3840 Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE: 

Atlantic County ............................................................. .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Burlington County ........................................................ .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Camden County ........................................................... .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Cape May County ........................................................ .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Cumberland County ..................................................... .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Gloucester County ....................................................... .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Mercer County ............................................................. .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Ocean County .............................................................. .................... Nonattainment ............... .................... Subpart 2/Moderate.2

Salem County .............................................................. .................... Nonattainment ............... .................... Subpart 2/Moderate.2

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2Attainment date extended to June 15, 2011. 

* * * * * 

[FR Doc. 2011–1260 Filed 1–20–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R03–OAR–2010–0574; FRL–9251–7] 

Approval of One-Year Extension for 

Attaining the 1997 8-Hour Ozone 

Standard for the Delaware, Maryland, 

and Pennsylvania Portions of the 

Philadelphia-Wilmington-Atlantic City 

Moderate Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is extending the 

attainment date from June 15, 2010 to 

June 15, 2011 for the Delaware, 

Maryland, and Pennsylvania portions of 

the Philadelphia-Wilmington-Atlantic 

City nonattainment area (Philadelphia 

Area), which is classified as moderate 

for the 1997 8-hour ozone national 

ambient air quality standard (NAAQS). 

This extension is based in part on air 

quality data recorded during the 2009 

ozone season. Specifically, the 

Philadelphia Area’s 4th highest daily 

8-hour monitored ozone value during 

the 2009 ozone season is 0.084 parts per 

million (ppm) or less. Accordingly, EPA 

is revising the tables concerning the 

8-hour ozone attainment dates for the 

Philadelphia Area in the States of 

Delaware and Maryland, and the 

Commonwealth of Pennsylvania (the 

States). EPA is approving the extension 

of the attainment date for the Delaware, 

Maryland, and Pennsylvania portions of 

the Philadelphia Area in accordance 

with the requirements of the Clean Air 

Act (CAA). EPA is approving the 

extension of the attainment date for the 

New Jersey portion of the Philadelphia 

Area in a separate rulemaking in this 

Federal Register. 

DATES: Effective Date: This final rule is 

effective on February 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–0574. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy for public inspection during 

normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Delaware Department of 

Natural Resources and Environmental 

Control, 89 Kings Highway, P.O. Box 

1401, Dover, Delaware 19903; the 

Maryland Department of the 

Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore, 

Maryland 21230; and the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control, P.O. Box 8468, 400 Market 

Street, Harrisburg, Pennsylvania 17105. 

FOR FURTHER INFORMATION CONTACT: 

Maria Pino, (215) 814–2181, or by 

e-mail at pino.maria@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 9, 2010 (75 FR 68736), 

EPA published a notice of proposed 

rulemaking (NPR) for the States. The 

NPR proposed approval of requests 

made by the States for a one-year 

attainment date extension for the 

Philadelphia Area. The Philadelphia 

Area, which is classified as moderate for 

the 1997 8-hour ozone NAAQS, consists 

of: Cecil County in Maryland; Bucks, 

Chester, Delaware, Montgomery and 

Philadelphia Counties in Pennsylvania; 

the entire State of Delaware; and 

Atlantic, Burlington, Camden, Cape 

May, Cumberland, Gloucester, Mercer, 

Ocean, and Salem Counties in New 

Jersey. Since this area was classified as 

a moderate ozone nonattainment area, 

the statutory ozone attainment date, as 

prescribed by section 181(a) of the CAA, 

is June 15, 2010. The States requested 

that the attainment date be extended to 

June 15, 2011. As previously stated, 

EPA is approving the extension of the 

attainment date for the New Jersey 

portion of the Philadelphia Area in a 

separate rulemaking notice in this 

Federal Register. 

