6352 Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006 / Rules and Regulations 

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 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 April 10, 2006. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: December 20, 2005. 

Jane Diamond, 

Acting Regional Administrator, Region IX. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraph (c)(335)(i)(D) to read 

as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(335) * * * 

(i) * * * 

(D) South Coast Air Quality 

Management District. 

(1) Rule 1122, adopted on October 1, 

2004. 

* * * * * 

[FR Doc. 06–1171 Filed 2–7–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2005–AZ–0006; FRL–8029–

2] 

Approval and Promulgation of 

Implementation Plans; Designation of 

Areas for Air Quality Planning 

Purposes; State of Arizona; Finding of 

Attainment for Ajo Particulate Matter of 

10 Microns or Less (PM10) 

Nonattainment Area; Determination 

Regarding Applicability of Certain 

Clean Air Act Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to determine that the Ajo 

moderate PM10 nonattainment area in 

Arizona has attained the National 

Ambient Air Quality Standards 

(NAAQS) for particulate matter with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers (PM10). 

This determination is based upon 

monitored air quality data for the PM10

NAAQS during the years 2002–2004. 

EPA also finds that the Ajo area has 

continued to attain the PM10 NAAQS 

since 2004. Based on this determination, 

EPA is also determining that certain 

Clean Air Act requirements are not 

applicable for so long as the Ajo area 

continues to attain the PM10 NAAQS. 

DATES: This direct final rule is effective 

on April 10, 2006 without further 

notice, unless EPA receives adverse 

comment by March 10, 2006. If adverse 

comment is received, EPA will publish 

a timely withdrawal of the direct final 

rule in the Federal Register informing 

the public that the rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09–

OAR–2005–AZ–0006 by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: tax.wienke@epa.gov. 

• Fax: (415) 947–3579 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Wienke Tax, Office of Air 

Planning, Environmental Protection 

Agency (EPA), Region 9, Mailcode AIR–

2, 75 Hawthorne Street, San Francisco, 

California 94105–3901. 

• Hand Delivery: Wienke Tax, Office 

of Air Planning, Environmental 

Protection Agency (EPA), Region 9, 

Mailcode AIR–2, 75 Hawthorne Street, 

San Francisco, California 94105–3901. 

Such deliveries are only accepted 

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

p.m., excluding federal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R09–OAR–2005–

AZ–0006. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

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

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA, without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

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

For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 


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Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006 / Rules and Regulations 6353 

1Arizona submitted a moderate area plan for the 

Ajo area on November 14, 1991 but EPA has not 

taken action on it. 

the Office of Air Planning, 

Environmental Protection Agency 

(EPA), Region 9, Mailcode AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901. EPA requests 

that if at all possible, you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Office of Air Planning, 

Environmental Protection Agency 

(EPA), Region 9, Mailcode AIR–2, 75 

Hawthorne Street, San Francisco, 

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

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

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

the EPA. 

Table of Contents 

I. Background 

A. What National Ambient Air Quality 

Standards (NAAQS) Are Considered in 

Today’s Finding? 

B. What Is the Designation and 

Classification of This PM10

Nonattainment Area? 

C. How Do We Make Attainment 

Determinations? 

II. What Is the Basis for EPA’s Determination 

That the Ajo Area Has Attained the PM10

NAAQS? 

III. What Are the Applicable Planning 

Requirements for the Ajo Area as a 

Result of EPA’s Attainment 

Determination? 

IV. EPA’s Final Action 

V. Statutory And Executive Order Reviews 

I. Background 

A. What National Ambient Air Quality 

Standards (NAAQS) Are Considered in 

Today’s Finding? 

The NAAQS are safety thresholds for 

certain ambient air pollutants set by 

EPA to protect public health and 

welfare. Particulate matter with an 

aerodynamic diameter of less than or 

equal to 10 micrometers, or PM10, is the 

subject of this action. PM10 is among the 

ambient air pollutants for which EPA 

has established health-based standards. 

PM10 causes adverse health effects by 

penetrating deep in the lungs, 

aggravating the cardiopulmonary 

system. Children, the elderly, and 

people with asthma and heart 

conditions are the most vulnerable. 

