Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions, 15031-15034 [2024-04103]
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Federal Register / Vol. 89, No. 42 / Friday, March 1, 2024 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES1
penalties for depleting it. This woman is
now, at age 70, in a position of living
only on her social security and has to
try to find work. . . .’’ 4
• Another commenter received a call
from someone claiming to be with the
U.S. Treasury Department, who asserted
that her social security number had
been compromised. This person lost all
her money: ‘‘That money is from my
mother’s life insurance policy who
passed in 2019. My father needs that
money to survive. I am devastated.’’ 5
• A third commenter spoke of her
mother being scammed by someone
pretending to be with a government
agency: ‘‘Before we, her family, realized
the extent to which the imposters
preyed upon her, she had divulged
identity and banking information.’’ 6
The rise of generative AI technologies
risks making these problems worse by
turbocharging scammers’ ability to
defraud the public in new, more
personalized ways. For example, the
proliferation of AI chatbots gives
scammers the ability to generate spearphishing emails using individuals’
social media posts and to instruct bots
to use words and phrases targeted at
specific groups and communities.7 AIenabled voice cloning fraud is also on
the rise, where scammers use voicecloning tools to impersonate the voice of
a loved one seeking money in distress
or a celebrity peddling fake goods.8
Scammers can use these technologies to
disseminate fraud more cheaply, more
precisely, and on a much wider scale
than ever before.
In its supplemental NPRM, the
Commission proposes to expand the
rule’s prohibitions to also cover
impersonation of individuals. If
adopted, this additional protection will
equip enforcers to seek civil penalties
and redress when fraudsters
4 Comment Submitted by Anonymous, FTC Seek
Comments on Advanced Notice of Proposed Rule;
Impersonation ANPR, Regulations.gov (Feb. 22,
2022), https://www.regulations.gov/comment/FTC2021-0077-0131.
5 Comment Submitted by Jamila Sherman, FTC
Seek Comments on Advanced Notice of Proposed
Rule; Impersonation ANPR, Regulations.gov (Feb.
22, 2022), https://www.regulations.gov/comment/
FTC-2021-0077-0127.
6 Comment Submitted by Susan Frost, FTC Seek
Comments on Advanced Notice of Proposed Rule;
Impersonation ANPR, Regulations.gov (Feb. 16,
2022), https://www.regulations.gov/comment/FTC2021-0077-0031.
7 Bob Violino, AI Tools Such As ChatGPT Are
Generating A Mammoth Increase In Malicious
Phishing Emails, CNBC (Nov. 28, 2023), https://
www.cnbc.com/2023/11/28/ai-like-chatgpt-iscreating-huge-increase-in-malicious-phishingemail.html.
8 Eric Revell, AI Voice Cloning Scams On The
Rise, Expert Warns, Fox Business (Sept. 23, 2023),
https://www.foxbusiness.com/technology/ai-voicecloning-scams-on-rise-expert-warns.
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impersonate individual people, not just
government or business entities. Given
the proliferation of AI-enabled fraud,
this additional protection seems
especially critical. Notably, the
supplemental proposal also
recommends extending liability to any
actor that provides the ‘‘means and
instrumentalities’’ to commit an
impersonation scam. Under this
approach, liability would apply, for
example, to a developer who knew or
should have known that their AI
software tool designed to generate
deepfakes of IRS officials would be used
by scammers to deceive people about
whether they paid their taxes. Ensuring
that the upstream actors best positioned
to halt unlawful use of their tools are
not shielded from liability will help
align responsibility with capability and
control.
By unlocking civil penalties and
redress, the final rule, along with the
proposed supplemental provisions, will
promote both more efficient
enforcement and greater deterrence. In
2020, the Supreme Court held that the
Commission cannot rely on Section
13(b) of the FTC Act to get money back
to defrauded consumers,9 so
rulemakings—while not a substitute for
a legislative fix—can help ensure that
lawbreakers do not profit from their
lawbreaking and that wronged
consumers can be made whole.
