4822 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedure; and related management 

system practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.1D, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, we believe that 

this rule should be categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction, from further 

environmental documentation. This 

event establishes a safety zone, 

therefore, paragraph (34)(g) of the 

Instruction applies. 

A preliminary ‘‘Environmental 

Analysis Check List’’ is available in the 

docket where indicated under 

ADDRESSES. Comments on this section 

will be considered before we make the 

final decision on whether the rule 

should be categorically excluded from 

further environmental review. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine Safety, Navigation 

(water), Reporting and record keeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. A new temporary section 165.T09–

001 is added as follows: 

§ 165.T09–001 Security Zone; Superbowl 

XL, Detroit River, Detroit, MI 

(a) Location: The following area is a 

temporary security zone: An area of the 

Detroit River beginning at a point of 

land adjacent to Joe Louis Arena, at 

42°19′26.6′′ N, 083°03′06.6′′ W; then 

extending offshore to the 3rd St. 

junction buoy at 42°19′24.2′′ N, 

83°03′4.7′′ W; then northeast through 

the Griswold St. junction buoy at 

42°19′31′′ N, 83°02′34.1′′ W; then 

northeast at 42°19′40′′ N, 083°02′00′′ W; 

then north to a point on land at 

42°19′46.3′′ N, 083°02′00′′ W (near 

Atwater Customs station); then 

southeast following the shoreline back 

to the point of origin. All geographic 

coordinates are North American Datum 

of 1983 (NAD 83). 

(b) Effective period. This regulation is 

effective from 8 a.m. (local) on January 

31, 2006 until 8 a.m. (local) on February 

6, 2006. 

(c) Regulations. (1) In accordance with 

the general regulations in section 165.33 

of this part, entry into, transiting, or 

anchoring within this security zone is 

prohibited unless authorized by the 

Captain of the Port Detroit, or his 

designated on-scene representative. 

(2) This security zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Detroit or his designated on-scene 

representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port is any Coast 

Guard commissioned, warrant or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

designated on-scene representative may 

be contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the security zone shall 

contact the Captain of the Port Detroit 

or his on-scene representative to obtain 

permission to do so. Vessel operators 

given permission to enter or operate in 

the security zone shall comply with all 

directions given to them by the Captain 

of the Port Detroit or his on-scene 

representative. 

Dated: January 11, 2006. 

P.W. Brennan, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. 06–811 Filed 1–27–06; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2006–0017; FRL–8026–1] 

Disapproval of Air Quality 

Implementation Plans; Montana; 

Maintenance of Air Pollution Control 

Equipment for Existing Aluminum 

Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is disapproving a State 

Implementation Plan revision submitted 

by the State of Montana on January 16, 

2003. If approved, this revision would 

exempt existing aluminum plants from 

meeting emission requirements during 

scheduled maintenance. This action is 

being taken under section 110 of the 

Clean Air Act. 

DATES: Effective Date: This final rule is 

effective March 1, 2006. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2006–0017. All 

documents in the docket are listed on 

the http://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 

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

copy at the Air and Radiation Program, 

Environmental Protection Agency 

(EPA), Region 8, 999 18th Street, Suite 

300, Denver, Colorado 80202–2466. EPA 

requests that if at all possible, you 

contact the individual listed in the FOR


cprice-sewell on PROD1PC66 with RULES
Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 4823 

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: 

Laurie Ostrand, Air and Radiation 

Program, Mailcode 8P–AR, 

Environmental Protection Agency 

(EPA), Region 8, 999 18th Street, Suite 

200, Denver, Colorado 80202, (303) 312–

6437, ostrand.laurie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. What Comments Were Received on EPA’s 

Proposal and EPA’s Reponse 

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 words or initials CFAC mean 

or refer to the Columbia Falls 

Aluminum Company. 

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

mean or refer to the United States 

Environmental Protection Agency. 

(iv) The initials SIP mean or refer to 

State Implementation Plan. 

(v) The words state or Montana mean 

the State of Montana, unless the context 

indicates otherwise. 

I. Background 

On January 16, 2003, the State of 

Montana submitted a new rule for 

incorporation into the SIP. The rule is 

titled Administrative Rules of Montana 

(ARM) 17.8.335, Maintenance of Air 

Pollution Control Equipment for 

Existing Aluminum Plants. 

The state adopted the rule for the 

purpose of modifying the approved SIP. 

The rule covers maintenance of air 

pollution control equipment for existing 

aluminum plants. There is currently one 

source that is subject to this rule, the 

Columbia Falls Aluminum Company 

(CFAC) in Columbia Falls, Montana. 

CFAC operates a primary aluminum 

reduction plant. The plant is equipped 

with air pollution control equipment, 

including ducts conveying exhaust to 

dry scrubbers. The state and CFAC have 

indicated they believe that air pollution 

control equipment requires periodic 

maintenance to keep it in good 

operating order. The state and CFAC 

have also indicated that the failure to 

maintain the air pollution control 

equipment eventually results in the 

failure of the equipment. Finally, the 

state and CFAC have indicated that the 

failure of the equipment would result in 

air pollution emissions from the plant 

that exceed those allowed and may 

create an unacceptable risk to public 

health. 

