2882 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

List of Subjects in 29 CFR Part 4022 

Employee benefit plans, Pension 

insurance, Pensions, Reporting and 

recordkeeping requirements. 

In consideration of the foregoing, 29 

CFR part 4022 is amended as follows: 

PART 4022—BENEFITS PAYABLE IN 

TERMINATED SINGLE–EMPLOYER 

PLANS 

■ 1. The authority citation for part 4022 

continues to read as follows: 

Authority: 29 U.S.C. 1302, 1322, 1322b, 

1341(c)(3)(D), and 1344. 

■ 2. In appendix B to part 4022, Rate Set 

232 is added to the table to read as 

follows: 

Appendix B to Part 4022—Lump Sum 

Interest Rates For PBGC Payments 

* * * * * 

Rate set 

For plans with a valuation 

date Immediate 

annuity rate 

(percent) 

Deferred annuities 

(percent) 

On or after Before i1 i2 i3 n1 n2

*******

232 2–1–13 3–1–13 0.75 4.00 4.00 4.00 7 8 

■ 3. In appendix C to part 4022, Rate Set 

232 is added to the table to read as 

follows: 

Appendix C to Part 4022—Lump Sum 

Interest Rates For Private-Sector 

Payments 

* * * * * 

Rate set 

For plans with a valuation 

date Immediate 

annuity rate 

(percent) 

Deferred annuities 

(percent) 

On or after Before i1 i2 i3 n1 n2

*******

232 2–1–12 3–1–13 0.75 4.00 4.00 4.00 7 8 

Issued in Washington, DC, on this 8th day 

of January 2013. 

Laricke Blanchard, 

Deputy Director for Policy, Pension Benefit 

Guaranty Corporation. 

[FR Doc. 2013–00632 Filed 1–14–13; 8:45 am] 

BILLING CODE 7709–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2012–0943, FRL–9769–4] 

RIN 2060 

Findings of Failure To Submit a 

Complete State Implementation Plan 

for Section 110(a) Pertaining to the 

2008 Ozone National Ambient Air 

Quality Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finding that 28 

states, the District of Columbia and the 

Commonwealth of Puerto Rico have not 

made complete state implementation 

plan (SIP) submissions to address 

certain SIP elements, as required by the 

Clean Air Act (CAA). Specifically, the 

EPA is determining that these states 

have not submitted complete SIPs that 

provide the basic CAA program 

elements as necessary to implement the 

2008 8-hour ozone national ambient air 

quality standards (NAAQS). The EPA 

refers to these SIP submissions as 

‘‘infrastructure’’ SIPs. By this action, the 

EPA is identifying states that either have 

not made any submission to address the 

applicable elements or have made a 

complete submission to address some 

applicable elements but did not make a 

complete submission for other 

applicable elements. The EPA 

recognizes that its efforts to reconsider 

the 2008 8-hour ozone NAAQS delayed 

and complicated the efforts of some 

states to develop and submit these 

infrastructure SIPs, but at this time the 

EPA is nevertheless required by court 

order to make these findings. These 

findings of failure to submit establish a 

24-month deadline for the EPA to 

promulgate federal implementation 

plans (FIPs) to address the outstanding 

SIP elements unless, prior to that time, 

the affected states submit and the EPA 

approves, a SIP that corrects the 

deficiency. 

DATES: The effective date of this rule is 

February 14, 2013. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this 

notice should be addressed to Dr. Karl 

Pepple: telephone (919) 541–2683, 

email pepple.karl@epa.gov; or Mr. Lynn 

Dail: telephone (919) 541–2363, email 

dail.lynn@epa.gov, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division, Mail Code C539–02, 

109 TW Alexander Drive, Research 

Triangle Park, NC 27709. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Notice and Comment Under the 

Administrative Procedure Act (APA) 

Section 553 of the APA, 5 U.S.C. 

553(b)(B), provides that, when an 

agency for good cause finds that notice 

and public procedure are impracticable, 

unnecessary, or contrary to the public 

interest, the agency may issue a rule 

without providing notice and an 

opportunity for public comment. The 

EPA has determined that there is good 

cause for making this rule final without 

prior proposal and opportunity for 

comment because no significant EPA 

judgment is involved in making a 

finding of failure to submit SIPs, or 

elements of SIPs, required by the CAA, 

where states have made no submissions, 

or incomplete submissions, to meet the 

requirement. Thus, notice and public 

procedure are unnecessary. The EPA 

finds that this constitutes good cause 

under 5 U.S.C. 553(b)(B). 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 2883 

1See 73 FR 16436, March 27, 2008, National 

Ambient Air Quality Standards for Ozone, Final 

Rule. 

2The EPA has not prescribed a shorter period for 

the 2008 8-hour ozone NAAQS. 

B. How can I get copies of this document 

and other related information? 

The EPA has established a docket for 

this action under Docket ID No. EPA– 

HQ–OAR–2012–0943. Publicly available 

docket materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Docket, EPA/DC, EPA West, Room 

3334, 1301 Constitution Avenue 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 Office of Air and Radiation Docket 

and Information Center is (202) 566– 

1742. 

C. Contact Information 

For questions related to a specific 

state, the District of Columbia or the 

Commonwealth of Puerto Rico, please 

contact the appropriate EPA Regional 

Office: 

Regional offices States 

EPA Region I: Dave Conroy, Air Program Branch Manager, Air Programs Branch, EPA New England, 1 Congress Street, Suite 1100, 

Boston, MA 02203–2211.

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island 

and Vermont. 

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

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

New Jersey, New York and Puerto Rico. 

EPA Region III: Donna Mastro, Air Program Manager, Air Quality Planning Branch, EPA Region III, 1650 Arch Street, Philadelphia, PA 

19103–2187.

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

West Virginia. 

EPA Region IV: R. Scott Davis, Air Program Manager, Regulatory Development Section, EPA Region IV, Sam Nunn, Atlanta Federal Center, 61 Forsyth Street SW., 12th Floor, Atlanta, GA 30303.Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, 

South Carolina and Tennessee. 

EPA Region V: John Mooney, Air Program Branch Manager, Air Programs Branch, EPA Region V, 77 West Jackson Street, Chicago, IL 

60604.

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

EPA Region VI: Guy Donaldson, Chief, Air Planning Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202–2733.Arkansas, Louisiana, New Mexico, Oklahoma and Texas. 

EPA Region VII: Joshua A. Tapp, Branch Chief, Air Planning and Development Branch, EPA Region VII, 11201 Renner Blvd., Lenexa, 

KS 66219.

Iowa, Kansas, Missouri and Nebraska. 