This rule marks the agency’s first
brand-new Section 18 rulemaking since
1980. Although the authority to issue
rules is clearly laid out in the FTC Act,
bureaucratic red tape presented an
obstacle to the agency’s exercise of this
important statutory authority. Thanks to
efforts initiated under Commissioner
Slaughter’s leadership to align the
procedural requirements for Section 18
rulemaking with the FTC Act’s statutory
text, Section 18 rulemakings can now
proceed more efficiently.10 This effort
took two years from proposal to final
rule, finally putting lie to the old idea
that this must be an impossibly long
process.
Many thanks to the FTC team for their
swift work and dedication. This rule
banning government and business
impersonation will allow us to more
vigorously and effectively protect
Americans from fraudsters. And we are
eager for public input on the
supplemental NPRM that would extend
9 AMG
Cap. Mgmt., LLC v. FTC, 593 U.S. (2021).
Release, Fed. Trade Comm’n, FTC Votes
to Update Rulemaking Procedures, Sets Stage for
Stronger Deterrence of Corporate Misconduct (July
1, 2021), https://www.ftc.gov/news-events/news/
press-releases/2021/07/ftc-votes-updaterulemaking-procedures-sets-stage-strongerdeterrence-corporate-misconduct.
10 Press
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15031
this rule to cover impersonation of
individuals. With the rapid rise of voice
cloning fraud and other AI-based scams,
additional protection for consumers
seems especially critical. As these
technologies enable more sophisticated
and innovative forms of fraud, we will
continue to ensure the Commission is
activating all the tools Congress has
given us and faithfully executing on our
statutory mandate.
[FR Doc. 2024–04335 Filed 2–29–24; 8:45 am]
BILLING CODE 6750–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2022–0279; FRL–10675–
02–R6]
Air Plan Approval; Oklahoma; Updates
to the State Implementation Plan
Incorporation by Reference Provisions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
Environmental Protection Agency (EPA)
is approving revisions to the Oklahoma
State Implementation Plan (SIP)
submitted by the State of Oklahoma
designee on December 17, 2021, and
January 20, 2023. This action addresses
the submittal of revisions to the
Oklahoma SIP to update the
incorporation by reference provision of
Federal requirements under Oklahoma
Administrative Code (OAC).
DATES: This rule is effective April 1,
2024.
SUMMARY:
The EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2022–0279. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet. Publicly available docket
materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Adina Wiley, EPA Region 6 Office, Air
Permits Section, 214–665–2115,
wiley.adina@epa.gov. Please call or
email the contact listed above if you
need alternative access to material
indexed but not provided in the docket.
ADDRESSES:
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SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
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I. Background
The background for this action is
discussed in detail in our March 6,
2023, proposal (88 FR 13755). In that
document we proposed to approve
revisions to the Oklahoma SIP that
update the incorporation by reference
dates for Federal requirements. We
received one comment on our proposed
action, addressed below.
II. Response to Comments
The commentor asserts that there is a
potential inconsistency with the
portions of our proposed rulemaking
discussing the Impact on Areas of
Indian Country and Environmental
Justice Considerations. We address the
comment below in two parts.
Comment: In section III of our
proposal (‘‘Impact on Areas of Indian
Country’’) we said, ‘‘As requested by
Oklahoma, the EPA’s approval under
SAFETEA 1 does not include Indian
country lands, including rights-of-way
running through the same, that (1)
qualify as Indian allotments, the Indian
titles to which have not been
extinguished, under 18 U.S.C. 1151(c).’’
The commentor cites the definition of
‘‘Indian country’’ in Title 18, ‘‘(a) all
land within the limits of any Indian
reservation under the jurisdiction of the
United States Government,
notwithstanding the issuance of any
patent, and, including rights-of-way
running through the reservation, (b) all
dependent Indian communities within
the borders of the United States whether
within the original or subsequently
acquired territory thereof, and whether
within or without the limits of a state,
and (c) all Indian allotments, the Indian
titles to which have not been
extinguished, including rights-of-way
running through the same.’’ The
commentor offers their interpretation of
this definition, stating that ‘‘this statute
states that all Indian reservations and
areas allocated for the Native American
community are reserved for that
community and under that community’s
jurisdiction’’ and ties this interpretation
to our proposed action, arguing that
‘‘[t]he problem that arises in the
proposed statute, is that it leaves the
issue of air quality as a responsibility of
Indian Country.’’