Further, the state and CFAC indicated 

that the maintenance of the air pollution 

control equipment requires the plant to 

shut down the dry scrubbers and to 

bypass some of the dry scrubbers during 

the maintenance event. If the plant 

continues to operate during the 

shutdown of the dry scrubbers, the air 

pollution emissions from the plant may 

exceed those allowed by rules governing 

emission of air pollutants. 

In the past the plant has applied to 

the state for, and in several cases been 

granted, a variance from rules governing 

emission of air pollutants so that the 

plant could conduct maintenance on the 

air pollution control equipment while 

continuing to operate the plant. CFAC 

expressed that the process for obtaining 

a variance is time consuming. The state 

has adopted a rule that allows the plant 

to conduct maintenance on air pollution 

control equipment while the plant is 

operating, without requiring the plant to 

obtain a variance. 

Our review of ARM 17.8.335, 

Maintenance of Air Pollution Control 

Equipment for Existing Aluminum 

Plants, indicated that it is not 

approvable and we proposed to 

disapprove Montana’s SIP revision on 

October 29, 2003 (68 FR 61650). Our 

October 29, 2003 notice describes in 

detail the rationale for our proposed 

disapproval. 

II. What Comments Were Received on 

EPA’s Proposal and EPA’s Response 

We received three comments on our 

October 29, 2003 proposed action. One 

commenter generally supported our 

proposed action and the other two 

commenters opposed our proposed 

action. 

(1) Comment: The commenter that 

supported our proposed action 

indicated they ‘‘* * * generally concur 

with EPA’s stated reasons for proposing 

to disapprove the Montana SIP rule 

change regarding maintenance of air 

pollution control equipment at existing 

primary aluminum reduction plants 

***’’ The commenter also expressed 

an interest in ultimately allowing the 

maintenance emissions under limited 

circumstances when the result would be 

less impact to the airshed. 

Response: Although we generally 

agree with the commenter, we think 

provisions excusing the source from 

complying with the existing 

requirements during maintenance 

should only be allowed if the state can 

demonstrate that the national ambient 

air quality standards (NAAQS) and 

prevention of significant deterioration 

(PSD) increments will be protected, and 

other CAA requirements met, during 

periods of maintenance at the facility. 

The primary purpose of the SIP is to 

ensure attainment and section 110(l) of 

the CAA provides that EPA may not 

approve a SIP revision that would 

interfere with attainment, reasonable 

progress or any other applicable 

requirement of the Act. 

(2) Comment: One commenter 

indicated that ‘‘EPA proposes to 

disapprove Montana’s rule based, in 

part, on guidance. EPA contends excess 

emissions should be treated as 

compliance violations based upon 

provisions in EPA memoranda cited in 

footnotes to the proposed rulemaking. 

However, guidance is not law and does 

not replace the requirements of a rule or 

statute passed by a legally enabled body 

with the opportunity for public scrutiny 

and comment.’’ The commenter also 

indicated that ‘‘while guidance may be 

helpful in certain circumstances, 

reliance on guidance as a method of 

‘codifying’ internally-developed policy 

often creates confusion among the 

regulated-community and the public 

because of the imperious and arbitrary 

nature of guidance development. 

Furthermore, failure to engage in 

rulemaking implies that notice-andcomment procedures are impracticable, 

unnecessary, or contrary to the public 

interest.’’

Response: EPA’s reference to and 

reliance on the guidance documents 

mentioned, which are publicly available 

and a part of the record for this action, 

is not prohibited by the Clean Air Act 

or the Administrative Procedure Act. 

EPA agrees that the guidance documents 

do not establish enforceable and binding 

requirements; the guidance documents 

do not purport to be anything but 

guidance. This is why EPA has 

performed this rulemaking—a noticeand-comment rulemaking—to take 

comment on its statutory interpretations 

and factual determinations in order to 

make a binding and enforceable 

determination regarding the SIP 

submittal (i.e., ARM 17.8.335, 

Maintenance of Air Pollution Control 

Equipment for Existing Aluminum 

Plant). Our October 29, 2003 proposed 

rule refers to EPA guidance not as 

binding the Agency to adopt the 

interpretation of the CAA therein, but 

rather as a useful description of the 

rationale underlying those 

interpretations. EPA has explained the 

legal and factual basis for its rulemaking 

in the October 29, 2003 proposed rule 

and afforded the public a full 


cprice-sewell on PROD1PC66 with RULES
4824 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 

1We note that while ARM 18.8.335(11) discusses 

‘‘ambient standards’’ it does not specifically 

mention PSD increments. A document in the state’s 

submittal indicates that the reference to ‘‘ambient 

standards’’ includes both the NAAQS and PSD 

increments. 

opportunity to comment on EPA’s 

proposed interpretation and 

determination. This action is consistent 

with the applicable procedural 

requirements of the Administrative 

Procedure Act. In the final rule, EPA is 

fully responding to any concerns with 

EPA’s interpretations as set forth in the 

guidance documents and relied on in 

the proposed rule. Thus EPA has not 

treated the guidance as a binding rule. 

