Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 31245 

(2) Rule 333, ‘‘Control of Emissions 

from Reciprocating Internal Combustion 

Engines,’’ adopted on June 19, 2008. 

* * * * * 

[FR Doc. 2011–13273 Filed 5–27–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R04–OAR–2010–0504–201052; FRL– 

9312–9] 

Approval and Promulgation of 

Implementation Plans; Extension of 

Attainment Date for the CharlotteGastonia-Rock Hill, North CarolinaSouth Carolina 1997 8-Hour Ozone 

Moderate Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve requests from the State of North 

Carolina, through the North Carolina 

Department of Environment and Natural 

Resources (NC DENR), and the State of 

South Carolina, through the South 

Carolina Department of Health and 

Environmental Control (SC DHEC), to 

grant a one-year extension of the 

attainment date for the 1997 8-hour 

ozone national ambient air quality 

standards (NAAQS) for the CharlotteGastonia-Rock Hill, North CarolinaSouth Carolina Area (hereafter referred 

to as the ‘‘bi-state Charlotte Area’’ or 

‘‘Metrolina Area’’). These requests were 

sent to EPA via letter from NC DENR on 

April 28, 2010, and from SC DHEC on 

May 6, 2010. The bi-state Charlotte Area 

consists of Cabarrus, Gaston, Lincoln, 

Mecklenburg, Rowan, Union and a 

portion of Iredell County (Davidson and 

Coddle Creek Townships), North 

Carolina; and a portion of York County, 

South Carolina. EPA is finalizing a 

determination that North Carolina and 

South Carolina have met the Clean Air 

Act (CAA or Act) requirements to obtain 

a one-year extension to their attainment 

date for the 1997 8-hour ozone NAAQS 

for the bi-state Charlotte Area. As a 

result, EPA is approving a one-year 

extension of the 1997 8-hour ozone 

moderate attainment date for the bi-state 

Charlotte Area. Specifically, EPA 

(through this final action) is extending 

the bi-state Charlotte Area’s attainment 

date from June 15, 2010, to June 15, 

2011. EPA is also addressing adverse 

comments received on EPA’s proposal 

to grant the one-year extension for the 

bi-state Charlotte 1997 8-hour ozone 

nonattainment area. 

DATES: Effective Date: This rule will be 

effective June 30, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0504. 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, i.e., Confidential 

Business Information 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 Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the 1997 8-hour 

ozone NAAQS, contact Ms. Jane Spann, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. The 

telephone number for Ms. Spann is 

(404) 562–9029. Ms. Spann can also be 

reached via electronic mail at 

spann.jane@epa.gov. For information 

regarding the North Carolina or South 

Carolina SIPs, contact Mr. Zuri 

Farngalo, Regulatory Development 

Section, at the same address above. The 

telephone number for Mr. Farngalo is 

(404) 562–9152. Mr. Farngalo can also 

be reached via electronic mail at 

farngalo.zuri@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. This Action 

III. Comments and Responses 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

Detailed background information and 

rationale for this final action can be 

found in EPA’s proposed rule entitled 

‘‘Approval and Promulgation of 

Implementation Plans; Extension of 

Attainment Date for the CharlotteGastonia-Rock Hill, North CarolinaSouth Carolina 1997 8-Hour Ozone 

Moderate Nonattainment Area,’’ 75 FR 

46881 (August 4, 2010). The comment 

period for EPA’s proposed action closed 

on September 3, 2010. EPA received 

three sets of comments on the August 4, 

2010, proposed rulemaking which are 

discussed later in this rulemaking. This 

section includes a brief summary of the 

information and rationale for EPA’s 

proposed approval of the bi-state 

Charlotte Area’s one-year extension. 

Section 181(b)(2)(A) requires the 

Administrator, within six months of the 

attainment date, to determine whether 

an ozone nonattainment area attained 

the NAAQS. CAA section 181(b)(2)(A) 

states that, for areas classified as 

marginal, moderate, or serious, if the 

Administrator determines that the area 

did not attain the standard by its 

attainment date, the area must be 

reclassified to the next classification. 

However, CAA section 181(a)(5) 

provides an exemption from these 

reclassification requirements. Under 

this provision, EPA may grant up to two 

one-year extensions of the attainment 

date under specified conditions. 

Specifically, in relevant part, section 

181(a)(5) states: 

Upon application by any State, the 

Administrator may extend for 1 

additional year (hereinafter referred to 

as the ‘‘Extension Year’’) the date 

specified in table 1 of paragraph (1) of 

this subsection if— 

(A) The State has complied with all 

requirements and commitments 

pertaining to the area in the applicable 

implementation plan, and 

(B) no more than 1 exceedance of the 

national ambient air quality standard 

level for ozone has occurred in the area 

in the year preceding the Extension 

Year. 

With regard to the first element, 

‘‘applicable implementation plan’’ is 

defined in section 302(q) of the CAA as, 

the portion (or portions) of the 

implementation plan, or most recent 

revision thereof, which has been 

approved under section 110, or 

promulgated under section 110(c), or 

promulgated or approved pursuant to 

regulations promulgated under section 

301(d) and which implements the 

relevant requirements of the CAA. 

The language in section 181(a)(5)(B) 

reflects the form of the 1-hour ozone 

NAAQS, which is exceedance based and 

does not reflect the 1997 8-hour ozone 

NAAQS, which is concentration based. 

Because section 181(a)(5)(B) does not 

reflect the form of the 8-hour NAAQS, 


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31246 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 

1The full text of the comments is available in the 

Docket for this action. Electronic docket 

information can be found in the ‘‘Addresses’’ 

portion of this notice. The comments are 

summarized in this Federal Register document; 

however, EPA considered all the comments 

expressed in the letters. 

EPA promulgated a regulation 

interpreting this provision in a manner 

consistent with Congressional intent but 

reflecting the form of the 1997 8-hour 

NAAQS. See 40 CFR 51.907. This 

regulation provides that an area will be 

eligible for the first of the one-year 

extensions under the 1997 8-hour 

NAAQS if, for the attainment year, the 

area’s 4th highest daily 8-hour average 

is 0.084 parts per million (ppm) or less. 