Response: Section III of our proposed
rulemaking, Impact on Areas of Indian
Country, provides the regulatory history
1 Safe, Accountable, Flexible, Efficient
Transportation Equity Act of 2005: A Legacy for
Users, Public Law 109–59, 119 Stat. 1144, 1937
(August 10, 2005) (‘‘SAFETEA’’)
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of Oklahoma’s request and the EPA’s
approval to administer the State’s
environmental regulatory programs in
certain areas of Indian Country pursuant
to SAFETEA. The EPA’s October 1,
2020, approval of the Oklahoma
SAFETEA request gives the State—not
the Tribes—the authority to administer
the Oklahoma SIP within certain areas
of Indian country. The State of
Oklahoma is responsible for protecting
air quality in these areas.
Comment: The commentor states their
concern that ‘‘despite Indian Country
having authority over their land, they
aren’t given a sufficient amount of
resources to combat poor air quality,
leaving them to their own defenses.
Subsequently, leaving Tribes to deal
with poor air quality and not giving
them a chance to improve it. A general
recommendation I offer is to (a) add
clarity to the cities, and Tribes, that are
excluded from Indian Country and will
implement this statute, (b) instead of
trying to take control of Indian Country
or leaving the complete authority to
Indian Country, work with the Tribes
and create statutes with their opinions
and ideas in mind and have a shared
statute that everyone benefits from.’’
Response: As a result of the EPA’s
SAFETEA approval, the State of
Oklahoma is responsible for protecting
air quality in certain areas of Indian
Country and concerns about resources
allocated to Tribes for this purpose are
not relevant to this rulemaking. The
EPA notes, however, that several Tribal
governments within the State of
Oklahoma have Tribal air programs that
are supported and encouraged by the
EPA.
III. Impact on Areas of Indian Country
Following the U.S. Supreme Court
decision in McGirt v Oklahoma, 140 S.
Ct. 2452 (2020), the Governor of the
State of Oklahoma requested approval
under Section 10211(a) of the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act of 2005: A
Legacy for Users, Public Law 109–59,
119 Stat. 1144, 1937 (August 10, 2005)
(‘‘SAFETEA’’), to administer in certain
areas of Indian country (as defined at 18
U.S.C. 1151) the State’s environmental
regulatory programs that were
previously approved by the EPA for
areas outside of Indian country. The
State’s request excluded certain areas of
Indian country further described below.
In addition, the State only sought
approval to the extent that such
approval is necessary for the State to
administer a program in light of
Oklahoma Dept. of Environmental
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Quality v. EPA, 740 F.3d 185 (D.C. Cir.
2014).2
On October 1, 2020, the EPA
approved Oklahoma’s SAFETEA request
to administer all the State’s EPAapproved environmental regulatory
programs, including the Oklahoma SIP,
in the requested areas of Indian country.
As requested by Oklahoma, the EPA’s
approval under SAFETEA does not
include Indian country lands, including
rights-of-way running through the same,
that: (1) qualify as Indian allotments, the
Indian titles to which have not been
extinguished, under 18 U.S.C. 1151(c);
(2) are held in trust by the United States
on behalf of an individual Indian or
Tribe; or (3) are owned in fee by a Tribe,
if the Tribe (a) acquired that fee title to
such land, or an area that included such
land, in accordance with a treaty with
the United States to which such Tribe
was a party, and (b) never allotted the
land to a member or citizen of the Tribe
(collectively ‘‘excluded Indian country
lands’’).