(3) Comment: The commenter that 

indicated it was not appropriate to rely 

on guidance for disapproving the rule 

further indicated that ‘‘the Department 

of Environmental Quality (Department) 

does not believe that ARM 17.8.335 is 

inconsistent with the direction provided 

in the 1999 Herman/Perciasepe and 

1988 Bennett memos. ARM 17.8.335 

differs in several respects from the 

generalized exemptions cited in the 

policy.’’

First, the commenter indicated that 

‘‘EPA claims all instances of excess 

emissions must be considered 

violations. ARM 17.8.335 does not 

exempt the excess emissions from being 

considered a violation, it merely 

prohibits the Department from initiating 

an enforcement action for the 

violation.’’

Second, the commenter indicated that 

‘‘the memos cited are not entirely 

relevant since they address generalized 

exemptions for all excess emissions, 

regardless of impact. ARM 17.8.335 is 

very specific. It applies to a single 

source at a single facility. This means 

that the impacts of the exemption were 

identified and modeled. The modeling 

demonstrated the exemption would not 

violate the ambient standards.’’

Third, the commenter indicated that 

‘‘EPA contends that ARM 17.8.335 is 

not acceptable, because it must contain 

emission standards or limitations to 

protect ambient standards. Since ARM 

17.8.335(1)(a) contains an emission 

limitation as well as work practice 

standards, Montana believes that ARM 

17.8.335 is consistent with the policy in 

this respect.’’

Fourth, the commenter indicated that 

‘‘EPA also states they disagree with 

Montana’s contention that ARM 

17.8.335 will not allow violation of 

ambient standards or Prevention of 

Significant Deterioration Increments. 

Since ARM 17.8.335(11) contains clear 

language prohibiting violation of 

ambient standards, Montana stands by 

its contention.’’

Response: First, EPA’s interpretation 

of the CAA, as reflected in our guidance, 

is that excess emissions must be 

considered violations because SIPs must 

provide for the attainment and 

maintenance of the NAAQS and the 

achievement of the PSD increments. The 

commenter indicated that the rule meets 

the guidance because the rule ‘‘does not 

exempt excess emissions from being 

considered a violation, it merely 

prohibits the Department from initiating 

an enforcement action for the 

violation.’’ Without the threat of an 

enforcement action, the label of 

‘‘violation’’ loses all meaning. 

The state’s proposed approach (i.e., 

prohibiting itself from enforcing a 

violation) is inconsistent with section 

110 of the CAA. Section 110 requires 

the SIP to include enforceable emission 

limitations, a program to provide for the 

enforcement of these emission 

limitations, and assurances that the state 

has adequate authority under state law 

to carry out the SIP (and is not 

prohibited by any provision of state law 

from doing so). ARM 17.8.335 prohibits 

the state from enforcing applicable 

emission limitations during source 

maintenance; absent an adequate 

demonstration under section 110(l) of 

the CAA that the higher emissions 

allowed in ARM 17.8.335 will not 

interfere with the CAA requirements, 

the state must continue to allow for 

enforcement action, but may exercise its 

enforcement discretion in determining 

whether to pursue any particular 

violation of the SIP. 

Second, the commenter indicated that 

the modeling demonstrated the 

exemption would not violate ambient 

standards. As discussed in the proposal 

we had concerns with the modeling and 

indicated that the approach used would 

not assure protection of the NAAQS. We 

stand by that statement in our proposal 

and therefore, do not agree with the 

commenter that the modeling 

demonstrated that the exemption would 

not violate ambient standards. Below, in 

comment/response #4, is further 

discussion regarding the modeling. 

Additionally, the state did not evaluate 

the impact of the excess emissions on 

the PSD increments. 

Third, the commenter indicated that 

ARM 17.8.335 contains an emission 

limitation as well as work practice 

standards that protect the ambient 

standards. As indicated above, we do 

not agree that it has been demonstrated 

that the ambient standards would be 

protected. Also, EPA questions the 

enforceability of the ‘‘emission 

limitation’’ the commenter refers to. 

Presumably the commenter is referring 

to ARM 17.8.335(1)(a)(ii), which 

indicates that the department may not 

initiate an enforcement action for a 

violation of various rules, or any 

emission standard, resulting from 

necessary scheduled maintenance of air 

pollution control equipment at an 

existing primary aluminum reduction 

plant, if, among other things, the 

maintenance event meets the following 

conditions: ‘‘the maintenance event will 

not cause uncontrolled PM–10 

emissions to exceed normal operating 

emissions from the reduction cells by 

more than 700 lbs. per 24-hour period 

as estimated using emissions factors.’’

The rule does not establish or define 

‘‘normal operating emissions from the 

reduction cells.’’ Without establishing 

or defining ‘‘normal operating emissions 

from the reduction cells’’ we question 

how the department could ever enforce 

the requirements in ARM 

17.8.335(1)(a)(ii). Also, we question if 

the necessary scheduled maintenance 

could occur at other emission points 

that would not affect the level of 

emissions from the reduction cells but 

would cause an increase in emissions 

elsewhere. 