EPA Region VIII: Monica Morales, Air Program Manger, Air Quality 

Planning Unit, EPA Region VIII Air Program, 1595 Wynkoop St. (8P– 

AR), Denver, CO 80202–1129.

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

EPA Region IX: Doris Lo, Acting Air Program Manager, Air Planning 

Office, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 

94105.

Arizona, California, Hawaii and Nevada. 

EPA Region X: Debra Suzuki, Air Program Manager, Air Planning Unit, 

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

107, 1200 Sixth Avenue, Seattle, WA 98101.

Alaska, Idaho, Oregon and Washington. 

D. How is this preamble organized. 

Table of Contents 

I. General Information 

A. Notice and Comment Under the 

Administrative Procedure Act (APA) 

B. How can I get copies of this document 

and other related information? 

C. Contact Information 

II. Background and Overview 

III. Findings of Failure To Submit for States 

That Failed To Make an Infrastructure 

SIP Submittal in Whole or in Part for the 

2008 8-hour Ozone NAAQS 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Executive Order 13563: 

Improving Regulation and Regulatory 

Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act of 1995 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority and Low Income Populations 

K. Congressional Review Act 

L. Judicial Review 

II. Background and Overview 

On March 12, 2008, the EPA 

promulgated new NAAQS for ozone.1

The agency revised the previous 8-hour 

primary ozone standard of 0.08 parts per 

million (ppm) to 0.075 ppm. The EPA 

also revised the secondary 8-hour 

standard to the level of 0.075 ppm 

making it identical to the revised 

primary standard. In September 2009, 

the EPA announced it would reconsider 

the 2008 8-hour ozone NAAQS and 

informed the states of this plan. On 

January 19, 2010, the EPA extended by 

1 year the deadline for promulgating 

initial area designations for the 2008 

ozone NAAQS. However, in September 

2011, the EPA announced its decision to 

merge the reconsideration of the 2008 

NAAQS with the next scheduled 5-year 

review of the ozone NAAQS, and 

advised the states that the 2008 NAAQS 

would be implemented. 

The CAA section 110(a) imposes an 

obligation upon states to make a SIP 

submission with respect to the 2008 8- 

hour ozone NAAQS. CAA section 

110(a)(1) requires states to submit SIPs 

that provide for the implementation, 

maintenance and enforcement of a new 

or revised NAAQS within 3 years 

following the promulgation of the new 

or revised NAAQS, or within such 

shorter period as the EPA may 

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

specific requirements that states must 

meet in these SIP submissions, as 

applicable. The EPA refers to this type 

of SIP submission as the 

‘‘infrastructure’’ SIP. The requirements 

for infrastructure SIPs include basic SIP 


wreier-aviles on DSK5TPTVN1PROD with 
2884 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

3Nonattainment area plans required by part D 

title I of the CAA for the 2008 8-hour ozone NAAQS 

are due by various dates as established throughout 

subpart 2 of part D, i.e., reasonably available control 

measures are due in 2 years under 182(b)(2), 

reasonable further progress plans are due in 3 years 

under 182(b)(1), and attainment demonstrations are 

due in 4 years under 182(c)(2). The EPA has 

interpreted these dates to run from the effective 

dates of the nonattainment designations, see 68 FR 

32802, 32816–817 (June 2, 2003) (‘‘subpart 2 SIP 

submittals will be due as a general matter by the 

same period of time after designation and 

classification under the 8-hour standard as 

provided in subpart 2 for areas designated and 

classified at the time of enactment of the 1990 

CAA.’’) The designations for the 2008 ozone 

standard were effective on July 20, 2012. See 77 FR 

30088 (May 21, 2012) and 77 FR 34221 (June 11, 

2012). The EPA notes that it has recently become 

aware that in several actions on ozone 

infrastructure SIPs the EPA incorrectly indicated 

that nonattainment SIPs would be due according to 

schedules established under section 172. Those 

statements were incorrect and the result of 

inadvertently using language applicable to 

particulate matter SIPs in ozone SIP actions. 

Section 172 sets SIP submittal dates only for SIPs 

subject to subpart 1 of part D. Section 182 sets the 

dates for ozone SIPs which are governed by subpart 

2 of part D. 

4WildEarth Guardians v. Lisa P. Jackson, U.S. 

District Court for the Northern District of California, 

Case No.:11–CV–5651 YGR and Consolidated Case 

No.: 11–CV–05694 YGR. 

5The court also ordered the EPA to sign a final 

rule or rules taking action on infrastructure SIP 

submittals from Tennessee and Kentucky. The date 

for these final actions was subsequently extended 

by the court to March 4, 2013. These actions will 

be addressed in separate Federal Register notices. 

elements such as requirements for 

monitoring, basic program requirements 

and legal authority that are designed to 

assure attainment and maintenance of 

the NAAQS. 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 affect the content of 

the submission. The content of such a 

SIP submission may also vary 

depending upon what provisions the 

state’s existing SIP already contains. 

Two elements identified in section 

110(a)(2) are not governed by the 3-year 

submission deadline of section 110(a)(1) 

because SIPs incorporating necessary 

local nonattainment area requirements 

are not due within 3 years after 

promulgation of a new or revised 

NAAQS, but rather are due at the time 

the nonattainment area plan 

requirements are due pursuant to 

section 182.3 These requirements are: (i) 

Submissions required by section 

110(a)(2)(C) to the extent that subsection 

refers to a nonattainment area new 

source review permit program for major 

sources as required in part D of title I 

of the CAA; and (ii) submissions 

required by section 110(a)(2)(I) which 

pertains to the nonattainment planning 

requirements of part D of title I of the 

CAA. Therefore, this action does not 

cover these specific SIP elements in 

section 110(a)(2). This action does cover 

the requirement that infrastructure SIPs 

provide for a minor source permitting 

program. In the case of the 2008 8-hour 

ozone NAAQS, the period during which 

the EPA was making efforts to 

reconsider the 2008 NAAQS with the 

expectation of revising it in the near 

term extended about 6 months beyond 

March 12, 2011, the normal deadline for 

submission of infrastructure SIPs. The 

EPA therefore did not prepare and issue 

timely guidance for the states to assist 

them in preparing their submissions. 

Also, states were given the impression 

that if the NAAQS were revised as a 

result of the reconsideration, the 3-year 

deadline would reset. However, given 

that the NAAQS have not been revised, 

March 12, 2011, remains the legally 

applicable deadline for infrastructure 

SIPs for the 2008 8-hour ozone NAAQS. 

