[Federal Register Volume 87, Number 180 (Monday, September 19, 2022)]
[Proposed Rules]
[Pages 57161-57165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20135]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0318; FRL-10004-01-R9]


Air Plan Approval; California; San Diego Air Pollution Control 
District; San Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Under the Clean Air Act (CAA or ``Act''), the Environmental 
Protection Agency (EPA) is proposing full approval of revisions to the 
San Diego County Air Pollution Control District (SDCAPCD) and San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) 
portions of the California State Implementation Plan (SIP). These 
revisions concern emissions of volatile organic compounds (VOC) from 
architectural coating operations. We are proposing a full approval of 
the amended SDCAPCD and SJVUAPCD architectural coatings rules because 
they meet all the applicable requirements. We are taking comments on 
this proposal and plan to follow with a final action.

DATES: Comments must be received on or before October 19, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0318 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Arnold Lazarus, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3024 or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. The State's Submittals
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. The EPA's Recommendations to Further Improve the Rules
    E. Proposed Action and Public Comments
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittals

A. What rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

[[Page 57162]]



                                             Table 1--Submitted Rule
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                                                                              Adopted/amended/
     Local agency          Rule No.                  Rule title                   revised           Submitted
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SDCAPCD...............          67.0.1  Architectural Coatings.............  2/10/2021          4/20/2021, as an
                                                                              (effective for     attachment to a
                                                                              state law          letter dated 4/
                                                                              purposes on 1/1/   16/2021.
                                                                              2022).
SJVUAPCD..............            4601  Architectural Coatings.............  4/16/2020          4/23/2020, as an
                                                                              (effective upon    attachment to a
                                                                              adoption but the   letter of the
                                                                              new or revised     same date.
                                                                              VOC content
                                                                              limits were
                                                                              effective 1/1/
                                                                              2022).
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    The submittal for SDCAPCD Rule 67.0.1 became complete by operation 
of law on October 20, 2021. On June 29, 2020, the EPA determined that 
the submittal for SJVUAPCD Rule 4601 met the completeness criteria in 
40 CFR part 51, appendix V.\1\
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    \1\ Letter from Elizabeth J. Adams, Director, Air and Radiation 
Division, EPA Region IX, to Richard W. Corey, Executive Officer, 
CARB, dated June 29, 2020.
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B. Are there other versions of these rules?

    We approved an earlier version of SDCAPCD Rule 67.0.1 into the SIP 
on October 4, 2016 (81 FR 68320). The SDCAPCD adopted revisions to Rule 
67.0.1 on February 10, 2021, and the revisions became effective as a 
matter of state law on January 1, 2022. CARB submitted the amended rule 
to the EPA on April 20, 2021, as an attachment to a letter dated April 
16, 2021. If we take final action to approve the February 10, 2021 
version of Rule 67.0.1, it will replace the previously-approved version 
of the rule in the SDCAPCD portion of the applicable California SIP.
    We approved an earlier version of SJVUPACD Rule 4601 into the SIP 
on November 8, 2011 (76 FR 69135). The SJVUAPCD adopted revisions to 
Rule 4601 on April 16, 2020 (effective upon adoption), and CARB 
submitted the amended rule to us on April 23, 2020, as an attachment to 
a letter of the same date. If we take final action to approve the April 
16, 2020 version of Rule 4601, it will replace the previously-approved 
version of the rule in the SJVUAPCD portion of the applicable 
California SIP.