Fourth, the commenter indicated that 

‘‘since ARM 17.8.335(11) contains clear 

language prohibiting violation of 

ambient standards, Montana stands by 

its contention’’ that the rule will assure 

protection of the NAAQS or PSD 

increments. As we indicated in our 

proposal, we believe ambient standards 

and the PSD increments are protected 

by establishing limits that assure the 

standards and increments will be met. 

ARM 17.8.335(11) indicates that nothing 

in the rule shall be construed to allow 

an owner or operator to cause or 

contribute to violations of any federal or 

state ambient air quality standards.1 We 

do not believe such a generic provision 

ensures protection of the NAAQS. At 

best, it simply means that if the ambient 

standards are violated—jeopardizing the 

health of the community, the 

Department could then bring an 

enforcement action. ARM 17.8.335(11) 

provides no clear cut standard the 

source must meet to protect public 

health. 

In lieu of relying on monitors to 

assure the NAAQS are protected, 

particularly when the monitoring 

network is sparse, EPA believes 

enforceable emission limits should be 

established that, through modeling, 

demonstrate that the NAAQS would be 

protected. As we indicated earlier and 

below, we do not believe the modeling 

completed for this SIP revision was 

adequate to demonstrate that the 

NAAQS would be protected or that 

enforceable emission limits were 

adequately established. 


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Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 4825 

(4) Comment: Several comments were 

raised regarding EPA’s concerns about 

the rule’s impact on the NAAQS. The 

comments pertained to whether or not: 

(a) The impact of the rule in the nearby 

Columbia Falls PM–10 nonattainment 

area had been addressed adequately, (b) 

there was an adequate demonstration 

that the NAAQS would be protected, 

and (c) appropriate modeling techniques 

were used. 

Comment A. Regarding EPA’s 

concerns about the impact of the rule on 

the Columbia Falls PM–10 

nonattainment area, the commenter 

indicated that ‘‘EPA approved the 

Columbia Falls PM–10 control plan on 

April 14, 1994, at 59 FR 17700. This 

action included approval of the 

technical support documents that 

demonstrate Columbia Falls Aluminum 

(CFAC) is an insignificant source of 

emissions contributing to the 

nonattainment area. Specifically, on 

January 27, 1994, at 59 FR 3804, EPA 

stated the control plan demonstration 

would provide for attainment within the 

prescribed time periods and would 

further maintain NAAQS compliance in 

future years. Further analysis 

demonstrating this rule’s impact on the 

nonattainment area is unnecessary as a 

result of EPA’s control plan approval. 

Therefore, the burden lies with EPA to 

demonstrate that a rule affecting a 

source, recognized in an approved 

control plan as an insignificant 

contributor to the nonattainment area, 

would otherwise interfere with an 

applicable requirement concerning 

attainment 42 U.S.C. 7410(l).’’

Response A. The commenter is correct 

that EPA approved the Columbia Falls 

PM–10 nonattainment area plan on 

April 14, 1994 (59 FR 17700). The 

attainment demonstration for the plan 

was based on receptor modeling 

(chemical mass balance (CMB)) and 

rollback modeling. However, as noted 

on page 17702, in the middle column, 

‘‘[t]he State has made a separate 

commitment to testing and further dispersion 

modeling of emissions from the Columbia 

Falls Aluminum Company (CFAC) facility. 

This facility is located outside the 

nonattainment area and emissions from 

CFAC were not identified on the Chemical 

Mass Balance analysis of filters collected 

from the monitor in the Columbia Falls 

nonattainment area. Emissions from CFAC 

are a potential concern, however, since this 

source accounts for 20 percent of the 

emission inventory (at permitted allowable 

emissions). EPA will continue to monitor the 

testing and assist the State with any action 

required by the results.’’

The state’s commitment was made in a 

May 6, 1992 letter from Governor Stan 

Stephens. 

The state developed a new PM–10 

emissions inventory for CFAC but did 

not complete the dispersion modeling. 

EPA completed the dispersion modeling 

analyses using the new PM–10 

emissions inventory for CFAC to 

determine CFAC’s impact in the 

nonattainment area. On September 19, 

1996 the Montana Department of 

Environmental Quality (MDEQ) sent us 

the actual and allowable PM–10 

emissions for CFAC. EPA input this 

emission information into the ISC3/ 

Complex1 models to determine the 

effect on the Columbia Falls PM–10 

nonattainment area. The modeled 24- 

hour impact at the Columbia Falls 

monitor was 24 μg/m3 using allowable 

emissions and 8 μg/m3 using actual 

emissions. We also noted that the 

highest modeled 24-hour concentrations 

of actual emissions at the CFAC ambient 

PM–10 monitor (different from the 

Columbia Falls monitor) was about 30 

μg/m3. This seemed to compare 

favorably with measurements at that site 

when background concentrations were 

also considered. 