The EPA recognizes that many states 

would have developed and made timely 

infrastructure SIP submissions for 

purposes of the 2008 8-hour ozone 

NAAQS but for the uncertainty of the 

submission date requirement as a result 

of the EPA’s efforts to reconsider that 

NAAQS, the EPA’s associated interim 

advice to states regarding 

implementation of those NAAQS, and 

the lack of guidance from the EPA 

regarding what such infrastructure 

submissions should include. The EPA 

believes that many states in fact have 

SIPs in place that meet all or many of 

the basic program elements required in 

section 110(a)(2), as a result of their 

earlier SIP submissions in connection 

with previous ozone NAAQS and 

NAAQS for other pollutants. Since the 

September 2011 announcement that the 

2008 8-hour NAAQS would be 

implemented, many states have been 

working to prepare infrastructure SIP 

submissions documenting that this is 

the case (and supplementing the SIP 

with new provisions when needed) and 

to complete required public comment 

opportunity steps. About one-half of the 

states have successfully made complete 

submissions and a number of others are 

less than a month away from doing so. 

Some states are on track to make a 

submittal somewhat later. 

As of early 2012, which was only a 

few months after the announcement that 

the deadline for infrastructure SIPs 

would not reset and thus had already 

passed on March 12, 2011, many states 

had not yet submitted an infrastructure 

SIP for the 2008 8-hour ozone NAAQS. 

Litigants filed a mandatory duty lawsuit 

alleging: (i) That the EPA had failed to 

take timely mandatory action under 

section 110(k) on infrastructure SIPs 

submitted by Kentucky and Tennessee; 

and (ii) that the EPA had failed to make 

completeness findings or findings of 

failure to submit for many other states 

that had not yet submitted such 

infrastructure SIP submissions as of that 

point in time. On October 17, 2012, the 

court granted summary judgment to the 

litigants against the EPA and ordered 

the EPA to take certain actions, 

including making findings of failure to 

submit for any of the listed states that 

had not yet made an infrastructure SIP 

submission.4 The court ordered the EPA 

to sign a final rule issuing these findings 

of failure to submit for each of the states 

listed in the order for each of the listed 

infrastructure SIP elements, no later 

than January 4, 2013. The EPA 

interprets the court’s order to require a 

determination whether or not each of 

the listed states has made a complete 

infrastructure SIP submission for the 

listed elements of section 110(a)(2), as 

applicable, and if the state in question 

has not made such a complete 

submission for one or more relevant 

elements of section 110(a)(2), to make a 

finding of failure to submit with respect 

to any such element. Whether or not a 

submittal is ‘‘complete’’ pertains to the 

requirements in section 110(k)(1)(B) and 

EPA’s regulations at 40 CFR 51 

Appendix V. Thus, the EPA is making 

findings of failure to submit, in whole 

or in part, based upon whether the 

states at issue have made a complete 

infrastructure SIP for the relevant 

elements of section 110(a)(2).5

The EPA also is not issuing in this 

notice any findings of failure to submit 

SIPs addressing section 110(a)(2)(D)(i)(I) 

of the CAA. The EPA has historically 

interpreted section 110(a)(1) of the CAA 

as establishing the required submittal 

date for SIPs addressing all of the 

‘‘interstate transport’’ requirements in 

section 110(a)(2)(D) including the 

provisions in section 110(a)(2)(D)(i)(I) 

regarding significant contribution to 

nonattainment and interference with 

maintenance. The DC Circuit’s recent 

opinion in EME Homer City Generation 

v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), 

however, concluded that a SIP cannot 

be deemed to lack a required 

submission or deemed deficient for 

failure to meet the 110(a)(2)(D)(i)(I) 

obligation until after the EPA quantifies 

that obligation. This decision is not yet 

final as the mandate has not been issued 

and the EPA has petitioned for 

rehearing en banc, asking the full court 

to reconsider that conclusion. 

Nonetheless, during the pendency of the 

appeal, the EPA intends to act in 

accordance with the holdings in the 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 2885 

EME Homer City opinion. Therefore, at 

this time the EPA is not making findings 

that states failed to submit SIPs to 

comply with section 110(a)(2)(D)(i)(I). 

After excluding SIP elements required 

by CAA sections 110(a)(2)(C) to the 

extent that subsection refers to a 

nonattainment area new source review 

permit program for major sources as 

required in part D of title I of the CAA, 

110(a)(2)(I) regarding plans for 

nonattainment areas, and 

110(a)(2)(D)(i)(I) regarding interstate 

transport affecting attainment and 

maintenance of the NAAQS, as 

explained above, the remaining 

elements that are relevant to this action 

are the requirements of CAA sections 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

For those states that have not yet 

made an infrastructure SIP submittal 

and those states that have made a 

submittal that was not complete with 

respect to each relevant element of 

section 110(a)(2), as applicable, the EPA 

is making a finding of failure to submit. 

For those states that have not made any 

submittal, the EPA is making a finding 

with respect to all of the relevant 

section 110(a)(2) SIP elements. For those 

states that have made a SIP submittal, 

but whose submittal is incomplete for 

some or all of the relevant section 

110(a)(2) elements, as applicable, the 

EPA is issuing findings of failure to 

submit only with respect to those 

specific elements which a state has not 

yet submitted a complete SIP 

submission to meet. For both sets of 

states, these findings reflect submissions 

received or not received as of January 3, 

2013. 

These findings establish a 24-month 

deadline for the promulgation by the 

EPA of a FIP, in accordance with section 

110(c)(1). These findings of failure to 

submit do not impose sanctions, or set 

deadlines for imposing sanctions as 

described in section 179 of the CAA, 

because these findings do not pertain to 

the elements of a part D, title I plan for 

nonattainment areas as required under 

section 110(a)(2)(I) and because this 

action is not a SIP call pursuant to 

section 110(k)(5). 

The EPA is not making any finding in 

this notice regarding 22 states that have 

submitted infrastructure SIPs that have 

become complete by operation of law 

under CAA section 110(k)(1)(B) or have 

already been determined by the EPA to 

be complete for all elements relevant to 

this action. These states are Alaska, 

Alabama, Colorado, Connecticut, 

Florida, Georgia, Idaho, Indiana, 

Kentucky, Maryland, Mississippi, New 

Hampshire, North Carolina, Ohio, 

Oregon, Rhode Island, South Carolina, 

Tennessee, Texas, Virginia and West 

Virginia. Arizona and Illinois have 

made submissions that have been 

determined by the EPA to be complete 

except for elements related to 

prevention of significant deterioration 

(PSD). Also, the infrastructure SIP 

submitted by Delaware was determined 

by the EPA to be incomplete for all 

elements prior to this notice; the EPA is 

anticipating that Delaware will submit a 

revised SIP soon. Also, New Mexico has 

submitted an infrastructure SIP covering 

Bernalillo County that has already been 

approved by the EPA. The submission 

date and completeness status of the 

infrastructure SIP for each of these 

states are provided in Table 1, for 

informational purposes only. 