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

revised the NAAQS for particulate 

matter with an indicator that includes 

only those particles with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers. (See 40 

CFR 50.6). The 24-hour primary PM10

standard is 150 micrograms per cubic 

meter (μg/m3) with no more than one 

expected exceedance per year. The 

annual primary PM10 standard is 50 μg/ 

m3 as an annual arithmetic mean. The 

secondary PM10 standards, promulgated 

to protect against adverse welfare 

effects, are identical to the primary 

standards. 

B. What Is the Designation and 

Classification of This PM10

Nonattainment Area? 

Upon enactment of the 1990 Clean Air 

Act Amendments (CAA or the Act), 

PM10 areas meeting the requirements of 

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

the Act were designated nonattainment 

for PM10 by operation of law and 

classified ‘‘moderate.’’ These areas 

included all former Group I PM10

planning areas identified in 52 FR 

29383 (August 7, 1987) and further 

clarified in 55 FR 45799 (October 31, 

1990), and any other areas violating the 

NAAQS for PM10 prior to January 1, 

1989 (many of these areas were 

identified by footnote 4 in the October 

31, 1990 Federal Register document). A 

Federal Register notice announcing the 

areas designated nonattainment for 

PM10 upon enactment of the 1990 

Amendments, known as ‘‘initial’’ PM10

nonattainment areas, was published on 

March 15, 1991 (56 FR 11101). A 

subsequent Federal Register document 

correcting some of these areas was 

published on August 8, 1991 (56 FR 

37654). These nonattainment 

designations and moderate area 

classifications were codified in 40 CFR 

part 81 in a Federal Register document 

published on November 6, 1991 (56 FR 

56694). All other areas in the nation not 

designated nonattainment at enactment 

were designated unclassifiable (see 

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

Ajo, Arizona was among the areas 

listed in the March 15, 1991 Federal 

Register action (see 56 FR at 11103) as 

meeting the requirements of either (i) or 

(ii) of section 107(d)(4)(B) of the Act and 

was designated nonattainment for PM10

by operation of law and classified 

‘‘moderate.’’ In accordance with section 

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

submit a state implementation plan 

(SIP) by November 15, 1991 

demonstrating attainment of the PM10

standards by December 31, 1994 for the 

Ajo area.1

C. How Do We Make Attainment 

Determinations? 

Pursuant to sections 179(c) and 

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

responsibility of determining within six 

months of the applicable attainment 

date whether, based on air quality data, 

PM10 nonattainment areas attained the 

NAAQS by that date. Determinations 

under section 179(c)(1) of the Act are to 

be based upon an area’s ‘‘air quality as 

of the attainment date.’’ Section 

188(b)(2) is consistent with this 

requirement. 

Generally, we will determine whether 

an area’s air quality is meeting the PM10

NAAQS for purposes of section 

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

gathered at established state and local 

air monitoring stations (SLAMS) and 

national air monitoring sites (NAMS) in 

the nonattainment area and entered into 

the EPA’s Air Quality System (AQS) 

database. Data entered into the AQS has 

been determined to meet federal 

monitoring requirements (see 40 CFR 

50.6; 40 CFR part 50, appendix J; 40 

CFR part 53; 40 CFR part 58, appendices 

A and B) and may be used to determine 

the attainment status of areas. We will 

also consider air quality data from other 

air monitoring stations in the 

nonattainment area provided that the 

stations meet the federal monitoring 

requirements for SLAMS. All data are 

reviewed to determine the area’s air 

quality status in accordance with our 

guidance at 40 CFR part 50, appendix K. 

Attainment of the annual PM10

standard is achieved when the annual 

arithmetic mean PM10 concentration 

over a three-year period is equal to or 

less than 50 μg/m3. Attainment of the 

24-hour standard is determined by 

calculating the expected number of days 

in a year with PM10 concentrations 

greater than 150 μg/m3. The 24-hour 

standard is attained when the expected 

number of days with levels above 150 

μg/m3 (averaged over a three-year 

period) is less than or equal to one. 

Three consecutive years of air quality 

data are generally necessary to show 

attainment of the 24-hour and annual 

standards for PM10. See 40 CFR part 50 

and appendix K. A complete year of air 

quality data, as referred to in 40 CFR 

part 50, appendix K, is comprised of all 

four calendar quarters with each quarter 

containing data from at least 75 percent 

of the scheduled sampling days. 