The area will be eligible for the second 

extension if the area’s 4th highest daily 

8-hour value averaged over both the 

original attainment year and the first 

extension year is 0.084 ppm or less. No 

more than two one-year extensions may 

be issued for a single nonattainment 

area. 

In summary, EPA interprets the CAA 

and implementing regulations to allow 

the granting of a one-year extension 

under the following minimum 

conditions: (1) The State requests a oneyear extension; (2) all requirements and 

commitments in the EPA-approved SIP 

for the area have been complied with; 

and (3) the area has a 4th highest daily 

8-hour average of 0.084 ppm or less for 

the attainment year (or an area’s 4th 

highest daily 8-hour value averaged over 

both the original attainment year and 

the first extension year is 0.084 ppm or 

less, if a second one-year extension is 

requested). Because the bi-state 

Charlotte Area’s attainment date was 

June 15, 2010, the ‘‘attainment year’’ 

used for this purpose is the 2009 ozone 

season. See 40 CFR 51.900(g). The North 

Carolina and South Carolina ozone 

seasons run from April 1 to October 31 

of any given year. 

II. This Action 

EPA has determined that North 

Carolina and South Carolina have met 

the CAA requirements to obtain a oneyear extension of the June 2010 

attainment date for the 1997 8-hour 

ozone NAAQS for the bi-state Charlotte 

Area. As a result, EPA is taking final 

action to extend the bi-state Charlotte 

Area’s attainment date from June 15, 

2010, to June 15, 2011, for the 1997 8- 

hour ozone NAAQS. Specifically, EPA 

has determined that North Carolina and 

South Carolina are in compliance with 

the requirements and commitments 

associated with the EPA-approved 

implementation plans, and that the 4th 

highest daily concentration for 2009 for 

the bi-state Charlotte Area is below the 

1997 8-hour ozone NAAQS. EPA has 

reviewed the 1997 8-hour ozone 

NAAQS ambient air quality monitoring 

data for the bi-state Charlotte Area, and 

has determined that these data are 

consistent with the ozone monitoring 

requirements contained in 40 CFR part 

50, Appendix I. These data are recorded 

in the EPA Air Quality System database. 

These data are complete, qualityassured, quality-controlled, and 

certified ambient air monitoring data for 

2009. On the basis of that review, EPA 

has concluded that for the attainment 

year ozone season of 2009, the bi-state 

Charlotte Area’s 4th highest daily 8- 

hour average concentration was 0.071 

ppm, which is below 0.084 ppm. As 

provided in CAA section 181(a)(5) and 

40 CFR 51.907, this final action extends, 

by one year, the deadline by which the 

bi-state Charlotte Area must attain the 

1997 8-hour ozone NAAQS. It also 

extends the timeframe by which EPA 

must make an attainment determination 

for the bi-state Charlotte Area. 

As described in section 181(a)(5) of 

the CAA, areas may qualify for up to 

two one-year extensions. EPA notes that 

this final action only relates to the 

initial one-year extension. The bi-state 

Charlotte Area will be eligible for the 

second extension if the bi-state 

Charlotte Area’s 4th highest daily 8- 

hour value averaged over both the 

original attainment year and the first 

extension year is 0.084 ppm or less and 

the continues to comply with all 

requirements and commitments 

pertaining to the bi-state Charlotte Area 

in the applicable implementation plan. 

Any analysis of whether the bi-state 

Charlotte Area qualifies for the second 

extension would be based on data from 

both the 2009 and 2010 ozone seasons. 

If requested at a future date, EPA will 

make a determination of the 

appropriateness of a second one-year 

extension for the bi-state Charlotte Area 

for the 1997 8-hour ozone NAAQS in a 

separate rulemaking. 

III. Comments and Responses 

EPA received one set of adverse 

comments 1 and two requests for 

additional information for its proposal 

to approve the requests from North 

Carolina and South Carolina to extend 

the attainment date for the bi-state 

Charlotte Area for the 1997 8-hour 

ozone NAAQS from June 15, 2010, to 

June 15, 2011. The comments, received 

by September 3, 2010, were from the 

Southern Environmental Law Center 

(SELC) on behalf of Clean Air Carolina 

and from two citizens (hereinafter 

referred to as ‘‘the Commenter’’). Below 

is a summary of the comments and 

EPA’s response. 

Comment 1: The Commenter requests 

clarification on why the attainment date 

for the bi-state Charlotte Area needs an 

extension and on what grounds is the 

extension being granted. 

Response 1: Effective June 15, 2004, 

EPA designated the bi-state Charlotte 

Area as nonattainment for the 1997 8- 

hour ozone NAAQS. Along with this 

nonattainment designation, EPA 

classified the bi-state Charlotte Area as 

a ‘‘moderate’’ ozone nonattainment area 

based on the level of the three year 

design value for the area at the time of 

EPA’s designations. In accordance with 

the section 181 of the CAA, ‘‘moderate’’ 

areas are required to attain the ozone 

NAAQS ‘‘as expeditiously as 

practicable,’’ but no later than 6 years 

after EPA’s nonattainment designation. 

This means that the bi-state Charlotte 

Area was required to attain the 1997 8- 

hour ozone NAAQS by June 15, 2010 

(based on monitoring data from the 2007 

through 2009 ozone seasons). In section 

181(a)(5) of the CAA, Congress allows 

EPA to consider extension of the 

attainment dates for ozone areas 

provided the area meets the 

requirements for such extensions. See 

EPA’s August 4, 2010, proposed 

rulemaking at 75 FR 46881 for the 

detailed rationale for approval of the bistate Charlotte Area’s attainment date 

extension, and the ‘‘Background’’ 

section of this rulemaking for more 

detail on the section 181(a)(5) 

requirements. EPA has made the 

determination that both North Carolina 

and South Carolina meet the 

requirements of section 181(a)(5) (as 

interpreted in 40 CFR 51.907) for the bistate Charlotte Area for the 1997 8-hour 

ozone NAAQS, and as such EPA is 

granting an extension of the 1997 8-hour 

ozone attainment date from June 15, 

2010, to June 15, 2011. 