TABLE 1—INFRASTRUCTURE SIPS (AND SIP ELEMENTS) FOR THE 2008 8-HOUR OZONE NAAQS THAT HAVE BECOME

COMPLETE BY OPERATION OF LAW, DETERMINED TO BE COMPLETE OR DETERMINED TO BE INCOMPLETE OR APPROVED PRIOR TO TODAY’S ACTION

State Date of receipt by the EPA (and date shown on 

the submittal) Completeness status 

Alaska ...................................................... Section 110(a)(2)(D)(i)—April 4, 2011 (submission was dated March 29, 2011); other sections—March 8, 2012 (submission is dated 

March 2, 2012).

Complete by operation of law. 

Alabama ................................................... August 23, 2012 (submission is dated August 20, 

2012).

Determined to be complete on December 14, 

2012. 

Arizona ..................................................... December 27, 2012 (submission is dated December 27, 2012).Determined to be complete for relevant elements 

except those related to PSD on January 4, 

2013. 

Colorado .................................................. December 31, 2012 (submission is dated December 31, 2012).Determined to be complete on January 2, 2013. 

Connecticut .............................................. December 28, 2012 (submission is dated December 28, 2012).Determined to be complete on January 3, 2013. 

Delaware .................................................. February 1, 2012 (submission is dated January 

17, 2012).

Determined to be incomplete on March 29, 2012. 

Florida ...................................................... November 3, 2011 (submission is dated October 

31, 2011).

Complete by operation of law. 

Georgia .................................................... March 8, 2012 (submission is dated March 6, 

2012).

Complete by operation of law. 

Idaho ........................................................ June 28, 2010 (submission is dated June 25, 

2010).

Complete by operation of law. 

Illinois ....................................................... December 31, 2012 (submission is dated December 31, 2012).Determined to be complete for relevant elements 

except those related to PSD on January 2, 

2013. 

Indiana ..................................................... December 15, 2011 (submission is dated December 12, 2011).Complete by operation of law. 

Kentucky .................................................. July 23, 2012 (submission is dated July 17, 

2012).

Determined to be complete on December 14, 

2012. 

Maryland .................................................. December 31, 2012 (submission is dated December 27, 2012).Determined to be complete on January 2, 2013. 

Mississippi ............................................... August 17, 2012 (submission is dated July 26, 

2012).

Determined to be complete on December 18, 

2012. 


wreier-aviles on DSK5TPTVN1PROD with 
2886 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

TABLE 1—INFRASTRUCTURE SIPS (AND SIP ELEMENTS) FOR THE 2008 8-HOUR OZONE NAAQS THAT HAVE BECOME

COMPLETE BY OPERATION OF LAW, DETERMINED TO BE COMPLETE OR DETERMINED TO BE INCOMPLETE OR APPROVED PRIOR TO TODAY’S ACTION—Continued 

State Date of receipt by the EPA (and date shown on 

the submittal) Completeness status 

New Hampshire ....................................... December 31, 2012 (submission is dated December 31, 2012).Determined to be complete on January 3, 2013. 

New Mexico (for Bernalillo County only) August 25, 2010 (submission is dated August 16, 

2010).

Final approval (77 FR 58032, September 19, 

2012). 

North Carolina ......................................... November 9, 2012 (submission is dated November 2, 2012).Determined to be complete on November 15, 

2012. 

Ohio ......................................................... December 27, 2012 (submission is dated December 27, 2012).Determined to be complete on January 2, 2013. 

Oregon ..................................................... Section 110(a)(2)(D)(i)—June 28, 2010 (submission is dated June 23, 2010); other sections— 

December 28, 2011 (submission is dated December 19, 2011).

Complete by operation of law. 

Rhode Island ........................................... January 2, 2013 (submission is dated January 2, 

2013).

Determined to be complete on January 3, 2013. 

South Carolina ......................................... October 28, 2011 (submission is dated October 

24, 2011).

Complete by operation of law. 

Tennessee ............................................... October 21, 2009 (submission is dated October 

19, 2009).

Complete by operation of law. 

Texas ....................................................... December 19, 2012 (submission is dated December 13, 2012).Determined to be complete on December 20, 

2012. 

Virginia ..................................................... July 26, 2012 (submission is dated July 23, 

2012).

Determined to be complete on December 10, 

2012. 

West Virginia ........................................... February 21, 2012 (submission is dated February 

17, 2012).

Complete by operation of law. 

The EPA is finding that the 25 states 

not listed in Table 1, Arizona, Illinois, 

New Mexico, the District of Columbia 

and the Commonwealth of Puerto Rico, 

as identified in section III of this notice, 

have not made a complete infrastructure 

submission to meet certain requirements 

of section 110(a)(2) that are relevant to 

this action, as applicable, for the 2008 

8-hour ozone NAAQS. The EPA is 

committed to working with these states 

and areas to expedite the needed 

submissions and to working with all the 

states to review and act on their 

infrastructure SIP submissions in 

accordance with the requirements of the 

CAA. 

III. Findings of Failure To Submit for 

States That Failed To Make an 

Infrastructure SIP Submittal in Whole 

or in Part for the 2008 8-hour Ozone 

NAAQS 

The EPA is making findings that 

certain states have failed to submit a 

complete infrastructure SIP that 

provides certain basic program elements 

of section 110(a)(2) necessary to 

implement the 2008 8-hour ozone 

NAAQS, by January 3, 2013, as 

identified for each below. The EPA is by 

this action starting a 24-month deadline 

by which time the EPA must promulgate 

a FIP for each affected state to address 

the identified section 110(a)(2) 

requirements, unless the state submits 

and EPA approves a SIP revision that 

corrects the deficiency before the EPA 

promulgates a FIP for the state, in 

accordance with section 110(c)(1). This 

action will be effective 30 days after 

publication, on February 14, 2013. 

The following states and territories 

failed to make a complete submittal to 

satisfy certain of the requirements of 

section 110(a)(2). 

Region I 

Maine did not submit a SIP to address 

the requirements of section 110(a)(2)(A), 

(B), (C) to the extent it refers to 

enforcement, to permitting programs for 

minor sources and to PSD permitting 

programs required by part C of title I of 

the CAA, (D)(i)(II), (D)(ii), (E)–(H) and 

(J)–(M). 

