44920 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Rules and Regulations 

(iii) The applicable further provisions 

of this section and §§ 3.1601 through 

3.1610. 

(2) For claims filed before December 

16, 2003: 

* * * * * 

■ 16. Amend § 3.1604 by: 

■ a. Revising the authority citation at 

the end of paragraph (c). 

■ b. Revising paragraph (d)(1)(i). 

■ c. Adding paragraph (d)(5) following 

the authority citation at the end of 

paragraph (d)(4). 

The revisions and addition read as 

follows: 

§ 3.1604 Payment from non-Department of 

Veterans Affairs sources. 

* * * * * 

(c) * * * 

(Authority: 38 U.S.C. 2303(b)(1)). 

(d) * * * 

(1) * * * 

(i) The plot or interment allowance is 

payable based on the deceased veteran’s 

eligibility for burial in a national 

cemetery (or, in claims filed prior to 

December 16, 2003, the deceased 

veteran’s service). See § 38.620 of this 

chapter. 

* * * * * 

(5) A plot or interment allowance may 

be paid to a state in addition to a burial 

allowance under § 3.1600(a) for claims 

filed on or after December 16, 2003. 

[FR Doc. E6–12787 Filed 8–7–06; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R09–OAR–2006–AZ–0388; FRL–8206–

4] 

Approval and Promulgation of 

Implementation Plans; Designation of 

Areas for Air Quality Planning 

Purposes; State of Arizona; Finding of 

Attainment for Rillito Particulate Matter 

of 10 Microns or Less (PM10) 

Nonattainment Area; Determination 

Regarding Applicability of Certain 

Clean Air Act Requirements; 

Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to determine that the Rillito 

moderate PM10 nonattainment area in 

Arizona attained the National Ambient 

Air Quality Standards for particulate 

matter with an aerodynamic diameter 

less than or equal to a nominal 10 

micrometers (PM10) by the applicable 

attainment date. EPA also finds that the 

Rillito area is currently attaining the 

PM10 standards, and based on this latter 

finding, EPA is determining that certain 

Clean Air Act requirements are not 

applicable for so long as the Rillito area 

continues to attain the PM10 standards. 

Lastly, EPA is correcting an error in a 

previous rulemaking that involved the 

classification of PM10 nonattainment 

areas within the State of Arizona. 

DATES: This rule is effective on October 

10, 2006, without further notice, unless 

EPA receives adverse comments by 

September 7, 2006. If adverse comment 

is received, EPA will publish a timely 

withdrawal of the direct final rule in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09–

OAR–2006–AZ–0388 by one of the 

following methods: 

• Federal eRulemaking portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• E-mail: tax.wienke@epa.gov. 

• Fax: (415) 947–3579 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Wienke Tax, Office of Air 

Planning, Environmental Protection 

Agency (EPA), Region 9, Mailcode AIR–

2, 75 Hawthorne Street, San Francisco, 

California 94105–3901. 

• Hand Delivery: Wienke Tax, Office 

of Air Planning, Environmental 

Protection Agency (EPA), Region 9, 

Mailcode AIR–2, 75 Hawthorne Street, 

San Francisco, California 94105–3901. 

Such deliveries are only accepted 

Monday through Friday, 8 a.m. to 4:55 

p.m., excluding Federal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R09–OAR–2006–

AZ–0388. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA, without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Office of Air Planning, 

Environmental Protection Agency 

(EPA), Region 9, Mailcode AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901. EPA requests 

that if at all possible, you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Office of Air Planning, 

Environmental Protection Agency 

(EPA), Region 9, Mailcode AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901, (520) 622–1622, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

Table of Contents 

I. Background 

A. What National Ambient Air Quality 

Standards (NAAQS) Are Considered In 

Today’s Finding? 

B. What Is The Designation and 

Classification of This PM10

Nonattainment Area? 


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1Arizona submitted a moderate area PM10 plan 

for the Rillito area on November 14, 1991. EPA 

found this plan to be incomplete by letter dated 

May 14, 1992. On April 22, 1994, ADEQ submitted 

a revised PM10 plan for Rillito, and EPA found it 

to be complete by letter dated August 18, 1994. EPA 

has not taken action on this 1994 PM10 plan. 

2 In a 1996 rulemaking (61 FR 21372, May 10, 

1996) in which we found that the Phoenix Planning 

Area had not attained the PM10 NAAQS by the 

applicable attainment date for moderate PM10

nonattainment areas and thus reclassified the area 

as ‘‘serious’’, we inadvertently introduced an error 

into the ‘‘Arizona—PM–10’’ table in 40 CFR 81.303 

by moving the entry for the Rillito planning area 

from Pima County to Santa Cruz County. We are 

correcting this error in today’s notice under CAA 

section 110(k)(6). 

C. How Do We Make Attainment 

Determinations? 

