
[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Rules and Regulations]               
[Page 62902-62906]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc08-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2008-0452; FRL-8728-3]

 
Completeness Findings for Section 110(a) State Implementation 
Plans Pertaining to the Fine Particulate Matter (PM2.5) 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is making a finding concerning whether or not each 
state has submitted a complete State Implementation Plan (SIP) that 
provides the basic program elements specified in section 110(a)(2) of 
the Clean Air Act (CAA or Act) necessary to implement the 1997 Fine 
Particulate Matter (PM2.5) National Ambient Air Quality 
Standards (NAAQS). By this action, EPA is identifying those states 
that: Have failed to make a complete submission for all requirements; 
have failed to make a complete submission for specific requirements; or 
have made a complete submission. The findings of failure to submit or 
determinations of incompleteness for all or a portion of a state's SIP 
establish a 24-month deadline for EPA to promulgate a Federal 
Implementation Plan (FIP) to address the outstanding SIP elements 
unless, prior to that time, the affected states submit, and EPA 
approves, the required SIPs. The findings that all, or portions of a 
state's SIP submission, are complete establish a 12-month deadline for 
EPA to take action upon the complete SIP elements in accordance with 
the CAA.

DATES: The effective date of this rule is November 21, 2008.

FOR FURTHER INFORMATION CONTACT: David Sanders, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-01, 
Research Triangle Park, NC 27709; telephone (919) 541-3356; fax number 
(919) 541-0824; e-mail address: sanders.dave@epa.gov.

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures 
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause 
finds that notice and public procedure are impracticable, unnecessary 
or contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. EPA has 
determined that there is good cause for making this action final 
without prior proposal and opportunity for comment because no 
significant EPA judgment is involved in making a finding of failure to 
submit SIPs, or elements of SIPs, required by the CAA, where states 
have made no submissions, or incomplete submissions, to meet the 
requirement by the statutory date. Thus, notice and public procedure 
are unnecessary. EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(B).
    For questions related to a specific state please contact the 
appropriate regional office below.

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            Regional offices                          States
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Region I--Dave Conroy, Acting Branch     Connecticut, Maine,
 Chief, Air Programs Branch, EPA New      Massachusetts, New Hampshire,
 England, I Congress Street, Suite        Rhode Island, and Vermont.
 1100, Boston, MA 02203-2211.
Region II--Raymond Werner, Chief, Air    New Jersey, New York, Puerto
 Programs Branch, EPA Region II, 290      Rico, and Virgin Islands.
 Broadway, 21st Floor, New York, NY
 10007-1866.
Region III--Cristina Fernandez, Branch   Delaware, District of Columbia,
 Chief, Air Quality Planning Branch,      Maryland, Pennsylvania,
 EPA Region III, 1650 Arch Street,        Virginia, and West Virginia.
 Philadelphia, PA 19103-2187.
Region IV--Richard A. Schutt, Chief,     Alabama, Florida, Georgia,
 Regulatory Development Section, EPA      Kentucky, Mississippi, North
 Region IV, Sam Nun Atlanta Federal       Carolina, South Carolina, and
 Center, 61 Forsyth Street, SW, 12th      Tennessee.
 Floor, Atlanta, GA 30303.
Region V--Jay Bortzer, Chief, Air        Illinois, Indiana, Michigan,
 Programs Branch, EPA Region V, 77 West   Minnesota, Ohio, and
 Jackson Street, Chicago, IL 60604.       Wisconsin.
Region VI--Thomas Diggs, Associate       Arkansas, Louisiana, New
 Director Air Programs, EPA Region VI,    Mexico, Oklahoma, and Texas.
 1445 Ross Avenue, Dallas, TX 75202-
 2733.
Region VII--Joshua A. Tapp, Chief, Air   Iowa, Kansas, Missouri, and
 Programs Branch, EPA Region VII, 901     Nebraska.
 North 5th Street, Kansas City, Kansas
 66101-2907.
Region VIII--Cynthia Cody, Unit Leader,  Colorado, Montana, North
 Air Quality Planning Unit, EPA Region    Dakota, South Dakota, Utah,
 VIII Air Program, 1595 Wynkoop St. (8P-  and Wyoming
 AR), Denver, CO 80202-1129.
Region IX--Lisa Hanf, Air Planning       American Samoa, Arizona,
 Office, EPA Region IX, 75 Hawthorne      California, Commonwealth of
 Street, San Francisco, CA 94105.         Northern Mariana Islands,
                                          Guam, Hawaii, and Nevada.