Comment 2: The Commenter requests 

that EPA incorporate by reference 

comments previously provided for the 

attainment demonstrations for the bistate Charlotte Area. Specifically, the 

Commenter states ‘‘[t]hese comments 

incorporate by reference SELC’s June 10, 

2010 and May 19, 2010 comments to the 

agency on the North Carolina and South 

Carolina 8-hour ozone attainment 

demonstration plan submission, and 

SELC’s March 29, 2010, March 22, 2010, 

December 17, 2009, November 13, 2003, 

and October 26, 2009, submissions to 

the North Carolina Division of Air 

Quality (‘NCDAQ’) and the South 

Carolina Bureau of Air Quality, all of 

which have been previously submitted 

to EPA.’’ 


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2The Commenter submitted comments during 

EPA’s public comment period for review of the 

adequacy of the motor vehicle emissions budgets 

for the attainment demonstrations for the bi-state 

Charlotte Area as provided by North Carolina and 

South Carolina. EPA has a separate process from 

today’s rulemaking to consider comments received 

during EPA’s Adequacy public comment period. 

Response 2: EPA’s August 4, 2010, 

proposed action relates to the States’ 

requests for a one-year extension of the 

attainment date for the 1997 8-hour 

ozone NAAQS for the bi-state Charlotte 

Area, and does not relate to the 

approvability of the attainment 

demonstrations submitted by North 

Carolina and South Carolina for the bistate Charlotte Area. There are separate 

requirements regarding requests for 

attainment date extensions (relevant to 

this final action and described in 

‘‘Background’’ sections of EPA’s August 

4, 2010, proposed rulemaking and this 

final rulemaking) and approval of 

attainment demonstrations. EPA held a 

public comment period from August 4, 

2010, through September 3, 2010, to 

provide the public with opportunity to 

specifically comment on the proposed 

approval of the attainment date 

extension for the bi-state Charlotte Area 

for the 1997 8-hour ozone NAAQS. The 

Commenter provided a detailed letter 

with their comments in opposition to 

EPA’s proposed action to extend the bistate Charlotte Area’s attainment date to 

which EPA is responding in this final 

rulemaking. Although the Commenter 

suggests that EPA should incorporate by 

reference comments previously 

submitted to North Carolina and South 

Carolina during their state public 

comment periods for their attainment 

demonstrations and reasonable further 

progress plans, and to EPA during a 

public comment period on the 

attainment demonstration for the bistate Charlotte Area,2 the Commenter 

does not identify and EPA did not 

identify anything in those comments 

that are relevant to the analysis of 

whether the bi-state Charlotte Area is 

eligible for the first attainment date 

extension provided under CAA section 

181(a)(5) and 40 CFR 51.907. 

Comment 3: The Commenter asserts 

several times throughout the comment 

letter that EPA should reclassify the bistate Charlotte Area to ‘‘serious’’ for the 

1997 8-hour ozone NAAQS. 

Specifically, the Commenter states 

‘‘EPA should instead reclassify the area 

to ‘serious’ nonattainment status * * *’’ 

and ‘‘[i]n the wake of the missed 

deadline, the Act now requires 

reclassification of the Metrolina area to 

‘serious’ status.’’ The Commenter goes 

on to conclude that ‘‘[t]he proposed 

extension is inconsistent with the Clean 

Air Act’s statutory scheme and its 

emphasis on attainment deadlines. EPA 

should require North and South 

Carolina officials to comply with the 

Act and prepare a SIP revision 

consistent with the Metrolina area’s 

legally required bump-up to ‘serious’ 

status.’’ 

Response 3: EPA disagrees with the 

Commenter’s assertions and conclusion 

that the Act requires the Agency to 

reclassify the bi-state Charlotte Area to 

‘‘serious’’ for the 1997 8-hour ozone 

NAAQS ‘‘[i]n the wake of the missed 

deadline * * *’’ Congress contemplated 

the potential for areas to miss the 

attainment date deadlines in the CAA 

and allows for extensions of the 

attainment date deadline so long as 

areas meet the requirements of section 

181(a)(5). EPA’s analysis indicates that 

both North Carolina and South Carolina 

have met the requirements of section 

181(a)(5) of the CAA (as interpreted by 

40 CFR 51.907) for the initial one-year 

extension of the 1997 8-hour ozone 

moderate area attainment date for the bistate Charlotte Area, and thus the Act 

does not require EPA to reclassify the 

bi-state Charlotte Area to ‘‘serious’’ 

status. Additionally, given that EPA has 

determined that the bi-state Charlotte 

Area qualifies for the one-year extension 

for the moderate ozone classification, 

the bi-state Charlotte Area is not subject 

to being ‘‘bumped-up’’ and thus is not 

subject to the planning requirements 

that would be triggered by a bump-up. 

Comment 4: The Commenter states 

‘‘[t]he deadline for meeting the 1997 

ozone standard was June 15, 2010, and 

there is still no Federally approved State 

Implementation Plan (‘SIP’) for meeting 

that standard. As a result, EPA lacks 

authority to grant the proposed 

extension, and the Metrolina area 

should instead be reclassified to 

‘serious’ nonattainment status, 

triggering the development of a new 

plan with additional control strategies. 

As we explained in our previous 

comments, the Clean Air Act allows 

EPA to grant extensions only when a 

state has complied with all the 

requirements of the approved SIP for an 

area. The States have no approved SIP 

for meeting the ozone NAAQS in this 

area. As indicated in the notice, both 

states have provided ‘necessary SIP 

[State Implementation Plan] submittals,’ 

intended to meet ‘outstanding 

requirements related to the 1997 8-hour 

ozone attainment demonstration for the 

bi-state Charlotte area.’ But these plan 

submissions were not made until after 

the conclusion of the 2009 ozone 

season, and therefore could only 

purport to demonstrate attainment of 

the 1997 ozone NAAQS, retroactively, 

despite modeling and monitoring data 

to the contrary. The proposed extension 

signifies a de facto approval of these 

plans and introduces a relaxed post hoc 

standard, which would be contrary to 

the requirements of the Act and which 

would encourage states to take a ‘waitand-see’ approach to SIP control 

strategies.’’ 