II. What Is The Basis for EPA’s Determination 

That the Rillito Area Has Attained The 

PM10 NAAQS? 

III. What Are the Applicable Planning 

Requirements For the Rillito Area as a 

Result of EPA’s Attainment 

Determination? 

IV. EPA’s Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. What National Ambient Air Quality 

Standards (NAAQS) Are Considered In 

Today’s Finding? 

National Ambient Air Quality 

Standards (NAAQS) are safety 

thresholds for certain ambient air 

pollutants set by EPA to protect public 

health and welfare. Particulate matter 

with an aerodynamic diameter of less 

than or equal to 10 micrometers, or 

PM10, is the subject of this action. PM10

is among the ambient air pollutants for 

which EPA has established health-based 

standards. 

PM10 causes adverse health effects by 

penetrating deep in the lungs, 

aggravating the cardiopulmonary 

system. Children, the elderly, and 

people with asthma and heart 

conditions are the most vulnerable. 

On July 1, 1987 (52 FR 24634), EPA 

revised the NAAQS for particulate 

matter with an indicator that includes 

only those particles with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers. See 40 

CFR 50.6. The 24-hour primary PM10

standard is 150 micrograms per cubic 

meter (μg/m3) with no more than one 

expected exceedance per year. The 

annual primary PM10 standard is 50 μg/ 

m3 as an annual arithmetic mean. The 

secondary PM10 standards, promulgated 

to protect against adverse welfare 

effects, are identical to the primary 

standards. 

B. What Is the Designation and 

Classification of This PM10

Nonattainment Area? 

Upon enactment of the 1990 Clean Air 

Act Amendments (CAA or the Act), 

PM10 areas meeting the requirements of 

either (i) or (ii) of section 107(d)(4)(B) of 

the Act were designated nonattainment 

for PM10 by operation of law and 

classified ‘‘moderate.’’ These areas 

included all former Group I PM10

planning areas identified in 52 FR 

29383 (August 7, 1987) and further 

clarified in 55 FR 45799 (October 31, 

1990), and any other areas violating the 

NAAQS for PM10 prior to January 1, 

1989 (many of these areas were 

identified by footnote 4 in the October 

31, 1990 Federal Register document). A 

Federal Register notice announcing the 

areas designated nonattainment for 

PM10 upon enactment of the 1990 Act 

Amendments, known as ‘‘initial’’ PM10

nonattainment areas, was published on 

March 15, 1991 (56 FR 11101). A 

subsequent Federal Register document 

correcting some of these areas was 

published on August 8, 1991 (56 FR 

37654). These nonattainment 

designations and moderate area 

classifications were codified in 40 CFR 

part 81 in a Federal Register document 

published on November 6, 1991 (56 FR 

56694). All other areas in the nation not 

designated nonattainment at enactment 

were designated unclassifiable (see 

section 107(d)(4)(B)(iii) of the Act). 

The Rillito planning area was among 

the areas listed by EPA as a Group I area 

(see 52 FR 29383, August 7, 1987) and 

was designated nonattainment for PM10

by operation of law and classified 

‘‘moderate.’’ In accordance with section 

189(a)(2) of the CAA, Arizona was to 

submit a state implementation plan 

(SIP) by November 15, 1991 

demonstrating attainment of the PM10

standards by December 31, 1994 for the 

Rillito area.1

C. How Do We Make Attainment 

Determinations? 

Pursuant to sections 179(c)(1) and 

188(b)(2) of the Act, we have the 

responsibility of determining within six 

months of the applicable attainment 

date whether, based on air quality data, 

PM10 nonattainment areas attained the 

NAAQS by that date. The ‘‘applicable 

attainment date’’ is December 31, 1994 

for areas, such as Rillito, that were 

designated as ‘‘moderate’’

nonattainment for PM10 by operation of 

law under the 1990 Amended Act. 

Determinations under section 179(c)(1) 

of the Act are to be based upon an area’s 

‘‘air quality as of the attainment date.’’

Section 188(b)(2) is consistent with this 

requirement. 

Generally, we will determine whether 

an area’s air quality meets the PM10

NAAQS for purposes of section 

179(c)(1) and 188(b)(2) based upon data 

gathered at established state and local 

air monitoring stations (SLAMS) and 

national air monitoring stations (NAMS) 

in the nonattainment area and entered 

into EPA’s Air Quality System (AQS) 

database. Data entered into the AQS 

have been determined to meet federal 

monitoring requirements (see 40 CFR 

50.6; 40 CFR part 50, appendix J; 40 

CFR part 53; 40 CFR part 58, appendices 

A and B) and may be used to determine 

the attainment status of areas. We will 

also consider air quality data from other 

air monitoring stations in the 

nonattainment area provided that the 

stations meet the federal monitoring 

requirements for SLAMS. All data are 

reviewed to determine the area’s air 

quality status in accordance with our 

guidance at 40 CFR part 50, appendix K. 

