed in

the index, gome information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and

some may not be publicly available in

either location (e.g., CBI). To inspect the

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, EPA Region IX, (415)

972-3964, vagenas.ginge@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, "we," "us"

and "our" refer to EPA.

Table of Contents

I. Transportation Conformity

II. Background for This Action

III. State Submittal and EPA: Evaluation

IV. Public Comment and Final Action

V. Statutory and Executive Order Reviews

I. Transportation Conformity

Transportation conformity is required

under section 176(c) of the Clean Air

Act (CAA or Act) to ensure that

federally supported highway, transit

projects, and other activities are

consistent with ("conform to") the

purpose of the SIP. Conformity applies

to areas that are currently designated

nonattainment, and to areas that have

been redesignated to attainment after

1990 (maintenance areas) with plans

developed under section 175A of the

Act, for the following transportation

related criteria pollutants: Ozone,

particulate matter (PM 2.5 and PM1o),

carbon monoxide (CO), and nitrogen

dioxide (NO2).

Conformity to the purpose of the SIP

means that transportation activities will

not cause new air quality violations,

worsen existing violations, or delay

timely attainment of the relevant

national ambient air quality standards

HeinOnline -- 73 Fed. Reg. 66182 2008
Federal Register/Vol. 73, No. 217/Friday, November 7, 2008/Rules and Regulations

(NAAQS). The transportation

conformity regulation is found in 40

CFR part 93 and provisions related to

conformity SIPs are found in 40 CFR

51.390.

I. Background for This Action

EPA promulgated the Federal

transportation conformity criteria and

procedures (the conformity rule) on

November 24, 1993. See 58 FR 62188.

Among other things, the rule required

states to address all provisions of the

conformity rule in their SIPs

("conformity SIPs"). Under 40 CFR

51.390, most sections of the conformity

rule were required to be copied

verbatim. States were also required to

tailor all or portions of the following

three sections of the conformity rule to

meet their state's individual

circumstances: 40 CFR 93.105, which

addresses consultation procedures; 40

CFR 93.122(a)(4)(ii), which addresses

written commitments to control "

measures that are not included in a

metropolitan planning organization's

(MPO's) transportation plan and

transportation improvement program

that must be obtained prior to a

conformity determination, and the

requirement that such commitments,

when they exist, must be fulfilled; and

40 CFR 93.125(c), which addresses

written commitments to mitigation

measures that must be obtained prior to

a project-level conformity

determination, and the requirement that

project sponsors must comply with such

commitments, when they exist.

On August 10, 2005, the "Safe,

Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for

Users" (SAFETEA-LU) was signed into

law. SAFETEA-LU revised section

176(c) of the Clean Air Act's

transportation conformity provisions.

One of the changes streamlines the

requirements for conformity SIPs. Under

SAFETEA-LU, states are required to

address and tailor only three sections of

the conformity rule in their conformity

SIPs: 40 CFR 93.105, 40 CFR

93.122(a)(4)(ii), and, 40 CFR 93.125(c), -

described above. In general, states are

no longer required to submit conformity

SIP revisions that address the other

sections of the conformity rule. These

changes took effect on August 10, 2005,

when SAFETEA-LU was signed into

law.

m. State Submittal and EPA Evaluation

EPA has designated portions of Clark

County, Nevada, as nonattainment for

the carbon monoxide, 8-hour ozone, and

respirable particulate matter (PM10)

national ambient air quality standards

(NAAQS). See 40 CFR 81.329. Thus, a

"conformity SIP" for the portions of

Clark County so designated must be

prepared, adopted, and submitted to

EPA to comply with the CAA, as

amended by SAFETEA-LU.

In response to these requirements, on

April 1, 2008, the Nevada Division of

Environmental Protection (NDEP)

submitted the Clark County

Transportation Conformity Plan (TCP)

to EPA for approval as a revision to the

Clark County portion of the Nevada SIP.

The Clark County Board of County

Commissioners adopted the Clark

County TCP on January 15, 2008.