On July 1, 1997, the State submitted 

a maintenance plan and redesignation 

request for the Columbia Falls PM–10 

nonattainment area. The July 1, 1997 

submittal was later withdrawn on 

October 27, 1998. However, the July 1, 

1997 maintenance plan projected the 

ambient PM–10 24-hour concentrations 

in the Columbia Falls PM–10 

nonattainment area for the 2009 

maintenance year to be 146.2 μg/m3. 

The 24-hour PM–10 NAAQS is 150 μg/ 

m3. The 2009 maintenance year 

projection, however, did not consider 

any emissions impact from CFAC. If we 

add the dispersion modeled impact 

from CFAC using either allowable 

emissions (24 μg/m3 impact) or actual 

emissions (8 μg/m3 impact) to the 

maintenance year projections then the 

Columbia Falls PM–10 nonattainment 

area would be projected to exceed 150 

μg/m3 and not attain the PM–10 NAAQS 

(i.e., 24 + 146.2 = 170.2 μg/m3 and 8 + 

146.2 = 154.2 μg/m3). In addition, we 

note that the impact of the 

‘‘maintenance’’ emissions (i.e., the 

additional 700 lbs of PM per 24-hour 

period expected during maintenance) on 

the Columbia Falls PM–10 

nonattainment area were not analyzed 

here. 

The state believes CFAC is in a 

different airshed from the 

nonattainment area and that emissions 

from CFAC do not have a significant 

impact on the Columbia Falls PM–10 

nonattainment area. CFAC is only about 

one mile from the City of Columbia 

Falls. Existing information (indicated 

above) supports a conclusion that 

emissions from CFAC do affect the 

nonattainment area and thus further 

analyses would need to be completed 

before it could be determined that 

maintenance emissions from CFAC 

would not impair the ability of the 

Columbia Falls PM–10 nonattainment 

area to attain and maintain the NAAQS. 

We stand by our proposal that further 

analysis is needed to show that CFAC 

does not interfere with the ability of the 

Columbia Falls nonattainment area to 

attain and maintain the NAAQS. 

Additionally, we note that we 

disagree with the commenter’s 

statement that it is EPA’s burden to 

demonstrate that a SIP revision would 

interfere with an applicable requirement 

concerning attainment. In general, we 

believe the primary burden in 

supporting a SIP revision rests with the 

state. Here we note that the available 

information (EPA’s modeling in 

conjunction with the state’s withdrawn 

maintenance plan) supports a 

conclusion that the SIP revision would 

interfere with attainment and 

maintenance of the NAAQS and the 

state has failed to submit any 

information to counter that conclusion. 

Comment B. Regarding whether or not 

there was an adequate demonstration 

that the NAAQS would be protected, the 

commenter indicated that ‘‘as stated in 

EPA’s Notice of Proposed Disapproval, 

a State Implementation Plan contains 

requirements necessary to protect 

ambient air quality standards. The 

record of adoption of ARM 17.8.335 

clearly demonstrates that ARM 17.8.335 

continues to protect those standards. 

Since EPA has not demonstrated that 

ARM 17.8.335 violates any requirement 

of the Clean Air Act, EPA must approve 

this SIP change.’’

Response B. We do not believe the 

state’s record of adoption supports the 

conclusion that the rule will protect the 

ambient air quality standards. The SIP 

must provide for attainment and 

maintenance of the NAAQS and the 

protection of PSD increments. The state 

must demonstrate that this SIP revision 

will not interfere with the state’s ability 

to attain and maintain the NAAQS 

(sections 110(a)(1) and 110(l) of the 

Act). SIP provisions that allow for an 

automatic exemption for excess 

emissions from start-up, shut-down, 

malfunction and maintenance activities 

result in levels of emissions that are 

difficult to predict and thus it is 

difficult to demonstrate the effect of 

these activities on attainment or 

maintenance or the protection of the 

PSD increments. Therefore, EPA 

generally prohibits such rules in SIPs. 

However, we recognize that in limited 

circumstances a state may be able to 


cprice-sewell on PROD1PC66 with RULES
4826 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 

2We indicated the state’s modeling approach was 

inconsistent with EPA’s Guideline on Air Quality 

Models, 40 CFR part 51, Appendix W for several 

reasons. As discussed in greater detail in the 

proposed notice, allowable emissions, rather than 

normal operating emissions, should be used in the 

modeling; nearby point sources that cause a 

significant concentration gradient should also be 

included in the modeling; and five years of National 

Weather Service meteorology data is generally 

recommended to ensure that worst case 

meteorological conditions are considered. Finally 

we were not convinced that the 17 μg/m3 value is 

an appropriate value to be used for background 

concentrations. 

demonstrate periods of excess emissions 

will not interfere with these 

requirements by showing that the CAA 

requirements are met during the periods 

of excess emissions. CFAC conducted 

modeling to demonstrate that excess 

emissions during the maintenance 

procedures would not cause or 

contribute to violations of the Montana 

Ambient Air Quality Standards 

(MAAQS) or NAAQS. We outlined our 

concerns with the modeling in our 

proposed notice.2 The commenter did 

not present any new technical 

information that has changed our mind 

regarding the adequacy of the state’s 

modeling to demonstrate that the CAA 

requirements are met during periods of 

excess emissions. 

