87826 Federal Register / Vol. 89, No. 214 / Tuesday, November 5, 2024 / Proposed Rules 

On the same day, the State 

Department published the proposed rule 

‘‘International Traffic in Arms 

Regulations (ITAR): U.S. Munitions List 

Categories IV and XV’’ (89 FR 84482). 

The rule proposes to amend the 

International Traffic in Arms 

Regulations (ITAR) to revise U.S. 

Munitions List (USML) Categories IV 

and XV and related sections of the ITAR 

to clarify and standardize the regulatory 

text, add items that warrant designation 

on the USML, and remove those items 

that no longer warrant designation on 

the USML. The rule further proposes to 

add three new license exemptions to the 

ITAR. 

Public Briefing 

On November 6, 2024, the Bureau of 

Industry and Security will host a public 

briefing to address the details of and 

answer questions on these related 

proposed rules and the final rules 

discussed elsewhere in this issue of the 

Federal Register. The Department of 

Commerce, the State Department, and 

other U.S. Government agencies, as 

appropriate, will participate in the 

public briefing. The public briefing will 

be held on November 6, 2024, at the 

Commerce Research Library of the U.S. 

Department of Commerce, 1401 

Constitution Avenue NW, Washington, 

DC 20230. The public briefing will 

begin at 1 p.m. EST and conclude at 3 

p.m. EST. 

Procedure for Requesting Participation 

To participate in the public meeting 

virtually or in-person, register at: 

space.commerce.gov/export24 no later 

than November 1, 2024, to attend in 

person, or by November 5, 2024, for 

virtual participation. for virtual 

participation. Note that due to space 

limitations, the capacity for in-person 

participation is limited. Once in-person 

capacity is reached, additional 

registrants will be directed to participate 

virtually. This web page will also 

display the agenda of the public meeting 

and any other necessary information. 

This web page will also display the 

agenda of the public meeting and any 

other necessary information. 

Procedure for Submitting Questions 

In-person and virtual attendees are 

encouraged to submit written questions 

in advance of the briefing through the 

registration links at 

space.commerce.gov/export24. 

Questions must be received by 5 p.m. 

EST on Monday, November 4, 2024. 

Note that while public questions will 

also be accepted during the public 

briefing if there is available time, 

written questions will be prioritized. 

All questions and answers from the 

public meeting will be posted at 

space.commerce.gov/export24 and at 

the Federal eRulemaking Portal at 

http://www.regulations.gov under the 

docket numbers BIS–2018–0029 or BIS 

2024–0031. Related records are made 

accessible in accordance with the 

regulations published in 15 CFR part 4. 

Special Accommodations 

For any special accommodation 

needs, please send an email to: 

space.commerce@noaa.gov. 

Matthew S. Borman, 

Principal Deputy Assistant Secretary for 

Strategic Trade and Technology Security. 

[FR Doc. 2024–25715 Filed 11–1–24; 8:45 am] 

BILLING CODE 3510–33–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2023–0206; FRL–11037.1– 

02–R3] 

Air Plan Disapproval; Delaware; 

Removal of Excess Emissions 

Provisions; Proposed Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed action. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to determine 

that a portion of an October 23, 2023, 

final disapproval action of a State 

implementation plan (SIP) revision 

submitted by the State of Delaware was 

in error and to make a correction 

pursuant to section 110(k)(6) of the 

Clean Air Act (CAA). 

DATES: Comments must be received on 

or before December 5, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2023–0206 at 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

www.epa.gov/dockets/commenting-epadockets. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this 

publication should be addressed to Sean 

Silverman, Planning & Implementation 

Branch (3AD30), Air & Radiation 

Division, U.S. Environmental Protection 

Agency, Region III, Four Penn Center, 

1600 John F. Kennedy Boulevard, 

Philadelphia, Pennsylvania 19103; by 

telephone (215) 814–5511 or by email at 

silverman.sean@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

Table of Contents 

I. General Information 

A. How is the preamble organized? 

II. Background 

III. What is the EPA’s authority to correct 

errors in SIP rulemakings? 

