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Citation: 73 Fed. Reg. 66182 2008

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-- 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 ofa sound recording which results ina specifically identifiable reproduction by orfor any transmission recipient ofa phonorecord ofthat sound recording, regardless of whether the digitaltransmission is also

a public performance of the sound recording or any nondramatic musical work embodied therein. The reproduction ofthe phonorecord must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated fora period of
more than transitory duration. Such a phonorecord may be permanent or it may be made available tothe transmission recipient fora'limited period oftime or for aspecified number ofperformances. A digitalphonorecord deliveryincludes all phonorecords that
are made for the purpose ofmaking the digital phonorecord delivery.

PART 255-ADJUSTMENT OF ROYALTY PAYMENTS UNDER COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHONORECORDS

* 4. The authoritycitation for part 255 continues to read as follows:

Authority: 17 U.S.C. 702.
0 5. Section 255.4is revisedto read as follows:

§255.4 Definitionof digitalphonorecord delivery.

A "digital phonorecorddelivery"is each individual delivery of a phonorecordby digitaltransmission of
a sound recording which results in a specifically identifiable reproduction by
orfor any transmission recipient ofa phonorecord of that sound recording, regardless ofwhether the digital transmission is also a public performance ofthe sound recording or any nondramatic musical work embodied therein. The reproduction of the phonorecord must be sufficiently permanent orstable to permit it to be perceived, reproduced, or otherwise communicated for a period ofmore than transitory duration. Such a phonorecord may be permanent or it may be made aval1able to the transmission recipient fora limited period oftime orfor a specified number of performances. A digital phonorecord delivery includes allphonorecords that are made for the purpose ofmaking the digital phonorecord delivery. Dated: October 22, 2008. Marybeth Peters, RegisterofCopyrights.

Approved by:
James H. Billington, TheLibrarianof Congress. [FRDoc. 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; Revisionsto the Nevada State Implementation Plan; Clark County

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.
SUMMARY: Under the Clean AirAct, EPA is taking directfinal action to approve a revision to the Clark County portion ofthe Nevada State Implementation Plan (SIP). This revisionconsists 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 inthe applicable SIP. DATES: This rule is effectiveon 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 publicthat this directfinal rule will not take effect. ADDRESSES: Submit comments, identified bydocket number EPA-R09- OAR-2008-0728, by one of the following methods: 1.FederaleRulemakingPortal: http://www.regulations.gov. Follow the on-line instructions.

2. E-mail:vagenas.ginger@epa.gov. 3. Mailordeliver: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 inthe public docket without change and may be made available onlineat 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 orotherwise 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 thebody ofyour comment. Ifyou send e-mail directlyto EPA, your e-mail. address will be automatically captured and included as part ofthe 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 electronicallyat http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents inthe 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 inthe FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, (415) 972-3964, vagenas.ginge@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout thisdocument, "we," "us" and "our" refer to EPA.

Table ofContents
I.Transportation Conformity II.Background for This Action III. StateSubmittal and EPA:Evaluation IV. Public Comment andFinal Action V. Statutory and Executive Order Reviews

I. Transportation Conformity

Transportation conformity is required under section 176(c) ofthe Clean Air Act (CAA or Act)to ensure that federally supported highway, transit projects, and other activities are consistentwith ("conform to") the purpose ofthe SIP. Conformity applies to areas that are currently designated nonattainment, and to areas that have been redesignatedto attainment after 1990 (maintenance areas) with plans developed under section 175A ofthe Act, for the following transportation related criteria pollutants:Ozone, particulate matter (PM 2.5andPM1o), carbon monoxide (CO), and nitrogen dioxide (NO2).

Conformity to the purpose ofthe SIP
means that transportation activities will not cause new air quality violations,
worsen existing violations, ordelay timely attainment ofthe relevant national ambient air quality standards

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(NAAQS). The transportation conformity regulation is found in 40 CFR part 93 and provisions related to conformity SIPsare 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 ofthe conformity rulein their SIPs ("conformity SIPs"). Under 40 CFR 51.390, most sections ofthe conformity rule were required to be copied verbatim. States were also required to tailor all or portions of the following three sections ofthe 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 thatare not included in a metropolitan planning organization's (MPO's) transportation plan and transportation improvement program that mustbe obtained prior to a conformity determination, and the requirement that such commitments, when they exist, mustbe fulfilled; and 40 CFR 93.125(c), which addresses written commitments to mitigation

measures that must be obtained prior to

aproject-level conformity determination, and the requirement that project sponsors mustcomply 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) ofthe Clean Air Act's transportation conformity provisions. One ofthe 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. Ingeneral, states are

no longerrequired to submit conformity SIP revisions that address the other sections ofthe conformity rule. These changes took effect onAugust 10, 2005, when SAFETEA-LU was signed into law. 

