The EPA Regional Administrator, Jared Blumenfeld signed the following final 

rule on December 18, 2012 and EPA is submitting it for publication in the 

Federal Register (FR). While we have taken steps to ensure the accuracy of 

this Internet version of the final rule, it is not the official version of 

the final rule. Please refer to the official version in a forthcoming FR 

publication appearing on the Government Printing Office’s FDsys website, 

http://fdsys.gpo.gov/fdsys/search/home.action and on Regulation.gov in Docket 

Number EPA-R09-OAR-2012-0752, http://www.regulations.gov.

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0752; FRL– ]

Determination of Attainment for the Nogales Nonattainment Area 

for the 2006 Fine Particle Standard; Arizona; Determination 

Regarding Applicability of Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule. 

SUMMARY: EPA is taking final action to determine that the 

Nogales nonattainment area in Arizona has attained the 2006 24-

hour fine particle (PM2.5) National Ambient Air Quality Standard

(NAAQS). This determination is based upon complete, qualityassured, and certified ambient air monitoring data showing that 

this area has monitored attainment of the 2006 24-hour PM2.5

NAAQS based on the 2009–2011 monitoring period. Based on the 

above determination, the requirements for this area to submit an 

attainment demonstration, together with reasonably available 

control measures (RACM), a reasonable further progress (RFP) 

plan, and contingency measures for failure to meet RFP and 

attainment deadlines are suspended for so long as the area 

continues to attain the 2006 24-hour PM2.5 NAAQS.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

2

EFFECTIVE DATE: This rule is effective on [Insert date 30 days 

from date of publication].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-

0752 for this action. Generally, documents in the docket for 

this action are available electronically at www.regulations.gov

and in hard copy at EPA Region IX, 75 Hawthorne Street, San 

Francisco, California. While all documents in the docket are 

listed at www.regulations.gov, some information may be publicly 

available only at the hard copy location (e.g., copyrighted 

material, large maps, multi-volume reports), and some may not be 

publicly available in either location (e.g., Confidential 

Business Information). To inspect the hard copy materials, 

please schedule an appointment during normal business hours with 

the contact listed in the FOR FURTHER INFORMATION CONTACT

section.

FOR FURTHER INFORMATION CONTACT: John Ungvarsky, (415) 972-3963, 

or by email at ungvarsky.john@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, wherever 

“we”, “us” or “our” are used, we mean EPA.

Table of Contents

I. Summary of Proposed Action

II. Public Comments and EPA Responses

III. EPA’s Final Action
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

3

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

On October 30, 2012 (77 FR 65656), EPA proposed to 

determine that the Nogales nonattainment area1 has attained the 

2006 24-hour NAAQS2 for fine particles (generally referring to 

particles less than or equal to 2.5 micrometers in diameter, 

PM2.5).

In our proposed rule, we explained how EPA makes an 

attainment determination for the 2006 24-hour PM2.5 NAAQS by 

reference to complete, quality-assured data gathered at a State 

and Local Air Monitoring Station(s) (SLAMS) and entered into 

EPA’s Air Quality System (AQS) database and by reference to 40 

CFR 50.13 (“National primary and secondary ambient air quality 

standards for PM2.5”) and appendix N to [40 CFR] part 50 

(“Interpretation of the National Ambient Air Quality Standards 

for PM2.5”). EPA proposed the determination of attainment for the 

Nogales area based upon a review of the monitoring network 

operated by the Arizona Department of Environmental Quality 

(ADEQ) and the data collected at the one monitoring site 

operating during the most recent complete three-year period 

(i.e., 2009 to 2011). Based on this review, EPA found that 

 

1 Covering 76.1 square miles, the Nogales PM2.5 nonattainment area is located 

within Santa Cruz County, Arizona, with the southernmost boundary of the 

nonattainment area and Santa Cruz County being the U.S./Mexico border.

2 The 2006 24-hour PM2.5 NAAQS is 35 micrograms per cubic meter (μg/m3), based 

on a 3-year average of the 98th percentile of 24-hour concentrations.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

4

complete, quality-assured and certified data for the Nogales

area showed that the 24-hour design value for the 2009-2011 

period was equal to or less than 35 μ/m3 at the monitor site. See 

the data summary table on page 65658 of the October 30, 2012 

proposed rule. We also noted that preliminary data available in 

AQS for 2012 indicates that the Nogales area continues to attain 

the NAAQS. 

In our proposed rule, based on the proposed determination 

of attainment, we also proposed to apply EPA’s Clean Data Policy 

to the 2006 PM2.5 NAAQS and thereby suspend the requirements for 

this area to submit an attainment demonstration, associated 

reasonably available control measures (RACM), a reasonable 

further progress (RFP) plan, and contingency measures for so 

long as the area continues to attain the 2006 24-hour PM2.5

NAAQS. See pages 65658-65660 of our October 30, 2012 proposed 

rule. In proposing to apply the Clean Data Policy to the 2006 

PM2.5 NAAQS, we explained how we are applying the same statutory 

interpretation with respect to the implications of clean data 

determinations that the Agency has long applied in regulations 

for the 1997 8-hour ozone and PM2.5 NAAQS and in individual 

rulemakings for the 1-hour ozone, PM10 and lead NAAQS.