IV. What is the EPA proposing to correct? 

V. What action is the EPA taking? 

VI. Statutory and Executive Order Reviews 

II. Background 

This proposed action is to correct an 

error in an earlier EPA action, using the 

authority of section 110(k)(6) of the 

CAA. Section 110(k)(6) provides the 

EPA with explicit authority to correct 

errors in prior rulemaking actions: 

Whenever the Administrator determines 

that the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), area 

designation, redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner as the 

approval, disapproval, or promulgation 

revise such action as appropriate without 

requiring any further submission from the 

State. Such determination and the basis 

thereof shall be provided to the State and the 

public. 

Section 110(k)(6) of the CAA has been 

interpreted by courts as a ‘‘broad 

provision [that] was enacted to provide 

the EPA with an avenue to correct its 

own erroneous actions and grant the 

EPA the discretion to decide when to 

act pursuant to the provision.’’ Ass’n of 

Irritated Residents v. EPA, 790 F.3d 934, 

948 (9th Cir. 2015). 

The EPA notes that this statutory 

provision provides the EPA with 

authority to make corrections to actions 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 214 / Tuesday, November 5, 2024 / Proposed Rules 87827 

1See, e.g., 89 FR 76737 (September 19, 2024); 85 

FR 57733 (September 16, 2020); 82 FR 14461 

(March 21, 2017). 

2 88 FR 72688 (October 23, 2023). 

3State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls To Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown and Malfunction, 80 

FR 33840 (June 12, 2015). 

4See 78 FR 12460, 12495–12496 (February 22, 

2013) and 80 FR 33840 at 33960 (June 12, 2015). 

5See 88 FR 72688 (October 23, 2023). 

6EPA Region 3 issued two final actions that 

corrected three of Delaware’s seven deficient SIP 

provisions originally identified in EPA’s 2015 SSM 

SIP call. See 87 FR 41074 (July 11, 2022) and 88 

FR 9399 (February 14, 2023). On October 23, 2023 

(88 FR 72688), the EPA Region 3 finalized 

disapproval of Delaware’s SIP revision that sought 

to correct the remaining four deficient provisions. 

7 In vacating certain portions of the 2015 SSM SIP 

Action, the D.C. Circuit’s decision did not 

determine whether the SIP-called provisions were 

otherwise lawful under the CAA. See e.g. 94 F.4th 

at 110 (‘‘We thus do not reach the question whether 

the called SIPs’ relevant emission restrictions in 

fact amount to (or must amount to) ‘‘emission 

limitations’’ per the statutory definition.’’). 

8See 85 FR 73636, 73637 (November 19, 2020). 

9See 85 FR 73637–38 (November 19, 2020). 