## m. State Submittal andEPA Evaluation

EPAhas designated portions ofClark County, Nevada, as nonattainment for the carbon monoxide, 8-hour ozone, and respirable particulate matter (PM 1 0) 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.

Inresponse to these requirements, on April 1, 2008, the Nevada Division of Environmental Protection (NDEP) submitted the Clark County Transportation Conformity Plan (TCP)
to EPA forapproval as arevision to the Clark County portion ofthe Nevada SIP. The Clark County Board ofCounty Commissioners adopted the Clark County TCP on January 15, 2008. Appendix A ofthe ClarkCounty TCP documents public notice and hearing for this SIP revision incompliance with CAA section 110(1) and 40 CFR 51.102. OnJuly 3,2008, this submittal was found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which
mustbe met before formal EPA review. There is no previous version ofthe 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 ofcontrol 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 AirAct 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 oftransportation plans and programs, SIPs, and conformity determinations, the resolution of conflicts, and the provision ofadequate public consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for enforceability' ofcontrol measures and mitigation measures. EPA approval of this SIP revision is consistent with Federal law and regulations, andwill 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 insection 110(k)(3) of theAct, andfor the reasons set forth above, EPA is fully approving the Clark County Transportation Conformity Plan, submitted onApril 1,2008, as a revision
to the Clark County portion ofthe Nevada SIP. We donot think anyone will object to thisapproval, so we are finalizing it without proposing it in advance. However, in theProposed Rules section ofthis Federal Register,

we are simultaneously proposing approval ofthe 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 andwe will address the comments in a subsequent final action based on the proposal. Ifwe do not receive timely adverse comments, the direct final approval willbe effective without further notice on January 6, 2009. This will incorporate the Clark County TCP into the federally enforceable SIP.

V. Statutory and ExecutiveOrder Reviews

Under the Clean AirAct, the Administrator is required to approve a SIP submission that complies with the provisions ofthe 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 ofthe Clean AirAct. 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 ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* Does notimpose an information collection burden under the provisions ofthe 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 notcontain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (Pub.L. 104-4);

e Does nothave Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); 

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### 0 Is notan economically significant regulatory action based onhealth or safety risks subjectto Executive Order 13045 (62 FR 19885, April 23, 1997);

* Is nota significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

* Is not subject to requirements of section 12(d) ofthe 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 notprovide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does nothave tribal implications as specifiedby Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, andEPA notes that it will not impose substantial direct
costs ontribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rulemay take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior topublication ofthe 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 theClean Air Act, petitions forjudicial review of this action mustbe.filed inthe United States Court ofAppeals for the appropriate circuit by January 6, 2009. Filing a petition forreconsideration by theAdministrator ofthis final rule does
not affect the finality of this action for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial 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 ofSubjects in40 CFR Part52
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, RegionLX.

mChapter I,title 40 ofthe Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]



### m1.The authority citation forPart 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.
Subpart DD-Nevada

m2. Section 52.1470 is amended by adding paragraph (c)(72) to read as follows:
§52.1470 Identificationof 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 ofAir Quality and Environmental Management.

(1) Clark CountyTransportation Conformity Plan (January 2008), adopted by the Clark County Board of County Commissioners onJanuary 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 forAerosol Coatings
AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action onthe National Volatile Organic Compound Emission Standards for Aerosol Coatings, which establishes national reactivity-based emission standards for the aerosol coatings category (aerosolspray paints) under the Clean Air Act (CAA). Inthis direct final action, EPA is movingthe 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 ofthe compliance date.
DATES: Thisrule is effective on December 29, 2008 without further notice, unless EPA receives adverse
comment by December 8, 2008, or December 22, 2008 ifa hearing is requested. IfEPA receives adverse comment, we will publish a timely withdrawal inthe Federal Register informing the public that the rule will
nottake effect.
ADDRESSES: Submit your comments, identified under Docket ID No. EPAHQ-OAR-2006-0971 by one ofthe 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. Pleaseinclude 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 ofboxed information.

