[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23307-23313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11642]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[EPA-HQ-OAR-2005-0159; FRL-8907-1]
RIN 2060-AP56


The Treatment of Data Influenced by Exceptional Events 
(Exceptional Event Rule): Revised Exceptional Event Data Flagging 
Submittal and Documentation Schedule for Monitoring Data Used in 
Designations for the 2008 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing amendments to the Exceptional Events Rule to 
provide a revised exceptional event data flagging and documentation 
schedule for ozone data that may be used for designations under the 
2008 ozone National Ambient Air Quality Standards (NAAQS). The 
Exceptional Events Rule states that when EPA sets a NAAQS for a new 
pollutant or revises the NAAQS for an existing pollutant, EPA may 
revise or set a new schedule for flagging data for those NAAQS. EPA 
recently revised the primary and secondary ozone NAAQS to protect 
public health and welfare; the revised standards became effective May 
27, 2008. Consistent with the process envisioned in the Exceptional 
Events Rule, this final rule revises the dates for flagging data and 
submitting documentation regarding exceptional events under the revised 
ozone NAAQS. This revised schedule allows EPA to fully consider State 
requests for exceptional event concurrence prior to EPA making final 
designations.

DATES: This final rule is effective June 18, 2009.

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID number EPA-HQ-OAR-2005-0159. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy. Publicly available docket materials are available 
either electronically in http://www.regulations.gov or in hard copy at 
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Thomas E. Link, Air Quality Planning 
Division, Office of Air Quality Planning and Standards, Mail Code C539-
04, Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711; telephone number: 919-541-5456; fax number: 919-541-
0824; e-mail address: <a href="/cdn-cgi/l/email-protection#3b57525550154f54567b5e4b5a155c544d"><span class="__cf_email__" data-cfemail="2f43464144015b40426f4a5f4e01484059">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Outline

I. Why Is EPA Issuing This Final Rule?
II. Does This Action Apply to Me?
III. What Is the Background for This Action?
IV. Public Comment and Agency Response
V. What Are the Amendments Included in the Final Rule?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

I. Why Is EPA Issuing This Final Rule?

    This final action provides for a revised schedule to flag data and 
submit documentation related to exceptional events that influence ozone 
data which may affect designations under the recently revised ozone 
NAAQS. This action creates no additional regulatory requirements 
compared to those already promulgated in the Exceptional Events Rule.

II. Does This Action Apply to Me?

    States are responsible for identifying air quality data that they 
believe warrant special consideration, including data affected by 
exceptional events. States identify such data by flagging (making a 
notation in a designated field in the electronic data record) specific 
values in the Air Quality System (AQS) database. States must flag the 
data and submit a justification that the data are affected by 
exceptional events if they wish EPA to consider excluding the data in 
determining whether or not an area is attaining the revised ozone 
NAAQS.
    All States that include areas that could exceed the ozone NAAQS and 
could therefore be designated as nonattainment for the ozone NAAQS have 
the potential to be affected by this rulemaking. Therefore, this action 
applies to all States; to local air quality agencies to which a State 
has delegated relevant responsibilities for air quality management 
including air quality monitoring and data analysis; and, to Tribal air 
quality agencies where appropriate. The Exceptional Events Rule 
describes in greater detail to whom the Rule applies in 72 FR 13562-
13563 (March 22, 2007).

[[Page 23308]]