Section 172(a)(2)(C) of subpart 1 of 

the CAA provides for EPA to extend the 

attainment date for an area by one year 

if the State has complied with all the 

requirements and commitments 

pertaining to the area in the applicable 

implementation plan and no more than 

a minimal number of exceedances of the 

NAAQS has occurred in the attainment 

year. Up to two one-year extensions may 

be issued for a single nonattainment 

area. Section 181(a)(5) of subpart 2 

contains a similar provision for the 

ozone NAAQS, but instead of providing 

for an extension where there has been 

a ‘‘minimal’’ number of exceedances, it 

allows an extension only if there is no 

more than one exceedance of the 

NAAQS in the year preceeding the 

extension year. However, the language 

in section 181(a)(5) reflects the form of 

the 1-hour ozone NAAQS and not the 

1997 8-hour ozone NAAQS. 40 CFR 

51.907 sets forth how sections 

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Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 3841 

172(a)(2)(C) and 181(a)(5) apply to an 

area subject to the 1997 8-hour ozone 

NAAQS. 

EPA has determined that the 

requirements for a one-year extension of 

the attainment date, as set out under 40 

CFR 51.907, have been fulfilled as 

follows: 

(1) The States have complied with all 

requirements and commitments 

pertaining to the area in the applicable 

ozone implementation plan. The 

applicable ozone implementation plans 

can be found at 40 CFR 52.420, 40 CFR 

52.1070, 40 CFR 52.2020, for the States 

of Delaware, Maryland, and 

Pennsylvania, respectively; and 

(2) the Philadelphia Area’s 4th highest 

daily 8-hour monitored value during the 

2009 ozone season is 0.084 ppm or less. 

Therefore, EPA approves the States’ 

attainment date extension requests for 

the Delaware, Maryland, and 

Pennsylvania portions of the 

Philadelphia Area. As a result, the 

charts in 40 CFR 81.308, 40 CFR 81.321, 

and 40 CFR 81.339 are being modified 

to reflect EPA’s approval of the States’ 

attainment date extension request. 

Those charts are entitled ‘‘DelawareOzone (8-Hour Standard)’’, ‘‘MarylandOzone (8-Hour Standard)’’, and 

‘‘Pennsylvania-Ozone (8-Hour 

Standard)’’, respectively. 

In the Technical Support Document 

(TSD) for this action, EPA evaluates the 

air quality monitoring data for the 

Philadelphia Area. For details, please 

refer to EPA’s TSD. Other specific 

requirements for an attainment date 

extension and the rationale for EPA’s 

proposed action are explained in the 

NPR and will not be restated here. No 

public comments were received on the 

NPR. 

II. Final Action 

EPA is approving a 1-year attainment 

date extension, from June 15, 2010 to 

June 15, 2011, for the Delaware, 

Maryland, and Pennsylvania portions of 

the Philadelphia Area, which is 

classified as moderate for the 1997 8- 

hour ozone NAAQS. 

III. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it 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). This rule also does not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000), nor 

will it 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 (64 FR 43255, 

August 10, 1999), because it merely 

determines that each of two areas has 

attained a Federal standard, and does 

not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

This rule also is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997), because it is not economically 

significant. 

This rule does not involve 

establishment of technical standards, 

and thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. As 

required by section 3 of Executive Order 

12988 (61 FR 4729, February 7, 1996), 

in issuing this rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. EPA 

has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the executive 

order. 

Executive Order (EO) 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 direct 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The rulemaking does 

not affect the level of protection 

provided to human health or the 

environment because extending the 

attainment date does not alter the 

emission reduction measures that are 

required to be implemented in the 

Philadelphia Area, which is classified as 

moderate nonattainment for the 1997 

8-hour ozone standard. See 69 FR at 

23909 (April 30 2004). Additionally, if 

the Philadelphia Area were not granted 

an extension of its attainment date, 

EPA’s recourse would be to initiate a 

reclassification of the Philadelphia Area 

from its current classification of 

moderate nonattainment to serious 

nonattainment, pursuant to section 

181(b)(2) of the CAA. Because the 

Philadelphia Area was formerly a severe 

nonattainment area under the revoked 

1-hour ozone standard (see 56 FR at 

56773, November 6, 1991), it is required 

to continue to implement severe area 

requirements pursuant to EPA’s 

interpretation of ‘‘anti-backsliding’’ 

provision of section 172(e) of the CAA. 

