Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules and Regulations 21147

the eye.’’ is removed and the language 

‘‘all of which are for treatment of the 

eye.’’ is added in its place.

PART 2590—RULES AND 

REGULATIONS FOR GROUP HEALTH 

PLANS

■ Paragraph 1. The authority citation for 

part 2590 continues to read as follows:

Authority: 29 U.S.C. 1027, 1059, 1135, 

1161–1168, 1169, 1181–1183, 1181 note, 

1185, 1185a, 1185b, 1191, 1191a, 1191b, and 

1191c, sec. 101(g), Public Law 104–191, 101 

Stat. 1936; sec. 401(b), Public Law 105–200, 

112 Stat. 645 (42 U.S.C. 651 note); Secretary 

of Labor’s Order 1–2003, 68 FR 5374 (Feb. 3, 

2003).

§ 2590.731 [Corrected]

■ 2. Section 2590.731(c)(2)(i), the 

language ‘‘ § 2590.701–3(a)(1)(i) (for 

purposes of’’ is removed and the 

language ‘‘§ 2590.701–3(a)(2)(i) (for 

purposes of’’ is added in its place.

■ 3. Section 2590.731(c)(2)(ii), the 

language ‘‘and § 2590.701–3(a)(1)(ii) (for 

purposes’’ is removed and the language 

‘‘§ 2590.701–3(a)(2)(ii) (for purposes’’ is 

added in its place.

■ 4. Section 2590.731(c)(2)(iii), the 

language ‘‘the Act and §§ 2590.701–

3(a)(1)(iii) and’’ is removed and the 

language ‘‘the Act and §§ 2590.701–

3(a)(2)(iii) and’’ is added in its place.

PART 146—REQUIREMENTS FOR THE 

GROUP HEALTH INSURANCE 

MARKET

■ Paragraph 1. The authority citation for 

part 146 continues to read as follows:

Authority: Secs 2701 through 2763, 2791, 

and 2792, of the Public Health Service Act, 

42 U.S.C. 300gg through 300gg–63, 300gg–91, 

30gg–92 as amended by HIPAA (Pub. L. 104–

191, 110 Stat. 1936), MHPA (Pub. L. 104–204, 

110 Stat. 2944, as amended by Pub. L. 107–

116, 115 Stat. 2177), NMHPA (Pub. L. 104–

204, 110 Stat. 2935), WHCRA (Pub. L. 105–

277, 112 Stat. 2681–436), and section 

103(c)(4) of HIPAA.

§ 146.125 [Corrected]

■ 5. Section 146.125, the language 

‘‘Sections 146.111 through 146.119,’’ is 

removed and the language ‘‘Section 

144.103, §§ 146.111 through 146.119,’’ is 

added in its place.

§ 146.143 [Corrected]

■ 6. Section 146.143(b), the language 

‘‘section 514 of the Act with respect to’’

is removed and the language ‘‘section 

514 of ERISA with respect to’’ is added 

in its place.

■ 7. Section 146.143(c)(2)(i), the 

language ‘‘§ 146.111(a)(1)(i) (for 

purposes of’’ is removed and the 

language ‘‘§ 146.111(a)(2)(i) (for 

purposes of’’ is added in its place.

■ 8. Section 146.143(c)(2)(ii), the 

language ‘‘PHS Act and 

§ 146.111(a)(1)(ii) (for’’ is removed and 

the language ‘‘PHS Act and 

§ 146.111(a)(2)(ii) (for’’ is added in its 

place.

■ 9. Section 146.143(c)(2)(iii), the 

language ‘‘the PHS Act and 

§§ 146.111(a)(1)(iii)’’ is removed and the 

language ‘‘the PHS Act and 

§§ 146.111(a)(2)(iii)’’ is added in its 

place.

Cynthia E. Grigsby, 

Acting Chief, Publications and Regulations 

Branch Legal Processing Division, Associate 

Chief Counsel (Procedure and 

Administration), Internal Revenue Service, 

Department of the Treasury.

Dated this 16th day of March, 2005. 

Ann Agnew, 

Executive Secretary, Department of Health 

and Human Services.

Dated this 15th day of February, 2005. 

Daniel J. Maguire, 

Director, Office of Health Plan Standards and 

Compliance Assistance, Employee Benefits 

Security Administration, Department of 

Labor.