C. What is the purpose of the submitted rule revisions?

    Emissions of VOCs contribute to the production of ground-level 
ozone, smog and particulate matter, which harm human health and the 
environment. Section 110(a) of the CAA requires states to submit 
regulations that control VOC emissions. Architectural coatings are 
coatings that are applied to stationary structures and their 
accessories. They include house paints, stains, industrial maintenance 
coatings, traffic coatings, and many other products. VOCs are emitted 
from the coatings during application and curing, and from the 
associated solvents used for thinning and clean-up.
    SDCAPCD Rule 67.0.1 and SJVUAPCD Rule 4601 regulate VOC emissions 
from architectural coatings. The rules were updated to conform to 
CARB's Suggested Control Measures (SCM) for Architectural Coatings, May 
2019. More specifically, to conform with CARB's 2019 update of the SCM 
for architectural coatings, SDCAPCD and SJVUAPCD added certain new 
categories of coatings, tightened VOC limits for certain other 
categories of coatings, added new limits for colorants, updated test 
methods, and clarified and tightened certain definitions and 
administrative requirements. SDCAPCD estimates that aligning Rule 
67.0.1 with the CARB 2019 SCM for architectural coatings will reduce 
VOC emissions by approximately 0.22 tons per day (tpd) in San Diego 
County.\2\ SJVUAPCD estimates that aligning Rule 4601 with the CARB 
2019 SCM will reduce VOC emissions in San Joaquin Valley by 
approximately 0.30 tpd.\3\
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    \2\ SDCAPCD, Agenda Item, February 10, 2021, Subject: Noticed 
Public Hearing--Adoption of Amendments to Rule 67.0.1--Architectural 
Coatings (Districts: All), Attachment C, Incremental Cost-
Effectiveness Analysis, Proposed Amended Rule 67.0.1--Architectural 
Coatings, page C-1.
    \3\ SJVUAPCD, Final Draft Staff Report, Proposed Amendments to 
Rule 4601 (Architectural Coatings) April 16, 2020, pages 13-14.
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    Both rules were also amended to include provisions to address 
contingency measure requirements for nonattainment areas with respect 
to ozone national ambient air quality standards (NAAQS). With respect 
to contingency provisions, the air districts amended their respective 
architectural coatings rules to include new sections that would remove 
the rules' small container exemptions (SCE) (i.e., one liter or less) 
for certain types of coatings within 60 days of the EPA's determination 
that the area failed to meet a reasonable further progress (RFP) 
milestone or to attain the ozone national ambient air quality standards 
(NAAQS) by the applicable attainment date. As originally submitted, the 
contingency provision in the SJVUAPCD architectural coatings rule 
(section 4.3 of Rule 4601) included language that was inconsistent with 
the requirements for contingency measures in CAA sections 172(c)(9) and 
182(c)(9) and inconsistent with the intent of the SJVUAPCD's Board in 
adopting the provision. However, the SJVUAPCD has subsequently made an 
administrative correction to the rule text to clarify the contingency 
measure provision consistent with the SJVUAPCD's Board's intent and has 
submitted the revised rule to the EPA to replace the earlier submitted 
version.\4\ For this proposed action, we are basing our evaluation on 
the SJVUAPCD architectural coatings rule as corrected.
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    \4\ Letter from Sheraz Gill, Deputy Air Pollution Control 
Officer, SJVUAPCD, to Doris Lo, Manager, EPA Region IX, dated August 
5, 2022. CARB submitted the corrected version of the rule to EPA 
electronically on August 11, 2022, to replace to earlier version of 
the rule.
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    SDCAPCD estimates that removing the SCE for certain coatings will 
reduce VOC emissions by approximately 0.72 tons per day (tpd) in San 
Diego County.\5\ SJVUAPCD estimates that removing the SCE for certain 
coatings will reduce VOC emissions in San Joaquin Valley by 
approximately 0.65 tpd.\6\ The EPA's technical support documents (TSDs) 
have more information about these rules.
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    \5\ SDCAPCD, 2020 Plan for Attaining the National Ambient Air 
Quality Standards for Ozone in San Diego County (October 2020), 
Attachment O (Contingency Measures for San Diego County), page O-1.
    \6\ SJVUAPCD, Final Draft Staff Report, Proposed Amendments to 
Rule 4601 (Architectural Coatings) April 16, 2020, pages 12-13.
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    Rules in the SIP must be enforceable (see CAA section 110(a)(2)), 
must not interfere with applicable requirements concerning attainment 
and reasonable further progress or other CAA requirements (see CAA 
section 110(l)), and must not modify certain SIP control requirements 
in nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193). We are also evaluating whether the 
rules meet the requirements for contingency measures specified in CAA 
sections 172(c)(9) and 182(c)(9).

[[Page 57163]]

    Generally, SIP rules must require Reasonably Available Control 
Technology (RACT) for each category of sources covered by a Control 
Techniques Guidelines (CTG) document as well as each major source of 
VOCs in ozone nonattainment areas classified as Moderate or above (see 
CAA section 182(b)(2)). San Diego County and San Joaquin Valley have 
been designated as Severe or Extreme nonattainment areas for the 2008 
and 2015 8-hour ozone National Ambient Air Quality Standards (see 40 
CFR 81.305).\7\ Because there is no relevant EPA CTG document for 
architectural coatings and because there are no major architectural 
coating sources within San Diego County or San Joaquin Valley, 
architectural coatings are not subject to RACT requirements. However, 
as nonattainment areas for ozone, San Diego County and San Joaquin 
Valley are subject to the requirement to implement all reasonably 
available control measures (RACM) as needed to attain the 2008 and 2015 
ozone NAAQS by the applicable attainment dates. Guidance and policy 
documents that we used to evaluate enforceability, revision/relaxation 
and rule stringency requirements for the applicable criteria pollutants 
include the following:
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    \7\ San Joaquin Valley is also designated as Moderate 
nonattainment for the 2012 PM2.5 NAAQS and Serious 
nonattainment for the 1997 and 2006 PM2.5 NAAQS and is 
thus subject to the requirement to implement reasonably available 
control measures (RACM) and best available control measures (BACM). 
However, VOC emissions do not contribute significantly to ambient 
PM2.5 levels that exceed the PM2.5 NAAQS. See 
85 FR 17382, at 17394 (March 27, 2020) (proposed approval of state's 
precursor demonstration for the 2006 PM2.5 NAAQS in San 
Joaquin Valley), finalized at 85 FR 44192 (July 22, 2020); and 86 FR 
49100, at 49109 (September 1, 2021) (proposed approval of state's 
precursor demonstration for the 2012 PM2.5 NAAQS in San 
Joaquin Valley).Thus, submitted SJVUAPCD Rule 4601 does not need to 
meet the requirements for RACM or BACM with respect to the 
PM2.5 NAAQS
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    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. National Volatile Organic Compound Emission Standards for 
Architectural Coatings, 40 CFR 59, Subpart D.
    5. California Air Resources Board (CARB) Suggested Control Measure 
for Architectural Coatings, May 2019.

