Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Rules and Regulations 57029 

1Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, ‘‘Guidance on 

SIP Elements Required Under Sections 110(a)(1) 

and (2) for the 1997 8-hour Ozone and PM2.5

National Ambient Air Quality Standards’’ (Oct. 2, 

2007). 

lowering sequence will automatically 

proceed taking approximately two 

minutes to complete. As soon as the 

bridge leaves the up position, the horn 

will silence but the navigation lights 

change to flashing red. 

(e) Upon passage of the train, the 

bridge will automatically open unless 

another movement is detected. The 

navigation lights will continue to flash 

red until the bridge has returned to the 

full open position at which time they 

will change to steady green. 

(f) The bridge can also be operated 

from two locked trackside control 

location (key releases) on the approach 

spans, one on each side of the movable 

span. 

(g) To request openings of the bridge 

when the lift span is in the closed-tonavigation position, mariners may 

contact the AGR via VHF–FM channel 

16 or by telephone at 205–654–4364. 

Dated: August 25, 2012. 

Roy A. Nash, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eighth Coast Guard District. 

[FR Doc. 2012–22797 Filed 9–14–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0300; FRL–9715–1] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standards; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is in part approving and 

in part conditionally approving two 

State Implementation Plan (SIP) 

submissions made by the State of North 

Dakota. The SIP submissions 

demonstrate that North Dakota’s SIP 

meets the requirements of section 

110(a)(1) and (2) of the Clean Air Act 

(CAA) for the National Ambient Air 

Quality Standards (NAAQS) 

promulgated for ozone on July 18, 1997. 

Section 110(a)(1) of the CAA requires 

that each state, after a new or revised 

NAAQS is promulgated, review their 

SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of North Dakota submitted revisions to 

their Infrastructure SIP for the 1997 

ozone NAAQS, dated April 6, 2009, as 

well as a certification of the adequacy of 

their infrastructure SIP for the 1997 

ozone NAAQS, dated November 23, 

2009. This action is being taken under 

section 110 of the Clean Air Act. 

DATES: Effective Date: This final rule is 

effective October 17, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0300. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., 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 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 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: 

Kathy Ayala, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129, 303–312–6142, 

ayala.kathy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background for This Action 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The initials DAQ mean or refer to 

Division of Air Quality. 

(iii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iv) The initials GHGs mean or refer 

to greenhouse gases. 

(v) The initials NAAQS mean or refer 

to national ambient air quality 

standards. 

(vi) The initials NDAC mean or refer 

to North Dakota Administrative Code. 

(vii) The initials NDCC mean or refer 

to North Dakota Century Code. 

(viii) The initials NOX mean or refer 

to nitrogen oxides. 

(ix) The initials NSR mean or refer to 

new source review. 

(x) The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 2.5 micrometers 

(fine particulate matter). 

(xi) The initials ppm mean or refer to 

parts per million. 

(xii) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xiii) The initials SIP mean or refer to 

State Implementation Plan. 

(xiv) The initials SSM mean or refer 

to start-up, shutdown, or malfunction. 

I. Background for This Action 

On July 18, 1997, EPA promulgated 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm (62 

FR 38856). By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) are to be submitted by states within 

three years after promulgation of a new 

or revised standard. Section 110(a)(2) 

provides basic requirements for SIPs, 

including emissions inventories, 

monitoring, and modeling, to assure 

attainment and maintenance of the 

standards. These requirements are set 

out in several ‘‘infrastructure elements,’’ 

listed in section 110(a)(2). 

Section 110(a) imposes the obligation 

upon states to make a SIP submission to 

EPA for a new or revised NAAQS, and 

the contents of that submission may 

vary depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

a state develops and submits its SIP for 

a new or revised NAAQS affects the 

content of the submission. The contents 

of such SIP submissions may also vary 

depending upon what provisions a 

state’s existing SIP already contains. In 

the case of the 1997 ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. In a guidance issued 

on October 2, 2007, EPA noted that, to 

the extent an existing SIP already meets 

the section 110(a)(2) requirements, 

states need only to certify that fact via 

a letter to EPA.1 North Dakota submitted 


tkelley on DSK3SPTVN1PROD with RULES
57030 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Rules and Regulations 

revisions to its SIP on April 6, 2009, 

which are being approved and are 

included in the state’s infrastructure 

checklist and certification, dated 

November 23, 2009, that its 

infrastructure SIP requirements are met 

for the 1997 ozone NAAQS. 