III. What Is the Background for This Action?

    CAA Section 319(b)(2) authorizes EPA to promulgate regulations that 
govern the review and handling of air quality monitoring data 
influenced by exceptional events. Under this authority, EPA promulgated 
the Exceptional Events Rule (Treatment of Data Influenced by 
Exceptional Events) (72 FR 13560, March 22, 2007) which sets a schedule 
for States to flag monitored data affected by exceptional events in AQS 
and for them to submit documentation to demonstrate that the flagged 
data were impacted by an exceptional event. Under this schedule, a 
State must initially notify EPA that data have been affected by an 
exceptional event by July 1 of the year after the data are collected; 
this is accomplished by flagging the data in AQS. The State must also 
include an initial description of the event when flagging the data. In 
addition, the State is required to submit a full demonstration to 
justify exclusion of such data within three years after the quarter in 
which the data were collected, or if a regulatory decision based on the 
data (such as a designation action) is anticipated, the demonstration 
must be submitted to EPA no later than one year before the decision is 
to be made.
    The rule also authorizes EPA to revise data flagging and 
documentation schedules for the initial designation of areas under a 
new or revised NAAQS. This generic schedule, while appropriate for the 
period after initial designations have been made under a NAAQS, may 
need adjustment when a new or revised NAAQS is promulgated because 
until the level and form of the NAAQS have been promulgated a State 
would not have complete knowledge of the criteria for excluding data. 
In these cases the generic schedule may preclude States from submitting 
timely flags and associated documentation for otherwise approvable 
exceptional events. This could, if not modified, result in some areas 
receiving a nonattainment designation when the NAAQS violations were 
legitimately due to exceptional events.
    For example, EPA finalized new standards for ozone of 0.075 parts 
per million (ppm) on March 12, 2008 with an effective date of May 27, 
2008. In accordance with Clean Air Act (CAA) Section 107(b), State 
Governors must provide their recommendations to EPA by March 12, 2009 
on designating areas as attainment, nonattainment, or unclassifiable 
with the new standards. States are to base their recommendations on the 
three most recent years of complete, certified air quality data, which 
we expect would be ozone data collected for calendar years 2006-2008 or 
2005-2007. EPA must complete final area designations for these new 
standards by March 12, 2010. EPA will base its designations decisions 
on the three most recent years of complete certified air quality data 
available for each area. This could be ozone data collected during 
calendar years 2007-2009 where States have submitted complete, 
certified ozone data for 2009 more quickly than is required. However, 
in some cases the most recent complete, certified data may cover 2006-
2008 or 2005-2007. For these data years, the generic exceptional event 
flagging deadline for 2005 and 2006 data has already passed and the 
flagging deadline for exceptional events that occurred in 2007 would be 
July 1, 2008--approximately 33 days after the effective date of the 
revised NAAQS. In addition, the generic schedule would require States 
to submit demonstrations for 2009 data influenced by exceptional events 
no later than March 12, 2009, one year before the final designation 
decisions. This is clearly not possible for air quality data collected 
from March 13, 2009 to December 31, 2009.
    EPA is, therefore, using the authority provided in CAA section 
319(b)(2) and in the Exceptional Events Rule at 40 CFR 50.14(c)(2)(vi), 
to modify the schedule for data flagging and submission of 
demonstrations for exceptional events data considered for initial 
designations under the 2008 revised ozone NAAQS.