Comment C. Regarding whether or not 

appropriate modeling techniques were 

used, the commenter indicated, ‘‘EPA 

has applied the modeling guidance for 

permit demonstrations to review the 

analysis conducted for this rule 

adoption. The guidance, as quoted in 

this instance, is not appropriate for use 

in this very special case. The 

Department used professional judgment 

and local knowledge to determine the 

analytical procedures and approval 

criteria for this rule analysis. The 

analytical method used was within the 

discretion allowed to the State as a ‘SIP 

Approved’ state and EPA does not have 

the authority to require any other, or 

additional, demonstrations. EPA has not 

provided any additional comments on 

the modeling and the Department had 

already addressed the previous 

comments through the notice of 

adoption of this rule (MAR 17–160 pg. 

2189–2194).’’

Response C. The modeling guidance 

we referenced in our proposal is 

contained in the Code of Federal 

Regulations (CFR) at 40 CFR part 51, 

Appendix W and is titled ‘‘Guideline on 

Air Quality Models’’ (hereinafter called 

‘‘Guideline’’). In our proposal we were 

pointing out that the state had 

incorporated by reference our modeling 

guidance in its permitting rules. 

However, just because the state has only 

incorporated our modeling guidance in 

its permitting rules does not mean the 

modeling guidance should not be used 

for other purposes. Section 1(a) of 

Appendix W indicates ‘‘[t]he Guideline 

recommends air quality modeling 

techniques that should be applied to 

State Implementation Plan (SIP) 

revisions for existing sources and to 

new source reviews (NSR), including 

prevention of significant deterioration 

(PSD). * * * Applicable only to criteria 

air pollutants, it is intended for use by 

EPA Regional Offices in judging the 

adequacy of modeling analyses 

performed by EPA, State and local 

agencies and by industry. The guidance 

is appropriate for use by other Federal 

agencies and by State agencies with air 

quality and land management 

responsibilities. The Guideline serves to 

identify, for all interested parties, those 

techniques and data bases EPA 

considers acceptable. The Guideline is 

not intended to be a compendium of 

modeling techniques. Rather, it should 

serve as a common measure of 

acceptable technical analysis when 

supported by sound scientific 

judgment.’’

The commenter indicated that the 

modeling guidance quoted in our 

proposal is not appropriate for use in 

this very special case. We do not agree. 

Since ARM 17.8.335 is allowing an 

increase in PM–10 emissions, and since 

there is a PM–10 NAAQS and a PM–10 

nonattainment area near the source, we 

think the modeling used to show that 

the NAAQS will be protected should be 

the same level of modeling used to 

support an attainment demonstration. 

The commenter indicated that the 

Department used its professional 

judgment and local knowledge to 

determine the analytical procedures and 

approval criteria for this rule analysis 

and that the analytical method used was 

within the discretion allowed to the 

state as a ‘‘SIP Approved’’ state and EPA 

does not have the authority to require 

any other, or additional, demonstration. 

We do not agree with this comment. We 

do not know what the commenter is 

referring to when it indicates that they 

have discretion because they are a ‘‘SIP 

Approved’’ state. While we have 

approved various portions of the SIP for 

Montana, such approval does not give 

Montana the discretion to ignore the 

Guidelines in 40 CFR part 51, Appendix 

W in determining the type of modeling 

that would support approval of SIP 

revisions. The CFR at 40 CFR 51.112(a) 

indicates: 

(a) Each plan must demonstrate that the 

measures, rules, and regulations contained in 

it are adequate to provide for the timely 

attainment and maintenance of the national 

standard that it implements. 

(1) The adequacy of a control strategy shall 

be demonstrated by means of applicable air 

quality models, data bases, and other 

requirements specified in appendix W of this 

part (Guideline on Air Quality Models). 

(2) Where an air quality model specified in 

appendix W of this part (Guideline on Air 

Quality Models) is inappropriate, the model 

may be modified or another model 

substituted. Such a modification or 

substitution of a model may be made on a 

case-by-case basis or, where appropriate, on 

a generic basis for a specific State program. 

Written approval of the Administrator must 

be obtained for any modification or 

substitution. In addition, use of a modified or 

substituted model must be subject to notice 

and opportunity for public comment under 

procedures set forth in § 51.102. 

Further, EPA has the authority to 

require other, or additional, 

demonstrations. Section 110(a)(2)(K) of 

the Act indicates that: 

[e]ach implementation plan submitted by a 

State under this Act shall be adopted by the 

State after reasonable notice and public 

hearing. Each such plan shall.* * * (K) 

provide for—(i) the performance of such air 

quality modeling as the Administrator may 

prescribe for the purpose of predicting the 

effect on ambient air quality of any emissions 

of any air pollutant for which the 

Administrator has established a national 

ambient air quality standard * * * 

Finally, the commenter indicated that 

EPA had not provided any additional 

comments that the Department has not 

already responded to in its rulemaking. 