Massachusetts did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for Massachusetts through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

Vermont did not submit a SIP to 

address the requirements of 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

Region II 

New Jersey did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for New Jersey through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. The EPA 

anticipates that New Jersey will propose 

a SIP for public comment that certifies 

New Jersey’s existing EPA-approved 

SIP, meets all the requirements of the 

infrastructure SIP elements included in 

today’s finding that are not related to 

PSD or to notification. 

New York did not submit a SIP to 

address the requirements of section 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 2887 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). A SIP proposed for 

public comment by New York certifies 

that New York’s existing EPA-approved 

SIP, including its PSD program, meets 

all the requirements of the infrastructure 

SIP elements included in today’s 

finding. 

The Commonwealth of Puerto Rico 

did not submit a SIP to address the 

requirements of section 110(a)(2)(A), 

(B), (C) to the extent it refers to 

enforcement, to permitting programs for 

minor sources and to PSD permitting 

programs required by part C of title I of 

the CAA, (D)(i)(II), (D)(ii), (E)–(H) and 

(J)–(M). Regarding this finding, sections 

110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in 

all four subsections for the PSD-related 

and notification-related requirements 

only) are already addressed for the 

Commonwealth of Puerto Rico through 

an existing PSD FIP that remains in 

place. Therefore, this action will not 

trigger any additional FIP obligations 

with respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

Region III 

The District of Columbia did not 

submit a SIP to address the 

requirements of section 110(a)(2)(A), 

(B), (C) to the extent it refers to 

enforcement, to permitting programs for 

minor sources and to PSD permitting 

programs required by part C of title I of 

the CAA, (D)(i)(II), (D)(ii), (E)–(H) and 

(J)–(M). Regarding this finding, sections 

110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in 

all four sections for the PSD-related and 

notification-related requirements only) 

are already addressed for the District of 

Columbia through an existing PSD FIP 

that remains in place. Therefore, this 

action will not trigger any additional 

FIP obligations with respect to the PSDrelated and notification-related 

requirements in these four subsections. 

Pennsylvania did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for Allegheny County through 

an existing PSD FIP that remains in 

place. Therefore, this action will not 

trigger any additional FIP obligations 

with respect to the PSD-related and 

notification-related requirements in 

these four subsections in Allegheny 

County. 

Region V 

Illinois did not submit a complete SIP 

to address the requirements of section 

110(a)(2)(C) and (J) to the extent these 

refer to PSD permitting programs 

required by part C of title I of the CAA. 

Illinois also failed to submit a complete 

SIP to address the PSD-related 

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

to the extent it refers to interference 

with other states’ PSD permitting 

programs required by part C by sources 

in Illinois. Illinois also failed to submit 

a complete SIP to address the 

requirement of section 110(a)(2)(D)(ii) to 

the extent it refers to notification to 

other states. Regarding this finding, 

sections 110(a)(2)(C), (D)(i)(II), (D)(ii) 

and (J) (in all four subsections for the 

PSD-related and notification-related 

requirements only) are already 

addressed for Illinois through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

Michigan did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

Minnesota did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for Minnesota through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

Wisconsin did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

Region VI 

Arkansas did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

Louisiana did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

New Mexico did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M) for all portions of 

the state other than Bernalillo County. 

Oklahoma did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). 

Region VII 

Iowa did not submit a complete SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). On December 17, 

2012, the state by letter submitted a 

document that describes the actions the 

state has taken to address the 

infrastructure SIP requirements for the 

2008 8-hour ozone NAAQS, to 

demonstrate that the state is taking 

necessary and possible steps needed to 

ensure that its rules and procedures are 

sufficient to implement the new 

standards. However, while the state 

provided this document to the public 

for comment on December 6, 2012, that 

comment period does not close until 

January 8, 2013. In addition, the state 

has scheduled a public hearing on this 

submission for January 8, 2013, as 

required by CAA section 110(a)(1) and 

40 CFR 51.102. The EPA anticipates that 

Iowa will submit a complete SIP soon 

after conclusion of the public comment 

period. 

Kansas did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 


wreier-aviles on DSK5TPTVN1PROD with 
2888 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

6See Attachment B, ‘‘Regional Consistency for 

the Administrative Requirements of State 

Implementation Plan Submittals and the Use of 

‘Letter Notices’ ’’, Memorandum from Janet McCabe, 

Deputy Assistant Administrator for the Office of Air 

& Radiation, to EPA Regional Administrators, April 

6, 2011. 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The EPA anticipates 

that Kansas will submit a SIP to address 

these requirements after conclusion of 

the public comment period currently 

underway. 

Missouri did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The EPA anticipates 

that Missouri will submit a SIP to 

address these requirements soon. 

Nebraska did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The EPA anticipates 

that Nebraska will submit a SIP to 

address these requirements after 

conclusion of the public comment 

period currently underway. 

Region VIII 

Montana did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by CAA 

part C title I, (D)(i)(II), (D)(ii), (E)–(H) 

and (J)–(M). 

North Dakota did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The state 

anticipates undergoing rulemaking and 

public notice early in 2013. 

South Dakota did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The state 

anticipates undergoing rulemaking and 

public notice early in 2013. 

Utah did not submit a complete SIP 

to address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). On December 12, 

2012, the state by letter submitted 

documents that summarize the state’s 

existing infrastructure SIP elements and 

explain that these elements satisfy the 

state’s obligation for the 2008 ozone 

NAAQS. However, the state had not yet 

completed a public comment process on 

this submission, although the state has 

provided these documents to the public 

for a comment period between 

December 18, 2012, and January 18, 

2013. As a result, the December 12, 

2012, submittal has not yet satisfied the 

requirement for public notice and 

opportunity for a public hearing 

established in CAA section 110(a)(1) 

and 40 CFR 51.102. See also CAA 

section 110(l). The state’s letter offers its 

position that because all of the elements 

in the existing infrastructure SIP were 

previously subject to a public comment 

process, including the opportunity for 

public hearing(s), when they were first 

submitted for the EPA’s approval and 

incorporation into the SIP, no public 

comment requirements should apply to 

the December 12, 2012, submittal. 

Utah’s position is inconsistent with the 

plain text of section 110(a)(1) of the 

CAA. Section 110(a)(1) first provides 

that ‘‘[e]ach State shall, after reasonable 

notice and public hearings, adopt and 

submit to the Administrator, within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a [primary NAAQS] (or 

any revision thereof) * * * a plan [i.e., 

infrastructure SIP] which provides for 

implementation, maintenance, and 

enforcement of such primary standard.’’ 