Attainment of the annual PM10

standard is achieved when the annual 

arithmetic mean PM10 concentration 

over a three-year period is equal to or 

less than 50 μg/m3. Attainment of the 

24-hour standard is determined by 

calculating the expected number of days 

in a year with PM10 concentrations 

greater than 150 μg/m3. The 24-hour 

standard is attained when the expected 

number of days with levels above 150 

μg/m3 (averaged over a three-year 

period) is less than or equal to one. 

Three consecutive years of air quality 

data are necessary to show attainment of 

the 24-hour and annual standards for 

PM10. See 40 CFR part 50, appendix K. 

A complete year of air quality data, as 

referred to in 40 CFR part 50, appendix 

K, is composed of all four calendar 

quarters with each quarter containing 

data from at least 75 percent of the 

scheduled sampling days. 

II. What Is the Basis for EPA’s 

Determination That the Rillito Area 

Has Attained the PM10 NAAQS? 

The Rillito PM10 nonattainment area 

is located in north central Pima County, 

just northwest of the Tucson 

metropolitan area in southern Arizona.2

The nonattainment area encompasses 

the following nine townships: T11S, 

R9E through R12E; and T12S, R8E 

through R12E. The incorporated Town 

of Marana with a population of 

approximately 8,000 is located within 

the nonattainment area. A smaller 

community, the unincorporated town of 

Rillito, is located in the portion of the 

nonattainment area historically 

associated with maximum ambient PM10

concentrations. The land use around 

Rillito is predominantly agricultural. 

The only major (i.e., greater than 100 

tons per year) stationary point source of 

air pollution in the nonattainment area 


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3 ‘‘General Preamble for the Implementation of 

Title I of the Clean Air Act Amendments of 1990’’

(57 FR 13498, April 16, 1992, as supplemented 57 

FR 18070, April 28, 1992). 

is an Arizona Portland Cement (APC) 

plant. APC is permitted by ADEQ. Most 

of the other stationary sources are sand 

and gravel operations mining the 

alluvial deposits of the Santa Cruz River 

basin. The area in and around the 

nonattainment area is expected to 

change from rural agricultural to 

residential because it will absorb 

residential development from the 

Tucson metropolitan area. 

The Rillito PM10 nonattainment area 

has one SLAMS monitor operated by the 

Arizona Department of Environmental 

Quality (ADEQ). Located at 8820 West 

Water Street within the community of 

Rillito, this monitor is approximately 

0.5 miles northwest of the Arizona 

Portland Cement plant. This monitor 

was selected by ADEQ to represent 

maximum PM10 concentration in the 

area to which the public is exposed. 

Table 1 summarizes the one-in-six day 

PM10 data collected there from 1988–

2005. 

TABLE 1.—SUMMARY OF 24 HOUR AND ANNUAL PM10 CONCENTRATIONS (μG/M3) FOR RILLITO, 1988–2005 

Year 

PM10 Concentrations 

Maximum 24- 

hour concentration Annual average 3-year annual 

average 

1988 ................................................................................................................................. 163 *69.2 NA 

1989 ................................................................................................................................. 170 *83.3 NA 

1990 ................................................................................................................................. 94 *39.0 *63.8 

1991 ................................................................................................................................. 133 37.1 *53.1 

1992 ................................................................................................................................. 96 33.6 * 36.6 

1993 ................................................................................................................................. 68 27.6 32.8 

1994 ................................................................................................................................. 63 28.3 29.8 

1995 ................................................................................................................................. 91 36.2 30.7 

1996 ................................................................................................................................. 84 38.3 34.3 

1997 ................................................................................................................................. 129 41.9 38.8 

1998 ................................................................................................................................. 81 32.4 37.5 

1999 ................................................................................................................................. 102 37.8 37.4 

2000 ................................................................................................................................. 129 * 42.1 * 37.4 

2001 ................................................................................................................................. 89 33.6 * 37.8 

2002 ................................................................................................................................. 70 37.1 * 37.6 

2003 ................................................................................................................................. 118 39.5 36.7 

2004 ................................................................................................................................. 93 32.2 36.3 

2005 ................................................................................................................................. 84 39.1 36.9 

* Indicates that the mean does not satisfy criteria for a complete data set. 

*Values shown in bold text represent exceedances of the applicable standard. 

As noted above, the 24-hour PM10

standard is attained when the expected 

number of days with levels above 150 

μg/m3 (averaged over a three-year 

period) is less than or equal to one. 