Appendix A of the Clark County TCP

documents public notice and hearing for

this SIP revision in compliance with

CAA section 110(1) and 40 CFR 51.102.

On July 3, 2008, this submittal was

found to meet the completeness criteria

in 40 CFR Part 51 Appendix V, which

must be met before formal EPA review.

There is no previous version of the

Clark County TCP in the SIP.

Upon EPA approval, the Federal

transportation conformity regulations

will apply, except for those sectioRs

addressed by the current submittal, i.e.,

the requirements under 40 CFR

93.122(a)(4)(ii) and 93.125(c) for

enforceability of control measures and

mitigation measures, and under 40 CFR

93.105 for interagency consultation.

We have reviewed the Clark County

TCP to assure consistency with the

Clean Air Act as amended by

SAFETEA-LU and EPA regulations (40

CFR part 93 and 40 CFR 51.390)

governing state procedures for

transportation conformity and

interagency consultation and have

concluded that the plan is approvable.

Details of our review are set forth in a

technical support document (TSD),

which has been included in the docket

for this action. Specifically, in our TSD,

we identify how the submitted

procedures satisfy our requirements

under 40 CFR 93.105 for interagency

consultation with respect to the

development of transportation plans

and programs, SIPs, and conformity

determinations, the resolution of

conflicts, and the provision of adequate

public consultation, and our

requirements under 40 CFR

93.122(a)(4)(ii) and 93.125(c) for

enforceability' of control measures and

mitigation measures. EPA approval of

this SIP revision is consistent with

Federal law and regulations, and will

obviate the need fQr SIP revisions that

would have otherwise been triggered by

changes to the underlying Federal

regulations.

IV. Public Comment and Final Action

As authorized in section 110(k)(3) of

the Act, and for the reasons set forth

above, EPA is fully approving the Clark

County Transportation Conformity Plan,

submitted on April 1, 2008, as a revision

to the Clark County portion of the

Nevada SIP. We do not think anyone

will object to this approval, so we are

finalizing it without proposing it in

advance. However, in the Proposed

Rules section of this Federal Register,

we are simultaneously proposing

approval of the same submitted plan. If

we receive adverse comments by

December 8, 2008, we will publish a

timely withdrawal in the Federal

Register to notify the public that the

direct final approval will not take effect

and we will address the comments in a

subsequent final action based on the

proposal. If we do not receive timely

adverse comments, the direct final

approval will be effective without

further notice on January 6, 2009. This

will incorporate the Clark County TCP

into the federally enforceable SIP.

V. Statutory and Executive Order

Reviews

Under the Clean Air Act, the

Administrator is required to approve a

SIP submission that complies with the

provisions of the Act and applicable

Federal regulations. 42 U.S.C. 7410(k);

40 CFR 52.02(a). Thus, in reviewing SIP

submissions, EPA's role is to approve

state choices, provided that they meet

the criteria of the Clean Air Act.

Accordingly, this action merely

approves state law as meeting Federal

requirements and does not impose

additional requirements beyond those

imposed by state law. For that reason,

this action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.);

* 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);

e Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

66183

HeinOnline -- 73 Fed. Reg. 66183 2008
66184 Federal Register/Vol. 73, No. 217/Friday, November 7, 2008/Rules and Regulations

0 Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those requirements would

be inconsistent with the Clean Air Act;

and

* Does not provide EPA with the

discretionary authority to address, as

appropriate, disproportionate human

health or environmental effects, using

practicable and legally permissible

methods, under Executive Order 12898

(59 FR 7629, February 16, 1994).

In addition, this rule does not have

tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9, 2000), because the SIP is

not approved to apply in Indian country

located in the state, and EPA notes that

it will not impose substantial direct

costs on tribal governments or preempt

tribal law.

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 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).

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 January 6, 2009.

Filing a petition for reconsideration by

the Administrator of this final rule 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 may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: September 24, 2008.