IV. Public Comment and Agency Response

    On November 20, 2008, the Natural Resources Defense Council (NRDC) 
provided comments to EPA on a Direct Final Action and the concurrent 
proposal for this rule. The direct final rule was subsequently 
withdrawn. A summary of NRDC's comments and the Agency's responses to 
its comments are shown below.
    Comment: NRDC asserts that the Exceptional Events Rule (EER) does 
not authorize EPA to change the schedule for submission of 
demonstrations and that EPA lacks statutory authority to revise the 
flagging and documentation deadlines in the Exceptional Events Rule. 
[Comment Letter from NRDC to EPA Docket ID No. EPA-HQ-OAR-2005-0159; 
Public Comment on EPA Direct Final Rule and Proposed Rule, dated 
November 20, 2008, at p. 2, para 2.] NRDC notes that although the EER 
includes provisions for revising the schedule for flagging data, it 
does not include a similar provision for the submission of 
demonstrations. Therefore, the commenter concludes that EPA's actions 
to revise the schedules for flagging and submitting documentation for 
exceptional events are unlawful. The commenter also cites to certain 
principles enumerated in the rule that use the word `timely' as a 
reason for not revising the schedules for flagging and submission of 
data. An additional argument that the commenter puts forward for not 
changing the schedules is that the commenter notes that the EER 
schedule provides EPA ample time to evaluate exceptional events data 
before authorizing waiver of the data.
    Response: EPA disagrees with the commenter. CAA section 319(b)(2) 
expressly authorizes EPA to promulgate regulations ``governing the 
review and handling of air quality monitoring data influenced by 
exceptional events.'' Pursuant to this authority, EPA promulgated ``The 
Treatment of Data Influenced by Exceptional Events (Exceptional Event 
Rule)'' [72 FR 13562-13563 (March 22, 2007)] which sets out the process 
and substance of EPA's review and handling of the data impacted by 
exceptional events. For the review process in the EER, EPA included 
schedules for flagging, public comment, and submission of documentation 
related to exceptional events. 40 CFR 50.14(c). As the commenter notes, 
EPA included a provision stating that it ``may revise or set a new 
schedule for flagging data'' when a new or revised NAAQS was 
promulgated. 40 CFR 50.14 (c)(2)(vi).\1\ From this, the commenter 
concludes that just because EPA did not expressly include a similar 
provision for the submission of documentation, it no longer has the 
authority to revise its own rule. An agency may revise or amend its 
rules or interpretations provided it follows the appropriate procedures 
such as notice and comment rulemaking. EPA explained that the reason 
for amending the schedules was to provide States with time to evaluate 
their data under the new NAAQS and determine whether such data should 
be flagged for consideration as an exceptional event. Under the older, 
less stringent NAAQS, States may have determined that, for purposes of 
efficiency and resource management, even where exceptional events had 
occurred, the State would not flag that data because it would not have 
affected

[[Page 23309]]