On April 16, 2012 EPA published a 

notice of proposed rulemaking (NPR) for 

the State of North Dakota. The NPR 

proposed approval of elements (A), (B), 

(C), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 

(K), (L), and (M) and conditional 

approval of element 110(a)(2)(E)(ii). In 

the NPR, we discussed our reasons for 

our proposed approval and conditional 

approval. We are completing our 

proposed action for the reasons given in 

the NPR. However, we find it 

appropriate to further explain our 

conditional approval for element 

110(a)(2)(E)(ii). 

In the NPR, we noted the link 

between element 110(a)(2)(E)(ii) and 

section 128 of the CAA. We then 

presented three considerations for 

implementing section 128 and applied 

these considerations to North Dakota’s 

situation. We concluded that North 

Dakota, as a state without a board or 

body that approves permits or 

enforcement orders under the Act, was 

not subject to the requirements of 

section 128(a)(1), and was obliged to 

submit a SIP revision to meet the 

requirements of section 128(a)(2). We 

briefly described procedures that North 

Dakota has committed to submit as a SIP 

revision, procedures which were 

detailed in North Dakota’s commitment 

letter in the docket, and we then briefly 

stated that, due to a requirement for 

recusal, the procedures were more 

stringent than the minimum 

requirements of 128(a)(2). As a result, 

we proposed conditional approval of 

North Dakota’s infrastructure SIP for 

element 110(a)(2)(E)(ii) for the 1997 

ozone NAAQS. 

In this notice, EPA completes that 

conditional approval, and finds it 

appropriate to further explain how the 

elements of North Dakota’s procedures 

satisfy the requirement for adequate 

disclosure of potential conflicts of 

interest. This explanation is not 

intended to imply that any other, 

different approaches would or would 

not meet the requirements of section 

128(a)(2). Thus, EPA corrects our 

statements in the proposal to the extent 

they imply that North Dakota’s 

procedures necessarily exceed the 

minimum requirements of section 

128(a)(2), but we do not change the 

conclusion that the procedures meet 

these requirements. 

Turning to our explanation, we first 

note that the set of persons to which the 

SIP revision will apply is adequate. As 

explained in our proposal, in a situation 

such as North Dakota’s, in which there 

is no board or body that approves 

permits or enforcement orders under the 

Act, section 128(a)(2) then applies to the 

‘‘head of an executive agency with 

similar powers,’’ that is, the head of an 

executive agency that approves permits 

or enforcement orders under the Act. As 

further explained in our proposal, this 

requirement should extend to any lower 

officer of an executive agency who is 

delegated authority by the head of the 

executive agency to approve permits or 

enforcement orders, or who is directly 

vested with this authority by statute. 

North Dakota has committed to, in its 

SIP revision, making the procedures 

applicable to any person in the State 

agency who approves permits or 

enforcement actions under North 

Dakota’s implementation of the Act. 

This is sufficiently broad to include 

such lower officers. 

Second, the North Dakota procedures 

address an adequately broad set of 

potential conflicts of interest. Under the 

procedures, a conflict of interest is 

defined as the conflict between the 

duties of the person subject to the 

procedure and the self-interest or other 

interests of the person. The procedures 

additionally state that persons subject to 

it must avoid any interest, influence, or 

relationship that might conflict or 

appear to conflict with the best interests 

of the state agency or the state, or that 

might affect the person’s working 

judgment or loyalty. Because the 

procedures are not limited to the selfinterest of the person but also include 

other interests, influences, and 

relationships, they extend beyond the 

minimum case where the person’s own 

financial interest would create a 

conflict. In addition, because the 

procedures apply to interests, 

influences, and relationships that might 

appear to create a conflict or might 

affect the person’s working judgment or 

loyalty, they are not dependent on a 

subjective standard as to whether a 

particular individual would actually 

have their working judgment or loyalty 

affected. 