Wayne Nastri,

Regional Administrator, Region LX.

m Chapter I, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52--[AMENDED]

m 1. The authority citation for Part 52

continues to read as follows:

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

Subpart DD-Nevada

m 2. Section 52.1470 is amended by

adding paragraph (c)(72) to read as

follows:

§52.1470 Identification of plan. * * * * *"

(c)***

(72) The following plan revision was

submitted on April 1, 2008, by the

Governor's designee.

(i) Incorporation by reference.

(A) Clark County Department of Air

Quality and Environmental

Management.

(1) Clark County Transportation

Conformity Plan (January 2008),

adopted by the Clark County Board of

County Commissioners on January 15,

2008.

[FR Doc. E8-26513 Filed 11-6-08; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 59

[EPA-HQ-OAR-2006-0971; FRL-8738-7]

RIN 2060-AP33

National Volatile Organic Compound

Emission Standards for Aerosol

Coatings

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action on the National Volatile Organic

Compound Emission Standards for

Aerosol Coatings, which establishes

national reactivity-based emission

standards for the aerosol coatings

category (aerosol spray paints) under the

Clean Air Act (CAA). In this direct final

action, EPA is moving the applicability

and compliance dates for aerosol

coatings from January 1, 2009, to July 1,

2009. EPA is also making initial

notifications required due on the

compliance date, as opposed to 90 days

in advance of the compliance date.

DATES: This rule is effective on

December 29, 2008 without further

notice, unless EPA receives adverse

comment by December 8, 2008, or

December 22, 2008 if a hearing is

requested. If EPA receives adverse

comment, we will publish a timely

withdrawal in the Federal Register

informing the public that the rule will

not take effect.

ADDRESSES: Submit your comments,

identified under Docket ID No. EPAHQ-OAR-2006-0971 by one of the

following methods:

a www.regulations.gov. Follow the

online instructions for submitting

comments.

" E-mail: a-and-r-docket@epa.gov.

" Fax: (202) 566-9744.

" Mail: National Volatile Organic

Compound Emission Standards for

Aerosol Coatings, Environmental

Protection Agency, Mail Code: 2822T,

1200 Pennsylvania Avenue, NW.,

Washington, DC 20460. Please include

two copies.

* Hand Delivery: EPA Docket Center,

1301 Constitution Avenue, NW., EPA

Headquarters Library, Room 3334, EPA

West Building, Washington, DC 20460.

Such deliveries are only accepted

during the docket's normal hours of

operation, and special arrangements

should be made for deliveries of boxed

information.

Instructions: Direct your comments to

Docket ID No. EPA-HQ-OAR-2006-

0971. EPA's policy is that all comments

received will be included in the public

docket without change and may be

madeavailable online at

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit information that you

consider to be CBI or otherwise

protected through www.regulations.gov

or e-mail. The www.regulations.gov Web

site is an "anonymous access" system,

which means EPA will not know your

identity or contact information unless

you provide it in the body of your

comment. If you send an e-mail

comment directly to EPA without going

through tww.regulations.gov, your eHeinOnline -- 73 Fed. Reg. 66184 2008
Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations

mail address will be automatically

captured and included as part of the

comment that is placed in the public

docket and made available on the

Internet. If you submit an electronic

comment, EPA recommends that you

include your name and other contact

information in the body of your

comment and with any disk or CD-ROM

you submit. If EPA cannot read your

comment due to technical difficulties

and cannot contact you for clarification,

EPA may not be able to consider your

comment. Electronic files should avoid

the use of special characters, any form

of encryption, and be free of any defects

or viruses. For additional information

about EPA's public docket, visit the EPA

Docket Center homepage at http-//

www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket

are listed in the www.regulations.gov

index. Although listed in the index,

some information is not publicly

available, e.g., CBI or other information

whose disclosure is restricted by statute.

Certain other material, such as

c6pyrighted material, will be publicly

available only in hard copy. Publicly

available docket materials are available

either electronically in

www.regulations.gov or in hard copy at

the National Volatile Organic

Compound Emission Standards for

Aerosol Coatings, EPA/DC, EPA West

Building, EPA Headquarters Library,

Room 3334, 1301 Constitution Ave.,

NW., Washington, DC. The Public

Reading Room is open from 8:30 a.m. to

4:30 p.m., Monday through Friday,

excluding legal holidays. The telephone

number for the Public Reading Room is

(202) 566-1744, and the telephone

number for the Air Docket is (202) 566-

1742.