their designation status under the older NAAQS. If however, under the 
revised NAAQS, certain exceptional events that were not flagged or for 
which documentation was not submitted, would be relevant to designation 
under the new NAAQS, EPA believes that these should not be precluded 
from consideration. In response to the commenter's references to the 
principles in section 319 that EPA must promulgate regulations that 
provide `timely' information to the public when air quality is 
unhealthy and provide for all ambient air quality data to be included 
in a timely manner in the air quality database, EPA notes that all the 
past data are already in the database and States must continue to 
submit all their data on a timely basis to the database. During the 
review of the data for purposes of designations, EPA is permitting 
States a limited time to flag the data and to submit documentation. As 
noted elsewhere, the public will receive timely information about such 
flagging and documentation when States provide the public an 
opportunity to comment before they submit the documentation to EPA. In 
addition, 40 CFR 51.930 contains provisions for notifying the public 
when the air is unhealthy. While EPA appreciates the commenter's 
concern that the Agency should have ample time to evaluate the 
exceptional events claim, EPA believes that the revised schedule is a 
realistic and practical one that balances the Agency's needs with the 
needs of the States.
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    \1\ The original rule provision was numbered as (c)(2)(v) and is 
now renumbered to (c)(2)(vi) since the publication of the new Pb 
NAAQS in October 2008.
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    Comment: The commenter states that the ``updated ozone NAAQS and 
Exceptional Rule'' should not be applied retroactively. According to 
the commenter, EPA's revision to the schedule suggests that EPA intends 
to permit retroactive application of the ``new ozone NAAQS and new 
Exceptional Event Rule'' to ``old monitoring data and to re-brand 
previous data as NAAQS violations that are excludable from attainment 
designations * * *'' NRDC Letter at p. 5. The commenter claims that the 
amendment to the schedule is unlawful for four reasons. First, 
according to the commenter because section 319 includes a provision 
that explicitly keeps in place then-existing guidance until the 
effective date of the rule (May 21, 2007), the policies would apply to 
any data generated before that date. The commenter's second point 
repeats the first proposition that the regulatory text and EPA's 
construal of that text cannot be applied to events before May 21, 2007. 
The commenter's third point is that because EPA's pre-existing 
exceptional events policies applied to data before May 21, 2007, 
amending the EER is not a proper or lawful vehicle for revising the 
deadlines submitted pursuant to previous guidance. And finally, the 
commenter contends that data indicating concentrations above the 
updated ozone NAAQS, but not of the then-existing standard, cannot 
constitute an exceptional event. The commenter cites to the EER which 
permits States to request EPA to exclude data showing ``exceedances or 
violations'' of the NAAQS and citing to the definition of an 
``exceedance'' at 40 CFR 50.1 to support their argument that an 
exceedance for data before May 27, 2008 (the effective date of the 
revised ozone NAAQS) means concentrations that exceed the concentration 
levels of the previous standard. The commenter argues that an air 
monitoring concentration that exceeds the new standard but did not 
exceed the then-applicable standard cannot constitute an ``exceedance'' 
under the EER for designations under the revised NAAQS. The commenter 
also contends that although EPA provided some explanation for its 
actions, it did not amount to a sufficient explanation for its actions. 
In various footnotes, the commenter notes the differences between the 
general schedule in the EER and the revised flagging and submission of 
documentation schedules for ozone, noting that the flagging and 
submissions would be ``barred'' under the EER. The commenter also 
enumerates certain policy reasons for not revising the schedule such as 
it would provide local air control authorities an opportunity to ``cook 
the books'' and adopt a ``revisionist'' approach that led to 
``creat[ing]'' exceptional events.
    Response: EPA is not applying either the revised ozone NAAQS or the 
Exceptional Events Rule retroactively to ``old air monitoring data'' as 
the commenter contends. The commenter's statements regarding the 
revised NAAQS and the applicability of the old NAAQS mischaracterizes 
the process of designating areas as attainment or nonattainment. EPA 
promulgated the revised ozone NAAQS on March 12, 2008 and under CAA 
section 107 States must submit their initial recommendations for 
designating areas by March 12, 2009. EPA will issue final designations 
by March 12, 2010 unless it has insufficient information to issue such 
designations. In such cases, EPA must make its final designations by 
March 2011. State recommendations are based on whether the 3-year 
average of the annual fourth-highest daily maximum 8-hour average O3 
concentration is less than or equal to 0.075 ppm. The 3-year average is 
computed by using the three most recent consecutive calendar years of 
monitoring data that meet the monitoring completeness and other 
requirements of 40 CFR Part 50, Appendix P. Therefore, when States 
submit their recommended designations to EPA in March 2009 for the 
revised ozone NAAQS based on the three most recent consecutive calendar 
years of complete, certified monitoring date they will generally be 
using data from the 2005-2007 or 2006-2008 periods. When EPA issues 
final designations in March 2010, States could possibly have complete, 
certified data for 2009 so that EPA may base its determination on 2007-
2009 data years. Thus, EPA is not looking at ``old monitoring data'' 
with a view to ``re-branding'' NAAQS violations as meeting the 
standard; instead, EPA is evaluating the three most recent years of 
complete, certified data that exist at the time of the designations, 
which are the relevant data years as required by 40 CFR Part 50, App. 
P.
    Section 319's interim provision kept in place certain specific pre-
existing guidance and rules regarding exceptional events through the 
rulemaking period but only until the effective date of the EER. The EER 
became effective on May 21, 2007 and is applicable to regulatory 
decisions made after that date including decisions regarding 
exceptional events for the relevant data years that form the basis for 
such decisions. The designation of an area as attainment or non-
attainment is based on the revised ozone NAAQS (not the older NAAQS) 
which was promulgated on March 12, 2008--a year after the promulgation 
of the EER. The commenter's argument that the EER is not applicable to 
regulatory decisions under the revised March 2008 ozone NAAQS because 
it would be a retroactive application of the rule is thus without any 
basis.
    The commenter's claim that for a measured concentration to qualify 
as an exceedance under the revised ozone NAAQS, it must have been at a 
concentration level greater than the older NAAQS which is not 
applicable or relevant to the present designation is clearly erroneous. 
The current designation determinations are based on the levels 
established by the revised ozone NAAQS, an ``exceedance'' in this 
instance is therefore clearly a concentration that exceeds the revised 
NAAQS. See 40 CFR 50.1 (``Exceedance with respect to a [NAAQS] means 
one occurrence of a measured or modeled concentration that exceeds the 
specified