II. What Is the Basis for EPA’s 

Determination That the Ajo Area Has 

Attained the PM10 NAAQS? 

The Ajo PM10 nonattainment area is 

located in western Pima County in 

southern Arizona. The town of Ajo is 


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2We have received AQS data from ADEQ through 

September 30, 2005 and the Ajo nonattainment area 

continues to attain both PM10 standards. States are 

required to report data to the AIRS AQS on a rolling 

basis and have until 90 days from the end of a given 

quarter to submit quality-assured monitoring data 

into AQS. See 40 CFR 58.28. 

3 ‘‘General Preamble for the Implementation of 

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

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

FR 18070, April 28, 1992). 

4Three U.S. Circuit Courts of Appeals have 

upheld EPA rulemakings applying its interpretation 

of subparts 1 and 2 with respect to ozone. Sierra 

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

Club v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our 

Children’s Earth Foundation v. EPA, N. 04–73032 

(9th Cir. June 28, 2005) (memorandum opinion). 

located approximately in the center of 

this 47 square mile nonattainment area. 

Ajo is one of several early settlements in 

Arizona in which mining and copper 

smelting was of prominent importance. 

When the New Cornelia mine, operated 

by Phelps Dodge, closed in 1986, the 

population of the Ajo area significantly 

declined. More recent growth in the Ajo 

area may be attributed to additional 

employers in the local economy, as well 

as retirees moving into the area. 

Employment is mainly in the 

commercial, service, and tourism 

sectors. 

Ajo has one SLAMS monitor operated 

by the Arizona Department of 

Environmental Quality (ADEQ). Table 1 

summarizes the one-in-six day PM10

data collected from 2002–2004. We 

deemed the data from this site valid and 

the data has been submitted by the 

ADEQ to be included in AQS. 

TABLE 1.—SUMMARY OF 24 HOUR AND

ANNUAL PM10 CONCENTRATIONS

(μg/m3) FOR AJO, 2002–2004 

Year 

2002 2003 2004 

Maximum 24 hour 

concentration ....... 50 139 43 

Annual average ...... 18 .7 22 .7 19 .3 

3-year annual average ...................... 21 

The PM10 concentrations reported at 

the Ajo monitoring site showed no 

measured exceedances of the 24-hour 

PM10 NAAQS between 2002 and 2004, 

or since 2004.2 Thus, the three-year 

average was less than 1.0, which 

indicates Ajo has attained the 24-hour 

PM10 NAAQS. 

Review of the annual standard for 

calendar years 2002, 2003, and 2004 

reveals that Ajo also attained the annual 

PM10 NAAQS. There was no violation of 

the annual standard for the three-year 

period from 2002 through 2004, or since 

2004. See footnote 2. 

III. What Are the Applicable Planning 

Requirements for the Ajo Area as a 

Result of EPA’s Attainment 

Determination? 

The air quality planning requirements 

for moderate PM10 nonattainment areas 

are set out in subparts 1 and 4 of title 

I of the Act. We have issued guidance 

in a General Preamble 3 describing our 

views on how we will review SIPs and 

SIP revisions submitted under title I of 

the Act, including those containing 

moderate PM10 nonattainment area SIP 

provisions. The General Preamble 

provides a detailed discussion of our 

interpretation of the title I requirements. 

In nonattainment areas where 

monitored data demonstrates that the 

NAAQS have already been achieved, 

EPA has determined that certain 

requirements of part D, subparts 1 and 

2 of the Act do not apply. Therefore we 

do not require certain submissions for 

an area that has attained the NAAQS. 

These include reasonable further 

progress (RFP) requirements, attainment 

demonstrations, and contingency 

measures, because these provisions have 

the purpose of helping achieve 

attainment of the NAAQS. 