Based on the data summarized in table 

1, above, we find no exceedances of the 

24-hour PM10 standard for the 1992–

1994 period and thus the expected 

number of days with levels above 150 

μg/m3 (averaged over that three-year 

period) is zero. As such, we find that 

Rillito attained the 24-hour PM10

NAAQS by the applicable attainment 

date (1994). Furthermore, since 1994, no 

exceedances of the 24-hour PM10

standard have been recorded at the 

Rillito monitoring station and thus, we 

find that the area has continued to 

attain, and is currently attaining, the 24- 

hour standard. 

Also as noted above, attainment of the 

annual PM10 standard is achieved when 

the annual arithmetic mean PM10

concentration over a three-year period is 

equal to or less than 50 μg/m3. Review 

of the data for calendar years 1992–1994 

reveals an arithmetic average of 29.8 μg/ 

m3. As such, we find that Rillito 

attained the annual PM10 standard by 

the applicable attainment date (1994). 

Since 1994, there have been no 

exceedances of the annual PM10

standard, and thus, we find that the area 

has continued to attain, and is currently 

attaining, the annual standard. 

III. What Are The Applicable Planning 

Requirements For The Rillito Area As 

A Result Of EPA’s Attainment 

Determination? 

The air quality planning requirements 

for moderate PM10 nonattainment areas, 

such as the Rillito nonattainment area, 

are set out in part D, subparts 1 and 4 

of title I of the Act. We have issued 

guidance in a General Preamble 3

describing how we will review SIPs and 

SIP revisions submitted under title I of 

the Act, including those containing 

moderate PM10 nonattainment area SIP 

provisions. 

In some designated nonattainment 

areas, monitored data demonstrates that 

the NAAQS has already been achieved. 

Based on its interpretation of the Act, 

EPA has determined that certain 

requirements of part D, subparts 1 and 

2 (of title I) of the Act do not apply and 

therefore do not require certain 

submissions for an area that has attained 

the NAAQS. These include reasonable 

further progress (RFP) requirements, 

attainment demonstrations and 

contingency measures, because these 

provisions have the purpose of helping 

achieve attainment of the NAAQS. 

EPA’s Clean Data Policy is the subject 

of two memoranda setting forth our 

interpretation of the provisions of the 

Act as they apply to areas that have 

attained the relevant NAAQS. EPA also 

finalized the statutory interpretation set 

forth in the policy in a final rule, 40 

CFR 51.918, as part of its ‘‘Final Rule to 

Implement the 8-hour Ozone National 

Ambient Air Quality Standard—Phase 

2’’ (Phase 2 Final Rule). See discussion 

in the preamble to the rule at 70 FR 

71645–71646 (November 29, 2005). EPA 

believes that the legal bases set forth in 

detail in our Phase 2 Final Rule; our 

May 10, 1995 memorandum from John 

S. Seitz, entitled ‘‘Reasonable Further 

Progress, Attainment Demonstration, 

and Related Requirements for Ozone 

Nonattainment Areas Meeting the 

Ozone National Ambient Air Quality 

Standard’’ (Seitz memo); and our 


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4Thus we believe that it is a distinction without 

a difference that section 189(c)(1) speaks of the RFP 

requirement as one to be achieved until an area is 

‘‘redesignated attainment’’, as opposed to section 

172(c)(2), which is silent on the period to which the 

requirement pertains, or the ozone nonattainment 

area RFP requirements in sections 182(b)(1) or 182 

(c)(2), which refer to the RFP requirements as 

applying until the ‘‘attainment date’’, since, section 

189(c)(1) defines RFP by reference to section 171(1) 

of the Act. Reference to section 171(1) clarifies that, 

as with the general RFP requirements in section 

172(c)(2) and the ozone-specific requirements of 

section 182(b)(1) and 182(c)(2), the PM-specific 

requirements may only be required ‘‘for the purpose 

of ensuring attainment of the applicable national 

ambient air quality standard by the applicable 

date.’’ 42 U.S.C. section 7501(1). As discussed in 

the text of this rulemaking, EPA interprets the RFP 

requirements, in light of the definition of RFP in 

section 171(1), and incorporated in section 

189(c)(1), to be a requirement that no longer applies 

once the standard has been attained. 

December 14, 2004 memorandum from 

Stephen D. Page entitled ‘‘Clean Data 

Policy for the Fine Particle National 

Ambient Air Quality Standards’’ (Page 

memo) are equally pertinent to the 

interpretation of provisions of subparts 

1 and 4 applicable to PM10. EPA’s 

interpretation of how the provisions of 

the Act apply to areas with ‘‘clean data’’

is not logically limited to ozone and 

PM2.5, because the rationale is not 

dependent upon the type of pollutant. 

Our interpretation that an area that is 

attaining the standard is relieved of 

obligations to demonstrate RFP and to 

provide an attainment demonstration 

and contingency measures pursuant to 

part D of the CAA, pertains whether the 

standard is PM10, ozone, or PM2.5. 