[[Page 23310]]

concentration level of such standard for the averaging period specified 
by the standard''). Thus, the commenter's policy rationales (such as 
encouraging local authorities to cook the books) for not amending the 
schedules are also not persuasive because as explained above, EPA is 
permitting States to evaluate data under an amended schedule for the 
purposes of designations under the revised ozone NAAQS.
    EPA believes it provided sufficient and appropriate explanation for 
its action including the explanations that the commenter quotes 
regarding how a State might not have known the criteria for excluding 
the data until the level and form of the NAAQS were promulgated. See 
NRDC Letter at pp.3-4. As for the comments regarding how certain 
submissions would not be timely under the EER, EPA notes that those 
reasons further support revising the schedule.
    Comment: The commenter states that the revised schedule would 
unlawfully limit public participation for two reasons. First, the 
petitioner claims that flagging and submission of detailed 
documentation cannot have the same deadline because that would not 
allow for 30-day comment period by States before they submit their 
documentation. Second, if an event were to occur on December 31, 2009, 
a 30-day comment period would push the deadline to no earlier than 
January 31, 2010.
    Response: In response to the commenter's second point EPA has 
modified the proposed deadline for 2009 and is now requiring that for 
exceptional events claims for 2009 data to be considered, States must 
submit their completed documentation within 60 days of the end of a 
calendar quarter in which the exceptional event occurred or by February 
5, 2010 whichever is earlier. This would provide sufficient time for a 
public comment period and provide EPA sufficient time to review data 
prior to making designations. As for commenter's first point, EPA 
anticipates that States generally will flag data before they submit 
documentation on an exceptional event. However, if a State has put its 
exceptional events documentation together, notified the public of its 
intent to flag the data and seek exclusion of the data and provided an 
opportunity for the public to comment on the demonstration, EPA 
believes it is not necessary in such instances to preclude 
consideration of such submissions because the data has not been flagged 
in the air quality database until the deadline. The more significant 
issue is whether the State has put together an adequate demonstration 
and provided an opportunity for public comment and included those 
comments in the submission to EPA. EPA concludes that the schedule as 
revised will provide adequate time for all of these steps.
    Comment: The commenter notes that the EER has been challenged and 
that the United States Court of Appeals for the DC Circuit heard oral 
argument in NRDC v. EPA, Nos. 07-1151 & 08-1057 (consolidated) on 
October 10, 2008 and an opinion is still pending. The commenter states 
that given that there is a possibility that certain portions of the 
rule may be vacated and/or remanded to the Agency, the agency must 
delay finalizing its proposed amendment to the rule until after the DC 
Circuit announces its decision.
    Response: The challenges to the rule cited by the commenter did not 
raise any issues relating to deadlines for flagging or submissions of 
documentation relating to exceptional events. The commenter has not 
brought to EPA's attention any support for its assertion that EPA 
``must'' delay modifying the EER in the manner proposed by the 
commenter, and EPA is unaware of any such restriction. Therefore, EPA 
believes that its limited revision of the rule specifically only to 
address the deadlines related to flagging and submission of 
documentation is not at odds with and should not interfere with the 
Court's review of the challenge to the rule on other grounds.