[[Page 62903]]


Region X--Mahbubul Islam, Manager,       Alaska, Idaho, Oregon, and
 State and Tribal Air Programs, EPA       Washington.
 Region X, Office of Air , Waste, and
 Toxics, Mail Code OAQ-107, 1200 Sixth
 Avenue, Seattle, WA 98101.
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Table of Contents

I. Background
II. This Action
    A. Finding of Failure To Submit for States That Failed To Make a 
Submittal
    B. Finding of Failure To Submit Specific Elements of Section 
110(a)(2)
    C. List of States That Submitted Complete Submissions To Satisfy 
the Section 110(a)(2) Requirements
III. 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 of 1995
    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. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    J. National Technology Transfer Advancement Act
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On July 18, 1997, EPA promulgated a revised NAAQS for 
PM2.5. In that action, the annual PM2.5 standard 
was set at 15 [mu]g/m3, based on the 3-year average of 
annual arithmetic mean PM2.5 concentrations from single or 
multiple community-oriented monitors. The 24-hour PM2.5 
standard was set at 65 [mu]g/m3, based on the 3-year average 
of the 98th percentile of 24-hour PM2.5 concentrations at 
each population-oriented monitor within an area (see 62 FR 38652).
    CAA section 110(a) requires states to submit SIPs that provide for 
the implementation, maintenance, and enforcement of a new or revised 
NAAQS within 3 years following the promulgation of such NAAQS, or 
within such shorter period as EPA may prescribe. Section 110(a) imposes 
the obligation upon states to make a SIP submission to EPA for a new or 
revised NAAQS, but the contents of that submission may vary depending 
upon the facts and circumstances. In particular, the data and 
analytical tools available at the time the state develops and submits 
the SIP for a new or revised NAAQS necessarily affects the content of 
the submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains.
    As of 2004, states had not submitted complete SIPs to satisfy all 
of the section 110(a)(2) requirements for the 1997 PM2.5 
NAAQS (as well as for the 8-hour ozone NAAQS). On March 4, 2004, Earth 
Justice submitted a notice of intent to sue related to EPA's failure to 
issue findings of failure to submit related to these requirements. 
Subsequently, EPA entered into a Consent Decree with Earth Justice 
which required EPA, among other things, to sign a notice for 
publication in the Federal Register no later than October 5, 2008, 
announcing EPA's determinations pursuant to section 110(k)(1)(B) as to 
whether each state has made complete submissions to meet the 
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS.
    Section 110(a)(2) lists specific elements that states must meet in 
the general infrastructure SIP submissions. The requirements include 
SIP infrastructure elements such as modeling, monitoring, and emissions 
inventories that are designed to assure attainment and maintenance of 
the NAAQS. In an October 2, 2007 memorandum entitled, ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour 
Ozone and PM2.5 National Ambient Air Quality Standards,'' 
EPA identified the specific requirements that are the subject of this 
action and provided additional guidance on meeting the requirements.
    Of special interest is section 110(a)(2)(G) of the CAA which 
requires SIPs to provide authority for emergency episode plans 
comparable to that in section 303, as well as provide adequate 
contingency plans to implement such authority. On that authority, EPA 
previously established Significant Harm Levels (SHL) for five criteria 
pollutants--sulfur dioxide, inhalable particulate matter 
(PM10), nitrogen dioxide, carbon monoxide, and ozone. The 
SHL represents ambient concentrations of said pollutant that EPA 
determined, based on health effects data at that time, present an 
imminent and substantial endangerment to public health or welfare, or 
to the environment.\1\ Since EPA has yet to develop a SHL for 
PM2.5, states have been placed at a disadvantage in meeting 
this requirement under the CAA. Although EPA's delay in developing a 
SHL for PM2.5 may have made it more difficult for states to 
meet the section 110(a)(2)(G) obligation, nonetheless, states are still 
required by statute to satisfy the obligation to have adequate 
authority to protect the public in the event of a dangerous 
PM2.5 air pollution episode and adequate contingency plans 
to implement that authority. In this notice, we make findings that some 
states have failed to make a submission addressing either statutory 
authority for emergency powers or adequate contingency plans, or both.
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    \1\ The SHLs and associated requirements for developing 
Emergency Episode Plans are codified at 40 CFR Part 51 Subpart H. 
Appendix L of Part 51, provides an example regulation intended as a 
guide for states that must develop emergency episode plans (51 FR 
40668, November 7, 1986). Subpart H requires states to develop 
emergency episode plans (where appropriate) that, at a minimum, 
provide a set of actions that are necessary to prevent ambient 
pollutant concentrations from reaching levels that could cause 
significant harm and endangerment to the health of persons in the 
affected areas.
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    Two elements identified in section 110(a)(2) are not governed by 
the 3-year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within 3 years after promulgation of a new or revised NAAQS, but rather 
are due at the time the nonattainment area plan requirements are due 
pursuant to section 172. These requirements are: (i) Submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a permit program as required in part D Title I of the CAA, and (ii) 
submissions required by section 110(a)(2)(I) which pertain to the 
nonattainment planning requirements of part D, Title I of the CAA. 
Therefore, this action does not cover these specific SIP elements. This 
action also does not pertain to the requirements in section 
110(a)(2)(D)(i), because EPA has previously addressed that 
requirement.\2\
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    \2\ EPA published a finding that all states had failed to submit 
SIPs addressing interstate transport for the 8-hour ozone and 
PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). See 
70 FR 21,147 (April 25, 2005).