Please see the October 30, 2012 proposed rule for more 

detailed information concerning the PM2.5 NAAQS, designations of 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

5

PM2.5 nonattainment areas, the regulatory basis for determining 

attainment of the NAAQS, ADEQ’s PM2.5 monitoring network, EPA’s 

review and evaluation of the data, and the rationale and 

implications for application of the Clean Data Policy to the 

2006 PM2.5 NAAQS. 

II. Public Comments and EPA Responses

EPA's proposed rule provided a 30-day public comment 

period. During this period, we received no comments.

III. EPA’s Final Action

For the reasons provided in the proposed rule and 

summarized herein, EPA is taking final action to determine that 

the Nogales nonattainment area in Arizona has attained the 2006 

24-hour PM2.5 NAAQS based on the most recent three years of 

complete, quality-assured, and certified data in AQS for 2009-

2011. Preliminary data available in AQS for 2012 show that this 

area continues to attain the standard.

EPA is also taking final action, based on the above 

determination of attainment, to suspend the requirements for the 

Nogales nonattainment area to submit an attainment demonstration 

and associated RACM, a RFP plan, contingency measures, and any 

other planning SIPs related to attainment of the 2006 PM2.5 NAAQS

for so long as the area continues to attain the 2006 PM2.5 NAAQS. 

EPA's final action is consistent and in keeping with its long-
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

6

held interpretation of CAA requirements, as well as with EPA's 

regulations for similar determinations for ozone (see 40 CFR 

51.918) and the 1997 fine particulate matter standards (see 40 

CFR 51.1004(c)).

Today’s final action does not constitute a redesignation of 

the Nogales nonattainment area to attainment for the 2006 24-

hour PM2.5 NAAQS under CAA section 107(d)(3) because we have not 

yet approved a maintenance plan for the Nogales nonattainment 

area as meeting the requirements of section 175A of the CAA or 

determined that the area has met the other CAA requirements for 

redesignation. The classification and designation status in 40 

CFR part 81 remain nonattainment for this area until such time 

as EPA determines that Arizona has met the CAA requirements for 

redesignating the Nogales nonattainment area to attainment.

If the Nogales nonattainment area continues to monitor 

attainment of the 2006 PM2.5 NAAQS, the requirements for the area 

to submit an attainment demonstration and associated RACM, a RFP 

plan, contingency measures, and any other planning requirements 

related to attainment of the 2006 PM2.5 NAAQS will remain 

suspended. If after today’s action EPA subsequently determines, 

after notice-and-comment rulemaking in the Federal Register, 

that the area has violated the 2006 PM2.5 NAAQS, the basis for 

the suspension of the attainment planning requirements for the 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

7

area would no longer exist, and the area would thereafter have 

to address such requirements. 

IV. Statutory and Executive Order Reviews

This final action makes a determination of attainment based 

on air quality and suspends certain federal requirements, and

thus, this action would not impose additional requirements 

beyond those imposed by state law. For this reason, the final 

action: 

 Is not a “significant regulatory action” subject to 

review by the Office of Management and Budget under 

Executive Order 12866 (58 FR 51735, October 4, 1993);

 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); 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

8

 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

 Does not provide EPA with the discretionary authority to 

address disproportionate human health or environmental 

effects with practical, appropriate, and legally 

permissible methods under Executive Order 12898 (59 FR 

7629, February 16, 1994). 

In addition, this final action does not have tribal 

implications as specified by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP obligations discussed herein 

do not apply to Indian Tribes, and thus this action will not 

impose substantial direct costs on tribal governments or preempt 

tribal law.

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, 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

9

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). 

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 [Insert date 60 days 

from date of publication]. 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
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

10

Environmental protection, Air pollution control, 

Incorporation by reference, Particulate matter, Nitrogen oxides, 

Sulfur oxides, Reporting and recordkeeping requirements.

_ _________________ ______________________

Dated: Jared Blumenfeld

Regional Administrator,

Region IX.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 18, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

11

Part 52, Chapter I, Title 40 of the Code of Federal Regulations 

is amended as follows: 

PART 52 – [AMENDED] 

1. The authority citation for Part 52 continues to read as 

follows: 

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

Subpart D – Arizona

2. Section 52.131 is added to read as follows: 

§52.131 Control Strategy and regulations: Fine Particle Matter.

(a) Determination of Attainment: Effective [Insert date 30 days 

from date of publication], EPA has determined that, based on 

2009 to 2011 ambient air quality data, the Nogales PM2.5

nonattainment area has attained the 2006 24-hour PM2.5 NAAQS. 

This determination suspends the requirements for this area to 

submit an attainment demonstration, associated reasonably 

available control measures, a reasonable further progress plan, 

contingency measures, and other planning SIPs related to 

attainment for as long as this area continues to attain the 2006 

24-hour PM2.5 NAAQS. If EPA determines, after notice-and-comment 

rulemaking, that this area no longer meets the 2006 PM2.5 NAAQS, 

the corresponding determination of attainment for that area 

shall be withdrawn.