This interpretation of the CAA is 

known as the Clean Data Policy and is 

the subject of two EPA memoranda. EPA 

also finalized the statutory 

interpretation set forth in the policy in 

a final rule, 40 CFR 51.918, as part of 

its ‘‘Final Rule to Implement the 8-hour 

Ozone National Ambient Air Quality 

Standard—Phase 2’’ (Phase 2 Final 

Rule). See discussion in the preamble to 

the rule at 70 FR 71612, 71645–71646 

(November 29, 2005). EPA believes that 

the legal bases set forth in detail in our 

Phase 2 Final rule, our May 10, 1995 

memorandum from John S. Seitz, 

entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National 

Ambient Air Quality Standard,’’ and our 

December 14, 2004 memorandum from 

Stephen D. Page entitled ‘‘Clean Data 

Policy for the Fine Particle National 

Ambient Air Quality Standards’’ are 

equally pertinent to the interpretation of 

provisions of subparts 1 and 4 

applicable to PM10. Our interpretation 

that an area that is attaining the 

standards is relieved of obligations to 

demonstrate RFP and to provide an 

attainment demonstration and 

contingency measures pursuant to part 

D of the CAA, pertains whether the 

standard is PM10, ozone or PM2.5.4

It has been EPA’s longstanding 

interpretation that the general 

provisions of part D, subpart 1 of the 

Act (sections 171 and 172) do not 

require the submission of SIP revisions 

concerning RFP for areas already 

attaining the ozone NAAQS because the 

stated purpose of RFP is to ensure 

attainment by the applicable date. 57 FR 

at 13564. EPA believes the same 

reasoning applies to the PM10 provisions 

of part D, subpart 4. Section 189(c)(1), 

applicable to PM10 nonattainment areas, 

states that revisions shall contain 

milestones which are to be achieved 

until the area is redesignated to 

attainment, and such milestones are 

designed to show reasonable further 

progress ‘‘toward attainment by the 

applicable date’’, as defined by section 

171. Thus it is clear that once the area 

has attained the standard, no further 

milestones are necessary or meaningful. 

With respect to the attainment 

demonstration requirements of section 

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

leads to the same result. Section 

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

provide for ‘‘a demonstration (including 

air quality modeling) that the [SIP] will 

provide for attainment by the applicable 

attainment date. * * *’’ As with the 

RFP requirements, if an area is already 

monitoring attainment of the standards, 

EPA believes there is no need for an 

area to make a further submission 

containing additional measures to 

achieve attainment. This is also 

consistent with the interpretation of the 

section 172(c) requirements provided by 

EPA in the General Preamble (57 FR at 

13564), the December 14, 2004 

memorandum and of the section 182(b) 

and (c) requirements set forth in the 

May 10, 1995 memorandum. 

Other SIP submission requirements 

are linked with these attainment 

demonstration and RFP requirements, 

and similar reasoning applies to them. 

These requirements include the 

contingency measure requirements of 

section 172(c)(9) and 182(c)(9). We have 

interpreted the contingency measure 

requirements of section 172(c)(9) and 

182(c)(9) as no longer applying when an 

area has attained the standard, because 

those ‘‘contingency measures are 

directed at ensuring RFP and attainment 

by the applicable date.’’ (57 FR at 13564; 

May 10, 1995 memorandum at 5–6.) 

Both Sections 172(c) and 189(a)(1)(C) 

require ‘‘provisions to assure that 

reasonably available control measures’’

(RACM) are implemented in a 

nonattainment area. However, the Ajo 

area was able to attain the PM10 NAAQS 

without any additional measures being 

implemented. The General Preamble, 57 

FR at 13560, states that EPA interprets 

section 172(c)(1) so that RACM 

requirements are a ‘‘component’’ of an 

area’s attainment demonstration. Thus, 


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5Note, however, that on December 20, 2005, EPA 

proposed revisions to the NAAQS for particulate 

matter. See 71 FR 2620, January 17, 2006. The 

proposed revisions address two categories of 

particulate matter: Fine particles which are 

particles 2.5 micrometers in diameter and smaller; 

and ‘‘inhalable coarse’’ particles which are particles 

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

finalization of a primary 24-hour standard for 

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

hour PM10 standard in all areas of the country 

except in areas where there is at least one monitor 

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

Bureau of the Census) with a minimum population 

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

standard based on the most recent three years of 

data. In addition, EPA proposes to revoke the 

current annual PM10 standard upon finalization of 

a primary 24-hour standard for PM10–2.5. 

for the same reason the attainment 

demonstration no longer applies by its 

own terms, the requirement for RACM 

no longer applies. 