V. What Are the Amendments Included in the Final Rule?

    This final rule amends the Exceptional Events Rule by providing a 
revised exceptional event data flagging and documentation schedule 
regarding claimed exceptional events affecting ozone monitoring data 
that will be compared to the 2008 revised ozone NAAQS for the purpose 
of initial ozone designations. In some cases, EPA is extending the 
otherwise applicable deadline for States to flag data and submit 
documentation. In other cases, EPA is shortening the otherwise 
applicable schedule to assure that the exceptional events claims can be 
fully considered by EPA in the designations decisions.
    For air quality data collected in the years 2005 through 2007, this 
revised schedule extends the generic schedule for flagging data (and 
providing a brief initial description of the event) from July 1 of the 
year following the year the data are collected, to June 18, 2009. For 
data collected in 2008, the revised schedule accelerates the generic 
schedule for flagging data and providing a brief initial description of 
the event to June 18, 2009. The deadline for submitting to EPA a 
detailed demonstration to justify exclusion of data collected in 2005 
through 2008 is also being set to June 18, 2009. The deadline for 
submitting to EPA flagged data with initial descriptions and a detailed 
demonstration to justify exclusion of data collected in 2009 is being 
set to 60 days after the end of the calendar quarter in which the 
exceptional event occurred or February 5, 2010, whichever date occurs 
first. For data collected in 2008 and 2009 this would give a State less 
time, but EPA believes still sufficient time, to decide what 2008 and 
2009 data to flag and to submit documentation relating to exceptional 
events, and would allow EPA to have access to the flags and supporting 
data in time for EPA to evaluate the States recommendation and issue 
final designations. While the new deadlines for submission of a State's 
demonstration for data collected in 2009 is less than a year before the 
designation decisions would be made, EPA believes it is a reasonable 
approach between giving States a reasonable period to prepare the 
justifications, and EPA a reasonable period to consider the information 
submitted by the State. With this final rule EPA amends Sec.  50.14 
(c)(2)(vi) to add a tabular schedule of data submittal deadlines, by 
pollutant, for new or revised NAAQS standards. (PM<INF>2.5</INF> data 
submittal schedules revised in March 2007 and presented in this table 
are for informational purposes only. EPA is not taking further comment 
on the PM<INF>2.5</INF> data submittal schedule published in 72 FR 
13560, March 22, 2007.) EPA anticipates providing amendments to the 
following table to add flagging and data submission schedules for new 
or revised NAAQS standards in the future.

[[Page 23311]]



      Table 1--Schedule for Exceptional Event Flagging and Documentation Submission for Data To Be Used in
                                 Designations Decisions for New or Revised NAAQS
----------------------------------------------------------------------------------------------------------------
                                           Air quality data         Event flagging &
  NAAQS pollutant/ standard/(level)/   collected for  calendar    initial  description    Detailed documentation
          promulgation date                      year                   deadline           submission deadline
----------------------------------------------------------------------------------------------------------------
PM2.5 24-Hr Standard (35 [micro]g/     2004-2006..............  October 1, 2007 \a\....  April 15, 2008.\a\
 m\3\) Promulgated October 17, 2006.
Ozone/8-Hr Standard (0.075 ppm)        2005-2007..............  June 18, 2009 \b\......  June 18, 2009.\b\
 Promulgated March 12, 2008.
                                       2008...................  June 18, 2009 \b\......  June 18, 2009.\b\
                                       2009...................  60 Days after the end    60 Days after the end
                                                                 of the calendar          of the calendar
                                                                 quarter in which the     quarter in which the
                                                                 event occurred or        event occurred or
                                                                 February 5, 2010,        February 5, 2010,
                                                                 whichever date occurs    whichever date occurs
                                                                 first\b\.                first.\b\
----------------------------------------------------------------------------------------------------------------
\a\ These dates are unchanged from those published in the original rulemaking, and are shown in this table for
  informational purposes.
\b\ Indicates change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final
  initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most
  notably, for data used by EPA for redesignations to attainment.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This rule modifies previously 
established deadlines under the Exceptional Events Rule and does not 
impose any new obligations or enforceable duties on any State, local or 
Tribal governments or the private sector. Therefore, it does not impose 
an information collection burden.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (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 action will not have a significant 
economic impact on a substantial number of small entities. This rule 
modifies previously established deadlines under the Exceptional Events 
Rule and does not impose any new obligations or enforceable duties on 
any State, local or Tribal governments or the private sector. Thus, it 
does not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. This action imposes no enforceable duty on any State local or 
Tribal governments or the private sector. This action modifies 
previously established deadlines under the Exceptional Events Rule and 
does not impose any new obligations or enforceable duties on any State, 
local or Tribal governments or the private sector. Therefore, this 
action is not subject to the requirements of sections 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 rule modifies 
previously established deadlines under the Exceptional Events Rule and 
does not impose any new obligations or enforceable duties on any small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Policies that have ``federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule modifies previously 
established deadlines under the Exceptional Events Rule and does not 
impose any new obligations or enforceable duties on any State, local or 
Tribal governments or the private sector. Thus, Executive Order 13132 
does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
modifies previously established deadlines under the Exceptional Events 
Rule and does not impose any new obligations or