Third, the mechanics of the North 

Dakota procedures are adequate. The 

disclosure must be in writing and 

identify the potential conflict and its 

cause. The disclosure must be provided 

to a superior, and the person subject to 

the conflict must remove themselves 

from any negotiations, deliberations, or 

decisions involving the conflict. Thus, 

the conflict is adequately memorialized, 

an appropriate party is made aware of 

the conflict and a resolution of the 

conflict (e.g., recusal) is reached. 

Finally, the purpose of the North 

Dakota procedures adequately relates to 

the purpose of section 128 as a whole. 

The overall purpose of section 128 

appears to be that final decisions on 

permits or enforcement orders are not 

unduly influenced. However, as 

explained above, section 128(a)(1) does 

not apply in North Dakota’s case. In 

such a case, it is reasonable for the state, 

as an alternative approach to meet the 

overall purpose of section 128 (and not 

the particular requirements of section 

128(a)(1)), to require recusal in addition 

to disclosure. EPA therefore concludes 

that the SIP revision that North Dakota 

has committed to submit meets the 

requirements of section 128(a)(2) and 

that the North Dakota infrastructure SIP 

for the 1997 ozone NAAQS should be 

conditionally approved for section 

110(a)(2)(E)(ii). 

In this action, EPA also completes our 

proposed approval of portions of North 

Dakota’s April 6, 2009 SIP submission. 

Specifically, EPA approves into the 

North Dakota SIP revisions sections 6.8, 

6.11.3, and chapter 9, Air Pollution 

Control Rules of the State of North 

Dakota, and the addition of sections 

1.14 and 7.7 to the Air Pollution Control 

Rules of the State of North Dakota. 

II. Response to Comments 

EPA did not receive comments 

regarding our proposed rule for action 

on North Dakota’s SIP submittals. 

III. Final Action 

In this action, EPA is approving in 

full the following section 110(a)(2) 

infrastructure elements for North Dakota 

for the 1997 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), 

(L), and (M). 

In this action, EPA is conditionally 

approving section 110(a)(2)(E)(ii) for the 

1997 ozone NAAQS and will fully 

approve this element if North Dakota 

takes the action detailed in the State’s 

March 8, 2012 commitment letter, 

including submission of a SIP revision 

as described within the commitment 

letter, within one year after the 

publication date of this final action. If, 

however, North Dakota does not submit 

the SIP revisions specified in its 

commitment letter within one year after 

the publication date of this final action, 

EPA’s conditional approval will 

automatically revert to disapproval of 

the infrastructure SIP for section 

110(a)(2)(E)(ii) for the 1997 ozone 

NAAQS. 

In this action, EPA also approves into 

the North Dakota SIP revisions to 

sections 6.8 (Annual Network Review), 

6.11.3 (Air Quality Surveillance: 

Ozone), and chapter 9 (Resources), Air 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Rules and Regulations 57031 

Pollution Control Rules of the State of 

North Dakota, and the addition of 

sections 1.14 (Revisions to the 

Implementation Plan), and 7.7 (Air 

Quality Modeling) to the Air Pollution 

Control Rules of the State of North 

Dakota. 

IV. 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 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 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 67249, 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 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. 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 approves a state rule 

implementing a Federal standard. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the state to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission; 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. 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. 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. section 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. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 16, 

2012. 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 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: July 31, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

PART 52 [AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart JJ—North Dakota 

■ 2. Section 52.1820 in paragraph (e) is 

amended by: 

■ a. Revising table entry ‘‘(1)’’; and 

■ b. Adding to the table entries ‘‘(26),’’ 

‘‘(27),’’ ‘‘(28),’’ ‘‘(29),’’ and ‘‘(30),’’ in 

numerical order. 