Here, as in both our Phase 2 final rule 

and ozone and PM2.5 clean data 

memoranda, we emphasize that the 

suspension of a requirement to submit 

SIP revisions concerning these RFP, 

attainment demonstration, RACM, and 

other related requirements exists only 

for as long as a nonattainment area 

continues to monitor attainment of the 

standard. If such an area experiences a 

violation of the NAAQS, the basis for 

the requirements being suspended 

would no longer exist. Therefore, 

should EPA at some future time 

determine that an area that had clean 

data, but which has not yet been 

redesignated as attainment for a NAAQS 

has violated the relevant standard, the 

area would again be required to submit 

the pertinent CAA requirements for the 

area.5

IV. EPA’s Final Action 

Based on quality-assured data meeting 

the requirements of 40 CFR part 50, 

appendix K, we find that the Ajo, 

Arizona nonattainment area has attained 

the PM10 NAAQS. This action is not a 

redesignation to attainment under CAA 

section 107(d)(3) because we have not 

yet approved a maintenance plan as 

required under section 175(A) of the 

CAA or determined that the area has 

met the other CAA requirements for 

redesignation. The classification and 

designation status in 40 CFR part 81 

will remain moderate nonattainment for 

this area until such time as Arizona 

meets the CAA requirements for 

redesignation of the Ajo area to 

attainment. See footnote 5. 

EPA also finds that, because the Ajo 

area has continued to attain the 

NAAQS, the following CAA 

requirements no longer apply: The part 

D, subpart 4 obligations to provide an 

attainment demonstration pursuant to 

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

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

provisions established by section 

189(c)(1), and the attainment 

demonstration, RACM, RFP and 

contingency measure provisions of part 

D, subpart 1 contained in section 172 of 

the Act. 

We are publishing this rule without 

prior proposal because the Agency 

views this as a noncontroversial action 

and anticipates no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, 

EPA is publishing a separate document 

that will serve as the proposal should 

adverse comments be filed. This action 

will be effective April 10, 2006, without 

further notice unless the EPA receives 

relevant adverse comments by March 

10, 2006. 

If we receive such comments, then we 

will publish a document withdrawing 

the final rule and informing the public 

that the rule will not take effect. All 

public comments received will then be 

addressed in a subsequent final rule 

based on the proposed rule. We will not 

institute a second comment period. 

Parties interested in commenting should 

do so at this time. If no such comments 

are received, the public is advised that 

this rule will be effective on April 10, 

2006, and no further action will be 

taken on the proposed rule. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely makes a 

determination based on air quality data 

and does not impose any additional 

requirements. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule does not impose any additional 

enforceable duty, it does not contain 

any unfunded mandate or significantly 

or uniquely affect small governments, as 

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 97249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

makes a determination based on air 

quality data and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

CAA. This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. 

The requirements of section 12(d) of 

the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

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

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by April 10, 2006. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 


rmajette on PROD1PC67 with RULES1
6356 Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006 / Rules and Regulations 

List of Subjects in 40 CFR Parts 52 and 

81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

Dated: January 24, 2006. 

Wayne Nastri, 

Regional Administrator, Region 9. 

[FR Doc. 06–1174 Filed 2–7–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2005–0508; FRL–7755–8] 

Imazethapyr; Pesticide Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

increase in tolerances for the sum of the 

residues of imazethapyr and its 

metabolites, CL 288511, (2-[4,5-dihydro4-methyl-4-(1-methylethyl)-5-oxo-1Himidazol-2-yl]-5-(1-hydroxyethyl)-3- 

pyridine carboxylic acid), and CL 

182704, (5-[1-(beta-Dglucopyranosyloxy)ethyl]-2-[4,5- 

dihydro-4-methyl-4-(1-methylethyl)-5- 

oxo-1H-imidazol-2-yl]-3- 

pyridinecarboxylic acid), applied as its 

acid or ammonium salt in or on rice 

grain at 0.3 ppm, rice straw at 0.4 ppm, 

and imazethapyr and its metabolite, CL 

288511 in or on crayfish at 0.15 ppm. 

BASF Corporation requested the 

tolerances for rice grain and rice straw 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA), as amended by 

the Food Quality Protection Act of 1996 

(FQPA), because of a requested increase 

in the use rate of imazethapyr in rice. In 

addition, this regulation increases the 

tolerance on crayfish from 0.10 ppm to 

0.15 ppm due to exposure of crayfish 

raised in rice fields to imazethapyr. 