The reasons for relieving an area that 

has attained the relevant standard of 

certain part D, subparts 1 and 2 

obligations, applies equally to part D, 

subpart 4, which contains specific 

attainment demonstration and RFP 

provisions for PM10 nonattainment 

areas. As we have explained in the 

Phase 2 Final Rule and our ozone and 

PM2.5 clean data memoranda, EPA 

believes it is reasonable to interpret 

provisions regarding RFP and 

attainment demonstrations, along with 

related requirements, so as not to 

require SIP submissions if an area 

subject to those requirements is already 

attaining the NAAQS (i.e., attainment of 

the NAAQS is demonstrated with three 

consecutive years of complete, qualityassured air quality monitoring data). 

Three U.S. Circuit Courts of Appeals 

have upheld EPA rulemakings applying 

its interpretation of subparts 1 and 2 

with respect to ozone. Sierra Club v. 

EPA, 99 F.3d 1551 (10th Cir. 1996); 

Sierra Club v. EPA, 375 F.3d 537 (7th 

Cir. 2004); Our Children’s Earth 

Foundation v. EPA, No. 04–73032 (9th 

Cir. June 28, 2005)(memorandum 

opinion). It has been EPA’s longstanding 

interpretation that the general 

provisions of part D, subpart 1 of the 

Act (sections 171 and 172) do not 

require the submission of SIP revisions 

concerning RFP for areas already 

attaining the ozone NAAQS. In the 

General Preamble, we stated: 

[R]equirements for RFP will not apply in 

evaluating a request for redesignation to 

attainment since, at a minimum, the air 

quality data for the area must show that the 

area has already attained. Showing that the 

State will make RFP towards attainment will, 

therefore, have no meaning at that point. 57 

FR at 13564. 

EPA believes the same reasoning applies 

to the PM10 provisions of part D, subpart 

4. 

With respect to RFP, section 171(1) 

states that, for purposes of part D of title 

I, RFP ‘‘means such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

or may reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

NAAQS by the applicable date.’’ Thus, 

whether dealing with the general RFP 

requirement of section 172(c)(2), the 

ozone-specific RFP requirements of 

sections 182(b) and (c), or the specific 

RFP requirements for PM10 areas of part 

D, subpart 4, section 189(c)(1), the 

stated purpose of RFP is to ensure 

attainment by the applicable attainment 

date. Section 189(c)(1) states that: 

Plan revisions demonstrating attainment 

submitted to the Administrator for approval 

under this subpart shall contain quantitative 

milestones which are to be achieved every 3 

years until the area is redesignated 

attainment and which demonstrate 

reasonable further progress, as defined in 

section 7501(1) of this title, toward 

attainment by the applicable date. 

Although this section states that 

revisions shall contain milestones 

which are to be achieved until the area 

is redesignated to attainment, such 

milestones are designed to show 

reasonable further progress ‘‘toward 

attainment by the applicable attainment 

date’’, as defined by section 171. Thus, 

it is clear that once the area has attained 

the standard, no further milestones are 

necessary or meaningful. This 

interpretation is supported by language 

in section 189(c)(3), which mandates 

that a state that fails to achieve a 

milestone must submit a plan that 

assures that the state will achieve the 

next milestone or attain the NAAQS if 

there is no next milestone. Section 

189(c)(3) assumes that the requirement 

to submit and achieve milestones does 

not continue after attainment of the 

NAAQS. 

If an area has in fact attained the 

standard, the stated purpose of the RFP 

requirement will have already been 

fulfilled.4 EPA took this position with 

respect to the general RFP requirement 

of section 172(c)(2) in the April 16, 1992 

General Preamble and also in the May 

10, 1995 memorandum with respect to 

the requirements of sections 182(b) and 

(c). We are extending that interpretation 

to the specific provisions of part D, 

subpart 4. In the General Preamble, we 

stated, in the context of a discussion of 

the requirements applicable to the 

evaluation of requests to redesignate 

nonattainment areas to attainment, that 

the ‘‘requirements for RFP will not 

apply in evaluating a request for 

redesignation to attainment since, at a 

minimum, the air quality data for the 

area must show that the area has already 

attained. Showing that the State will 

make RFP towards attainment will, 

therefore, have no meaning at that 

point.’’ (57 FR 13564). See also our 

September 4, 1992 memorandum from 

John Calcagni, entitled ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment’’ (Calcagni memo), 

p. 6. 