[FR Doc. 05–8154 Filed 4–22–05; 8:45 am] 

BILLING CODE 4830–01–P; 4510–29–P; 4120–01–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[FRL–7885–7] 

Finding of Failure To Submit Section 

110 State Implementation Plans for 

Interstate Transport for the National 

Ambient Air Quality Standards for 8-

Hour Ozone and PM 2.5

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is today making a 

finding that States have failed to submit 

State Implementation Plans (SIPs) to 

satisfy the requirements of section 

110(a)(2)(D)(i) of the Clean Air Act 

(CAA) for the 8-hour ozone and PM2.5 

(particles with an aerodynamic diameter 

less than or equal to a nominal 2.5 

micrometers) National Ambient Air 

Quality Standards (NAAQS). Section 

110(a)(1) of the CAA requires that States 

submit SIPs to meet the applicable 

requirements of section 110(a)(2) within 

3 years after the promulgation of a new 

or revised NAAQS, or within such 

shorter period as EPA may provide. 

Pursuant to section 110(a)(1), States are 

required to submit SIPs that satisfy the 

requirements of section 110(a)(2)(D)(i) 

related to interstate transport of 

pollution. At present, States have not 

yet submitted SIPs to satisfy this 

requirement of the CAA, and EPA is by 

this action making a finding of failure to 

submit which starts a 2-year clock for 

the promulgation of a Federal 

Implementation Plan (FIP) by EPA 

unless, prior to that time, each State 

makes a submission to meet the 

requirements of section 110(a)(2)(D)(i) 

and EPA approves such submission.

DATES: The effective date of this rule is 

May 25, 2005.

FOR FURTHER INFORMATION CONTACT:

General questions concerning this final 

rule should be addressed to Mr. Larry D. 

Wallace, Ph.D., Office of Air Quality 

Planning and Standards, Air Qaulity 

Strategies and Standards Division, Mail 

Code C504–02, Research Triangle Park, 

N.C. 27711; telephone (919) 541–0906.

SUPPLEMENTARY INFORMATION: For 

questions related to a specific State, 

please contact the appropriate regional 

office:

Regional offices States 

Dave Conroy, Acting Branch Chief, Air Programs Branch, EPA New 

England, I Congress Street, Suite 1100, Boston, MA 02114–2023, 

(617) 918–1661.

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

and Vermont. 

Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 

Broadway, 25th Floor, New York, NY 10007–1866, (212) 637–4249.

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

Makeba Morris, Branch Chief, Air Quality Planning Branch, EPA Region III, 1650 Arch Street, Philadelphia, PA 19103–2187, (215) 814–

2187.

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

West Virginia. 

21148 Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules and Regulations 

Regional offices States 

Richard A. Schutt, Chief, Regulatory Development Section, EPA Region IV, Sam Nun Atlanta Federal Center, 61 Forsyth, Street, SW, 

12th Floor, Atlanta, GA 30303, Kentucky, (404) 562–9033.

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

South Carolina, and Tennessee. 

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

Jackson Street, Chicago, IL 60604, (312) 886–4447.

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

Rebecca Weber, Associate Director Air Programs, EPA Region VI, 

1445 Ross Avenue, Dallas, TX 75202, (214) 665–7200.

Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. 

Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901 

North 5th Street, Kansas City, Kansas 66101–2907, (913) 551–7606.

Iowa, Kansas, Missouri, and Nebraska. 

Richard R. Long, Director, Air and Radiation Program, EPA Region 

VIII, 999 18th, Suite 300, Denver, CO 80202, (303) 312–6005.

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

Steven Barhite, Air Planning Office, EPA Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105, (415) 972–3980.

Arizona, California, Guam, Hawaii, and Nevada. 

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, (206) 553–6985.

Alaska, Idaho, Oregon, and Washington. 

Table of Contents 

I. Background 

II. Today’s Action 

III. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act 

B. Executive Order 12866: Regulatory 

Planning and Review 

C. Paperwork Reduction Act 

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform Act 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

I. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer 

Advancement Act 

K. Congressional Review Act 

L. Judicial Review

I. Background 

On July 18, 1997, EPA issued new 

standards for the 8-hour ozone and 

particulate matter (PM) NAAQS. For 

ozone, EPA revised the NAAQS by 

adding an 8-hour averaging period 

(versus 1 hour for the previous 

NAAQS), and the level of the standard 

was changed from 0.12 ppm to 0.08 

ppm (62 FR 38856). For the PM 

NAAQS, EPA added a new 24-hour 

standard and a new annual standard for 

PM2.5. 

