Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23307 

failure of the spool and damage to the 

airplane. 

Compliance 

(e) You are responsible for having the 

actions required by this AD performed within 

the compliance times specified unless the 

actions have already been done. 

Removing the HPC 4–9 Spool 

(f) Remove HPC 4–9 spools from service 

that have a P/N and S/N listed in Table 1 of 

this AD before accumulating 8,900 cyclessince-repair at PTLLC or within 1,100 cycles 

from the effective date of this AD, which ever 

occurs later. 

Installation Prohibition 

(g) After the effective date of this AD, do 

not install any engine with an HPC 4–9 spool 

that has a P/N and SN specified in Table 1 

of this AD. 

Alternative Methods of Compliance 

(h) The Manager, Engine Certification 

Office, has the authority to approve 

alternative methods of compliance for this 

AD if requested using the procedures found 

in 14 CFR 39.19. 

Related Information 

(i) Contact Stephen K. Sheely, Aerospace 

Engineer, Engine Certification Office, FAA, 

Engine & Propeller Directorate, 12 New 

England Executive Park, Burlington, MA 

01803; e-mail: stephen.k.sheely@faa.gov; 

telephone (781) 238–7750; fax (781) 238– 

7199, for more information about this AD. 

Material Incorporated by Reference 

(j) None. 

Issued in Burlington, Massachusetts, on 

May 13, 2009. 

Peter A. White, 

Assistant Manager, Engine and Propeller 

Directorate, Aircraft Certification Service. 

[FR Doc. E9–11554 Filed 5–18–09; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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: link.tom@epa.gov. 

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). 


erowe on PROD1PC63 with RULES
23308 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

1The 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. 

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 


erowe on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 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. 

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 thenapplicable 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 


erowe on PROD1PC63 with RULES
23310 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

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 § 50.14 

(c)(2)(vi) to add a tabular schedule of 

data submittal deadlines, by pollutant, 

for new or revised NAAQS standards. 

(PM2.5 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 PM2.5 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. 


erowe on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23311 

TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN

DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS 

NAAQS pollutant/ 

standard/(level)/ 

promulgation date 

Air quality data collected for 

calendar year 

Event flagging & initial 

description deadline 

Detailed documentation 

submission deadline 

PM2.5 24-Hr Standard (35 μg/m3) 

Promulgated October 17, 2006.

2004–2006 .................................... October 1, 2007 a ......................... April 15, 2008.a

Ozone/8-Hr Standard (0.075 ppm) 

Promulgated March 12, 2008.

2005–2007 .................................... June 18, 2009 b ............................ June 18, 2009.b

2008 .............................................. June 18, 2009 b ............................ June 18, 2009.b

2009 .............................................. 60 Days after the end of the calendar quarter in which the 

event occurred or February 5, 

2010, whichever date occurs 

firstb.

60 Days after the end of the calendar quarter in which the 

event occurred or February 5, 

2010, whichever date occurs 

first.b

aThese 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 


erowe on PROD1PC63 with RULES
23312 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

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] 

■ 1. The authority citation for part 50 

continues to read as follows: 

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

Subpart A—General Provisions 

■ 2. Section 50.14 is amended by 

revising paragraph (c)(2)(vi) to read as 

follows: 

§ 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 

NAAQS pollutant/ 

standard/(level)/ 

promulgation date 

Air quality data collected for 

calendar year 

Event flagging & initial 

description deadline 

Detailed documentation 

submission deadline 

PM2.5/24-Hr Standard (35 μg/m3) 

Promulgated October 17, 2006.

2004–2006 .................................... October 1, 2007a .......................... April 15, 2008.a


erowe on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23313 

TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN

DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS—Continued 

NAAQS pollutant/ 

standard/(level)/ 

promulgation date 

Air quality data collected for 

calendar year 

Event flagging & initial 

description deadline 

Detailed documentation 

submission deadline 

Ozone/8-Hr Standard (0.075 ppm) 

Promulgated March 12, 2008.

2005–2007 .................................... June 18, 2009b ............................. June 18, 2009.b

2008 .............................................. June 18, 2009b ............................. June 18, 2009.b

2009 .............................................. 60 Days after the end of the calendar quarter in which the 

event occurred or February 5, 

2010, whichever date occurs 

first.b.

60 Days after the end of the calendar quarter in which the 

event occurred or February 5, 

2010, whichever date occurs 

first.b

aThese 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 61 

[EPA–R09–OAR–2008–0860; FRL–8905–8] 

Delegation of New Source 

Performance Standards and National 

Emission Standards for Hazardous Air 

Pollutants for the States of Arizona, 

California, Hawaii, and Nevada 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is finalizing updates to 

the Code of Federal Regulations (CFR) 

delegation tables to reflect the current 

delegation status of New Source 

Performance Standards (NSPS) and 

National Emission Standards for 

Hazardous Air Pollutants (NESHAP) in 

Arizona, California, Hawaii, and 

Nevada. 

DATES: This rule is effective on July 20, 

2009 without further notice, unless EPA 

receives adverse comments by June 18, 

2009. If the Federal Register to notify 

the public that this direct final rule will 

not take effect. 

ADDRESSES: Submit comments, 

identified by docket number [EPA–R09– 

OAR–2008–0860], by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

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

3. Mail or deliver: Andrew Steckel 

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

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia Allen, EPA Region IX, (415) 

947–4120, allen.cynthia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. EPA Action 

III. Statutory and Executive Order Reviews 

I. Background 

Today’s action will update the 

delegations tables in 40 CFR parts 60 

and 61, to allow easier access by the 

public to the status of delegations in 

various state or local jurisdictions. The 

updated delegation tables include the 

delegations approved in response to 

recent requests, as well as those 

previously granted. Those tables are 

shown at the end of this document. 

Recent requests for delegations that 

will be incorporated into the CFR tables 

are identified below. Each individual 

submittal identifies the specific NSPS 

and NESHAP for which delegation was 

requested. All of these requests have 

already been approved by letter and 

simply need to be included in the CFR 

tables. 

Agency Date of request 

Arizona Department of Environmental Quality ......................................... April 17, 2008. 

Maricopa County Air Quality Department ................................................ April 21, 2006. 

Pima County Department of Environmental Quality ................................ May 23, 2008. 

Kern County Air Pollution Control District ................................................ January 11, 2007. 

San Diego County Air Pollution Control District ....................................... October 31, 2007. 

South Coast Air Quality Management District ......................................... October 17, 2006, and July 25, 2007. 


erowe on PROD1PC63 with RULES