With respect to the attainment 

demonstration requirements of section 

189(a)(1)(B), an analogous rationale 

leads to the same result. Section 

189(a)(1)(B) requires that the plan 

provide for ‘‘a demonstration (including 

air quality modeling) that the [SIP] will 

provide for attainment by the applicable 

attainment date. * * *’’ As with the 

RFP requirements, if an area is already 

monitoring attainment of the standard, 

EPA believes there is no need for an 

area to make a further submission 

containing additional measures to 

achieve attainment. This is also 

consistent with the interpretation of the 

section 172(c) requirements provided by 

EPA in the General Preamble, the Page 

memo, and the section 182(b) and (c) 

requirements set forth in the Seitz 

memo. As EPA stated in the General 

Preamble, no other measures to provide 

for attainment would be needed by areas 

seeking redesignation to attainment 

since ‘‘attainment will have been 

reached.’’ (57 FR at 13564). 

Other SIP submission requirements 

are linked with these attainment 

demonstration and RFP requirements, 

and similar reasoning applies to them. 

These requirements include the 

contingency measure requirements of 

sections 172(c)(9) and 182(c)(9). We 

have interpreted the contingency 

measure requirements of sections 

172(c)(9) and 182(c)(9) as no longer 

applying when an area has attained the 

standard because those ‘‘contingency 

measures are directed at ensuring RFP 


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44924 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Rules and Regulations 

5The EPA’s interpretation that the statute only 

requires implementation of RACM measures that 

would advance attainment was upheld by the 

United States Court of Appeals for the Fifth Circuit 

(Sierra Club v. EPA, 314 F.3d 735, 743–745 (5th Cir. 

2002), and by the United States Court of Appeals 

for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 

155, 162–163 (D.C. Cir. 2002)). 

6 In prior rulemakings involving the Clean Data 

Policy and PM10, EPA has applied criteria in 

addition to that of attainment of the standard. See, 

e.g., 67 FR 43020 (June 26, 2002). EPA does not 

believe that those additional criteria are required by 

statute or are necessary for application of the policy 

for PM10 areas, and does not employ them in 

applying the policy to ozone and PM2.5 areas. EPA 

intends to make its application of the policy 

consistent for ozone, PM10, and PM2.5, and does not 

intend to require an area to meet additional criteria 

for PM10. 

7Note, however, that on January 17, 2006, EPA 

published proposed revisions to the NAAQS for 

particulate matter. See http://www.epa.gov/fedrgstr/ 

EPA-AIR/2006/January/Day-17/. The proposed 

revisions address two categories of particulate 

matter: fine particles which are particles 2.5 

micrometers in diameter and smaller; and 

‘‘inhalable coarse’’ particles which are particles 

between 2.5 and 10 micrometers (PM10–2.5). Upon 

finalization of a primary 24-hour standard for 

PM10–2.5, EPA proposes to revoke the current 24- 

hour PM10 standard in all areas of the country 

except in areas where there is at least one monitor 

located in an urbanized area (as defined by the U.S. 

Bureau of the Census) with a minimum population 

of 100,000 that violates the current 24-hour PM10

standard based on the most recent three years of 

data. In addition, EPA proposes to revoke the 

current annual PM10 standard upon finalization of 

a primary 24-hour standard for PM10–2.5.

and attainment by the applicable date.’’

(57 FR at 13564); Seitz memo, pp. 5–6. 

Both sections 172(c)(1) and 

189(a)(1)(C) require ‘‘provisions to 

assure that reasonably available control 

measures’’ (i.e., RACM) are 

implemented in a nonattainment area. 

The General Preamble, 57 FR at 13560 

(April 16, 1992), states that EPA 

interprets section 172(c)(1) so that 

RACM requirements are a ‘‘component’’

of an area’s attainment demonstration. 

Thus, for the same reason the 

attainment demonstration no longer 

applies by its own terms, the 

requirement for RACM no longer 

applies. EPA has consistently 

interpreted this provision to require 

only implementation of potential RACM 

measures that could contribute to 

reasonable further progress or to 

attainment. General Preamble, 57 FR at 

13498. Thus, where an area is already 

attaining the standard, no additional 

RACM measures are required.5 EPA is 

interpreting section 189(a)(1)(C) 

consistent with its interpretation of 

section 172(c)(1). 

Here, as in both our Phase 2 Final 

Rule and ozone and PM2.5 clean data 

memoranda, we emphasize that the 

suspension of a requirement to submit 

SIP revisions concerning these RFP, 

attainment demonstration, RACM, and 

other related requirements exists only 

for as long as a nonattainment area 

continues to monitor attainment of the 

standard. If such an area experiences a 

violation of the NAAQS, the basis for 

the requirements being suspended 

would no longer exist. Therefore, the 

area would again be subject to a 

requirement to submit the pertinent SIP 

revision or revisions and would need to 

address those requirements. Thus, a 

determination that an area need not 

submit one of the SIP submittals 

amounts to no more than a suspension 

of the requirements for so long as the 

area continues to attain the standard. 

However, once EPA ultimately 

redesignates the area to attainment, the 

area will be entirely relieved of these 

requirements to the extent the 

maintenance plan for the area does not 

rely on them. 