B. Do the rules meet the evaluation criteria?

    We have evaluated the enforceability of submitted SDCAPCD Rule 
67.0.1 and SJVUAPCD Rule 4601 with respect to applicability and 
exemptions; standard of conduct and compliance dates; sunset 
provisions; discretionary provisions; and test methods, recordkeeping 
and reporting, and have concluded that both rules continue to be 
enforceable for the purposes of CAA section 110(a)(2)(A).
    We have also determined that the submitted rules implement RACM-
level controls for this particular area source because the VOC content 
limits are more stringent than the corresponding federal requirements 
in Table 1 to Subpart D of 40 CFR part 59, ``Content Limits for 
Architectural Coatings,'' and are consistent with CARB's 2019 SCM.
    Third, we have found that, because the submitted rules tighten VOC 
content limits for certain coating categories and restrict certain 
existing exemptions, they would not interfere with any applicable 
requirement concerning attainment or reasonable further progress (RFP) 
or any other requirement of the CAA, and as such, may be approved under 
CAA sections 110(l) and 193.
    Lastly, we have reviewed the specific new provisions in submitted 
SDCAPCD Rule 67.0.1 (paragraph (b)(6)) and submitted SJVUAPCD Rule 4601 
(section 4.3) that are intended to address contingency measure 
requirements for ozone nonattainment areas. As noted previously, the 
contingency measure in both rules is the removal of the SCE for certain 
coating categories within 60 days if the EPA makes certain final 
determinations.
    Under the CAA, ozone nonattainment areas classified under subpart 2 
as ``Serious'' or above must include in their SIPs contingency measures 
consistent with sections 172(c)(9) and 182(c)(9). CAA section 172(c)(9) 
requires states with nonattainment areas to provide for the 
implementation of specific measures to be undertaken if the area fails 
to make RFP or to attain the NAAQS by the applicable attainment date. 
Such measures must be included in the SIP as contingency measures to 
take effect in any such case without further action by the state or the 
EPA. Section 182(c)(9) requires states to provide contingency measures 
in the event that an ozone nonattainment area fails to meet any 
applicable RFP milestone.
    Contingency measures are additional controls or measures to be 
implemented in the event the area fails to make RFP or to attain the 
NAAQS by the attainment date. Contingency measures must be designed so 
as to be implemented prospectively; already-implemented control 
measures may not serve as contingency measures even if they provide 
emissions reductions beyond those needed for any other CAA purpose.\8\ 
The SIP should contain trigger mechanisms for the contingency measures, 
specify a schedule for implementation, and indicate that the measure 
will be implemented without significant further action by the state or 
the EPA.\9\
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    \8\ See Bahr v. EPA, 836 F.3d 1218, at 1235-1237 (9th Cir. 
2016).
    \9\ See 70 FR 71612 (November 29, 2005); see also 2008 Ozone 
SRR, 80 FR 12264 at 12285 (March 6, 2015).
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    Neither the CAA nor the EPA's implementing regulations establish a 
specific amount of emissions reductions that implementation of 
contingency measures must achieve, but the 2008 Ozone SIP Requirements 
Rule (SRR) reiterates the EPA's guidance recommendation that 
contingency measures should provide for emissions reductions 
approximately equivalent to one year's worth of RFP, thus amounting to 
reductions of 3 percent of the baseline emissions inventory for the 
nonattainment area.\10\ In a decision published in August 2021 in the 
AIR v. EPA case, the U.S. Court of Appeals for the Ninth Circuit 
remanded the EPA's approval of ozone contingency measures for the San 
Joaquin Valley and held that, under EPA's current guidance, the surplus 
emissions reductions from already-implemented measures cannot be relied 
upon to justify the approval of a contingency measure that would 
achieve far less than one year's worth of RFP as sufficient by itself 
to meet the contingency measure requirements of CAA sections 172(c)(9) 
and 182(c)(9) for the nonattainment area.\11\
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    \10\ 80 FR 12264 at 12285 (March 6, 2015).
    \11\ Association of Irritated Residents v. EPA, 10 F.4th 937 
(9th Cir. 2021) (``AIR v. EPA'' or ``AIR'').
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    Based on our review of the submitted rules in light of the 
requirements for contingency measures summarized above, we find that 
the contingency measure in paragraph (b)(6) of submitted SCDAPCD Rule 
67.0.1 meets the applicable requirements for such measures in CAA 
sections 172(c)(9) and 182(c)(9) because the removal of the SCE for 
certain coating categories is not required as RACT or RACM or for any 
other CAA purpose; paragraph (b)(6) includes an appropriate triggering 
mechanism (i.e., EPA final