Section 110(a)(1) of the CAA requires 

States to submit new SIPs that provide 

for the implementation, maintenance, 

and enforcement a new or revised 

standard within 3 years after 

promulgation of such standard, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must 

address, including section 

110(a)(2)(D)(i) which applies to 

interstate transport of certain emissions. 

Section 110(a)(1) imposes the obligation 

upon States to make a SIP submission 

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.

For the 8-hour ozone standard and the 

PM2.5 standards, States should already 

have submitted SIPs that satisfied the 

section 110(a)(2)(D)(i) requirement 

related to interstate transport for these 

new NAAQS. At present, States have 

not submitted plans to satisfy this 

requirement, and EPA is today making 

a finding of failure to submit. This 

finding starts a 2-year clock for 

promulgation by EPA of a FIP, in 

accordance with section 110(c)(1), for 

any State that does not submit a SIP 

meeting the requirements of section 

110(a)(2)(D)(i) for the PM2.5 and 8-hour 

ozone NAAQS. This action does not 

start a sanctions clock pursuant to 

section 179 because this finding of 

failure to submit does not pertain to a 

part D plan for nonattainment areas 

required under section 110(a)(2)(I) and 

because this action is not a SIP Call 

pursuant to section 110(k)(5). 

II. Today’s Action 

By today’s action, EPA is making the 

finding that States have failed to submit 

SIPs to satisfy the requirements of 

section 110(a)(2)(D)(i) of the CAA for the 

8-hour ozone and PM2.5 NAAQS. This 

finding starts a 2-year clock for the 

promulgation by EPA of a FIP, unless 

each State submits a SIP to satisfy the 

section 110(a)(2)(D)(i) requirements, and 

EPA approves such submission prior to 

that time. Today’s action will be 

effective on May 25, 2005. 

III. Statutory and Executive Order 

Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act 

This is a final EPA action, but is not 

subject to notice-and-comment 

requirements of the Administrative 

Procedures Act (APA), 5 U.S.C. 553(b). 

The EPA invokes, consistent with past 

practice (for example, 61 FR 36294), the 

good cause exception pursuant to APA, 

5 U.S.C. 553(b)(3)(B). Notice and 

comment are unnecessary 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 to meet the requirement by 

the statutory date. 

B. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’ and, therefore, subject to 

OMB review and the requirements of 

the Executive Order. The order defines 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules and Regulations 21149

Pursuant to the terms of Executive 

Order 12866, a determination has been 

made that this rule is not a ‘‘significant 

regulatory action’’ because none of the 

above factors apply. As such, this final 

action was not formally submitted to 

The Office of Management and Budget 

(OMB) for review. 

C. 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. This rule 

relates to the requirement in the CAA 

for States to submit SIPs under section 

110(a)(1) to satisfy certain infrastructure 

and general authority-related elements 

required under section 110(a)(2) of the 

CAA for the 8-hour ozone and the 

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 final rule does not 

establish any new information 

collection requirement apart from that 

required by law. Burden means that 

total time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to review 

instructions; develop, acquire, install, 

and utilize technology and systems for 

the purposes of collecting, validating, 

and verifying information, processing 

and maintaining information, and 

disclosing and providing information; 

adjust the existing ways to comply with 

any previously applicable instructions 

and requirements; train personnel to be 

able to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. An Agency 

may not conduct or sponsor, and a 

person is not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. The OMB control numbers for 

EPA’s regulations in the Code of Federal 

Regulations (CFR) are listed in 40 CFR 

part 9.

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act (APA) or 

any other statute unless the EPA 

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 the purpose of assessing the 

impacts of today’s final rule 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 (SBA) size 

standards. (See 13 CFR, part 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. 

Courts have interpreted the RFA to 

require a regulatory flexibility analysis 

only when small entities will be subject 

to the requirements of the rule. See, 

Michigan v. EPA, 213 F.3d 663, 668–69 

(D.C. Cir., 2000), cert. den., 532 U.S. 903 

(2001). This rule would not establish 

requirements applicable to small 

entities. Instead, it would require States 

to develop, adopt, and submit SIPs to 

meet the requirements of section 

110(a)(2)(D)(i), and would leave to the 

States the task of determining how to 

meet those requirements, including 

which entities to regulate. Moreover, 

because affected States would have 

discretion to choose the sources to 

regulate and how much emissions 

reductions each selected source would 

have to achieve, EPA could not predict 

the effect of the rule on small entities. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

E. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal Agencies to assess the effects of 

their regulatory actions on State, local 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation of why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments to have 

meaningful and timely input in the 

development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small government on compliance with 

regulatory requirements. 