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[[Page 62904]]

II. This Action

    This notice reflects EPA's determinations with respect to the 
section 110(a)(2) requirements for the 1997 PM2.5 NAAQS 
only, based upon the submissions made by the states to fulfill the 
requirements, or certifying that they have already met the 
requirements, or both. For those states that have not yet made a 
submittal, EPA is making a finding of failure to submit, and for those 
states that made a submittal that was not complete with respect to each 
element of section 110(a)(2), EPA is making an incompleteness finding.
    For those states that did not make any submittal, EPA is making a 
finding of failure to submit with respect to all of the section 
110(a)(2) SIP elements. For those states that did not make a submittal 
that addressed all of the section 110(a)(2) elements, EPA is making 
these findings only with respect to those specific section 110(a)(2) 
SIP elements which a state has not certified that it has met, or not 
made a SIP submission to meet, as of the signature date of this notice. 
These findings establish a 24-month deadline for the promulgation by 
EPA of a FIP, in accordance with section 110(c)(1). These findings of 
failure to submit do not impose sanctions, or set deadlines for 
imposing sanctions as described in section 179 of the CAA, because 
these findings do not pertain to the elements of a Title I part D plan 
for nonattainment areas as required under section 110(a)(2)(I), and 
because this action is not a SIP call pursuant to section 110(k)(5).
    For states receiving an incompleteness finding for certain elements 
in section 110(a)(2), EPA is also finding that the remaining elements 
of section 110(a)(2) are complete. For states which EPA has not made 
any findings of failure to submit for the section 110(a)(2) SIP 
elements, EPA is by this action making a finding of completeness for 
all elements. These full and partial completeness findings establish a 
12-month deadline for EPA to take action upon such SIPs in accordance 
with section 110(k).\3\
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    \3\ For those submissions that were made more than 6 months ago, 
EPA's deadline to take action to approve those submissions is 18 
months from the date of submittal.
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    This action will be effective on November 21, 2008.

A. Finding of Failure To Submit for States or Territories That Failed 
To Make a Submittal

    The following states or territories failed to make a submittal to 
satisfy the requirements of section 110(a)(2) as of the date of 
signature of this notice. The effective date of this action starts a 
24-month FIP clock for EPA to approve a SIP for the affected states or 
territories that addresses section 110(a)(2) requirements, or for EPA 
to finalize a FIP. The states and territories that are affected by this 
finding of failure to submit are the following:

Region I: Vermont
Region VI: Oklahoma
Region VIII: North Dakota
Region IX: Hawaii, Guam, American Samoa, Commonwealth of the Northern 
Mariana Islands
Region X: Alaska, Washington