DATES: This regulation is effective 

February 8, 2006. Objections and 

requests for hearings must be received 

on or before April 10, 2006. 

ADDRESSES: To submit a written 

objection or hearing request follow the 

detailed instructions as provided in 

Unit VI. of the SUPPLEMENTARY

INFORMATION. EPA has established a 

docket for this action under Docket 

identification (ID) number EPA–HQ–

OPP–2005–0508. All documents in the 

docket are listed on the 

www.regulations.gov web site. 

(EDOCKET, EPA’s electronic public 

docket and comment system was 

replaced on November 25, 2005, by an 

enhanced Federal-wide electronic 

docket management and comment 

system located at http:// 

www.regulations.gov/. Follow the online instructions.) Although listed in the 

index, some information is not publicly 

available, i.e., 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 in 

EDOCKET or in hard copy at the Public 

Information and Records Integrity 

Branch (PIRIB), Rm. 119, Crystal Mall 

#2, 1801 S. Bell St., Arlington, VA. This 

docket facility is open from 8:30 a.m. to 

4 p.m., Monday through Friday, 

excluding legal holidays. The docket 

telephone number is (703) 305–5805. 

FOR FURTHER INFORMATION CONTACT: 

James A. Tompkins, Registration 

Division (7505C), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (703) 305–5697; e-mail address: 

tompkins.jim@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS 111), e.g., 

agricultural workers; greenhouse, 

nursery, and floriculture workers; 

farmers. 

• Animal production (NAICS 112), 

e.g., cattle ranchers and farmers, dairy 

cattle farmers, livestock farmers. 

• Food manufacturing (NAICS 311), 

e.g., agricultural workers; farmers; 

greenhouse, nursery, and floriculture 

workers; ranchers; pesticide applicators. 

• Pesticide manufacturing (NAICS 

32532), e.g., agricultural workers; 

commercial applicators; farmers; 

greenhouse, nursery, and floriculture 

workers; residential users. 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Access Electronic Copies 

of this Document and Other Related 

Information? 

In addition to using EDOCKET (http:// 

www.epa.gov/edocket/), you may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. A 

frequently updated electronic version of 

40 CFR part 180 is available on E-CFR 

Beta Site Two at http:// 

www.gpoaccess.gov/ecfr/. 

II. Background and Statutory Findings 

In the Federal Register of June 29, 

2005 (70 FR 37392) (FRL–7718–5), EPA 

issued a notice pursuant to section 

408(d)(3) of FFDCA, 21 U.S.C. 

346a(d)(3), announcing the filing of a 

pesticide petition (PP 5F 6947) by BASF 

Corporation, 26 Davis Drive, P.O. Box 

13528, Research Triangle Park, North 

Carolina 27709–3528. The petition 

requested that 40 CFR 180.447 be 

amended by establishing a tolerance for 

the sum of the residues of the herbicide 

Imazethapyr, and its metabolites CL 

288511 and CL182704, in or on rice 

grain at 0.3 parts per million (ppm), and 

rice straw at 0.4 ppm. That notice 

included a summary of the petition 

prepared by BASF Corporation, the 

registrant. Comments were received on 

the notice of filing. EPA’s response to 

these comments is discussed in Unit 

IV.C. 

In addition, after completion of the 

dietary risk analysis for imazethapyr 

residues on rice, the Agency determined 

that the tolerance for combined residues 

for imazethapyr and the metabolite CL 

288511 in crayfish needs to be increased 

from 0.10 ppm to 0.15 ppm. Crayfish are 

often raised in flooded rice fields, and 

thus are exposed to residues of 

pesticides that are applied to rice. 

Section 408(b)(2)(A)(i) of FFDCA 

allows EPA to establish a tolerance (the 

legal limit for a pesticide chemical 

residue in or on a food) only if EPA 

determines that the tolerance is ‘‘safe.’’

Section 408(b)(2)(A)(ii) of FFDCA 

defines ‘‘safe’’ to mean that ‘‘there is a 

reasonable certainty that no harm will 

result from aggregate exposure to the 

pesticide chemical residue, including 

all anticipated dietary exposures and all 

other exposures for which there is 

reliable information.’’ This includes 

exposure through drinking water and in 

residential settings, but does not include 

occupational exposure. Section 


rmajette on PROD1PC67 with RULES1