Today’s action does not include a 

Federal mandate within the meaning of 

UMRA that may result in expenditures 

of $100 million or more in any 1 year 

by either State, local, or Tribal 

governments in the aggregate or to the 

private sector, and therefore, is not 

subject to the requirements of sections 

202 and 205 of the UMRA. It does not 

create any additional requirements 

beyond those of the PM2.5 and 8-hour 

ozone NAAQS (62 FR 38652; 62 FR 

38856, July 18, 1997). Therefore, no 

UMRA analysis is needed. This rule 

responds to the requirement in the CAA 

for States to submit SIPs under section 

110(a)(1) to satisfy certain infrastructure 

and general authority-related elements 

required under section 110(a)(2) of the 

CAA for the 8-hour ozone and 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. 

Inasmuch as this action simply finds 

that States have failed to submit SIPs to 

address a pre-existing statutory 

requirement under the CAA, this 

Federal action will not impose 

mandates that will require expenditures 

of $100 million or more in the aggregate 

in any 1 year. However, EPA notes, that 

in another final rule signed today (the 

Clean Air Interstate Rule or CAIR), EPA 

is making findings of significant 

contribution for many States and 

requiring the submission of SIPs that 

will control sulfur dioxide and nitrogen 

oxide emissions in order to eliminate 

21150 Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules and Regulations 

interstate transport and that EPA has 

estimated in that action that such 

controls will have annual costs of $1.91 

billion in 2010 and $2.56 billion in 

2015, assuming a 3 percent discount 

rate. The EPA plans to issue separate 

guidance concerning compliance with 

section 110(a)(2)(D)(i) for States other 

than those subject to the CAIR. 

F. 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 

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 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 

Executive Order 13132. The CAA 

establishes the scheme whereby States 

take the lead in developing plans to 

meet the NAAQS. This rule 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 rule.

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ This final rule does not 

have ‘‘Tribal implications’’ as specified 

in Executive Order 13175. This rule 

responds to the requirement in the CAA 

for States to submit SIPs under section 

110(a)(1) to satisfy certain elements 

required under section 110(a)(2) of the 

CAA for the 8-hour ozone and PM2.5 

NAAQS. Section 110(a)(1) of the CAA 

requires that States submit SIPs that 

provide for implementation, 

maintenance, and enforcement of a new 

or revised NAAQS, and which satisfy 

the applicable requirements of section 

110(a)(2), within 3 years of 

promulgation of such standard, or 

within shorter period as EPA may 

provide. The CAA provides for States 

and Tribes to develop plans to regulate 

emissions of air pollutants within their 

jurisdictions. The regulations clarify the 

statutory obligations of States and 

Tribes that develop plans to implement 

this rule. The Tribal Authority Rule 

(TAR) gives Tribes the opportunity to 

develop and implement CAA programs, 

but it leaves to the discretion of the 

Tribe whether to develop these 

programs and which programs, or 

appropriate elements of a program, the 

Tribe will adopt. 

This rule does not have Tribal 

implications as defined by Executive 

Order 13175. 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 8-hour ozone or 

the fine particle NAAQS at this time. 

Furthermore, this rule does not affect 

the relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the TAR 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. Because this 

rule does not have Tribal implications, 

Executive Order 13175 does not apply. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health and safety risk 

that EPA has reason to believe may have 

a disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by EPA. 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because 

EPA does not have reason to believe that 

the environmental health risks or safety 

risks addressed by this rule present a 

disproportionate risk or safety risk to 

children. Nonetheless, we have 

evaluated the environmental health or 

safety effects of the PM2.5 and the 8-

hour ozone NAAQS on children. The 

results of this risk assessment are 

contained in the NAAQS for PM2.5 and 

8-hour Ozone Standard, Final Rule [(62 

FR 38652) and (62 FR 38856), July 18, 

1997]. 

I. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

Information on the methodology and 

data regarding the assessment of 

potential energy impacts is found in 

Chapter 6 of U.S. EPA 2002, Cost, 

Emission Reduction, Energy, and the 

Implementation Framework for the 

PM2.5 NAAQS, prepared by the 

Innovative Strategies and Economics 

Group, Office of Air Quality Planning 

and Standards, Research Triangle Park, 

N.C., April 24, 2003.

J. 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. Voluntary 

consensus standards 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 EPA 

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. 