The EPA’s approval under SAFETEA
expressly provided that to the extent
EPA’s prior approvals of Oklahoma’s
environmental programs excluded
Indian country, any such exclusions are
superseded for the geographic areas of
Indian country covered by the EPA’s
approval of Oklahoma’s SAFETEA
request.3 The approval also provided
that future revisions or amendments to
Oklahoma’s approved environmental
regulatory programs would extend to
the covered areas of Indian country
(without any further need for additional
requests under SAFETEA).
The EPA is approving updates to the
Oklahoma SIP incorporation by
reference provisions to maintain
consistency with Federal requirements,
which will apply statewide in
Oklahoma. Consistent with the D.C.
Circuit’s decision in ODEQ v. EPA and
with the EPA’s October 1, 2020,
2 In ODEQ v. EPA, the D.C. Circuit held that
under the CAA, a state has the authority to
implement a SIP in non-reservation areas of Indian
country in the state, where there has been no
demonstration of Tribal jurisdiction. Under the D.C.
Circuit’s decision, the CAA does not provide
authority to states to implement SIPs in Indian
reservations. ODEQ did not, however, substantively
address the separate authority in Indian country
provided specifically to Oklahoma under
SAFETEA. That separate authority was not invoked
until the State submitted its request under
SAFETEA, and was not approved until EPA’s
decision, described in this section, on October 1,
2020.
3 EPA’s prior approvals relating to Oklahoma’s
SIP frequently noted that the SIP was not approved
to apply in areas of Indian country (consistent with
the D.C. Circuit’s decision in ODEQ v. EPA) located
in the state. See, e.g., 85 FR 20178, 20180 (April 10,
2020). Such prior expressed limitations are
superseded by the EPA’s approval of Oklahoma’s
SAFETEA request.
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SAFETEA approval, our approval of
these SIP revisions will apply to all
Indian country within the State of
Oklahoma, other than the excluded
Indian country lands, as described
above. Because—per the State’s request
under SAFETEA—EPA’s October 1,
2020, approval does not displace any
SIP authority previously exercised by
the State under the CAA as interpreted
in ODEQ v. EPA, the SIP will also apply
to any Indian allotments or dependent
Indian communities located outside of
an Indian reservation over which there
has been no demonstration of Tribal
authority.4
IV. Final Action
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We are approving under section 110
of the CAA, the December 17, 2021, and
January 20, 2023, revisions to the
Oklahoma SIP to update the
incorporation by reference dates for
Federal requirements. These revisions
were developed in accordance with the
CAA and the EPA’s regulations, policy,
and guidance for SIP development.
The EPA is approving the following
revisions to the Oklahoma SIP adopted
on June 11, 2021, effective September
15, 2021, and submitted to the EPA on
December 17, 2021:
• Revisions to OAC 252:100–2–3,
Incorporation by Reference,
• Repeal of OAC 252:100, Appendix
Q, and
• Adoption of new OAC 252:100,
Appendix Q.
The EPA approves the following
revisions to the Oklahoma SIP adopted
on June 21, 2022, effective September
15, 2022, and submitted to the EPA on
January 30, 2023:
• Revisions to OAC 252:100–2–3,
Incorporation by Reference,
• Repeal of OAC 252:100. Appendix
Q, and
• Adoption of new OAC 252:100,
Appendix Q.
4 In accordance with Executive Order 13990, EPA
is currently reviewing our October 1, 2020
SAFETEA approval and expects to engage in further
discussions with Tribal governments and the State
of Oklahoma as part of this review. EPA also notes
that the October 1, 2020 approval is the subject of
a pending challenge in Federal court. (Pawnee v
Regan, No. 20–9635 (10th Cir.)). Pending
completion of EPA’s review, EPA is proceeding
with this proposed action in accordance with the
October 1, 2020 approval. EPA’s final action on the
approved revisions to the Oklahoma SIP that
include revisions to OAC 252:100–2–3 and
Appendix Q addresses the scope of the state’s
program with respect to Indian country. Although
EPA is approving these revisions before our review
of the SAFETEA approval is complete, EPA may
make further changes to the approval of Oklahoma’s
program to reflect the outcome of the SAFETEA
review.