FOR FURTHER INFORMATION CONTACT: For

further information, contact Ms. J. Kaye

Whitfield, U.S. EPA, Office of Air

Quality Planning and Standards, Sector

Policies and Programs Division, Natural

Resources and Commerce Group (E143-

03), Research Triangle Park, NC 27711;

telephone number (919) 541-2509;

facsimile number (919) 541-3470; email address: whitfield.kaye@epa.gov.

For information concerning the CAA

Section 183(e) consumer and

commercial products program, contact

Mr. Bruce Moore, U.S. EPA, Office of

Air Quality Planning and Standards,

Sector Policies and Programs Division,

Natural Resources and Commerce Group

(E143-03), Research Triangle Park,

North Carolina 27711, telephone

number: (919) 541-5460, facsimile

number (919) 541-3470, e-mail address:

moore.bruce@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Why is EPA using a direct final rule?

II. Does this action apply to me?

Ill. What should I consider as I prepare my

comments for EPA?

IV. What are the amendments made by this

direct final rule?

V. 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

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

Risks and Safety Risks

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act

J. Executive Order 12898: Federal Actions

to Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Congressional Review Act

I. Why is EPA using a direct final rule?

EPA is publishing this rule without a

prior proposed rule because we view

this as a non-controversial action and

anticipate no adverse comment. The

final rule has a provision that allows

regulated entities to petition EPA to add

compounds to Tables 2A, 2B, and 2CReactivity Factors of subpart E, 40 CFR

part 59. It is necessary to move the

compliance date to allow time to add

compounds that are currently used in

aerosol coatings, but were not included

on the list of reactivity factors in Table

2 of the final rule. Removing the

requirement for a 90 day advance

submittal of initial notifications will

make the aerosol coatings rule

consistent with the requirements of

other part 59 rules, increasing

consistency and clarity for the regulated

entities.

Although we do not-anticipate

adverse comments on this action, in the

"Proposed Rules" section of today's

Federal Register, we are publishing a

separate document that will serve as the

proposed rule to the National Volatile

Organic Compound Emission Standards

for Aerosol Coatings (40 CFIR part 59) if

adverse comments are received on this

direct final rule. We will not institute a

second comment period on this action.

Any parties interested in commenting

must do so at this time. For further

information about commenting on this

rule, see the ADDRESSES section of this

document. If EPA receives adverse

comment, we will publish a timely

withdrawal in the Federal Register

informing the public that this direct

final rule will not take effect. We would

address all public comments in any

subsequent final rule based on the

proposed rule.

HI. Does this action apply to me?

The entities potentially affected by

this direct final rule are the same

entities that are subject to the Aerosol

Coatings final rule. The entities affected

by the Aerosol Coatings final rule

include: Manufacturers, processors,

distributors, importers of aerosol

coatings for sale or distribution in the

United States, and manufacturers,

processors, distributors, or importers

who supply the entities listed above

with aerosol coatings for sale or

distribution in interstate commerce in

the United States.

1I. What should I consider as I prepare

my comments for EPA?

A. Submitting CBI. Do not submit this

information to EPA through

www.regulations.gov or e-mail. Clearly

mark the part or all of the information

that you claim to be CBI. For CBI

information in a disk or CD ROM that

you mail to EPA, mark the outside of the

disk or CD ROM as CBI and then

identify electronically within the disk or

CD ROM the specific information that is

claimed as CBI. In addition to one

complete version of the comment that

includes information claimed as CBI, a

copy of the comment that does not

contain the information claimed as CBI

must be submitted for inclusion in the

public docket. Information so marked

will not be disclosed except in

accordance with procedures set forth in

40 CFR part 2.

B. Tips for Preparing Your Comments.

When submitting comments, remember

to:

* Identify the rulemaking by docket

number and other identifying

information (subject heading, Federal

Register date and page number).