Therefore, we believe that, for the 

reasons set forth here and established in 

our prior ‘‘clean data’’ memoranda and 

rulemakings, a PM10 nonattainment area 

that has ‘‘clean data,’’ should be 

relieved of the part D, subpart 4 

obligations to provide an attainment 

demonstration pursuant to section 

189(a)(1)(B), the RACM provisions of 

section 189(a)(1)(C), and the RFP 

provisions established by section 

189(c)(1) of the Act, as well as the 

aforementioned attainment 

demonstration, RACM, RFP and 

contingency measure provisions of part 

D, subpart 1 contained in section 172 of 

the Act.6

Should EPA at some future time 

determine that an area that had clean 

data, but which has not yet been 

redesignated as attainment for a 

NAAQS, has violated the relevant 

standard, the area would again be 

required to submit the pertinent 

requirements under the SIP for the area. 

Attainment determinations under the 

policy do not shield an area from other 

required actions, such as provisions to 

address pollution transport. 

As set forth above, EPA finds that 

because the Rillito area has continued to 

attain the NAAQS, the requirement of 

an attainment demonstration, 

reasonable further progress, reasonably 

available control measures and 

contingency measures no longer applies 

for so long as the area continues to 

monitor attainment of the PM10 NAAQS. 

If measurements of ambient PM10

concentration in the Rillito area reveal 

a violation of the PM10 NAAQS, then 

the State of Arizona would again be 

required to submit the pertinent CAA 

requirements for this nonattainment 

area.7

IV. EPA’s Final Action 

Based on quality-assured data meeting 

the requirements of 40 CFR part 50, 

appendix K, we find that the Rillito, 

Arizona nonattainment area attained the 

PM10 NAAQS by the applicable 

attainment date (1994) and is currently 

attaining the standard. This action is not 

a redesignation to attainment under 

CAA section 107(d)(3) because we have 

not yet approved a maintenance plan 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 will remain moderate 

nonattainment for this area until such 

time as Arizona meets the CAA 

requirements for redesignation of the 

Rillito area to attainment. See footnote 

7. 

EPA also finds that, because the 

Rillito area has continued to attain the 

NAAQS, the following CAA 

requirements no longer apply: The part 

D, subpart 4 obligations to provide an 

attainment demonstration pursuant to 

section 189(a)(1)(B), the RACM 

provisions of 189(a)(1)(C), the RFP 

provisions established by section 

189(c)(1), and the attainment 

demonstration, RACM, RFP and 

contingency measure provisions of part 

D, subpart 1 contained in section 172 of 

the Act. 

Lastly, under CAA section 110(k)(6), 

we are correcting the entry for the 

Rillito moderate PM10 nonattainment 

area in the ‘‘Arizona—PM–10’’ table in 

40 CFR 81.303 so that it is identified as 

a subarea within Pima County instead of 

Santa Cruz County. 

We are publishing this rule without 

prior proposal because the Agency 

views this as a noncontroversial action 

and anticipates no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, 

EPA is publishing a separate document 

that will serve as the proposal should 

adverse comments be filed. This action 

will be effective October 10, 2006, 

without further notice unless the EPA 

receives relevant adverse comments by 

September 7, 2006. 

If we receive such comments, then we 

will publish a document withdrawing 

the final rule and informing the public 

that the rule will not take effect. All 

public comments received will then be 

addressed in a subsequent final rule 

based on the proposed rule. We will not 

institute a second comment period. 

Parties interested in commenting should 

do so at this time. If no such comments 

are received, the public is advised that 

this rule will be effective on October 10, 


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Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Rules and Regulations 44925 

2006 and no further action will be taken 

on the proposed rule. 

V. Statutory and Executive Order 

Reviews 

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 makes a 

determination based on air quality data 

and does not impose any additional 

requirements. 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 does not impose any additional 

enforceable duty, 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 tribal 

implications because it will 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 97249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

makes a determination based on air 

quality data 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 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. 

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. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

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

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 rule 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 October 10, 2006. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule 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 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: July 25, 2006. 

Wayne Nastri, 

Regional Administrator, Region 9. 

■ Part 81, chapter I, title 40 of the Code 

of Federal Regulations 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. 

Subpart C—[Amended] 

■ 2. In § 81.303, the table entitled 

‘‘Arizona—PM–10’’ is amended by 

revising the entries for Santa Cruz 

County and Pima County to read as 

follows: 

§ 81.303 Arizona. 

* * * * * 

ARIZONA.—PM–10 

Designated area 

Designation Classification 

Date Type Date Type 

* * * * * * * 

Santa Cruz County: 

Nogales planning area ........................................................................................ 11/15/90 Nonattainment 11/15/90 Moderate. 