On May 16, 2002 we submitted 

comments to the Board of 

Environmental Review during the state’s 

rulemaking process to adopt ARM 

17.8.335. In our May 16, 2002 letter we 

expressed our concerns with the 

modeling and the May 16, 2002 

comments are similar to the concerns 

expressed in our proposed rulemaking. 

The state responded to our comments in 

its notice of adoption. We reviewed the 

notice of adoption before we proposed 

our action on ARM 17.8.335. We do not 

believe the state’s response, in its notice 

of adoption, adequately addressed our 

concerns and that is why the same 

concerns with the modeling were 

detailed in the proposal notice. We 

continue to believe our concerns with 

the modeling are valid. 

Because of our concerns with the 

modeling and the potential impact in 

the Columbia Falls nonattainment area, 

we believe the state has not 

demonstrated that ARM 17.8.335, 

Maintenance of Air Pollution Control 

Equipment for Existing Aluminum 

Plants will not interfere with any 

applicable requirement concerning 

attainment and reasonable progress or 

any other applicable requirement of the 

Act (sections 110(a)(1) and 110(l) of the 

Act). 


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Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 4827 

5. Comment: The commenter 

indicated that ‘‘EPA also states they do 

not find the aluminum smelting process 

sufficiently unique to warrant unique 

maintenance procedures. Montana’s SIP 

submittal contained testimony that 

aluminum smelters do not undergo 

regular plant-wide maintenance 

shutdowns like other industries and that 

the emissions from startup and 

shutdown would be significantly greater 

than that emitted under the 

maintenance procedure allowed in ARM 

17.8.335.’’

Response: We agree that the SIP 

submittal did contain such statements. 

The point in our proposal was that we 

spoke to the EPA Region 10 office and 

found that the emission control system 

for most primary aluminum plants in 

that Region have been designed in a 

modular manner so that one or more 

components can be taken off-line for 

maintenance without shutting down the 

whole system. Two vertical Soderberg 

plants (similar in design to CFAC) in 

Region 10 have not requested the type 

of exemption for maintenance provided 

for CFAC in the SIP submission. Thus 

we are not convinced that the CFAC 

aluminum process is so unique, or that 

control technology could not be 

modified or added, to address 

scheduled maintenance. 

6. Comment: Another commenter 

indicated that ‘‘the rule was developed 

to allow maintenance activities on the 

facility’s air pollution control system to 

occur in a manner that is most 

protective of the environment * * * 

This rule is necessary and needed by 

CFAC in order to perform maintenance 

activities that minimize malfunctions 

and the resulting uncontrolled release of 

pollutants into the atmosphere. This 

rule allows CFAC to reduce emissions 

through the performance of 

maintenance activities that prevent 

unplanned air pollution control system 

downtime that result in excess 

emissions.’’

Response: Although EPA supports 

pollution control maintenance, for the 

reasons discussed earlier, we cannot 

approve a rule that allows increased 

emissions during maintenance activities 

unless it can be adequately 

demonstrated that the rule will not 

interfere with the state’s ability to attain 

and maintain the NAAQS (section 

110(a)(1) of the Act) or any applicable 

requirement concerning attainment and 

reasonable progress or any other 

applicable requirement of the Act 

(section 110(l) of the Act). Rather than 

trying to balance which excess 

emissions would be worse, malfunction 

or maintenance, perhaps the facility 

could be redesigned so that 

maintenance could be completed on 

portions of the control equipment 

without having to shut down the control 

equipment. As we indicate in our 

response to comment (5) above, we 

spoke to another EPA Regional office 

and found that the emission control 

system for most primary aluminum 

plants in that Region have been 

designed in a modular manner so that 

one or more components can be taken 

off-line for maintenance without 

shutting down the whole system. 

III. Final Action 

We have carefully considered the 

comments received and still believe we 

should disapprove the SIP revision. EPA 

is disapproving the SIP revision 

submitted by the State of Montana on 

January 16, 2003, which requested that 

ARM 17.8.335, Maintenance of Air 

Pollution Control Equipment For 

Existing Aluminum Plants, be added to 

the SIP. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

‘‘answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * *’’ 44 U.S.C. 

3502(3)(A). Because this final rule does 

not impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because EPA’s final disapproval 

action only affects one industrial source 

of air pollution; Columbia Falls 

Aluminum Company. Only one source 

is impacted by this action. Furthermore, 

as explained in this action, the 

submission does not meet the 

requirements of the Clean Air Act and 

EPA cannot approve the submission. 

The final disapproval will not affect any 

existing State requirements applicable 

to the entity. Federal disapproval of a 

State submittal does not affect its State 

enforceability. Therefore, because the 

Federal SIP disapproval does not create 

any new requirements nor impact a 

substantial number of small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of state action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This Federal action 

determines that pre-existing 

requirements under State or local law 

should not be approved as part of the 

federally-approved SIP. It imposes no 

new requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 


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4828 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will 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, because it 

merely disapproves 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. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, 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. 