[[Page 23312]]

enforceable duties on Tribal governments. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because the Agency does not believe the environmental health 
risks or safety risks addressed by this action present a 
disproportionate risk to children. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to the Executive Order 13211 (66 FR 
28355 (May 22, 2001)), because it is not a significant regulatory 
action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it will not 
affect the level of protection provided to human health or the 
environment. This rule modifies previously established deadlines under 
the Exceptional Events Rule and does not impose any new obligations or 
enforceable duties on any State, local or Tribal governments or the 
private sector. It will neither increase nor decrease environmental 
protection.

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 June 18, 2009.

L. Judicial Review

    Under CAA section 307(b), judicial review of this final action is 
available only by filing a petition for review in the U.S. Court of 
Appeals for the District of Columbia Circuit on or before July 20, 
2009. Under CAA section 307(d)(7)(B), only those objections to the 
final rule that were raised with specificity during the period for 
public comment may be raised during judicial review. Moreover, under 
CAA section 307(b)(2), the requirements established by this final rule 
may not be challenged separately in any civil or criminal proceedings 
brought by EPA to enforce these requirements.

List of Subjects in 40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone Particulate Matter, Sulfur oxides.

    Dated: May 13, 2009.
Lisa P. Jackson,
Administrator.

    For the reasons set forth in the preamble, part 50 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

PART 50--[AMENDED]

0
1. The authority citation for part 50 continues to read as follows:

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

Subpart A--General Provisions

0
2. Section 50.14 is amended by revising paragraph (c)(2)(vi) to read as 
follows:


Sec.  50.14  Treatment of air quality monitoring data influenced by 
exceptional events.

* * * * *
    (c) * * *
    (2) * * *
    (vi) When EPA sets a NAAQS for a new pollutant or revises the NAAQS 
for an existing pollutant, it may revise or set a new schedule for 
flagging exceptional event data, providing initial data descriptions 
and providing detailed data documentation in AQS for the initial 
designations of areas for those NAAQS: Table 1 provides the schedule 
for submission of flags with initial descriptions in AQS and detailed 
documentation and the schedule shall apply for those data which will or 
may influence the initial designation of areas for those NAAQS. EPA 
anticipates revising Table 1 as necessary to accommodate revised data 
submission schedules for new or revised NAAQS.

      Table 1--Schedule for Exceptional Event Flagging and Documentation Submission for Data To Be Used in
                                 Designations Decisions for New or Revised NAAQS
----------------------------------------------------------------------------------------------------------------
                                           Air quality data         Event flagging &
  NAAQS pollutant/ standard/(level)/   collected for  calendar    initial  description    Detailed documentation
          promulgation date                      year                   deadline           submission deadline
----------------------------------------------------------------------------------------------------------------
PM2.5/24-Hr Standard (35 [mu]g/m\3\)   2004-2006..............  October 1, 2007\a\.....  April 15, 2008.\a\
 Promulgated October 17, 2006.

[[Page 23313]]

 
Ozone/8-Hr Standard (0.075 ppm)        2005-2007..............  June 18, 2009\b\.......  June 18, 2009.\b\
 Promulgated March 12, 2008.
                                       2008...................  June 18, 2009\b\.......  June 18, 2009.\b\
                                       2009...................  60 Days after the end    60 Days after the end
                                                                 of the calendar          of the calendar
                                                                 quarter in which the     quarter in which the
                                                                 event occurred or        event occurred or
                                                                 February 5, 2010,        February 5, 2010,
                                                                 whichever date occurs    whichever date occurs
                                                                 first.\b\.               first.\b\
----------------------------------------------------------------------------------------------------------------
\a\ These dates are unchanged from those published in the original rulemaking, and are shown in this table for
  informational purposes.
\b\ Indicates change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final
  initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most
  notably, for data used by EPA for redesignations to attainment.

* * * * *
[FR Doc. E9-11642 Filed 5-18-09; 8:45 am]
BILLING CODE 6560-50-P


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