See 69 FR at 23973, April 30, 2004, 

South Coast Air Quality Management 

District v. EPA, 472 F.3d 882 (D.C. Cir. 

2006), modified and rehearing den., 489 

F.3d 1245 (D.C. Cir. 2007). The severe 

area requirements are more stringent 

than both the moderate and serious area 

requirements set forth in Title I, Part D, 

Subpart 2 of the CAA. Therefore, even 

if EPA were to not grant the attainment 

date extension and instead move to 

reclassify the area to serious 

nonattainment, no additional emission 

reduction measures would be required 

to be implemented in the Philadelphia 

Area through a 181(b)(2) 

reclassification. This action does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

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3842 Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 22, 2011. 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 1-year attainment date extension 

for the 1997 8-hour ozone NAAQS for 

the Delaware, Maryland, and 

Pennsylvania portions of the 

Philadelphia Area may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: January 4, 2011. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 81 is amended as follows: 

PART 81—[AMENDED] 

■ 1. The authority citation for Part 81 

continues to read as follows: 

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

■ 2. In § 81.308, the table entitled 

‘‘Delaware—Ozone (8-Hour Standard)’’ 

is revised to read as follows: 

§ 81.308 Delaware. 

* * * * * 

DELAWARE—OZONE

[8-Hour standard] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Philadelphia-Wilmington-Atlantic Ci, PA-NJ-MD-DE: 

Kent County ........................................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.2

New Castle County ............................................................. ................ Nonattainment .................. ................ Subpart 2/Moderate.2

Sussex County ................................................................... ................ Nonattainment .................. ................ Subpart 2/Moderate.2

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2Attainment date extended to June 15, 2011. 

* * * * * 

■ 3. In § 81.321, the table entitled 

‘‘Maryland—Ozone (8-Hour Standard)’’ 

is amended by revising the entry for 

Philadelphia-Wilmin-Atlantic Ci, PANJ-MD-DE (Cecil County) to read as 

follows: 

§ 81.321 Maryland. 

* * * * * 

MARYLAND—OZONE

[8-Hour standard] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Philadelphia-Wilmin-Atlantic Ci, PA-NJ-MD-DE: 

Cecil County ........................................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.4

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2Effective April 15, 2008. 

3 November 22, 2004. 

4Attainment date extended to June 15, 2011. 

* * * * * 

■ 4. In § 81.339, the table entitled 

‘‘Pennsylvania—Ozone (8-Hour 

Standard)’’ is amended by revising the 

entry for Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE (Bucks 

County, Chester County, Delaware 

County, Montgomery County, 

Philadelphia County) to read as follows: 

§ 81.339 Pennsylvania. 

* * * * * 

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Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 3843 

PENNSYLVANIA—OZONE

[8-Hour standard] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE: 

Bucks County ...................................................................... ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Chester County ................................................................... ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Delaware County ................................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Montgomery County ............................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Philadelphia County ............................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2 November 22, 2004. 

3Attainment date extended to June 15, 2011. 

* * * * * 

[FR Doc. 2011–1262 Filed 1–20–11; 8:45 am] 

BILLING CODE 6560–50–P 

COUNCIL ON ENVIRONMENTAL 

QUALITY 

40 CFR Parts 1500, 1501, 1502, 1505, 

1506, 1507, and 1508 

Final Guidance for Federal 

Departments and Agencies on the 

Appropriate Use of Mitigation and 

Monitoring and Clarifying the 

Appropriate Use of Mitigated Findings 

of No Significant Impact 

AGENCY: Council on Environmental 

Quality. 

ACTION: Notice of availability. 