Response 4: EPA does not agree with 

the Commenter’s assertion that EPA 

lacks the authority to grant the requests 

from North Carolina and South Carolina 

for an extension of the bi-state Charlotte 

Area’s 1997 8-hour ozone attainment 

date. In EPA’s August 4, 2010, proposed 

rulemaking, EPA explained that section 

181(a)(5) of the CAA is what EPA must 

consider when contemplating a state’s 

request for a one-year extension to an 

ozone attainment date. The Commenter 

appears to question whether North 

Carolina and South Carolina meet the 

requirements of section 181(a)(5)(A) 

which states ‘‘the State has complied 

with all requirements and commitments 

pertaining to the area in the applicable 

implementation plan * * *’’ As noted 

in EPA’s August 4, 2010, proposed 

rulemaking, the ‘‘applicable 

implementation plan’’ is defined by the 

CAA in section 302(q) as ‘‘the portion 

(or portions) of the implementation 

plan, or most revision thereof, which 

has been approved under section 7410 

of this title, or promulgated under 

section 7410(c) of this title, or 

promulgated or approved pursuant to 

regulations promulgated under section 

7601(d) of this title and which 

implements the relevant requirements of 

this chapter.’’ [Emphasis added].Thus, 

the ‘‘compliance’’ that is relevant to 

evaluating the States’ eligibility for an 

attainment date extension under section 

181(a)(5) is solely with those 

requirements and commitments that 

have been approved into the existing 

SIP—not with those which may yet be 

approved. EPA has made an 

independent assessment of whether 

North Carolina and South Carolina are 

in compliance with all the requirements 

and commitments pertaining to the bistate Charlotte Area in the applicable 

implementation plan, as defined by 

section 302(q), and the Agency has 

made the determination that both states 

are in compliance. EPA also notes that 

originally, North Carolina and South 

Carolina submitted attainment 

demonstrations for the bi-Charlotte Area 

for the 1997 8-hour ozone NAAQS on 

June 15, 2007, and August 31, 2007, 

respectively. Subsequently, both states 

withdrew their original attainment 

demonstrations but later submitted 

these attainment demonstrations with 


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updated and supplemental information. 

EPA disagrees that this final action is a 

de facto approval of these plans. These 

plans are still pending before EPA. The 

Commenter also mentions that EPA’s 

final action to approve the extension of 

the attainment date for the bi-state 

Charlotte Area introduces a relaxed post 

hoc standard, which would be contrary 

to the requirements of the Act and 

which would encourage states to take a 

‘‘wait-and-see’’ approach to SIP control 

strategies. EPA disagrees. If EPA 

determines that a state has not 

submitted a required nonattainment 

area SIP, mandatory sanctions are 

imposed 18 and 24 months after such a 

finding and EPA is required to 

promulgate a Federal implementation 

plan within two years. The CAA 

provides appropriate incentives to 

ensure that states do not take a ‘‘wait 

and see’’ approach for attainment of the 

NAAQS. When North Carolina and 

South Carolina withdrew their original 

attainment demonstrations for the bistate Charlotte Area (which were 

provided in 2007), EPA issued a finding 

of failure to submit. See 74 FR 21550 

(May 8, 2009). The submissions that 

both North Carolina and South Carolina 

provided in 2009 were provided in 

response to EPA’s finding of failure to 

submit. 

Comment 5: One Commenter states 

‘‘[t]he Metrolina area’s ozone problem is 

chronic and significant.’’ Additionally, 

the Commenter cites the American Lung 

Association 2010 State of the Air Report 

and mentions that the report ranks 

Charlotte as the 10th most polluted city 

in the country for ozone. The 

Commenter goes on to state that ‘‘[i]n 

contrast to the anomalous 2009 ozone 

season, pollution levels during the first 

part of the 2010 summer have continued 

to exceed the 1997 standard of 84 ppb 

[parts per billion][or 0.084 ppm], with 

the ‘County Line’ monitor registering as 

high as 96 ppb [or 0.096 ppm], and the 

Metrolina monitors recording 30 

exceedances of the 2008 standard (75 

ppb [or 0.075 ppm]) as of August 28, 

2010. Air quality planning should do as 

much as possible to protect citizens’ 

health in nonattainment areas, and at 

the very least, the region must comply 

with express Clean Air Act 

Requirements.’’ Another Commenter 

states ‘‘[t]he 2010 ozone season clearly 

shows that the current control methods 

to obtain attainment for the 1997 

standard for the Charlotte region are not 

effective. The 2009 ozone season had 

favorable weather conditions. This 

alone allowed for the low ozone 

numbers. The intent of Congress, 

through the CAA, is for non-attainment 

areas to reach attainment. Delaying the 

decision by one year will allow the 

Charlotte area to continue building 

roads. Is not mobile sources the largest 

contributor to ozone formation in the 

Charlotte area?’’ 

Response 5: EPA agrees with the 

Commenters that the unusually hot 

summer of 2010 resulted in more 

exceedances of the ozone NAAQS at the 

monitors within the bi-state Charlotte 

Area. However, based on EPA’s 

preliminary evaluation of the data, the 

bi-state Charlotte Area appears to still be 

monitoring attainment for the 1997 

ozone NAAQS. Additionally, EPA’s 

preliminary evaluation indicates that 

the bi-state Charlotte Area could be 

eligible for the second extension of the 

attainment date, if requested. 

Regardless, air quality data for the 2010 

ozone season is not relevant to the issue 

of whether the bi-state Charlotte Area 

qualifies for the first one-year extension 

of its attainment date as provided under 

CAA section 181(a)(5) and 40 CFR 

51.907. EPA notes that nonattainment 

areas are allowed to build roads and are 

subject to requirements to demonstrate 

that these activities will not interfere 

with air quality goals. EPA’s granting of 

the one-year extension to the attainment 

date will not relieve the bi-state 

Charlotte Area of continuing to make 

the demonstration that transportation 

planning activities will not interfere 

with air quality goals. 

Comment 6: The Commenter states 

‘‘EPA may only extend the 

nonattainment deadline for an area that 

has not met the NAAQS if ‘the State has 

complied with all requirements and 

commitments pertaining to the area in 

the applicable implementation plan.’ 42 

U.S.C. § 7511(a)(5)(A). The Act defines 

‘the term ‘‘applicable implementation 

plan’ ’’ as ‘the portion (or portions) of 

the implementation plan, or most recent 

revision thereof, which has been 

approved under section 110 of this title.’ 