Instructions: Direct your comments to Docket IDNo. 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. Donot submit information that you consider to beCBI orotherwise protected through www.regulations.gov

ore-mail. The www.regulations.govWeb site is an "anonymous access" system, which means EPA will notknow your identity or contact information unless you provide it in the body ofyour comment. Ifyou send an e-mail comment directly to EPA without going through tww.regulations.gov,your eHeinOnline -- 73 Fed. Reg. 66184 2008Federal Register/Vol. 73, No. 217/Friday, November 7, 2008/Rules and Regulations

mail address will be automatically captured and included as part ofthe comment that is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and other contact information inthe body ofyour comment and with any disk orCD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPAmay notbe able to consideryour comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free ofany defects

orviruses. For additional information aboutEPA'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 inthe 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, willbe publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.govor 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 forthe Public Reading Room is (202) 566-1744, and the telephone number forthe Air Docket is (202) 566- 1742. FOR FURTHER INFORMATION CONTACT: For further information, contact Ms. J.Kaye Whitfield, U.S. EPA, Office ofAir 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, SectorPolicies 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 applyto 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, orUse 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 thisrule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comment. The final rule has aprovision 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 listofreactivity factors in Table 2 ofthe final rule. Removing the requirement for a 90 day advance submittal ofinitial 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 oftoday'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 ofthis document. IfEPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will nottake effect. We would address allpublic comments inany subsequent finalrule based on the proposed rule.


### HI. Does this action applyto me?

The entities potentially affected by this direct final rule are the same entities that are subject to the Aerosol Coatings finalrule. The entities affected by the Aerosol Coatings finalrule include: Manufacturers, processors, distributors, importers ofaerosol coatings for sale ordistribution inthe 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 Iconsider as Iprepare my comments for EPA?

A. SubmittingCBI.Donot submit this information to EPA through www.regulations.govor e-mail. Clearly mark the part orall ofthe information that you claim to be CBI. For CBI information in a disk or CDROM that you mail to EPA, mark the outside ofthe disk or CD ROM as CBI and then identify electronically within the disk or CDROM the specific information thatis claimed as CBI. In addition to one complete version ofthe comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI mustbe submitted for inclusion inthe public docket. Information so marked will notbe disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips forPreparing 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 youto respond to specific questions

or organize comments by referencing a Code ofFederal Regulations (CFR) part

or section number.

* Explain why you agree or disagree; suggest alternatives and substitute language for yourrequested changes.

* Describe any assumptions and provide any technical information and/

or data that you used.

* Ifyou 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 

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### 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 ofprofanity

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 ofthe compliance date. These two actions are necessary to allow EPA time to add compounds and applicable reactivity factors that are currently used inaerosol coatings but

were not included onthe list in Table 2 of the finalrule; allow regulated entities sufficient time to develop initial notification reportsbased onrevised tables; and, inthe case ofmaking initial notifications due onthe compliance date, make the aerosol coatings rule consistent with the requirements of other part 59 rules, increasing consistency and clarity forthe 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 ofthe 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 inthe 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 andExecutive Order Reviews

A. Executive Order12866: Regulatory PlanningandReview

This action is not a "significant regulatory action" under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) andis therefore not subject to review under the EO. B. Paperwork ReductionAct

. This action doesnot impose any new information collection burden because it does not add any new information coll6ction requirements; it only moves datesby which regulated entities are required to submit information and otherwise comply with the rule. No additional information collection is necessary forthis action. However, OMB has previously approved the information collection requirements contained inthe existing regulations 40 CFR part 59 under the provisions ofthe Paperwork ReductionAct, 44 U.S.C. 3501 etseq.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.RegulatoryFlexibility Act
The Regulatory Flexibility Act generally requires an agency to prepare
a regulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act orany other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts oftoday'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) agovernmental jurisdiction that is agovernment ofa city, county, town, school district or special district with a population ofless 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 oftoday's finalrule on small entities, I certify that this action will not have a significant economic impact on
a substantial number ofsmall entities. This finalrule will not impose any requirements on small entities. We have determined hat small businesses will not incurany adverse impacts because this action does not create any new requirements orburdens; it only moves the dates by whichpersons are required
to submit information and otherwise comply with the rule. No costs are associated with these amendments.