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V. Environmental Justice Consideration
The EPA reviewed demographic data
and provided the results in our March
6, 2023, proposal. See 88 FR 13755,
13756–13757.
VI. Incorporation by Reference
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is finalizing the
incorporation by reference of the
revisions to the Oklahoma regulations
that update Oklahoma’s incorporation
by reference of certain Federal
regulations in 40 CFR parts 50, 51, and
98 identified and discussed in Section
IV of this preamble, Final Action. The
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information). Therefore, these materials
have been approved by EPA for
inclusion in the SIP, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated in the next update to
the SIP compilation.
VII. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Clean Air Act and
applicable Federal regulations. 42
U.S.C. 7410(k); 40 CFR 52.02(a). Thus,
in reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. Accordingly, this
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this 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 14094 (88 FR
21879, April 11, 2023);
• 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.);
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15033
• 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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a state program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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 Clean Air Act.
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The state air agency did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA performed an
environmental justice analysis, as is
described above in the section titled,
‘‘Environmental Justice
Considerations.’’ The analysis was done
for the purpose of providing additional
context and information about this
rulemaking to the public, not as a basis
of the action. Due to the nature of the
action being taken here, this action is
expected to have a neutral to positive
impact on the air quality of the affected
area. In addition, there is no information
in the record upon which this decision
is based inconsistent with the stated
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goal of E.O. 12898 of achieving
environmental justice for people of
color, low-income populations, and
Indigenous peoples.
This final approval of revisions to the
Oklahoma SIP that update the
incorporation by reference dates for
Federal requirements as discussed more
fully elsewhere in this document will
apply to certain areas of Indian country
as discussed in the preamble, and
therefore has tribal implications as
specified in E.O. 13175 (65 FR 67249,
November 9, 2000). However, this
action will neither impose substantial
direct compliance costs on federally
recognized Tribal governments, nor
preempt Tribal law. This action will not
impose substantial direct compliance
costs on federally recognized Tribal
governments because no actions will be
required of Tribal governments. This
action will also not preempt Tribal law
as no Oklahoma tribe implements a
regulatory program under the CAA, and
thus does not have applicable or related
Tribal laws. Consistent with the EPA
Policy on Consultation and
Coordination with Indian Tribes (May 4,
2011), the EPA has engaged with Tribal
governments that may be affected by
this action and provided information
about this action.
This action is subject to the
Congressional Review Act, and the EPA
will submit a rule report to each House
of the Congress and to the Comptroller
General of the United States. This action
is not a ‘‘major rule’’ as defined by 5
U.S.C. 804(2).
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 appropriate
circuit by April 30, 2024. Filing a
petition for reconsideration by the
Administrator of this final rule 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 may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: February 22, 2024.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the
preamble, the Environmental Protection
Agency amends 40 CFR part 52 as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart LL—Oklahoma
2. In § 52.1920, in paragraph (c), the
table titled ‘‘EPA Approved Oklahoma
Regulations’’ is amended by revising the
entries for ‘‘252:100–2–3’’ and ‘‘252:100,
Appendix Q’’ to read as follows:
■
§ 52.1920
*
Identification of plan.
*
*
(c) * * *
*
*
EPA APPROVED OKLAHOMA REGULATIONS
State citation
Title/subject
*
*
*
State
effective
date
EPA approval date
*
*
Explanation
*
*
*
*
*
*
*
*
*
*
*
*
Chapter 100 (OAC 252:100). AIR POLLUTION CONTROL
*
*
*
*
*
Subchapter 2. Incorporation by Reference
*
*
*
252:100–2–3 ........................... Incorporation by reference .....
*
*
*
*
9/15/2022
*
3/1/2024, [Insert Federal
Register citation].
*
*
Appendices for OAC 252: Chapter 100
*
*
*
252:100, Appendix Q .............. Incorporation by reference .....
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*
*
*
*
*
*
*
*
9/15/2022
*
*
3/21/2024, [Insert Federal
Register citation].