Id. § 7602(q). [Emphasis added] Section 

110, in turn, provides that ‘[e]ach State 

shall * * * adopt and submit to the 

Administrator, within 3 years * * * 

after promulgation of a [NAAQS] (or 

any revision thereof) under section 109 

[42 § USCS 7409] for any air pollutant, 

a plan which provides for 

implementation, maintenance, an 

enforcement of such primary standard 

in each air quality control region * * * 

within such State,’ Id. § 7410(a)(1). 

Section 110 goes on to prescribe that 

‘each such plan shall * * * meet the 

applicable requirements of Part D of this 

subchapter (relating to nonattainment 

areas).’ Id. § 7410(a)(1). Among the 

applicable requirements of Part D, ‘plan 

provisions * * * shall provide for 

attainment of the national ambient air 

quality standards.’ Id. § 7502(c)(1). In 

other words, to qualify for an extension, 

a state must comply with its federally 

approved SIP, which among other 

requirements, must demonstrate 

attainment.’’ 

Response 6: EPA agrees with the 

Commenter’s citation to 42 U.S.C. 

7511(a)(5)(A)[section 181(a)(5)(A)], and 

to 42 U.S.C. 7602(q) [section 302(q)] as 

the relevant provisions of the CAA to 

consider. Additionally, EPA agrees with 

the Commenter’s emphasis on ‘‘which 

has been approved’’ of the Act’s 

definition for the term ‘‘applicable 

implementation plan.’’ It is the 

emphasis on ‘‘which has been 

approved’’ that EPA relied on to make 

the determination that North Carolina 

and South Carolina are meeting the 

requirements of 181(a)(5)(A). However, 

EPA does not agree with the 

Commenter’s apparent broadening of 

the definition of ‘‘applicable 

implementation plan’’ to mean that EPA 

must consider plans which have not yet 

been approved. The CAA is 

unambiguous on the requirements for 

EPA to grant an extension and on what 

EPA should consider as the ‘‘applicable 

implementation plan,’’ and based on 

those requirements, EPA has 

determined that both North Carolina 

and South Carolina qualify for an 

extension of the attainment date for the 

1997 8-hour ozone NAAQS for the bistate Charlotte Area. 

Comment 7: The Commenter notes 

that both North Carolina and South 

Carolina submitted attainment 

demonstrations for the bi-state Charlotte 

Area in 2007, but later withdrew these 

submissions after EPA sent a letter to 

both States with a recommendation that 

North Carolina and South Carolina 

request a voluntary reclassification of 

the bi-state Charlotte Area to ‘‘serious’’ 

status for the 1997 8-hour ozone 

NAAQS. Additionally, the Commenter 

notes that in EPA’s letter, the Agency 

states ‘‘if we are required to take 

rulemaking action on the SIP, we see no 

alternative to proposing disapproval of 

the SIP’s attainment demonstration.’’ 

The Commenter goes on to state that 

‘‘[c]learly, the States submitted ‘a plan’ 

as contemplated by the extension 

provision, but it was not an approvable 

plan, and therefore, not a plan that 

would provide a basis for a future 

extension request. Indeed, rather than 

demonstrate attainment, the modeling 

in the submissions actually predicted 

that the area would fail to meet the 

standard by the deadline. After 

signaling its intent to disapprove the 

submissions, however, EPA allowed the 

States to ‘‘withdraw’’ their plans, an 


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action that is not authorized under the 

Clean Air Act, which contravenes EPA’s 

obligation to take action on a plan 

submission, and ‘approve or disapprove 

it, either in whole or in part.’ ’’ 

Response 7: These comments are not 

relevant to this rulemaking. The issues 

raised concern whether attainment 

demonstrations submitted in 2007 

adequately demonstrated whether the 

bi-state Charlotte Area would attain the 

1997 ozone NAAQS by June 2010 and 

they do not address whether the bi-state 

Charlotte Area qualifies for an 

attainment date extension. EPA notes, 

however, that we disagree with the 

Commenter’s assertion that States are 

not authorized under the CAA to 

withdraw submitted SIPs. The CAA 

does not directly address this issue; 

however, EPA can see no reasonable 

interpretation that the Act prohibits a 

state from withdrawing a submitted 

plan prior to EPA final action. The CAA 

provides states with a choice whether to 

submit plans and to take the lead in 

regulating sources for purposes of 

attainment and maintenance of the 

NAAQS. Consistent with that overall 

paradigm, states can choose to withdraw 

submitted SIPs at any time prior to EPA 

final action, which establishes those 

requirements under Federal law. Once 

the plan is approved and made 

Federally enforceable, it can no longer 

be withdrawn or altered except through 

a SIP revision or a Federal 

implementation plan. If the withdrawn 

SIP had been submitted to meet a 

specific statutory requirement and the 

state does not replace the SIP 

submission upon withdrawal with a 

new SIP submission to meet that 

statutory requirement (or, in appropriate 

instances, with an attainment 

determination that suspends the 

obligation to meet such requirement), 

EPA has the authority to make a finding 

of failure to submit for that required 

submission. EPA also notes that 

subsequently, both North Carolina and 

South Carolina resubmitted their 

attainment demonstrations for the 1997 

8-hour ozone NAAQS. 

Comment 8: The Commenter states 

that ‘‘[d]uring the 2009 ozone season, 

cool temperatures and a slow economy 

contributed to a dramatic decline in 

ozone pollution, albeit not enough to 

bring the three-year ozone design value 

into attainment by the June 2010 

deadline. Nevertheless, the States have 

resubmitted their ‘withdrawn’ 2007 

submissions for public comment and 

agency approval, along with 

supplemental plans that establish higher 

motor vehicle emissions budgets. These 

submissions do not provide the legal 

basis for an extension because they have 

never been federally approved, and thus 

have not be made federally enforceable, 

see 42 U.S.C. § 7413, and they therefore 

do not meet the definition of ‘applicable 

implementation plan.’ ’’ 

Response 8: As provided in previous 

responses, EPA disagrees with the 

Commenter’s premise that the 

attainment demonstration submissions 

are required to be approved in order for 

EPA to grant the request from North 

Carolina and South Carolina for a oneyear extension to the attainment date for 

the 1997 8-hour ozone NAAQS. 