The clause ‘‘after reasonable notice and 

public hearings’’ is most naturally read 

as imposing that procedure on the 

immediately following phrase, ‘‘adopt 

and submit,’’ the direct object of which 

is the infrastructure SIP itself. Utah’s 

position would instead apply the phrase 

‘‘after reasonable notice and public 

hearings’’ to SIP revisions submitted 

before the promulgation of the new or 

revised primary NAAQS, despite the 

complete absence of a reference to those 

earlier SIP revisions in section 110(a)(1). 

Any possible residual ambiguity is 

removed by the last sentence of section 

110(a)(1), which requires an 

infrastructure SIP for a secondary 

NAAQS to be considered (unless a 

separate public hearing is provided) ‘‘at 

the hearing required by the first 

sentence of this paragraph.’’ The only 

possible interpretation of this sentence 

is that there must be an opportunity for 

public hearing for the infrastructure 

SIPs for both the primary and secondary 

NAAQS. As explained in an EPA 

memorandum,6 the requirement in the 

CAA and EPA rules for public notice 

and opportunity for a hearing is to 

inform the public that the SIP is being 

revised and allow for comment as to 

whether the state regulations satisfy the 

relevant specific obligation under the 

CAA, in this case the new obligation 

stemming from the promulgation of the 

revised 2008 ozone NAAQS. Finally, 

draft submittals are not considered plan 

submittals under the CAA because they 

have not been adopted by the state. 

Consequently, Utah’s SIP submittal does 

not qualify for a finding of 

completeness. Because the requirements 

for public notice and opportunity for a 

hearing apply to Utah’s December 12, 

2012, submittal, the EPA’s 

determination in this action that the 

submittal did not satisfy those 

requirements is also a determination 

that the December 12, 2012, submittal is 

incomplete in its entirety under the 

criteria in 40 CFR part 51, Appendix V, 

specifically the criteria in subsections 

2.1(f) and (g). As Utah’s submittal did 

not meet the minimum criteria in 

Appendix V, we are treating the state as 

not having made the required 

infrastructure SIP submission. See CAA 

section 110(k)(1)(C). 

Wyoming did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). The state 

anticipates undergoing rulemaking and 

public notice early in 2013. 

Region IX 

Arizona did not submit a complete 

SIP to address the requirements of 

section 110(a)(2)(C) and (J) to the extent 

these refer to the Prevention of 

Significant Deterioration (PSD) 

permitting programs required by part C, 

title I of the CAA for sources in 

Maricopa County, Pima County, and 

Pinal County. Arizona did not submit a 

complete SIP to address the PSD-related 

requirements of section 

110(a)(2)(D)(i)(II) to the extent it refers 

to interference with other states’ PSD 

permitting programs required by part C 

by sources in these counties. Arizona 

did not submit a complete SIP to 

address the requirement of section 

110(a)(2)(D)(ii) to the extent it refers to 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 2889 

7See Attachment B, ‘‘Regional Consistency for 

the Administrative Requirements of State 

Implementation Plan Submittals and the Use of 

‘Letter Notices’ ’’, Memorandum from Janet McCabe, 

Deputy Assistant Administrator for the Office of Air 

& Radiation, to EPA Regional Administrators, April 

6, 2011. 

8See Memorandum from John Calcagni, Air 

Quality Management Division, OAQPS, to EPA Air 

Division Directors, Regions I through X, ‘‘State 

Implementation Plan (SIP) Actions Submitted in 

Response to Clean Air Act (Act) Deadlines,’’ 

October 28, 1992. 

notification to other states for sources in 

these counties. Finally, did not submit 

a complete SIP to address the 

requirement of section 110(a)(2)(K) for 

the same counties. In Pinal County, PSD 

sources are subject to a SIP-approved 

PSD program but the state has not yet 

submitted SIP revisions to address PSD 

requirements for the 2008 8-hour ozone 

NAAQS. In Maricopa and Pima 

counties, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii), (J) and (K) (in all five subsections 

for the PSD-related and notificationrelated requirements only) are currently 

addressed by an existing PSD FIP that 

remains in place. Therefore, this action 

will not trigger any additional FIP 

obligations with respect to these PSDrelated and notification-related 

requirements in Maricopa and Pima 

counties. 

California did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for some portions of 

California through an existing PSD FIP 

that remains in place. Therefore, this 

action will not trigger any additional 

FIP obligations with respect to the PSDrelated and notification-related 

requirements in these four subsections 

in those portions of California. 

Hawaii did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for Hawaii through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

Nevada did not submit a complete SIP 

to address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to PSD 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). On December 20, 

2012, the state by letter submitted 

documents that summarize the state’s 

existing infrastructure SIP elements. 

The state’s letter offers its position that 

‘‘[s]ince no revisions for the Nevada 

infrastructure SIP for the 1997 ozone 

NAAQS are required to meet the 

infrastructure SIP requirements of the 

2008 ozone NAAQS’’, no public notice 

requirements should apply at this time 

for the revised ozone standard. The 

state’s letter also requested that the EPA 

act on these submittals pursuant to the 

‘‘parallel processing’’ procedures set 

forth in 40 CFR part 51, Appendix V. 

The state has not yet completed a public 

comment process on this submission, 

but the state letter provided information 

on the schedule for public comment 

periods and public hearings for three 

geographic subdivisions of the state 

indicating that all steps in the public 

comment processes would be finished 

by the end of February 2013. The state 

letter maintains that the EPA can make 

a completeness finding on Nevada’s 

submittal under section 2.3 of 40 CFR 

part 51, Appendix V. For the reasons 

explained below, the EPA disagrees 

with both rationales offered by the state 

and hereby finds that Nevada has failed 

to submit a complete SIP to address the 

infrastructure SIP requirements of CAA 

section 110(a)(2) for the 2008 8-hour 

ozone NAAQS. Nevada’s first rationale 

that no public comment process is 

needed because no revisions for the 

Nevada infrastructure SIP for the 1997 

ozone NAAQS are required to meet the 

infrastructure SIP requirements of the 

2008 ozone NAAQS is inconsistent with 

the plain text of section 110(a)(1) of the 

CAA. Section 110(a)(1) first provides 

that ‘‘[e]ach State shall, after reasonable 

notice and public hearings, adopt and 

submit to the Administrator, within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a [primary NAAQS] (or 

any revision thereof) * * * a plan [i.e., 

infrastructure SIP] which provides for 

implementation, maintenance, and 

enforcement of such primary standard.’’ 

The clause ‘‘after reasonable notice and 

public hearings’’ is most naturally read 

as imposing that procedure on the 

immediately following phrase, ‘‘adopt 

and submit,’’ the direct object of which 

is the infrastructure SIP itself. Nevada’s 

position would instead apply the phrase 

‘‘after reasonable notice and public 

hearings’’ to SIP revisions submitted 

before the promulgation of the new or 

revised primary NAAQS, despite the 

complete absence of a reference to those 

earlier SIP revisions in section 110(a)(1). 