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 this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules and Regulations 21151

publication of the rule in the Federal 

Register. 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

actions by EPA. This section provides, 

in part, that petitions for review must be 

filed in the Court of Appeals for the 

District of Columbia Circuit: (i) When 

the EPA action consists of ‘‘nationally 

applicable regulations promulgated, or 

final actions taken, by the 

Administrator,’’ or (ii) when such action 

is locally or regionally applicable, if 

‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’

This action making a finding of failure 

to submit related to the section 

110(a)(2)(D)(i) requirements related to 

the 8-hour ozone and the PM2.5 

NAAQS is ‘‘nationally applicable’’

within the meaning of section 307(b)(1). 

For the same reasons, the 

Administrator also is determining that 

the requirements related to the finding 

of failure to submit related to section 

110(a)(2)(D)(i) is of nationwide scope 

and effect for the purposes of section 

307(b)(1). This is particularly 

appropriate because in the report on the 

1977 Amendments that revised section 

307(b)(1) of the CAA, Congress noted 

that the Administrator’s determination 

that an action is of ‘‘nationwide scope 

or effect’’ would be appropriate for any 

action that has ‘‘scope or effect beyond 

a single judicial circuit.’’ H.R. Rep. No. 

95–294 at 323, 324, reprinted in 1977 

U.S.C.C.A.N. 1402–03. Here, the scope 

and effect of this rulemaking extends to 

numerous judicial circuits since the 

findings of failure to submit apply to all 

areas of the country. In these 

circumstances, section 307(b)(1) and its 

legislative history call for the 

Administrator to find the rule to be of 

‘‘nationwide scope or effect’’ and for 

venue to be in the D.C. Circuit. 

Thus, any petitions for review of this 

action related to a findings of failure to 

submit related to the requirements of 

section 110(a)(2)(D)(i) of the CAA 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 

Air pollution control.

Dated: March 10, 2005. 

Stephen L. Johnson, 

Acting EPA Administrator.

[FR Doc. 05–5319 Filed 4–22–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R09–OAR–2005–CA–01; FRL–7900–3] 

Revision to the California State 

Implementation Plan, Monterey Bay 

Unified Air Pollution Control District 

and San Joaquin Valley Unified Air 

Pollution Control District

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Monterey Bay Unified Air Pollution 

Control District (MBUAPCD) and San 

Joaquin Valley Unified Air Pollution 

Control District (SJVUAPCD) portions of 

the California State Implementation 

Plan (SIP). The revisions concern the 

emission of particulate matter (PM–10) 

from open outdoor burning and from 

incinerator burning. We are approving 

local rules that regulate these emission 

sources under the Clean Air Act as 

amended in 1990 (CAA or the Act).

DATES: This rule is effective on June 24, 

2005 without further notice, unless EPA 

receives adverse comments by May 25, 

2005. If we receive such comments, we 

will publish a timely withdrawal in the 

Federal Register to notify the public 

that this rule will not take effect.

ADDRESSES: Submit comments, 

identified by docket number R09–OAR–

2005–CA–01, by one of the following 

methods: 

1. Agency Web site: http://

docket.epa.gov/rmepub/. EPA prefers 

receiving comments through this 

electronic public docket and comment 

system. Follow the on-line instructions 

to submit comments. 

2. Federal eRulemaking Portal:

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

on-line instructions. 

3. E-mail: steckel.andrew@epa.gov. 

4. Mail or deliver: Andrew Steckel 

(Air–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://docket.epa.gov/rmepub/,

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 the 

agency Web site, eRulemaking portal, or 

e-mail. The agency Web site and 

eRulemaking portal are ‘‘anonymous 

access’’ systems, 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://docket.epa.gov/rmepub 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, some 

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: Al 

Petersen, Rulemaking Office (AIR–4), 

U.S. Environmental Protection Agency, 

Region IX, (415) 947–4118, 

petersen.alfred@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

Table of Contents 

I. The State’s Submittal 

A. What Rules Did the State Submit? 

B. Are There Other Versions of These 

Rules? 

C. What Are the Purposes of the Submitted 

Rule Revisions? 

II. EPA’s Evaluation and Action

A. How Is EPA Evaluating the Rule and 

Rule Revisions? 

B. Do the Rule Revisions Meet the 

Evaluation Criteria? 

C. Public Comment and Final Action 

III. Statutory and Executive Order Reviews

I. The State’s Submittal 

A. What Rules Did the State Submit? 

Table 1 lists the rules and dates that 

MBUAPCD and SJVUAPCD revised the 

local rules and when they were 

submitted to EPA by the California Air 

Resources Board (CARB).