D. UnfundedMandatesReformAct

This action contains no Federal mandates under the provisions ofTitle II ofthe 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 ofUMRA.

This rule is also not subject to the requirements ofsection 203 ofUMRA because it contains noregulatory requirements that might significantly or uniquely affect small governments. As noted above, thisrule does not create any new requirements or burdens; it extends the date by which regulated entities mustbe in compliance.

E.Executive Order13132: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 andlocal officials inthe development ofregulatory 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 onthe distribution ofpower and responsibilities among thevarious levels ofgovernment."

This final rule does nothave 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 ofpower and responsibilities among thevarious levels ofgovernment, 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 rulerequirements will not supersede State regulations that are
more stringent. Thus, EO 13132 does
not apply to this rule.

F.Executive Order13175:Consultation andCoordinationWith IndianTribal Governments

This action does not have tribal implications, as specified in EO 13175 (65 FR 67249, November 9, 2000). The final regulatory action does nothave a substantial direct effect on one or more Indian tribes, in that this action imposes

noregulatory burdens on tribes. Thus, EO 13175 does not apply to this action.

G. Executive Order13045:Protection of ChildrenFromEnvironmentalHealth Risks andSafetyRisks

EPA interprets EO 13045 (62FR 19885, April 23, 1997) as applying to those regulatory actions that concern

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health or safety risks, 'suchthatthe 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 Order13211:Actions Concerning RegulationsThat Significantly Affect EnergySupply, Distribution, or Use
This action is not subject to Executive Order 13211 (66FR .28355(May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I.NationalTechnologyTransferand AdvancementAct

Section 12(d) ofthe 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) inits 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, andbusiness 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 notinvolve technical standards. Therefore, EPA did
not consider the use ofany voluntary

consensus standards. 

### J. Executive Order12898:Federal ActionstoAddressEnvironmental JusticeinMinorityPopulations and Low-IncomePopulations

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 oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir 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 ofprotection provided to human health orthe environment. This action extends the compliance date ofthe rule from January 1,2009, to July 1, 2009, and does notrelax the control measures on

sources regulated by therule.

K. Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as addedby the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rule must submit a rulereport, which includes a copyof the rule, to each House ofthe Congress and to the Comptroller General ofthe United States. The EPA will submit areport containing the final rule amendment and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthis 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 ofSubjects in 40 CFRPart 59

Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: October 30, 2008. Stephen L.Johnson, Administrator.

mForthe reasons set outinthe preamble, title 40, Chapter I ofthe Code ofFederal Regulations isamended as follows:

PART 59-[AMENDED]

m 1.Theauthority citation forpart 59 continues to read as follows:

Authority: 42 U.S.C. 7414 and 751lb(e).
Subpart E-[Amended]

* 2. Section 59.501 isamended by revising the first sentence ofparagraph (c) andthe first sentence ofparagraph (f)(3)(i) to read as follows: §59.501

.

### .Am I subjecttothis subpart?

* * * * *

(c) Except as provided in paragraph (e) ofthis section, the provisions ofthis subpart apply to aerosol coatings manufactured on or after July 1, 2009, for sale or distribution inthe 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 inthe United States, whichever is later.

* * * * *

a 3. Section 59.502 is amendedby revising paragraph (a) to read as follows: 

### §59.502 When do Ihave tocomply with thissubpart? (a)Except asprovided in §59.509 and paragraphs (b)and (c) ofthis section, you mustbe in compliance with all provisions ofthis subpart byJuly 1, 2009.

* * * * *
E4. Section 59.511 is amended by revising the first sentence ofparagraph (b) introductory text and the first sentence ofparagraph (e) introductory text to read as follows: 

### §59.511 What notification and reports must Isubmit?

* * * * *

fb) You must submit an initial notification no later than the compliance date stated in §59.502(a), or
on orbefore the date that you first manufacture, distribute, or import aerosol coatings, whichever islater.

(e) Ifyou claim the exemption under §59.501(e), youmust submit an initial notification no later than the compliance date stated in §59.502(a), or
on orbefore 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 HospitalClinic) Services Definition
AGENCY: Centers forMedicare & Medicaid Services (CMS), HHS. ACTION: Final rule.

SUMMARY: Outpatient hospital services

are a mandatory part ofthe standard Medicaid benefit package. This final rule aligns the Medicaid definition of outpatient hospital services more 66197

HeinOnline -- 73 Fed. Reg. 66187 2008