* Follow directions-The agency may

ask you to respond to specific questions

or organize comments by referencing a

Code of Federal Regulations (CFR) part

or section number.

* Explain why you agree or disagree;

suggest alternatives and substitute

language for your requested changes.

* Describe any assumptions and

provide any technical information and/

or data that you used.

* If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

* Provide specific examples to

illustrate your concerns, and suggest

alternatives.

i I I II I II I I I I I I I I I[ II IiI II[ I I I I rill

66185

HeinOnline -- 73 Fed. Reg. 66185 2008
66186 Federal Register/Vol. 73, No. 217/Friday, November 7, 2008/Rules and Regulations

0 Explain your views as clearly as

possible, avoiding the use of profanity

or personal threats.

* Make sure to submit your

comments by the comment period

deadline identified.

IV. What are the amendments made by

this direct final rule?

In this direct final action, EPA is

moving the applicability and

compliance dates for aerosol coatings, as

specified in sections 59.501(c) and

59.502(a), from January 1, 2009, to July

1, 2009. Also, EPA is making initial

notifications required in sections

59.501(f)(3)(i), 59.511(b) and 59.511(e)

due on the compliance date, as opposed

to 90 days in advance of the compliance

date. These two actions are necessary to

allow EPA time to add compounds and

applicable reactivity factors that are

currently used in aerosol coatings but

were not included on the list in Table

2 of the finalrule; allow regulated

entities sufficient time to develop initial

notification reports based on revised

tables; and, in the case of making initial

notifications due on the compliance

date, make the aerosol coatings rule

consistent with the requirements of

other part 59 rules, increasing

consistency and clarity for the regulated

entities.

Section 59.511(j) anticipated that

there may be some compounds that

aerosol coating manufacturers are

currently using, or intend to use, that

were not included in Table 2 of the final

rule. Section 59.511(j) allowed for

regulated entities to petition EPA to add

such compounds to the list. EPA

received such petitions, but has not

been able to finalize the additions to the

list with sufficient time to allow

manufacturers to certify compliance

based on the deadlines in the final rule.

Delaying the compliance date and the

date when initial notifications are due

will allow EPA time to finalize the

additions to the list through appropriate

public notice and comment procedures,

and allow regulated entities sufficient

time to prepare initial notification

reports, and review and certify their

compliance with the limits based on the

revised tables.

V. 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 any new

information collection burden because it

does not add any new information

coll6ction requirements; it only moves

dates by which regulated entities are

required to submit information and

otherwise comply with the rule. No

additional information collection is

necessary for this action. However,

OMB has previously approved the

information collection requirements

contained in the existing regulations 40

CFR part 59 under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. and has assigned OMB

control number 2266.01. The OMB

control numbers for EPA's regulations

in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act 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 purposes of assessing the impacts

of today's final rule on small entities,

small entity is defined as: (1) A small

business as defined by the Small

Business Administration's regulations at

13 CFR 121.201; (2) a 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 is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today's final rule on small

entities, I certify that this action 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. We have

determined hat small businesses will

not incur any adverse impacts because

this action does not create any new

requirements or burdens; it only moves

the dates by which persons are required

to submit information and otherwise

comply with the rule. No costs are

associated with these amendments.

D. Unfunded Mandates Reform Act

This action contains no Federal

mandates under the provisions of Title

II of the Unfunded Mandates Reform

Act of 1995 (UJMRA), 2 U.S.C. 1531-

1538 for State, local, or tribal

governments or 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

sections 202 or 205 of UMRA.

This rule 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. As

noted above, this rule does not create

any new requirements or burdens; it

extends the date by which regulated

entities must be in compliance.

E. Executive Order 13132: Federalism

EO 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 EO to include regulations

that 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."

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 EO

13132. The CAA establishes the

relationship between the Federal

Government and the States, and this

action does not impact that relationship.

The final rule requirements will not

supersede State regulations that are

more stringent. Thus, EO 13132 does

not apply to this rule.

