[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58080-58084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23524]



[[Page 58080]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50 and 51

[EPA-HQ-OAR-2005-0159; FRL-8725-4]
RIN 2060-AP28


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: Proposed rule.

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SUMMARY: EPA is proposing to amend 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 proposal 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.
    In the ``Rules'' section of this Federal Register, we are issuing 
this action as a direct final rule without a prior proposed rule. If we 
receive no adverse comment, we will not take further action on this 
proposed rule.

DATES: Comments. Written comment must be received November 20, 2008.
    Public Hearing. If anyone contacts us requesting a public hearing 
by October 16, 2008, we will hold a public hearing approximately 30 
days after publication in the Federal Register. Additional information 
about the hearing would be published in a subsequent Federal Register 
notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0159, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2005-0159.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2005-0159.
     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2005-0159, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2005-0159, Environmental Protection Agency, 
1301 Constitution Avenue, NW., Room 3334; Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0159. EPA's policy is that all comments received 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 information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters and any form of encryption, and be free 
of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: 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., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, 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: [email protected].

SUPPLEMENTARY INFORMATION: 

Outline

I. Why Is EPA Issuing This Proposed Rule?
II. Does This Action Apply to Me?
III. What Should I Consider as I Prepare My Comments for EPA?
IV. What Information Should I Know About the Public Hearing?
V. What Is the Background for This Action?
VI. What Is This Proposed Rule?
VII. 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

I. Why Is EPA Issuing This Proposed Rule?

    This 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

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action creates no additional regulatory requirements compared to those 
already promulgated in the Exceptional Events Rule. We have published a 
direct final rule making such amendments in the ``Rules'' section of 
this Federal Register because we view this as a noncontroversial action 
and anticipate no adverse comment. We have explained our reasons for 
this action in the preamble to the direct final rule.
    If EPA receives an adverse comment, we will take no further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule and it will not take effect. We would address all 
public comments in any subsequent final rule based on the proposed 
rule. We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.
    The regulatory test for this proposal is identical to that for the 
direct final rule published in the ``Rules'' section of this Federal 
Register. For further information and detailed rationale for this 
proposal, see the information provided in the direct final 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 at 13562-
13563 (March 22, 2007).

III. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

IV. What Information Should I Know About the Public Hearing?

    EPA will hold a hearing only if a party notifies EPA by October 16, 
2008, expressing its interest in presenting oral testimony on issues 
addressed in this notice. Any person may request a hearing by calling 
Mrs. Pamela Long at (919) 541-0641 before 5 p.m. by October 16, 2008. 
Persons interested in presenting oral testimony should contact Mrs. 
Pamela Long at (919) 541-0641. Any person who plans to attend the 
hearing should also contact Mrs. Pamela S. Long at (919) 541-0641 to 
learn if a hearing will be held.
    If a public hearing is held on this notice, it will be held at the 
EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, NC 
27709. Because the hearing will be held at a U.S. Government facility, 
everyone planning to attend should be prepared to show valid picture 
identification to the security staff in order to gain access to the 
meeting room.
    If held, the public hearing will begin at 10 a.m. and end 1 hour 
after the last registered speaker has spoken. The hearing will be 
limited to the subject matter of this document. Oral testimony will be 
limited to 5 minutes. The EPA encourages commenters to provide written 
versions of their oral testimony either electronically (on computer 
disk or CD ROM) or in paper copy. Verbatim transcripts and written 
statements will be included in the rulemaking docket.
    A public hearing would provide interested parties the opportunity 
to present data, views, or arguments concerning issues addressed in 
this notice. The EPA may ask clarifying questions during the oral 
presentations, but would not respond to the presentations or comments 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
any oral comments and supporting information presented at a public 
hearing.

V. What Is the Background for This Action?

    The Exceptional Events Rule (Treatment of Data Influenced by 
Exceptional Events (72 FR 13560, March 22, 2007)) 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.
    However, 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

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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 ppb on 
March 12, 2008 with an effective date of May 27, 2008. In accordance 
with 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 will base their recommendations on the three most recent years 
of quality-assured air quality data, which could be ozone data 
collected between 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 quality-assured air quality data for each area which would be 
ozone data collected during calendar years 2007-2009 where states have 
submitted quality assured ozone data for 2009. However, in some cases 
the most recent complete data may cover 2006-2008 or 2005-2007. In this 
example the generic exceptional event flagging schedule 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 the Exceptional 
Events Rule at 40 CFR 50.14(c)(2)(v), to modify the schedule for data 
flagging and submission of demonstration for exceptional events data 
considered for initial designations under the 2008 revised ozone NAAQS.

VI. What Is This Proposed Rule?

    This proposed 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 December 31, 2008. 
For data collected in 2008, the revised schedule extends the generic 
schedule for flagging data and providing a brief initial description of 
the event to March 12, 2009, to coincide with the deadline for state 
Governors to submit designation recommendations to EPA. The deadline 
for submitting to EPA a detailed demonstration to justify exclusion of 
data collected in 2005 through 2008 is also being set to March 12, 
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 January 8, 2010. 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 
would allow EPA to have access to the flags and supporting data in time 
for EPA to develop its own proposed and final plans for designations. 
(If EPA has insufficient information and extends the designations date 
beyond March 2010, a new event flagging deadline and detailed 
documentation submission deadline will be published.) 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 
proposed rule EPA amends section 50.14(c)(2)(v) 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 data 
submission schedules for new or revised NAAQS standards in the future.

      Table 1--Schedule for Exceptional Event Flagging and Documentation Submission for Data To Be Used in
                                 Designations Decisions for New or Revised NAAQS
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                                       Air quality
 NAAQS pollutant/standard/(level)/        data          Event flagging &      Detailed documentation submission
         promulgation date            collected for   initial  description                 deadline
                                      calendar year         deadline
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PM2.5 24-Hr Standard (35 [mu]g/m3)        2004-2006  October 1, 2007 \a\...  April 15, 2008 \a\.
 Promulgated October 17, 2006.
Ozone/8-Hr Standard (0.075 ppb)           2005-2007  December 31, 2008 \b\.  March 12, 2009 \b\.
 Promulgated March 12, 2008.
                                               2008  March 12, 2009 \b\....  March 12, 2009 \b\.
                                               2009  January 8, 2010 \b\...  January 8, 2010 \b\.
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\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.


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VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it is likely 
to raise novel legal or policy issues arising out of legal mandates, 
the President's priorities, or the principles set forth in the 
Executive Order. Accordingly, EPA submitted this action to the Office 
of Management and Budget (OMB) for review under EO 12866 and any 
changes made in response to OMB recommendations have been documented in 
the docket for this action.

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., 
where 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 proposal 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.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

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 (URMA), 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 URMA 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 proposal 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 enforceable duties on 
tribal governments. Thus, Executive Order 13175 does not apply to this 
rule.
    EPA specifically solicits additional comment on this proposed 
action from tribal officials.

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.
    The public is invited to submit comments or identify peer-reviewed 
studies and data that assess effects of modifying previously 
established deadlines under the Exceptional Events Rule.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211(66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse effects because this action 
modifies previously established deadlines under the Exceptional Events 
Rule.

I. National Technology Transfer Advancement Act

    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

[[Page 58084]]

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 proposal 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.

List of Subjects in 40 CFR Part 50

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: September 30, 2008.
Stephen L. Johnson,
Administrator.
 [FR Doc. E8-23524 Filed 10-3-08; 8:45 am]
BILLING CODE 6560-50-P