on SIP submissions that are 

subsequently found to be in error. While 

CAA section 110(k)(6) provides the EPA 

with the authority to correct its own 

‘‘error,’’ nowhere does this provision or 

any other provision in the CAA define 

what qualifies as ‘‘error,’’ and the EPA 

has used this explicit statutory authority 

on multiple occasions to correct various 

types of errors.1

The error at issue here occurred in an 

October 23, 2023, EPA action 2

disapproving revisions to the State of 

Delaware’s SIP which were submitted in 

response to the 2015 Startup, 

Shutdown, and Malfunction (SSM) SIP 

Action.3 On June 12, 2015, the EPA 

finalized the 2015 SSM SIP Action, 

which clarified, restated, and updated 

the EPA’s national policy regarding SIP 

provisions applying to excess emissions 

during periods of startup, shutdown, 

and malfunction. As part of the 2015 

SSM SIP Action, the EPA issued a 

finding that certain SIP provisions for 

36 states that were applicable in 45 

statewide and local jurisdictions were 

substantially inadequate to meet CAA 

requirements due to how those SIP 

provisions treated excess emissions 

during SSM periods. Further, the EPA 

issued a ‘‘SIP call’’ to each of those 45 

air agencies, including the State of 

Delaware, on the basis that Delaware’s 

SIP contained impermissible director’s 

discretion provisions that were 

substantially inadequate to meet CAA 

requirements.4 To respond to the EPA’s 

SIP call in the 2015 SSM SIP Action, 

each affected State was required to 

submit its corrective SIP revision by 

November 22, 2016. The State of 

Delaware submitted a SIP revision 

purporting to address the seven issues 

identified in EPA’s 2015 SSM SIP 

Action on November 22, 2016. On 

October 23, 2023, the EPA took final 

action 5 disapproving certain portions of 

Delaware’s November 22, 2016, SIP 

revision based on EPA’s finding that the 

SIP revision did not correct the 

remaining deficiencies in Delaware’s 

SIP identified by the 2015 SSM SIP 

Action.6

On March 1, 2024, the United States 

Court of Appeals for the District of 

Columbia Circuit issued a decision in 

Environ. Comm. Fl. Elec. Power v. EPA, 

94 F.4th 77 (D.C. Cir. 2024). The case 

was a consolidated set of petitions for 

review of the EPA’s 2015 SSM SIP 

Action. The Court granted the petitions 

in part, vacating the SIP calls that were 

based on SIP provisions that included 

automatic exemptions, director’s 

discretion provisions, and ‘‘complete 

affirmative defenses’’ (i.e., affirmative 

defenses that are functionally 

exemptions); and denied the petitions in 

part, affirming the SIP calls based on 

SIP provisions that included overbroad 

enforcement discretion provisions and 

affirmative defenses against specific 

relief. As a result of the D.C. Circuit’s 

decision in Environ. Comm. Fl. Elec. 

Power v. EPA, certain portions of the 

EPA’s SIP call in the 2015 SSM SIP 

Action were vacated by the D.C. Circuit 

and therefore have no legal effect. Thus, 

certain states subject to the 2015 SSM 

SIP Action no longer have a legal 

obligation to submit the revisions that 

the EPA had originally determined were 

required to correct the deficiency 

identified in the SIP call.7 In other 

words, by partially vacating the EPA’s 

2015 SSM SIP Action, the D.C. Circuit’s 

decision rendered Delaware’s SIP 

submission in response to the 2015 SSM 

SIP Action voluntary rather than 

mandatory. As a result, the EPA is 

proposing to correct the EPA’s October 

23, 2023, disapproval action with 

respect to the consequences of that 

disapproval. 

III. What is the EPA’s authority to 

correct errors in SIP rulemakings? 

Section 110(k)(6) of the CAA provides 

the EPA with the authority to make 

corrections to actions on CAA 

implementation plans that are 

subsequently found to be in error. Ass’n 

of Irritated Residents v. EPA, 790 F.3d 

at 948 (110(k)(6) is a ‘‘broad provision 

[that] was enacted to provide the EPA 

with an avenue to correct its own 

erroneous actions’’). The key provisions 

of section 110(k)(6) are that the 

Administrator has the authority to 

‘‘determine’’ that an action approving, 

disapproving, or promulgating a plan 

was ‘‘in error,’’ and when the 

Administrator does so, may then revise 

the action ‘‘as appropriate,’’ in the same 

manner as the prior action.8 Moreover, 

CAA section 110(k)(6) ‘‘confers 

discretion on the EPA to decide if and 

when it will invoke the statute to revise 

a prior action.’’ Ass’n of Irritated 

Residents v. EPA, F.3d at 948 (section 

110(k)(6) grants the ‘‘EPA the discretion 

to decide when to act pursuant to the 

provision’’). While CAA section 

110(k)(6) provides the EPA with the 

authority to correct its own ‘‘error,’’ 

nowhere does this provision or any 

other provision in the CAA define what 

qualifies as ‘‘error.’’ Thus, the EPA 

believes that the term should be given 

its plain language, everyday meaning, 

which includes all unintentional, 

incorrect, or wrong actions or mistakes.9

Under CAA section 110(k)(6), the EPA 

must make an error determination and 

provide ‘‘the basis thereof.’’ There is no 

indication that this is a substantial 

burden for the EPA to meet. To the 

contrary, the requirement is met if the 

EPA clearly articulates the error and 

basis thereof. 790 F.3d at 948; see also 

85 FR 73636, 73638 (November 19, 

2020). The EPA’s error in the prior 

action disapproving Delaware’s SIP 

revision is discussed below. 

IV. What is the EPA proposing to 

correct? 

In this action, the EPA is proposing to 

correct the erroneous triggering of 

mandatory sanctions under CAA section 

179 and 40 CFR 52.31 for the State of 

Delaware following its October 23, 2023 

(88 FR 72688), disapproval of 

Delaware’s SIP revision submitted in 

response to the 2015 SSM SIP call. The 

EPA is also proposing to correct the 

erroneous triggering of the EPA’s 

obligation to issue a Federal 

Implementation Plan (FIP) under CAA 

section 110(c)(1)(B). As discussed in 

section II of this document, the D.C. 