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

This action does not have tribal

implications, as specified in EO 13175

(65 FR 67249, November 9, 2000). The

final regulatory action does not have a

substantial direct effect on one or more

Indian tribes, in that this action imposes

no regulatory burdens on tribes. Thus,

EO 13175 does not apply to this action.

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

EPA interprets EO 13045 (62 FR

19885, April 23, 1997) as applying to

those regulatory actions that concern

HeinOnline -- 73 Fed. Reg. 66186 2008
Federal Register/Vol. 73, No. 217/Friday, November 7, 2008/Rules and Regulations

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 based solely on

technology performance.

H. Executive Order 13211:Actions

Concerning Regulations 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 and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act (NTTAA) of 1995 (Pub. L. 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 impractical. The 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 EPA does not

use available and applicable VCS.

This final rule does not involve

technical standards. Therefore, EPA did

not consider the use of any voluntary

consensus standards.

J. Executive Order 12898: Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Ord6r (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 affect the level of protection

provided to human health or the

environment. This action extends the

compliance date of the rule from

January 1, 2009, to July 1, 2009, and

does not relax the control measures on

sources regulated by the rule.

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. The EPA will

submit a report containing the final rule

amendment 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 this final

rule amendment in the Federal Register.

The final rule amendment is not a "major rule" as defined by 5 U.S.C.

804(2). This final rule is effective on

December 29, 2008.

List of Subjects in 40 CFR Part 59

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Reporting and recordkeeping

requirements.

Dated: October 30, 2008.

Stephen L. Johnson,

Administrator.

m For the reasons set out in the

preamble, title 40, Chapter I of the Code

of Federal Regulations is amended as

follows:

PART 59-[AMENDED]

m 1. The authority citation for part 59

continues to read as follows:

Authority: 42 U.S.C. 7414 and 751lb(e).

Subpart E-[Amended]

* 2. Section 59.501 is amended by

revising the first sentence of paragraph

(c) and the first sentence of paragraph

(f)(3)(i) to read as follows:

§ 59.501 . .Am I subject to this subpart? * * * * *

(c) Except as provided in paragraph

(e) of this section, the provisions of this

subpart apply to aerosol coatings

manufactured on or after July 1, 2009,

for sale or distribution in the United

States. * * *

(* * * * *

(f)* * *

(3) * * *

(i) You must submit an initial

notification no later than the

compliance date stated in § 59.502(a), or

on or before the date that you start

manufacturing aerosol coating products

that are sold in the United States,

whichever is later. * * * * *

a 3. Section 59.502 is amended by

revising paragraph (a) to read as follows:

§ 59.502 When do I have to comply with

this subpart?

(a) Except as provided in § 59.509 and

paragraphs (b) and (c) of this section,

you must be in compliance with all

provisions of this subpart by July 1,

2009.

* * * * *

E 4. Section 59.511 is amended by

revising the first sentence of paragraph

(b) introductory text and the first

sentence of paragraph (e) introductory

text to read as follows:

§ 59.511 What notification and reports

must I submit? * * * * *

fb) You must submit an initial

notification no later than the

compliance date stated in § 59.502(a), or

on or before the date that you first

manufacture, distribute, or import

aerosol coatings, whichever is later.

(e) If you claim the exemption under

§ 59.501(e), you must submit an initial

notification no later than the

compliance date stated in § 59.502(a), or

on or before the date that you first

manufacture aerosol coatings,

whichever is later. * * *

[FR Doc. E8-26614 Filed 11-6-08; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Centers for Medicare & Medicaid

Services

42 CFR Part 440

[CMS-2213-F]

RIN 0938-AO17

Medicaid Program; Clarification of

Outpatient Hospital Facility (Including

Outpatient Hospital Clinic) Services

Definition

AGENCY: Centers for Medicare &

Medicaid Services (CMS), HHS.

ACTION: Final rule.

SUMMARY: Outpatient hospital services

are a mandatory part of the standard

Medicaid benefit package. This final

rule aligns the Medicaid definition of

outpatient hospital services more

66197

HeinOnline -- 73 Fed. Reg. 66187 2008