*
*
[FR Doc. 2024–04103 Filed 2–29–24; 8:45 am]
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]]>Agencies
[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Rules and Regulations]
[Pages 15031-15034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04103]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0279; FRL-10675-02-R6]
Air Plan Approval; Oklahoma; Updates to the State Implementation
Plan Incorporation by Reference Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving revisions to the
Oklahoma State Implementation Plan (SIP) submitted by the State of
Oklahoma designee on December 17, 2021, and January 20, 2023. This
action addresses the submittal of revisions to the Oklahoma SIP to
update the incorporation by reference provision of Federal requirements
under Oklahoma Administrative Code (OAC).
DATES: This rule is effective April 1, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2022-0279. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Adina Wiley, EPA Region 6 Office, Air
Permits Section, 214-665-2115, [email protected]. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
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SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our March
6, 2023, proposal (88 FR 13755). In that document we proposed to
approve revisions to the Oklahoma SIP that update the incorporation by
reference dates for Federal requirements. We received one comment on
our proposed action, addressed below.
II. Response to Comments
The commentor asserts that there is a potential inconsistency with
the portions of our proposed rulemaking discussing the Impact on Areas
of Indian Country and Environmental Justice Considerations. We address
the comment below in two parts.
Comment: In section III of our proposal (``Impact on Areas of
Indian Country'') we said, ``As requested by Oklahoma, the EPA's
approval under SAFETEA \1\ does not include Indian country lands,
including rights-of-way running through the same, that (1) qualify as
Indian allotments, the Indian titles to which have not been
extinguished, under 18 U.S.C. 1151(c).'' The commentor cites the
definition of ``Indian country'' in Title 18, ``(a) all land within the
limits of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation, (b) all
dependent Indian communities within the borders of the United States
whether within the original or subsequently acquired territory thereof,
and whether within or without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.'' The commentor
offers their interpretation of this definition, stating that ``this
statute states that all Indian reservations and areas allocated for the
Native American community are reserved for that community and under
that community's jurisdiction'' and ties this interpretation to our
proposed action, arguing that ``[t]he problem that arises in the
proposed statute, is that it leaves the issue of air quality as a
responsibility of Indian Country.''
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\1\ Safe, Accountable, Flexible, Efficient Transportation Equity
Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144,
1937 (August 10, 2005) (``SAFETEA'')
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Response: Section III of our proposed rulemaking, Impact on Areas
of Indian Country, provides the regulatory history of Oklahoma's
request and the EPA's approval to administer the State's environmental
regulatory programs in certain areas of Indian Country pursuant to
SAFETEA. The EPA's October 1, 2020, approval of the Oklahoma SAFETEA
request gives the State--not the Tribes--the authority to administer
the Oklahoma SIP within certain areas of Indian country. The State of
Oklahoma is responsible for protecting air quality in these areas.
Comment: The commentor states their concern that ``despite Indian
Country having authority over their land, they aren't given a
sufficient amount of resources to combat poor air quality, leaving them
to their own defenses. Subsequently, leaving Tribes to deal with poor
air quality and not giving them a chance to improve it. A general
recommendation I offer is to (a) add clarity to the cities, and Tribes,
that are excluded from Indian Country and will implement this statute,
(b) instead of trying to take control of Indian Country or leaving the
complete authority to Indian Country, work with the Tribes and create
statutes with their opinions and ideas in mind and have a shared
statute that everyone benefits from.''
Response: As a result of the EPA's SAFETEA approval, the State of
Oklahoma is responsible for protecting air quality in certain areas of
Indian Country and concerns about resources allocated to Tribes for
this purpose are not relevant to this rulemaking. The EPA notes,
however, that several Tribal governments within the State of Oklahoma
have Tribal air programs that are supported and encouraged by the EPA.
III. Impact on Areas of Indian Country
Following the U.S. Supreme Court decision in McGirt v Oklahoma, 140
S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested
approval under Section 10211(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public
Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to
administer in certain areas of Indian country (as defined at 18 U.S.C.