Circuit’s decision in Environ. Comm. Fl. 

Elec. Power v. EPA vacated several 

portions of the 2015 SSM SIP call, 

rendering those portions as no longer 

having a legal effect. As a result, the 

states with provisions to which those 

vacated portions of the SIP call 

previously applied, including Delaware, 

no longer have a legal obligation to 

submit the revisions that the EPA had 

originally determined were required to 

correct the identified deficiency. As 

such, the SIP revision submitted by 

Delaware on November 22, 2016, is no 


ddrumheller on DSK120RN23PROD with PROPOSALS1
87828 Federal Register / Vol. 89, No. 214 / Tuesday, November 5, 2024 / Proposed Rules 

longer considered a mandatory 

submission; EPA is therefore proposing 

to find that the EPA’s October 23, 2023 

(88 FR 72688), disapproval action 

should not trigger imposition of 

mandatory sanctions under CAA section 

179 and 40 CFR 52.31 or a FIP 

obligation under CAA 110(c)(1)(B). The 

EPA notes that it is not proposing to 

correct the merits of the October 23, 

2023 disapproval nor is it withdrawing 

that disapproval action—the EPA does 

not believe that the substantive basis for 

the disapproval as explained in that 

final action was erroneous; rather, the 

EPA is proposing to find that because 

the SIP submittal itself is no longer 

mandatory following the D.C. Circuit’s 

partial vacatur, the triggering of 

sanctions under section 179 and 40 CFR 

52.31, and the triggering of the EPA’s 

FIP obligation under 110(c)(1)(B), was in 

error. Therefore, if the EPA finalizes this 

error correction action as proposed, the 

imposition of sanctions for the State of 

Delaware and the FIP obligation for the 

EPA that were triggered as result of the 

October 23, 2023 (88 FR 72688), final 

disapproval action would no longer be 

in effect. 

IV. What action is the EPA taking? 

As a result of the D.C. Circuit’s 

decision in Environ. Comm. Fl. Elec. 

Power v. EPA, the EPA is proposing to 

determine that, pursuant to section 

110(k)(6) of the CAA, a portion of the 

EPA’s October 23, 2023 (88 FR 72688), 

final disapproval action of Delaware’s 

SIP revision was in error with respect to 

the consequences of that disapproval. 

By partially vacating the EPA’s 2015 

SSM SIP Action, the D.C. Circuit’s 

decision rendered Delaware’s SIP 

submission in response to the 2015 SSM 

SIP action voluntary rather than 

mandatory. Thus, the EPA is proposing 

to find that the triggering of mandatory 

sanctions and FIP obligation following 

the October 23, 2023 (88 FR 72688), 

final disapproval was erroneous and, 

through this action, is proposing to 

terminate the imposition of sanctions 

for the State and the FIP obligation for 

the EPA triggered by that disapproval as 

they are no longer legally valid. 

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders (E.O.) can 

be found at www.epa.gov/lawsregulations/laws-and-executive-orders. 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the CAA. This action merely corrects an 

error in EPA’s prior action and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993), and 14094 (88 FR 

21879, April 11, 2023); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not subject to Executive Order 

13045 (62 FR 19885, April 23, 1997) 

because it is an error correction taken 

under section 110(k)(6) of the CAA and 

does not directly or disproportionately 

affect children. 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA. 

• In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the action does not have 

Tribal implications and will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The air agency did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. EPA did not perform an EJ 

analysis and did not consider EJ in this 

action as the EPA views this action as 

a necessary procedural step following 

the D.C. Circuit decision and vacatur of 

portions of the 2015 SIP call. 

Consideration of EJ is not required as 

part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving environmental justice for 

people of color, low-income 

populations, and Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Approval and 

promulgation of implementation plans, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Adam Ortiz, 

Regional Administrator, EPA Region III. 

[FR Doc. 2024–25457 Filed 11–4–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2024–0339; FRL–12125– 

01–R9] 

Air Plan Approval; Arizona; Yuma 2015 

8-Hour Ozone Nonattainment Area; 

Redesignation Request and 

Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 


ddrumheller on DSK120RN23PROD with PROPOSALS1