The portions of the following Townships which are within the State of Arizona and lie east of 111 degrees longitude: T23S, R13E, T23S, R14E, 

T24S, R13E, T24S, R14E 

Pima County: 

Rillito planning area ............................................................................................ 11/15/90 Nonattainment 11/15/90 Moderate. 

Townships: T11S, R9E, T11S, R10E, T11S, R11E, T11S, R12E, T12S, 

R8E, T12S, R9E, T12S, R10E, T12S, R11E, T12S, R12E 

Ajo planning area ................................................................................................ 11/15/90 Nonattainment 11/15/90 Moderate. 

Township T12S, R6W, and the following sections of Township T12S, 

R5W: 

a. Sections 6–8 

b. Sections 17–20, and 

c. Sections 29–32 

* * * * * * * 


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44926 Federal Register / Vol. 71, No. 152 / Tuesday, August 8, 2006 / Rules and Regulations 

* * * * * 

[FR Doc. E6–12756 Filed 8–7–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

48 CFR Parts 204 and 253 

[DFARS Case 2005–D004] 

Defense Acquisition Regulations 

System; Defense Federal Acquisition 

Regulation Supplement; Contract 

Reporting 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to update text addressing DoD 

requirements for reporting of 

contracting actions. This rule is a result 

of a transformation initiative undertaken 

by DoD to dramatically change the 

purpose and content of the DFARS. 

DATES: Effective Date: August 8, 2006. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Bill Sain, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3C132, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone (703) 602–0293; 

facsimile (703) 602–0350. Please cite 

DFARS Case 2005–D004. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DFARS Transformation is a major 

DoD initiative to dramatically change 

the purpose and content of the DFARS. 

The objective is to improve the 

efficiency and effectiveness of the 

acquisition process, while allowing the 

acquisition workforce the flexibility to 

innovate. The transformed DFARS will 

contain only requirements of law, DoDwide policies, delegations of FAR 

authorities, deviations from FAR 

requirements, and policies/procedures 

that have a significant effect beyond the 

internal operating procedures of DoD or 

a significant cost or administrative 

impact on contractors or offerors. 

Additional information on the DFARS 

Transformation initiative is available at 

http://www.acq.osd.mil/dpap/dars/ 

dfars/transformation/index.htm. 

This final rule is a result of the 

DFARS Transformation initiative. The 

rule removes DFARS text addressing 

internal DoD requirements for reporting 

of contracting actions. These 

requirements have been relocated to the 

DFARS companion resource, 

Procedures, Guidance, and Information 

(PGI), available at http:// 

www.acq.osd.mil/dpap/dars/pgi. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment is not 

required. However, DoD will consider 

comments from small entities 

concerning the affected DFARS subparts 

in accordance with 5 U.S.C. 610. Such 

comments should cite DFARS Case 

2005–D004. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 204 and 

253 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 204 and 253 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 204 and 253 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Subpart 204.6 is revised to read as 

follows: 

Subpart 204.6—Contract Reporting 

204.670 Contract action reporting 

requirements. 

Departments and agencies shall report 

contracting actions in accordance with 

the requirements at PGI 204.670. 

PART 253—FORMS 

■ 3. Section 253.204–70 is revised to 

read as follows: 

253.204–70 DD Form 350, Individual 

Contracting Action Report. 

Follow the instructions at PGI 

253.204–70 for completion of DD Form 

350. 

253.204–71 [Removed] 

■ 4. Section 253.204–71 is removed. 

[FR Doc. E6–12783 Filed 8–7–06; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 219 

[DFARS Case 2003–D060] 

Defense Federal Acquisition 

Regulation Supplement; Threshold for 

Small Business Specialist Review 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to revise text pertaining to DoD 

implementation of small business 

programs. This rule is a result of a 

transformation initiative undertaken by 

DoD to dramatically change the purpose 

and content of the DFARS. 

DATES: Effective Date: August 8, 2006. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah Tronic, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3C132, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone (703) 602–0289; 

facsimile (703) 602–0350. Please cite 

DFARS Case 2003–D060. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DFARS Transformation is a major 

DoD initiative to dramatically change 

the purpose and content of the DFARS. 

The objective is to improve the 

efficiency and effectiveness of the 

acquisition process, while allowing the 

acquisition workforce the flexibility to 

innovate. The transformed DFARS will 

contain only requirements of law, DoDwide policies, delegations of FAR 

authorities, deviations from FAR 

requirements, and policies/procedures 

that have a significant effect beyond the 

internal operating procedures of DoD or 

a significant cost or administrative 

impact on contractors or offerors. 

Additional information on the DFARS 

Transformation initiative is available at 

http://www.acq.osd.mil/dpap/dars/ 

dfars/transformation/index.htm. 

This final rule is a result of the 

DFARS Transformation initiative. The 

rule—


sroberts on PROD1PC70 with RULES