1151) the State's environmental regulatory programs that were
previously approved by the EPA for areas outside of Indian country. The
State's request excluded certain areas of Indian country further
described below. In addition, the State only sought approval to the
extent that such approval is necessary for the State to administer a
program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740
F.3d 185 (D.C. Cir. 2014).\2\
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\2\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a
state has the authority to implement a SIP in non-reservation areas
of Indian country in the state, where there has been no
demonstration of Tribal jurisdiction. Under the D.C. Circuit's
decision, the CAA does not provide authority to states to implement
SIPs in Indian reservations. ODEQ did not, however, substantively
address the separate authority in Indian country provided
specifically to Oklahoma under SAFETEA. That separate authority was
not invoked until the State submitted its request under SAFETEA, and
was not approved until EPA's decision, described in this section, on
October 1, 2020.
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On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to
administer all the State's EPA-approved environmental regulatory
programs, including the Oklahoma SIP, in the requested areas of Indian
country. As requested by Oklahoma, the EPA's approval under SAFETEA
does not include Indian country lands, including rights-of-way running
through the same, that: (1) qualify as Indian allotments, the Indian
titles to which have not been extinguished, under 18 U.S.C. 1151(c);
(2) are held in trust by the United States on behalf of an individual
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a)
acquired that fee title to such land, or an area that included such
land, in accordance with a treaty with the United States to which such
Tribe was a party, and (b) never allotted the land to a member or
citizen of the Tribe (collectively ``excluded Indian country lands'').
The EPA's approval under SAFETEA expressly provided that to the
extent EPA's prior approvals of Oklahoma's environmental programs
excluded Indian country, any such exclusions are superseded for the
geographic areas of Indian country covered by the EPA's approval of
Oklahoma's SAFETEA request.\3\ The approval also provided that future
revisions or amendments to Oklahoma's approved environmental regulatory
programs would extend to the covered areas of Indian country (without
any further need for additional requests under SAFETEA).
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\3\ EPA's prior approvals relating to Oklahoma's SIP frequently
noted that the SIP was not approved to apply in areas of Indian
country (consistent with the D.C. Circuit's decision in ODEQ v. EPA)
located in the state. See, e.g., 85 FR 20178, 20180 (April 10,
2020). Such prior expressed limitations are superseded by the EPA's
approval of Oklahoma's SAFETEA request.
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The EPA is approving updates to the Oklahoma SIP incorporation by
reference provisions to maintain consistency with Federal requirements,
which will apply statewide in Oklahoma. Consistent with the D.C.
Circuit's decision in ODEQ v. EPA and with the EPA's October 1, 2020,
[[Page 15033]]
SAFETEA approval, our approval of these SIP revisions will apply to all
Indian country within the State of Oklahoma, other than the excluded
Indian country lands, as described above. Because--per the State's
request under SAFETEA--EPA's October 1, 2020, approval does not
displace any SIP authority previously exercised by the State under the
CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any
Indian allotments or dependent Indian communities located outside of an
Indian reservation over which there has been no demonstration of Tribal
authority.\4\
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\4\ In accordance with Executive Order 13990, EPA is currently
reviewing our October 1, 2020 SAFETEA approval and expects to engage
in further discussions with Tribal governments and the State of
Oklahoma as part of this review. EPA also notes that the October 1,
2020 approval is the subject of a pending challenge in Federal
court. (Pawnee v Regan, No. 20-9635 (10th Cir.)). Pending completion
of EPA's review, EPA is proceeding with this proposed action in
accordance with the October 1, 2020 approval. EPA's final action on
the approved revisions to the Oklahoma SIP that include revisions to
OAC 252:100-2-3 and Appendix Q addresses the scope of the state's
program with respect to Indian country. Although EPA is approving
these revisions before our review of the SAFETEA approval is
complete, EPA may make further changes to the approval of Oklahoma's
program to reflect the outcome of the SAFETEA review.