SUMMARY: The Council on 

Environmental Quality (CEQ) is issuing 

its final guidance for Federal 

departments and agencies on the 

appropriate use of mitigation in 

Environmental Assessments (EAs) and 

Environmental Impact Statements (EISs) 

under the National Environmental 

Policy Act (NEPA). The guidance was 

developed to modernize, reinvigorate, 

and facilitate and increase the 

transparency of NEPA implementation. 

This guidance outlines principles 

Federal agencies should apply in the 

development of their NEPA 

implementing regulations and 

procedures to guide their consideration 

of measures to mitigate adverse 

environmental impacts in EAs and EISs; 

their commitments to carry out 

mitigation made in related decision 

documents, such as the Record of 

Decision; the implementation of 

mitigation; and the monitoring of 

mitigation outcomes during and after 

implementation. This guidance also 

outlines principles agencies should 

apply to provide for public participation 

and accountability in the development 

and implementation of mitigation and 

monitoring efforts that are described in 

their NEPA documentation. Mitigation 

commitments should be explicitly 

described as ongoing commitments and 

should specify measurable performance 

standards and adequate mechanisms for 

implementation, monitoring, and 

reporting. 

In addition, this guidance affirms the 

appropriateness of what is traditionally 

referred to as a ‘‘mitigated Finding of No 

Significant Impact.’’ Mitigated Findings 

of No Significant Impact (FONSIs) can 

result when an agency concludes its 

NEPA review with an EA that is based 

on a commitment to mitigate significant 

environmental impacts, so that a more 

detailed EIS is not required. As 

explained in this guidance, an agency 

does not have to prepare an EIS when 

the environmental impacts of a 

proposed action can be mitigated to a 

level where the agency can make a 

FONSI determination, provided that the 

agency or a project applicant commits to 

carry out the mitigation, and establishes 

a mechanism for ensuring the mitigation 

is carried out. When a FONSI depends 

on successful mitigation, the requisite 

mitigation commitments should be 

made public. 

DATES: The guidance is effective January 

21, 2011. 

FOR FURTHER INFORMATION CONTACT: The 

Council on Environmental Quality 

(ATTN: Horst Greczmiel, Associate 

Director for National Environmental 

Policy Act Oversight), 722 Jackson 

Place, NW., Washington, DC 20503. 

Telephone: (202) 395–5750. 

SUPPLEMENTARY INFORMATION: This 

guidance applies to Federal agencies in 

accordance with sections 1507.2 and 

1507.3 of the CEQ Regulations 

Implementing the Procedural Provisions 

of the National Environmental Policy 

Act, 40 CFR Parts 1500–1508. The 

National Environmental Policy Act 

(NEPA), 42 U.S.C. 4321–4370, enacted 

in 1970, is a fundamental tool used to 

harmonize our environmental, 

economic, and social aspirations and is 

a cornerstone of our Nation’s efforts to 

protect the environment. NEPA 

recognizes that many Federal activities 

affect the environment and mandates 

that Federal agencies consider the 

environmental impacts of their 

proposed actions before deciding to 

adopt proposals and take action. 

Additionally, NEPA emphasizes public 

involvement in government actions 

affecting the environment by requiring 

that the benefits and risks associated 

with proposed actions be assessed and 

publicly disclosed. 

The Council on Environmental 

Quality (CEQ) is charged with 

overseeing NEPA’s implementation by 

Federal agencies. CEQ recognizes that 

NEPA is a visionary and versatile law 

that can be used effectively to address 

new environmental challenges facing 

our nation and also to engage the public 

widely and effectively. Furthermore, 

CEQ recognizes that successful NEPA 

implementation requires agencies to 

make information accessible to the 

public to strengthen citizen involvement 

in government decisionmaking. This 

guidance is designed to facilitate agency 

compliance with NEPA, by clarifying 

the commitments agency 

decisionmakers may decide to make 

when complying with NEPA, and 

ensuring that information about those 

commitments is accurate and made 

available to the public. 

On February 18, 2010, CEQ 

announced the issuance of three 

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