The revisions and additions read as 

follows: 

§ 52.1820 Identification of plan. 

* * * * * 

(e) * * * 


tkelley on DSK3SPTVN1PROD with RULES
57032 Federal Register / Vol. 77, No. 180 / Monday, September 17, 2012 / Rules and Regulations 

Name of nonregulatory SIP provision 

Applicable geographic or nonattainment area 

State submittal date/ 

adopted date 

EPA approved date 

and citation 3 Explanations 

(1) Implementation Plan for the Control of Air Pollution for the State of 

North Dakota.

Statewide ................ Submitted: 1/24/72; 

Adopted: 1/24/72.

5/31/72, 37 FR 

10842.

Excluding subsequent revisions, as 

follows: Chapters 1, 6, 7, 9, 11, 

and 12; Sections 1.14, 2.11, 3.7, 

6.8, 6.10, 6.11, 6.13, 7.7, and 

8.3; and Subsections 3.2.1, 5.2.1, 

6.11.3, 7.8.1.A, 7.8.1.B, 7.8.1.C, 

and 8.3.1. Revisions to these 

non-regulatory provisions have 

subsequently been approved. 

See below. 

Chapters: 

1. Introduction. 

2. Legal Authority. 

3. Control Strategy. 

4. Compliance Schedule. 

5. Prevention of Air Pollution 

Emergency Episodes. 

6. Air Quality Surveillance. 

7. Review of New Sources and 

Modifications. 

8. Source Surveillance. 

9. Resources. 

10. Intergovernmental Cooperation. 

11. Rules and Regulations. 

With subsequent revisions to the 

chapters as follows: 

* * * * * * * 

(26) Revisions to SIP Chapter 6, 

Section 6.8, Annual Network Review.

Statewide ................ Submitted: 4/6/09; 

Adopted: 4/1/09.

9/17/12, [INSERT 

FR CITATION].

(27) Revisions to SIP Chapter 6, 

Section 6.11.3, Air Quality Surveillance: Ozone.

Statewide ................ Submitted: 4/6/09; 

Adopted: 4/1/09.

9/17/12, [INSERT 

FR CITATION].

(28) Revisions to SIP Chapter 9, Resources.Statewide ................ Submitted: 4/6/09; 

Adopted: 4/1/09.

9/17/12, [INSERT 

FR CITATION].

(29) Revisions to SIP Chapter 1, 

Section 1.14, Revisions to the Implementation Plan.

Statewide ................ Submitted: 4/6/09; 

Adopted: 4/1/09.

9/17/12, [INSERT 

FR CITATION].

(30) Revisions to SIP Chapter 7, 

Section 7.7, Air Quality Modeling.

Statewide ................ Submitted: 4/6/09; 

Adopted: 4/1/09.

9/17/12, [INSERT 

FR CITATION].

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision. 

■ 3. Section 52.1833 is added to read as 

follows: 

§ 52.1833 Section 110(a)(2) infrastructure 

requirements. 

On November 23, 2009, Tom 

Bachman, Senior Environmental 

Engineer, North Dakota Department of 

Health, submitted a completeness 

criteria checklist which provides the 

State of North Dakota’s SIP provisions 

which meet the requirements of CAA 

Section 110(a)(1) and (2). The following 

elements are approved for the 1997 

ozone NAAQS: (A), (B), (C), (D)(ii), 

(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), 

and (M). The following element is 

conditionally approved for the 1997 

ozone NAAQS: (E)(ii). 

[FR Doc. 2012–22771 Filed 9–14–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2012–0003; Internal 

Agency Docket No. FEMA–8245] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP) that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. Also, information 

identifying the current participation 

status of a community can be obtained 

from FEMA’s Community Status Book 

(CSB). The CSB is available at http:// 

www.fema.gov/fema/csb.shtm. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp.’’) 

listed in the third column of the 

following tables. 


tkelley on DSK3SPTVN1PROD with RULES