Any possible residual ambiguity is 

removed by the last sentence of section 

110(a)(1), which requires an 

infrastructure SIP for a secondary 

NAAQS to be considered (unless a 

separate public hearing is provided) ‘‘at 

the hearing required by the first 

sentence of this paragraph.’’ The only 

possible interpretation of this sentence 

is that there must be an opportunity for 

public hearing for the infrastructure 

SIPs for both the primary and secondary 

NAAQS. As explained in an EPA 

memorandum,7 the requirement in the 

CAA and EPA rules for public notice 

and opportunity for a hearing is to 

inform the public that the SIP is being 

revised and allow for comment as to 

whether the state regulations satisfy the 

relevant specific obligation under the 

CAA, in this case the new obligation 

stemming from the promulgation of the 

revised 2008 ozone NAAQS. Finally, 

draft submittals are not considered plan 

submittals under the CAA because they 

have not been adopted by the state. 

Consequently, Nevada’s SIP submittal 

does not qualify for a finding of 

completeness. Regarding Nevada’s 

second rationale based on the parallel 

processing provisions of section 2.3 of 

40 CFR part 51, Appendix V, the EPA 

agrees that this section provides for EPA 

to propose an approval action for a draft 

SIP submittal accompanied by a request 

for parallel processing as a way to 

reduce the time elapsed before final 

approval can be given after completion 

of the public comment process. 

However, draft submittals are not 

considered plan submittals under the 

CAA because they have not been 

adopted by the state. Consequently, a 

draft SIP submittal accompanied by a 

request for parallel processing under 40 

CFR part 51, Appendix V does not 

qualify for a finding of completeness.8

Because the requirements for public 

notice and opportunity for a hearing 

apply to Nevada’s December 20, 2012, 

submittal, the EPA’s determination in 

this action that the submittal did not 

satisfy those requirements is also a 

determination that the December 20, 

2012, submittal is incomplete in its 

entirety under the criteria in Appendix 

V, Part 51 of Title 40 of the Code of 

Federal Regulations, specifically the 

criteria in subsections 2.1(f) and (g). As 

Nevada’s submittal did not meet the 


wreier-aviles on DSK5TPTVN1PROD with 
2890 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

minimum criteria in Appendix V, we 

are treating the state as not having made 

the required infrastructure SIP 

submission. See CAA section 

110(k)(1)(C). 

Region X 

Washington did not submit a SIP to 

address the requirements of section 

110(a)(2)(A), (B), (C) to the extent it 

refers to enforcement, to permitting 

programs for minor sources and to 

permitting programs required by part C 

of title I of the CAA, (D)(i)(II), (D)(ii), 

(E)–(H) and (J)–(M). Regarding this 

finding, sections 110(a)(2)(C), (D)(i)(II), 

(D)(ii) and (J) (in all four subsections for 

the PSD-related and notification-related 

requirements only) are already 

addressed for Washington through an 

existing PSD FIP that remains in place. 

Therefore, this action will not trigger 

any additional FIP obligations with 

respect to the PSD-related and 

notification-related requirements in 

these four subsections. 

As noted earlier, the EPA is 

committed to working with these states 

and areas to expedite the needed 

submissions and to review and act on 

their infrastructure SIPs submission in 

accordance with the requirement of the 

CAA. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Executive Order 13563: 

Improving Regulation and Regulatory 

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 EO 12866 

and 13563 (76 FR 3821, January 21, 

2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This final 

rule does not establish any new 

information collection requirement 

apart from that already required by law. 

This rule relates to the requirement in 

the CAA for states to submit SIPs under 

section 110(a) to satisfy certain 

infrastructure and general authorityrelated elements required under section 

110(a)(2) of the CAA for the 2008 8-hour 

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

CAA requires that states submit SIPs 

that implement, maintain and enforce a 

new or revised NAAQS which satisfy 

the requirements of section 110(a)(2) 

within 3 years of promulgation of such 

standard, or such shorter period as the 

EPA may provide. 

Burden means the 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 CFR are listed 

in 40 CFR Part 9. 

C. Regulatory Flexibility Act (RFA) 

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 

APA 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 the 

purpose of assessing the impacts of this 

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 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-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this rule 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. This 

action relates to the requirement in the 

CAA for states to submit SIPs under 

section 110(a) to satisfy certain 

infrastructure and general authorityrelated elements required under section 

110(a)(2) of the CAA for the 2008 ozone 

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 such shorter period as EPA 

may provide. 

D. Unfunded Mandates Reform Act of 

1995 (UMRA) 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

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

local and tribal governments and the 

private sector. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of section 202 and 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action relates to the requirement in the 

CAA for states to submit SIPs under 

section 110(a) to satisfy certain 

infrastructure and general authorityrelated elements required under section 

110(a)(2) of the CAA for the 2008 ozone 

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 such shorter period as the 

EPA may provide. 

E. Executive Order 13132: Federalism 

EO 13132, titled ‘‘Federalism’’ (64 FR 

43255, August 10, 1999), requires the 

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, 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 EO 13132. The CAA 

establishes the scheme whereby states 

take the lead in developing plans to 

meet the NAAQS. This rule will not 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 2891 

modify the relationship of the states and 

the EPA for purposes of developing 

programs to implement the NAAQS. 

Thus, EO 13132 does not apply to this 

rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

EO 13175, titled ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000), requires the 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 

EO 13175. This rule responds to the 

requirement in the CAA for states to 

submit SIPs under section 110(a) to 

satisfy certain elements required under 

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

2008 8-hour ozone 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 such shorter period as the EPA 

may provide. No tribe is subject to the 

requirement to submit an 

implementation plan under section 

110(a) within 3 years of promulgation of 

a new or revised NAAQS and the court 

order requiring this final action does not 

affect any tribe or its implementation 

plan. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it is making findings 

that certain states have failed to submit 

a complete SIP that provides certain 

basic program elements of section 

110(a)(2) necessary to implement the 

2008 8-hour ozone NAAQS. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in EO 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law 104–113, 

section 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards (VCS) in its 

regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impracticable. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable VCS. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EO 12898 (59 FR 7629, February 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. The 

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 directly affect the level of protection 

provided to human health or the 

environment. This notice is making a 

finding that certain states have failed to 

submit a complete SIP that provides 

certain of the basic program elements of 

section 110(a)(2) necessary to 

implement the 2008 8-hour ozone 

NAAQS. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this 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 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). This rule 

will be effective February 14, 2013. 