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IV. Final Action
We are approving under section 110 of the CAA, the December 17,
2021, and January 20, 2023, revisions to the Oklahoma SIP to update the
incorporation by reference dates for Federal requirements. These
revisions were developed in accordance with the CAA and the EPA's
regulations, policy, and guidance for SIP development.
The EPA is approving the following revisions to the Oklahoma SIP
adopted on June 11, 2021, effective September 15, 2021, and submitted
to the EPA on December 17, 2021:
Revisions to OAC 252:100-2-3, Incorporation by Reference,
Repeal of OAC 252:100, Appendix Q, and
Adoption of new OAC 252:100, Appendix Q.
The EPA approves the following revisions to the Oklahoma SIP
adopted on June 21, 2022, effective September 15, 2022, and submitted
to the EPA on January 30, 2023:
Revisions to OAC 252:100-2-3, Incorporation by Reference,
Repeal of OAC 252:100. Appendix Q, and
Adoption of new OAC 252:100, Appendix Q.
V. Environmental Justice Consideration
The EPA reviewed demographic data and provided the results in our
March 6, 2023, proposal. See 88 FR 13755, 13756-13757.
VI. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
revisions to the Oklahoma regulations that update Oklahoma's
incorporation by reference of certain Federal regulations in 40 CFR
parts 50, 51, and 98 identified and discussed in Section IV of this
preamble, Final Action. The EPA has made, and will continue to make,
these materials generally available through www.regulations.gov (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information). Therefore, these
materials have been approved by EPA for inclusion in the SIP, have been
incorporated by reference by EPA into that plan, are fully federally
enforceable under sections 110 and 113 of the CAA as of the effective
date of the final rulemaking of EPA's approval, and will be
incorporated in the next update to the SIP compilation.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this 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 14094 (88 FR 21879, April 11, 2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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 Clean Air Act.
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The state air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA performed an environmental justice analysis, as is
described above in the section titled, ``Environmental Justice
Considerations.'' The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. Due to the nature of the action being
taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated
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goal of E.O. 12898 of achieving environmental justice for people of
color, low-income populations, and Indigenous peoples.
This final approval of revisions to the Oklahoma SIP that update
the incorporation by reference dates for Federal requirements as
discussed more fully elsewhere in this document will apply to certain
areas of Indian country as discussed in the preamble, and therefore has
tribal implications as specified in E.O. 13175 (65 FR 67249, November
9, 2000). However, this action will neither impose substantial direct
compliance costs on federally recognized Tribal governments, nor
preempt Tribal law. This action will not impose substantial direct
compliance costs on federally recognized Tribal governments because no
actions will be required of Tribal governments. This action will also
not preempt Tribal law as no Oklahoma tribe implements a regulatory
program under the CAA, and thus does not have applicable or related
Tribal laws. Consistent with the EPA Policy on Consultation and
Coordination with Indian Tribes (May 4, 2011), the EPA has engaged with
Tribal governments that may be affected by this action and provided
information about this action.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
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 appropriate circuit by April 30, 2024. Filing a petition for
reconsideration by the Administrator of this final rule 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 may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: February 22, 2024.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart LL--Oklahoma
0
2. In Sec. 52.1920, in paragraph (c), the table titled ``EPA Approved
Oklahoma Regulations'' is amended by revising the entries for
``252:100-2-3'' and ``252:100, Appendix Q'' to read as follows:
Sec. 52.1920 Identification of plan.
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(c) * * *
EPA Approved Oklahoma Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Chapter 100 (OAC 252:100). AIR POLLUTION CONTROL
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Subchapter 2. Incorporation by Reference
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252:100-2-3...................... Incorporation by 9/15/2022 3/1/2024, [Insert
reference. Federal Register
citation].
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Appendices for OAC 252: Chapter 100
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* * * * * * *
252:100, Appendix Q.............. Incorporation by 9/15/2022 3/21/2024, [Insert
reference. Federal Register
citation].
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[FR Doc. 2024-04103 Filed 2-29-24; 8:45 am]
BILLING CODE 6560-50-P