Comment 9: The Commenter states 

that ‘‘EPA’s Federal Register notice 

appears to indicate that the States ‘are 

meeting their federally-approved 

implementation plans’ by virtue of 

adequate monitoring alone. 75 Fed. Reg. 

46881, 46883.’’ Further, the Commenter 

mentions that ‘‘EPA guidance 

documents direct states requesting an 

extension under 42 U.S.C. § 7511(a)(5) 

to both certify compliance with the 

approved SIP for the current 

classification, and to document the 

preparations being taken to address the 

‘consequences of eventually not 

attaining the NAAQS,’ including 

meeting new requirements that take 

effect upon reclassification of the area.’’ 

The Commenter concludes this point by 

stating ‘‘[t]he States’ extension requests, 

however, neither explain how they have 

complied with all requirements of an 

‘approved SIP’ that does not exist, nor 

mention the possibility that the area 

might not attain the NAAQS by the 

extended deadline.’’ 

Response 9: EPA disagrees with the 

Commenter’s assertion that EPA’s 

analysis of whether North Carolina and 

South Carolina ‘‘are meeting their 

federally-approved implementation 

plans’’ is ‘‘by virtue of adequate 

monitoring alone.’’ Over the past several 

years, the bi-state Charlotte Area has 

benefitted from the reduction in 

emissions attributable to the 

implementation of federal, state and 

local programs. Some of the federal 

control measures that have come on line 

since the bi-state Charlotte Area was 

designated nonattainment for the 1997 

8-hour ozone NAAQS in 2004 include: 

Tier 2 vehicle and fuels standards; 

heavy-duty gasoline and diesel highway 

vehicle standards; nonroad sparkignition engines and recreational 

engines standards; and large nonroad 

diesel engine standards. North Carolina 

has also implemented state programs 

that have provided emissions reductions 

in the bi-state Charlotte Area. These 

state programs include: (1) The Clean 

Air Bill which expanded the inspection 

and maintenance program from 9 to 48 

counties; (2) North Carolina’s nitrogen 

oxide (NOx) SIP Call rule which was 

predicted to reduce summertime NOx 

emissions from power plants and other 

industries by sixty-eight percent; and (3) 

North Carolina’s Clean Smokestack Act 

which required coal-fired power plants 

in North Carolina to reduce annual NOx 

emissions by seventy-seven percent by 

2009, and to reduce annual sulfur 

dioxide emissions by forty-nine percent 

by 2009 and seventy-three percent by 

2013. Additionally, EPA disagrees with 

the Commenter’s statement that an 

‘‘approved SIP’’ does not exist for the bistate Charlotte Area. As noted in EPA’s 

proposed rulemaking, the ‘‘applicable 

implementation plan’’ is defined by the 

CAA in section 302(q) as the portion (or 

portions) of the implementation plan, or 

most recent revision thereof, which has 

been approved under section 110, or 

promulgated under section 110(c), or 

promulgated or approved pursuant to 

regulations promulgated under section 

301(d) and which implements the 

relevant requirements of the CAA. 

Lastly, EPA disagrees with the 

Commenter’s statement indicating that 

the States did not provide the necessary 

certification regarding compliance with 

their approved SIPs. On April 28, 2010, 

NC DENR stated in a letter to EPA, that 

it ‘‘certifies that the state has complied 

with all requirements and commitments 

pertaining to the area in the applicable 

ozone implementation plan.’’ On May 6, 

2010, SC DHEC, in a letter to EPA, 

stated ‘‘South Carolina has complied 

with all requirements and commitments 

pertaining to the area in the South 

Carolina State Implementation Plan.’’ 

EPA believes that these statements 

provide the necessary certification from 

the States. EPA also notes that North 

Carolina and South Carolina considered 

the consequences of eventually not 

attaining the NAAQS. They conducted 

modeling for the year 2012 in case they 

did not have clean data and were 

required to be reclassified to serious. 

That modeling would have been 

submitted to EPA as the States’ 

attainment demonstration for a serious 

classification had the area been 

reclassified to serious. 

Comment 10: The Commenter states 

that ‘‘[t]he agency’s permissive 

proposed approach would encourage 

poor air quality planning. Indeed, the 

State’s plan submissions allow 

unfettered expansion of the area’s 

highway network without regard to 

long-term air quality consequences.’’ 

The Commenter goes on to say that 

‘‘[r]eclassification of the area to ‘serious’ 

nonattainment status would require 

better developed and more accurate 

travel modeling that would help to 


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ensure that road capacity investments 

will not compromise air quality for 

years to come. See 40 CFR § 93.122’’ 

Response 10: The August 4, 2010, 

proposed rulemaking and this final 

action do not involve the approval of 

any plans for the bi-state Charlotte Area 

for the 1997 8-hour ozone standard. 

Additionally, while not relevant to this 

final action, EPA notes that the 

development of the mobile emissions in 

the States’ attainment demonstration 

plans for the bi-state Charlotte Area 

were developed through a required 

interagency process, pursuant to 40 CFR 

93.105, that includes federal, state and 

local air quality and transportation 

partners. The Commenter mentions that 

the ‘‘[r]eclassification of the area to 

‘serious’ nonattainment status would 

require better developed and more 

accurate travel modeling that would 

help to ensure that road capacity 

investments will not compromise air 

quality for years to come.’’ While EPA 

agrees that there are different travel 

demand modeling requirements for 

‘‘serious’’ versus ‘‘moderate’’ ozone 

areas, EPA also notes that 40 CFR 

93.122(d) states ‘‘[i]n all areas not 

otherwise subject to paragraph (b) of 

this subsection, regional emissions 

analyses must use those procedures 

described in paragraph (b) of this 

section if the use of those procedures 

has been the previous practice of the 

MPO * * *’’ The transportation 

modeling requirements for ‘‘serious’’ 

areas are outlined in 40 CFR 93.122(b). 