B. Finding of Failure To Submit Specific Elements of Section 110(a)(2)

    The following states made submissions that address some, but not 
all, of the section 110(a)(2) requirements as of the signature date of 
this notice. EPA is by this action identifying the specific elements 
for which states have not made a complete submission. The effective 
date of this action starts a 24-month FIP clock for EPA to approve a 
SIP for the affected states or territories that addresses these 
specific section 110(a)(2) elements, or for EPA to finalize a FIP that 
does so:
Region I
    Massachusetts: The State of Massachusetts has failed to submit a 
SIP addressing section 110(a)(2)(C) and (J) pertaining to the Part C 
PSD permit program. However, this requirement has already been 
addressed by a FIP that remains in place, and therefore, this action 
will not trigger any additional FIP obligations.
Region II
    New Jersey: The State of New Jersey has submitted a certification 
letter which fails to address the contingency plans portion of the 
section 110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans. Also, the State of New Jersey has failed to submit a 
SIP addressing section 110(a)(2)(C) and (J) pertaining to the Part C 
PSD permit program. However, this requirement has already been 
addressed by a FIP that remains in place, and therefore, this action 
will not trigger any additional FIP obligations.
    New York: The State of New York has submitted a certification 
letter which fails to address the contingency plans portion of the 
section 110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans. Also, the State of New York has failed to submit a 
SIP addressing section 110(a)(2)(C) and (J) pertaining to the Part C 
PSD permit program. However, this requirement has already been 
addressed by a FIP that remains in place, and therefore, this action 
will not trigger any additional FIP obligations.
    Puerto Rico: The Territory of Puerto Rico has submitted a 
certification letter which fails to address the contingency plans 
portion of the section 110(a)(2)(G) element concerning emergency powers 
and adequate contingency plans. Also, the Territory of Puerto Rico has 
failed to submit a SIP addressing section 110(a)(2)(C) and (J) 
pertaining to the Part C PSD permit program. However, this requirement 
has already been addressed by a FIP that remains in place, and 
therefore, this action will not trigger any additional FIP obligations.
    Virgin Islands: The Territory of the Virgin Islands has submitted a 
certification letter which fails to address the contingency plans 
portion of the section 110(a)(2)(G) element concerning emergency powers 
and adequate contingency plans. Also, the Territory of the Virgin 
Islands has failed to submit a SIP addressing section 110(a)(2)(C) and 
(J) pertaining to the Part C PSD permit program. However, this 
requirement has already been addressed by a FIP that remains in place, 
and therefore, this action will not trigger any additional FIP 
obligations.
Region III
    Washington, DC: The District of Columbia has failed to submit a SIP 
addressing section 110(a)(2)(C) and (J) pertaining to the Part C PSD 
permit program. However, this requirement has already been addressed by 
a FIP that remains in place, and therefore, this action will not 
trigger any additional FIP obligations.
Region V
    Illinois: The State of Illinois has failed to submit a SIP 
addressing section 110(a)(2)(C) and (J) pertaining to the Part C PSD 
permit program. However, this requirement has already been addressed by 
a FIP that remains in place, and therefore, this action will not 
trigger any additional FIP obligations.
    Michigan: The State of Michigan has submitted a certification 
letter which fails to address the contingency plans portion of the 
section 110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans.
    Minnesota: The State of Minnesota has submitted a certification 
letter which fails to address the contingency plans portion of the 
section 110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans. Also, the State of Minnesota has failed to submit a 
SIP addressing section

[[Page 62905]]

110(a)(2)(C) and (J) pertaining to the Part C PSD permit program. 
However, this requirement has already been addressed by a FIP that 
remains in place, and therefore, this action will not trigger any 
additional FIP obligations.
    Wisconsin: The State of Wisconsin has submitted a certification 
letter which fails to address the contingency plans portion of the 
section 110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans.
Region IX
    Arizona: The State of Arizona has failed to submit a SIP addressing 
section 110(a)(2)(C) and (J) pertaining to the Part C PSD permit 
program. However, this requirement has already been addressed by a FIP 
that remains in place, and therefore, this action will not trigger any 
additional FIP obligations. Also, the State of Arizona has submitted a 
certification letter which fails to address the section 110(a)(2)(E)(i) 
and section 110(a)(2)(E)(ii) concerning the necessary assurances of 
adequate resources and authority under state law and state compliance 
with requirements respecting state boards. The State of Arizona has 
submitted a certification letter which fails to address the section 
110(a)(2)(G) element concerning emergency powers and adequate 
contingency plans.
    California: The State of California has submitted a certification 
letter which fails to address the section 110(a)(2)(G) element 
concerning emergency powers and adequate contingency plans. The State 
of California has failed to submit a SIP addressing section 
110(a)(2)(C) and (J) pertaining to the Part C PSD permit program that 
applies to some Air Districts within the State. However, this 
requirement has already been addressed by a FIP that remains in place, 
and therefore, this action will not trigger any additional FIP 
obligations. All other areas of the state, exclusive of these Air 
Districts have an approved PSD program in place.