[[Page 57164]]

determinations of failures to meet an RFP milestone or to attain the 
NAAQS by the applicable attainment dates); paragraph (b)(6) specifies a 
schedule for implementation (i.e., the SCE for the subject coatings 
expires 60 days after EPA final determination); and paragraph (b)(6) is 
designed to take effect (once triggered) without further significant 
action by the District, CARB or the EPA.
    We have conducted a similar review of section 4.3 of submitted 
SJVUAPCD Rule 4601 and find that it meets the applicable requirements 
for contingency measures in CAA section 172(c)(9) and 182(c)(9). That 
is, we find that removal of the SCE as provided in section 4.3 of 
submitted SJVUAPCD Rule 4601 is not otherwise required under the CAA 
and thus is eligible as a contingency measure and that section 4.3 
specifies an appropriate schedule for implementation (i.e., 60 days 
from EPA final rulemaking) and is designed to take effect (once 
triggered) without further significant action by the District, CARB or 
the EPA.
    Lastly, we have reviewed the Districts' estimate of the emissions 
reductions that can be expected if the contingency measure provisions 
(paragraph (b)(6) of submitted SDCAPCD Rule 67.0.1 and section 4.3 of 
submitted SJVUAPCD Rule 4601) are triggered and find the estimates to 
be reasonable and adequately documented. The emissions reductions 
associated with the contingency measure provisions can be taken into 
account by the EPA when determining whether the State and Districts 
have fully met the requirements for San Diego County and the San 
Joaquin Valley with respect to the contingency measure requirements 
under CAA sections 172(c)(9) and 182(c)(9). The EPA expects to make the 
determinations with respect to the area-wide contingency measure SIP 
requirements in separate rulemakings.
    The TSDs have more information on our evaluation of the two 
submitted architectural coatings rules.

C. What are the rule deficiencies?

    We have not identified any deficiencies that would prevent approval 
of the two amended architectural coatings rules.

D. The EPA's Recommendations To Further Improve the Rules

    The TSDs include the EPA's recommendations for the next time the 
local agencies modify the rules.

E. Proposed Action and Public Comment

    Pursuant to section 110(k)(3) of the Act, and for the reasons given 
above, the EPA is proposing a full approval of submitted SDCAPCD Rule 
67.0.1 and SJVUAPCD Rule 4601. For both submitted rules, our proposed 
action is based on our finding that the non-contingency-related 
amendments meet all applicable CAA requirements. With respect to the 
contingency measure provisions in the submitted rules, our proposed 
action is based on our finding that the provisions have the necessary 
attributes of contingency measures under the CAA. Thus, we are 
approving the provisions as contingency measures for the two areas for 
the 2008 ozone NAAQS.
    We are not making any determination at this time as to whether 
these individual contingency measures are sufficient in themselves for 
their respective nonattainment areas to fully comply with the 
contingency measure requirements under CAA sections 172(c)(9) and 
182(c)(9). We will be taking action on the contingency measure SIP 
elements for these areas in separate rulemakings and will be taking 
into account the emissions reductions associated with the contingency 
provisions in the submitted rules at that time. Regardless of whether 
the contingency measure SIP elements are subsequently approved or 
disapproved, we find that the contingency provisions in the submitted 
rules strengthen the SIP for their respective nonattainment areas. We 
will accept comments from the public on this proposal until October 19, 
2022.
    If finalized as proposed, this action would incorporate the 
submitted architectural coatings rules into the SIP and the submitted 
rules would replace the corresponding existing SIP versions of the 
rules in the California SIP.

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference SDCAPCD Rule 67.0.1 and SJVUAPCD Rule 4601, which regulate 
VOC emissions from architectural coatings. The EPA has made, and will 
continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     The state did not evaluate environmental justice 
considerations as part of its SIP submittal. There is no information in 
the record inconsistent with the stated goals of E.O. 12898 of 
achieving environmental justice for people of color, low-income 
populations, and indigenous peoples.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

[[Page 57165]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: September 12, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-20135 Filed 9-16-22; 8:45 am]
BILLING CODE 6560-50-P