In a letter dated December 3, 2010, NC 

DENR provided EPA with additional 

information regarding the travel demand 

modeling practices currently employed 

in the bi-state Charlotte Area. Attached 

to the letter, the Senior Transportation 

Planner for the Charlotte Department of 

Transportation provides a comparison 

of the current practice for travel demand 

modeling for the entire bi-state Charlotte 

Area and the requirements of 40 CFR 

93.122(b) for a ‘‘serious’’ area. The 

comparison demonstrates that the 

current practices for travel demand 

modeling meet the requirements for a 

‘‘serious’’ area although the bi-state 

Charlotte Area is a ‘‘moderate’’ area. NC 

DENR’s December 3, 2010, letter can be 

found in the docket for this final 

rulemaking. A reclassification of the 

area to ‘‘serious’’ would not change the 

current travel demand modeling 

practice in the bi-state Charlotte Area 

since the bi-state Charlotte Area is 

currently meeting the ‘‘serious’’ area 

requirements, and in accordance with 

40 CFR 93.122(b) and (d), this practice 

must be maintained. 

Comment 11: The Commenter 

mentions that ‘‘[s]tate officials have 

argued that reclassifying and 

undertaking more stringent control 

measures to ensure compliance with the 

existing ozone standard is unnecessary 

because EPA will soon approve a new 

standard and require new plans to meet 

the standard.’’ Further, the Commenter 

goes on to say, ‘‘* * * not only has EPA 

recently delayed its expected release of 

the new, stricter standards, but even 

without delay, waiting until 

implementation of the new standard 

would result in several years of delay in 

the adoption of the additional control 

measures required today as part of 

‘bump up’ to a ‘serious’ classification.’’ 

The Commenter continues by noting the 

delay of the promulgation of the new 

ozone standard and anticipated dates for 

the attainment demonstration 

submissions. The Commenter mentions 

‘‘approval of inadequate plans now will 

only delay efforts to address the serious 

air quality problems in the Charlotte 

metro area and make attainment under 

the 2008 standard, or a stronger one, 

much more difficult, uncertain, and 

expensive.’’ 

Response 11: Neither the States’ 

position (as articulated by the 

Commenter) nor this comment are 

relevant to this action. This action 

solely concerns whether the States have 

demonstrated that a one-year attainment 

date extension is appropriate for the 

1997 ozone NAAQS. EPA notes that in 

a separate process, the Agency is 

reconsidering the 2008 ozone NAAQS 

and, if EPA determines a different 

NAAQS should be promulgated, the 

Agency will undertake rulemaking to 

address the requirements for the 

implementation of that NAAQS. The 

fact that EPA may issue a new standard 

at a future date has no bearing on 

whether the area qualifies for a one-year 

extension of its attainment date for the 

1997 ozone NAAQS. 

Comment 12: In their comment letter, 

the Commenter notes that at a meeting 

with EPA Region 4, EPA staff suggested 

that the Act requires the Agency to grant 

an extension. The Commenter states 

‘‘[n]o legal grounds exist for such an 

interpretation’’ and goes on to state 

‘‘[t]he agency only has authority to grant 

an extension when a state’s air quality 

and compliance with an approved 

implementation plan satisfy the 

statutory requirements, and even then, 

the agency’s authority to grant an 

extension is discretionary.’’ The 

Commenter also states ‘‘To the contrary, 

disapproving the plan submissions and 

requiring bump-up is the only action 

that complies with the plain meaning of 

the Clean Air Act.’’ 

Response 12: For the reasons 

provided in previous comments, EPA 

disagrees with the Commenter’s 

interpretation of the Act. 

IV. Final Action 

EPA is taking final action to approve 

North Carolina’s April 28, 2010, and 

South Carolina’s May 6, 2010, requests 

for EPA to grant a one-year extension 

(from June 15, 2010 to June 15, 2011) of 

the bi-state Charlotte Area attainment 

date for the 1997 8-hour ozone NAAQS. 

EPA has determined that both North 

Carolina and South Carolina have met 

the statutory requirements for such an 

extension. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve SIP submissions 

and requests that comply with the 

provisions of the Act and applicable 

federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing the 

States’ requests for an extension of the 

1997 8-hour ozone NAAQS attainment 

date for the bi-state Charlotte Area, 

EPA’s role is to approve the States’ 

requests, provided that they meet the 

criteria of the CAA. Accordingly, this 

proposed action merely approves a state 

request for an extension of the 1997 8- 

hour ozone NAAQS attainment date as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this final action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 


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Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

EPA has also determined that the one 

year extension for the bi-state Charlotte 

Area does not have Tribal implications 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000), 

because there are no ‘‘substantial direct 

effects’’ on an Indian Tribe as a result 

of this action. The Catawba Indian 

Nation Reservation is located within the 

South Carolina portion of the bi-state 

Charlotte Area. EPA notes that the 

proposal for this rule incorrectly stated 

that the South Carolina ‘‘SIP is not 

approved to apply in Indian country 

located in the state.’’ However, pursuant 

to the Catawba Indian Claims 

Settlement Act, S.C. Code Ann. 27–16– 

120, ‘‘all state and local environmental 

laws and regulations apply to the 

[Catawba Indian Nation] and 

Reservation and are fully enforceable by 

all relevant state and local agencies and 

authorities.’’ Thus, the South Carolina 

SIP does apply to the Catawba 

Reservation. This final action to approve 

the one year extension for the bi-state 

Charlotte Area, however, does not add, 

subtract or change any existing state or 

local regulations in the SIP. Therefore, 

EPA has determined that there will be 

no substantial direct effects to the 

Catawba. In addition, EPA also notes 

that this final action will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 1, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This 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. 

Dated: May 19, 2011. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

40 CFR part 81 is amended as follows: 

PART 81—[AMENDED] 

■ 1. The authority citation for part 81 

continues to read as follows: 

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

■ 2. In § 81.334, the table entitled 

‘‘North Carolina–Ozone (8-Hour 

Standard)’’ is amended under 

‘‘Charlotte-Gastonia-Rock Hill, NC-SC’’ 

by revising the entries for ‘‘Cabarrus 

County,’’ ‘‘Gaston County,’’ ‘‘Iredell 

County (part) Davidson Township, 

Coddle Creek Township,’’ ‘‘Lincoln 

County,’’ ‘‘Mecklenburg County,’’ 

‘‘Rowan County,’’ and ‘‘Union County’’, 

and adding footnote 4, to read as 

follows: 

§ 81.334 North Carolina. 