C. States That Submitted Complete Submissions To Satisfy the Section 
110(a)(2) Requirements

    The following states have been determined by EPA to have made 
complete SIP submissions that address all of the section 110(a)(2) 
requirements as of the signature date of this notice:

Region I: Connecticut, Maine, New Hampshire, Rhode Island
Region III: Delaware, Maryland, Pennsylvania, Virginia, West Virginia
Region IV: Alabama, Florida, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina, Tennessee
Region V: Indiana, Ohio
Region VI: Arkansas, Louisiana, New Mexico, Texas
Region VII: Iowa, Kansas, Missouri, Nebraska
Region VIII: Colorado, Montana, South Dakota, Utah, Wyoming
Region IX: Nevada
Region X: Idaho, Oregon

III. 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 1230.3(b). This rule relates to the 
requirement in the CAA for states to submit SIPs under section 110(a) 
to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 1997 
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS which satisfies the requirements of section 110(a)(2) 
within 3 years of promulgation of such standard, or shorter period as 
EPA may provide. The present action does not establish any new 
information collection requirement apart from that already required by 
law.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any action subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the action will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For the purpose of assessing the impacts of this final action on 
small entities, small entity is defined as: (1) A small business that 
is a small industry entity as defined in the U.S. Small Business 
Administration size standards (See 13 CFR 121); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which independently owned and operated is not dominate in 
its field.
    After considering the economic impacts of this final action on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
action will not impose any requirements on small entities. This action 
relates to the requirement in the CAA for states to submit SIPs under 
section 110(a) to satisfy certain infrastructure and general authority-
related elements required under section 110(a)(2) of the CAA for the 
1997 PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS which satisfies the requirements of section 110(a)(2) 
within 3 years of promulgation of such standard, or shorter period as 
EPA may provide.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action contains no Federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local, and tribal governments and the private sector. 
The action imposes no enforceable duty on any state, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action relates 
to the requirement in the CAA for states to submit SIPs under section 
110(a) to satisfy certain infrastructure and general authority-related 
elements required under section 110(a)(2) of the CAA for the 1997 
PM2.5 NAAQS. Section 110(a)(1) of the CAA requires that 
states submit SIPs that implement, maintain, and enforce a new or 
revised NAAQS which satisfies the requirements of section 110(a)(2) 
within 3 years of promulgation of such standard, or shorter period as 
EPA may provide.

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

[[Page 62906]]

the Executive Order to include regulations that have ``substantial 
direct effects on the states, or the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The CAA establishes the scheme 
whereby states take the lead in developing plans to meet the NAAQS. 
This action will not modify the relationship of the states and EPA for 
purposes of developing programs to implement the NAAQS. Thus, Executive 
Order 13132 does not apply to this action.

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). It does not have 
a substantial direct effect on one or more Indian Tribes, because no 
Tribe has implemented an air quality management program related to the 
1997 PM2.5 NAAQS. Furthermore, this action does not affect 
the relationship or distribution of power and responsibilities between 
the Federal government and Indian Tribes. The CAA and the Tribal Air 
Rule establish the relationship of the Federal government and Tribes in 
developing plans to attain the NAAQS, and this rule does nothing to 
modify that relationship. Thus, Executive Order 13175 does not apply to 
this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is making 
findings concerning whether or not each state has submitted a complete 
SIP that provides the basic program elements specified in CAA section 
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS. The 
findings of failure to submit for all or a portion of a state's SIP 
establish a 24-month deadline for EPA to promulgate FIPs to address the 
outstanding SIP elements unless, prior to that time, the affected 
states submit, and EPA approves, the required SIPs.

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

    This action is not subject to 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 Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. The 
NTTAA directs EPA to provide Congress, through OMB, explanations when 
the Agency decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

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

    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 action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This notice is making a finding concerning whether each 
state has submitted or failed to submit a complete SIP that provides 
the basic program elements of section 110(a)(2) necessary to implement 
the 1997 PM2.5 NAAQS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action 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 action 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 action will be effective November 21, 2008.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit Court within 60 days from the days 
from the date final action is published in the Federal Register. Filing 
a petition for review by the Administrator of this final action does 
not affect the finality of this action for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must be final, and shall not postpone the effectiveness of such 
action.
    Thus, any petitions for review of this action related to findings 
of failure to submit related to the requirements of section 110(a) to 
satisfy certain elements required under section 110(a)(2) of the CAA 
for the 1997 PM2.5 NAAQS must be filed in the Court of 
Appeals for the District of Columbia Circuit within 60 days from the 
date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Environmental 
protection, Administrative practice and procedures, Air pollution 
control, Incorporation by reference, Intergovernmental relations, and 
Reporting and recordkeeping requirements.

    Dated: October 3, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
 [FR Doc. E8-25020 Filed 10-21-08; 8:45 am]

BILLING CODE 6560-50-P