L. Judicial Review 

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

which Federal Courts of Appeal have 

venue for petitions of review of final 

agency actions by the EPA under the 

CAA. 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 agency 

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 final rule consisting of findings 

of failure to submit certain required 

infrastructure SIP provisions is 

‘‘nationally applicable’’ within the 

meaning of section 307(b)(1). First, this 

rule affects many states, the District of 

Columbia and the Commonwealth of 

Puerto Rico. Second, the action affects 

states across the U.S. that are located in 

nine of the 10 EPA Regions, 10 different 

federal circuits and multiple time zones. 

Third, the rule addresses a common 

core of knowledge and analysis 

involved in formulating the decision 

and a common interpretation of the 

requirements of 40 CFR 51 appendix V 

applied to determining the 

completeness of SIPs in states across the 

country. 

This determination is appropriate 

because in the 1977 CAA Amendments 

that revised CAA section 307(b)(1), 

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 action extends to numerous judicial 

circuits because the action affects states 

throughout the country. In these 

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

legislative history authorize the 

Administrator to find the rule to be of 

‘‘nationwide scope or effect’’ and thus to 


wreier-aviles on DSK5TPTVN1PROD with 
2892 Federal Register / Vol. 78, No. 10 / Tuesday, January 15, 2013 / Rules and Regulations 

indicate that venue for challenges to be 

in the D.C. Circuit. Accordingly, the 

EPA is determining that this is a rule of 

nationwide scope or effect. In addition, 

pursuant to CAA section 307(d)(1)(V), 

the EPA is determining that this 

rulemaking action will be subject to the 

requirements of section 307(d). Under 

section 307(b)(1) of the CAA, petitions 

for judicial review of this action must be 

filed in the United States Court of 

Appeals for the District of Columbia 

Circuit Court within 60 days from the 

date final action is published in the 

Federal Register. Filing a petition for 

review by the Administrator of this final 

action does not affect the finality of the 

action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review must be filed, and shall not 

postpone the effectiveness of such rule 

or action. Thus, any petitions for review 

of this action must be filed in the Court 

of Appeals for the District of Columbia 

Circuit within 60 days from the date 

final action is published in the Federal 

Register. 

List of Subjects in 40 CFR Part 52 

Approval and promulgation of 

implementation plans, Environmental 

protection, Administrative practice and 

procedures, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations and 

Reporting and recordkeeping 

requirements. 

Dated: January 4, 2013. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2013–00566 Filed 1–14–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

National Institutes of Health 

45 CFR Part 5b 

[Docket Number NIH–2011–0001] 

Privacy Act, Exempt Record System; 

Withdrawal 

AGENCY: Department of Health and 

Human Services, National Institutes of 

Health. 

ACTION: Direct final rule; withdrawal. 

SUMMARY: The Department of Health and 

Human Services (HHS) and the National 

Institutes of Health (NIH) published in 

the Federal Register of August 28, 2012, 

a direct final rule to exempt a new 

system of records from certain 

provisions of the Privacy Act of 1974 in 

order to protect the integrity of NIH 

research misconduct proceedings and to 

protect the identity of confidential 

sources in such proceedings. The 

comment period for this direct final rule 

closed November 13, 2012. HHS is 

withdrawing the direct final rule 

because the agency has received 

significant adverse comment. 

DATES: The direct final rule published at 

77 FR 51933, August 28, 2012, is 

withdrawn effective January 10, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Karen Pla, the NIH Privacy Act Officer, 

by email at KarenPla@nih.gov or by 

telephone on 301–402–6201; and/or 

Jerry Moore, the NIH Regulations 

Officer, by email at jm40z@nih.gov or by 

telephone on 301–496–4607. 

SUPPLEMENTARY INFORMATION: HHS and 

NIH published in the Federal Register 

of August 28, 2012 (77 FR 51933), a 

direct final rule to exempt a new system 

of records, 09–25–0223, ‘‘NIH Records 

Related to Research Misconduct 

Proceedings, HHS/NIH,’’ from certain 

provisions of the Privacy Act of 1974 in 

order to protect the integrity of NIH 

research misconduct proceedings and to 

protect the identity of confidential 

sources in such proceedings. HHS is 

withdrawing the direct final rule 

because the agency has received 

significant adverse comment. 

Authority: Therefore, pursuant to 5 U.S.C. 

301 and 552a, the direct final rule published 

on August 28, 2012 (77 FR 51933) is 

withdrawn. 

Dated: January 10, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–00726 Filed 1–10–13; 4:15 pm] 

BILLING CODE 4140–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 21 

[Docket No. FDA–2011–N–0252] 

Office of the Secretary 

45 CFR Part 5b 

Privacy Act, Exempt Record System; 

Withdrawal 

AGENCY: Office of the Secretary, Food 

and Drug Administration, HHS. 

ACTION: Direct final rule; withdrawal. 

SUMMARY: The Department of Health and 

Human Services (HHS) and the Food 

and Drug Administration (FDA) are 

withdrawing the direct final rule that 

August 28, 2012. HHS/FDA published 

the direct final rule to exempt scientific 

research misconduct proceedings 

records from certain requirements of the 

Privacy Act of 1974 in order to protect 

records compiled in the course of 

misconduct inquiries and 

investigations, and to safeguard the 

identity of confidential sources. The 

comment period closed on November 

13, 2012. HHS/FDA is withdrawing the 

direct final rule because the Agency 

received significant adverse comment. 

DATES: Effective Date: The direct final 

rule published at 77 FR 51910, August 

28, 2012, is withdrawn effective January 

10, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Frederick Sadler, Division of Freedom 

of Information, Food and Drug 

Administration, 12420 Parklawn Dr., 

Rockville, MD 20857, 301–796–8975, 

Frederick.Sadler@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: HHS and 

FDA are withdrawing the direct final 

rule that published in the Federal 

Register of Tuesday, August 28, 2012 

(77 FR 51910). HHS/FDA published the 

direct final rule to exempt scientific 

research misconduct proceedings 

records from certain requirements of the 

Privacy Act of 1974 in order to protect 

records compiled in the course of 

misconduct inquiries and 

investigations, and to safeguard the 

identity of confidential sources. The 

comment period closed on November 

13, 2012. HHS/FDA is withdrawing the 

direct final rule because the Agency 

received significant adverse comment. 

Authority: Therefore, under 5 U.S.C. 552a, 

the direct final rule published on Tuesday, 

August 28, 2012, 77 FR 51910, is withdrawn. 

Dated: January 10, 2013. 

Approved: 

Kathleen Sebelius 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–00723 Filed 1–10–13; 4:15 pm] 

BILLING CODE 4160–01–P 


wreier-aviles on DSK5TPTVN1PROD with