* * * * * 

NORTH CAROLINA—OZONE

[8-Hour standard] 

Designated 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Charlotte-Gastonia-Rock Hill, NC–SC .... This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Cabarrus County .................................... This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Gaston County ........................................ This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Iredell County (part) Davidson Township, Coddle Creek Township.This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Lincoln County ........................................ This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Mecklenburg County ............................... This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Rowan County ........................................ This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

Union County .......................................... This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 4Subpart 2/Moderate. 

* * * * * * * 

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

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

* * * * * * * 

4Attainment date extended to June 15, 2011. 

* * * * * * * 

3. In § 81.341, the table entitled 

‘‘South Carolina—Ozone (8-Hour 

Standard)’’ is amended under 

‘‘Charlotte-Gastonia-Rock Hill, NC–SC’’ 

by revising the entry for ‘‘York County 

(part) Portion along MPO lines’’ to read 

as follows: 

§ 81.341 South Carolina. 

* * * * * 


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SOUTH CAROLINA—OZONE

[8-Hour standard] 

Designated 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Charlotte-Gastonia-Rock Hill, NC–SC: 

York County (part) Portion along MPO 

lines.

This action is effective May 31, 2011 ... Nonattainment .. June 15, 2004 .. 3Subpart 2/Moderate. 

* * * * * * * 

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

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

* * * * * * * 

3Attainment date extended to June 15, 2011. 

* * * * * * * 

[FR Doc. 2011–13278 Filed 5–27–11; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 2, and 25 

[ET Docket No. 10–142; FCC 11–57] 

Fixed and Mobile Services in the 

Mobile Satellite Service Bands at 1525– 

1559 MHz and 1626.5–1660.5 MHz, 

1610–1626.5 MHz and 2483.5–2500 

MHz, and 2000–2020 MHz and 2180– 

2200 MHz 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission amends its rules to make 

additional spectrum available for new 

investment in mobile broadband 

networks while also ensuring that the 

United States maintains robust mobile 

satellite service capabilities. First, this 

document adds co-primary Fixed and 

Mobile allocations to the Mobile 

Satellite Service (MSS) 2 GHz band, 

consistent with the International Table 

of Allocations, allowing more flexible 

use of the band, including for terrestrial 

broadband services, in the future. 

Second, to create greater predictability 

and regulatory parity with the bands 

licensed for terrestrial mobile 

broadband service, the document 

extends the Commission’s existing 

secondary market spectrum manager 

spectrum leasing policies, procedures, 

and rules that currently apply to 

wireless terrestrial services to terrestrial 

services provided using the Ancillary 

Terrestrial Component (ATC) of an MSS 

system. 

DATES: Effective June 30, 2011. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Holmes, Wireless 

Telecommunications Bureau at 202– 

418–2487 or kevin.holmes@fcc.gov, or 

Nicholas Oros, Office of Engineering 

and Technology at 202–418–0636 or 

nicholas.oros@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, FCC 11–57, adopted on 

April 5, 2011, and released on April 6, 

2011, as corrected by an erratum issued 

on April 15, 2011. The full text of this 

document is available for inspection 

and copying during normal business 

hours in the FCC Reference Information 

Center, Room CY–A257, 445 12th Street, 

SW., Washington, DC 20554. The 

complete text may be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc. 

(BCPI), Portals II, 445 12th Street, SW., 

Room CY–B402, Washington, DC 20554, 

(202) 488–5300, facsimile (202) 488– 

5563, or via e-mail at fcc@bcpiweb.com. 

The complete text is also available on 

the Commission’s Web site at http:// 

wireless.fcc.gov/edocs_public/ 

attachment/FCC-11-57A1doc. This full 

text may also be downloaded at: 

http://wireless.fcc.gov/releases.html. 

Alternative formats (computer diskette, 

large print, audio cassette, and Braille) 

are available by contacting Brian Millin 

at (202) 418–7426, TTY (202) 418–7365, 

or via e-mail to bmillin@fcc.gov. 

Summary 

The Federal Communications 

Commission makes additional spectrum 

available for new investment in mobile 

broadband networks while also ensuring 

that the United States maintains robust 

MSS capabilities. This action is 

consistent with Recommendation 5.8.4 

of the National Broadband Plan, which 

recommended that 90 megahertz of 

spectrum allocated to MSS could be 

made available for terrestrial mobile 

broadband use, while preserving 

sufficient MSS capability to serve rural 

areas, public safety, and other important 

national purposes. The rules adopted 

herein: (1) Add co-primary Fixed and 

Mobile allocations to the MSS 2GHz 

band, consistent with the International 

Table of Allocations, and (2) extend the 

Commission’s existing secondary 

market spectrum manager spectrum 

leasing policies, procedures, and rules 

that currently apply to wireless 

terrestrial services to services provided 

using the ATC of an MSS system. 

I. Background 

1. Mobile Satellite Service Spectrum 

Allocation. MSS is a 

radiocommunications service involving 

transmission between mobile earth 

stations and one or more space stations. 

As we discussed in the MSS NPRM, 

three MSS frequency bands are capable 

of supporting broadband service: The 2 

GHz band (‘‘S-band’’) from 2000–2020 

MHz and 2180–2200 MHz, the Big LEO 

Band from 1610–1626.5 MHz and 

2483.5–2500 MHz, and the L-band from 

1525–1559 MHz and 1626.5–1660.5 

MHz. 75 FR 49871 (August 16, 2010). 

Although the International Table of 

Allocations includes a primary Fixed 

and Mobile services allocation along 

with the primary Mobile-Satellite 

allocation in the S-band, such coallocations do not exist in the U.S. 

Table. The Big LEO and L-bands are not 

allocated for Fixed and Mobile services 

either in the United States or on an 

international basis. 

2. In addition, as noted in the MSS 

NOI, MSS has the capability to serve 

important needs, such as rural access 

and disaster recovery. 75 FR 49871 

(August 16, 2010). MSS has the ability 

to provide communications to mobile 


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