This action does not involve or impose 

any requirements that affect Indian 

Tribes. Thus, Executive Order 13175 

does not apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

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. Section 804, 

however, exempts from section 801 the 

following types of rules: rules of 

particular applicability; rules relating to 

agency management or personnel; and 

rules of agency organization, procedure, 

or practice that do not substantially 

affect the rights or obligations of nonagency parties. 5 U.S.C. 804(3). EPA is 

not required to submit a rule report 

regarding this action under section 801 

because this is a rule of particular 

applicability. 

K. Petitions for Judicial Review 

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 March 31, 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 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 19, 2006. 

Robert E. Roberts, 

Regional Administrator, Region 8. 

■ 40 CFR part 52 is amended to read 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 BB—Montana 

■ 2. In Section 52.1384, add paragraph 

(f) to read as follows: 

§ 52.1384 Emission control regulations. 

* * * * * 

(f) Administrative Rules of Montana 

17.8.335 of the State’s rule entitled 

‘‘Maintenance of Air Pollution Control 

Equipment for Existing Aluminum 

Plants,’’ submitted by the Governor on 

January 16, 2003, is disapproved. We 

cannot approve this rule into the SIP 


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Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Rules and Regulations 4829 

because it is inconsistent with the Act 

(e.g., sections 110(a) and 110(l)), prior 

rulemakings and our guidance. 

[FR Doc. 06–789 Filed 1–27–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket No. FEMA–7909 

Suspension of Community Eligibility 

AGENCY: Mitigation Division, Federal 

Emergency Management Agency 

(FEMA), Department of Homeland 

Security. 

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 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. 

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. 

ADDRESSES: If you want to determine 

whether a particular community was 

suspended on the suspension date, 

contact the appropriate FEMA Regional 

Office or the NFIP servicing contractor. 

FOR FURTHER INFORMATION CONTACT: 

Michael M. Grimm, Mitigation Division, 

500 C Street, SW., Room 412, 

Washington, DC 20472, (202) 646–2878. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the NFIP, 

42 U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59 et seq. Accordingly, the communities 

will be suspended on the effective date 

in the third column. As of that date, 

flood insurance will no longer be 

available in the community. However, 

some of these communities may adopt 

and submit the required documentation 

of legally enforceable floodplain 

management measures after this rule is 

published but prior to the actual 

suspension date. These communities 

will not be suspended and will continue 

their eligibility for the sale of insurance. 

A notice withdrawing the suspension of 

the communities will be published in 

the Federal Register. 

In addition, FEMA has identified the 

Special Flood Hazard Areas (SFHAs) in 

these communities by publishing a 

Flood Insurance Rate Map (FIRM). The 

date of the FIRM, if one has been 

published, is indicated in the fourth 

column of the table. No direct Federal 

financial assistance (except assistance 

pursuant to the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act not in connection with a 

flood) may legally be provided for 

construction or acquisition of buildings 

in identified SFHAs for communities 

not participating in the NFIP and 

identified for more than a year, on 

FEMA’s initial flood insurance map of 

the community as having flood-prone 

areas (section 202(a) of the Flood 

Disaster Protection Act of 1973, 42 

U.S.C. 4106(a), as amended). This 

prohibition against certain types of 

Federal assistance becomes effective for 

the communities listed on the date 

shown in the last column. The 

Administrator finds that notice and 

public comment under 5 U.S.C. 553(b) 

are impracticable and unnecessary 

because communities listed in this final 

rule have been adequately notified. 

Each community receives 6-month, 

90-day, and 30-day notification letters 

addressed to the Chief Executive Officer 

stating that the community will be 

suspended unless the required 

floodplain management measures are 

met prior to the effective suspension 

date. Since these notifications were 

made, this final rule may take effect 

within less than 30 days. 

National Environmental Policy Act. 

This rule is categorically excluded from 

the requirements of 44 CFR Part 10, 

Environmental Considerations. No 

environmental impact assessment has 

been prepared. 

Regulatory Flexibility Act. The 

Administrator has determined that this 

rule is exempt from the requirements of 

the Regulatory Flexibility Act because 

the National Flood Insurance Act of 

1968, as amended, 42 U.S.C. 4022, 

prohibits flood insurance coverage 

unless an appropriate public body 

adopts adequate floodplain management 

measures with effective enforcement 

measures. The communities listed no 

longer comply with the statutory 

requirements, and after the effective 

date, flood insurance will no longer be 

available in the communities unless 

remedial action takes place. 

Regulatory Classification. This final 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866 of September 30, 

1993, Regulatory Planning and Review, 

58 FR 51735. 

Paperwork Reduction Act. This rule 

does not involve any collection of 

information for purposes of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. 

List of Subjects in 44 CFR Part 64 

Flood insurance, Floodplains. 

■ Accordingly, 44 CFR part 64 is 

amended as follows: 

PART 64—[AMENDED] 

■ 1. The authority citation for part 64 is 

revised to read as follows: 

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp.; p. 376. 

§ 64.6 [Amended] 

The tables published under the 

authority of § 64.6 are amended as 

follows: 


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