34872 Federal Register / Vol. 76, No. 115 / Wednesday, June 15, 2011 / Rules and Regulations 

4.0 Two-Dimensional Mobile Barcode 

Promotion 

4.1 Program Description and Scope 

The two-dimensional mobile barcode 

promotion provides a three percent 

discount for presorted and automation 

mailings of First-Class Mail cards, 

letters, and flats and Standard Mail 

(including Nonprofit) letters and flats 

that include a two-dimensional mobile 

barcode when the mailpieces meet all 

the conditions in these standards. The 

promotion is valid for mailings entered 

from July 1, 2011 through August 31, 

2011. Plant-verified drop shipment 

(PVDS) mailings meeting all relevant 

standards may qualify for participation 

in this promotion as follows: 

a. PVDS mailings may be accepted at 

origin as early as June 26, 2011 if they 

are entered on or after July 1, 2011 at the 

destination. 

b. PVDS mailings may be accepted at 

origin as late as August 31, 2011 if they 

are entered no later than September 15, 

2011 at the destination. 

4.2 Eligibility Standards 

To be eligible for the three percent 

discount, mailpieces must be mailed 

under the following conditions: 

a. A two-dimensional mobile barcode 

must be on each mailpiece, either on the 

outside or printed on the contents of the 

piece. One-dimensional barcodes do not 

qualify. 

b. The barcode must be readable by a 

mobile smartphone with a twodimensional barcode reader application. 

The barcode must be used for 

marketing, promotional or educational 

purposes and be relevant to the contents 

of the mailpiece. Barcodes with links 

that direct consumers to sites that 

encourage enrollment to online bill 

paying or paperless statement services 

are not considered marketing, 

promotional or educational for the 

purposes of this initiative and are not 

eligible for the discount. Mailpieces 

with mobile barcodes that convey 

postage information, destination, sender 

or machinable serial number for security 

also are not eligible for the discount. 

c. The mailpieces with mobile 

barcodes must be one of the following: 

1. Presorted or automation First-Class 

Mail cards, letters, or flats. 

2. Standard Mail (including nonprofit) 

letters or flats. 

d. Postage must be paid with a permit 

imprint, and the postage statement and 

mailing documentation must be 

submitted electronically. All pieces on a 

postage statement must contain a mobile 

barcode that qualifies for the discount. 

e. Participating mailers must provide 

the acceptance unit with a sample of the 

mailpiece that contains a mobile 

barcode. Mailers must also retain, until 

October 31, 2011, a sample of each 

mailpiece claiming a discount. 

f. Other than a full-service Intelligent 

Mail discount (see 705.23), no other 

incentives apply for mailpieces claiming 

a discount under this promotion. 

4.3 Discount 

Mailers must claim the three percent 

postage discount on the postage 

statement at the time the statement is 

electronically submitted. The electronic 

equivalent of the mailer’s signature on 

the postage statement will certify that 

each mailpiece claimed on the postage 

statement contains a qualifying twodimensional mobile barcode. 

* * * * * 

We will publish an appropriate 

amendment to 39 CFR part 111 to reflect 

these changes. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2011–14251 Filed 6–14–11; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0046; FRL–9318–1] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Regional Haze and 

Interstate Transport 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Under the Clean Air Act 

(‘‘CAA’’ or ‘‘Act’’), EPA is approving a 

State Implementation Plan (‘‘SIP’’) 

revision submitted by the State of 

California on November 16, 2007, for 

the purpose of addressing the interstate 

transport provisions of CAA section 

110(a)(2)(D)(i)(I) for the 1997 8-hour 

ozone National Ambient Air Quality 

Standards (‘‘NAAQS’’ or ‘‘standards’’) 

and the 1997 fine particulate matter 

(‘‘PM2.5’’) NAAQS. Section 

110(a)(2)(D)(i) of the CAA requires that 

each State have adequate provisions to 

prohibit air emissions from adversely 

affecting air quality in other States 

through interstate transport. 

Specifically, EPA is finalizing approval 

of California’s SIP revision for the 1997 

8-hour ozone and 1997 PM2.5 NAAQS as 

meeting the requirements of CAA 

section 110(a)(2)(D)(i)(I) to prohibit 

emissions that will contribute 

significantly to nonattainment of these 

standards in any other State and to 

prohibit emissions that will interfere 

with maintenance of these standards by 

any other State. EPA proposed to 

approve these SIP revisions on March 

17, 2011 (76 FR 14616). 

DATES: Effective Date: This rule is 

effective on July 15, 2011. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0046 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., confidential 

business information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Rory 

Mays, Air Planning Office (AIR–2), U.S. 

Environmental Protection Agency, 

Region IX, (415) 972–3227, 

mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. Proposed Action 

III. Public Comments and EPA Responses 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone (62 FR 

38856) and PM2.5 (62 FR 38652). We are 

taking this action in response to the 

promulgation of these standards (the 

1997 8-hour ozone NAAQS and 1997 

PM2.5 NAAQS) to address the 

requirements of CAA section 

110(a)(2)(D)(i)(I). This action does not 

address the requirements of the 2006 

PM2.5 NAAQS or the 2008 8-hour ozone 

NAAQS; those standards will be 

addressed in future actions. 

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

States to submit SIPs to address a new 

or revised NAAQS within three years 

after promulgation of such standards, or 

within such shorter period as the EPA 

Administrator may prescribe. Section 

110(a)(2) lists the elements that such 

new SIPs must address, as applicable, 

including section 110(a)(2)(D)(i), which 

pertains to interstate transport of certain 

emissions. On August 15, 2006, EPA 

issued a guidance memorandum that 

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Federal Register / Vol. 76, No. 115 / Wednesday, June 15, 2011 / Rules and Regulations 34873 

1Memorandum from William T. Harnett entitled 

‘‘Guidance for State Implementation Plan (SIP) 

Submission to Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8- 

hour ozone and PM2.5 National Ambient Air Quality 

Standards,’’ August 15, 2006. 

2See transmittal letter dated November 16, 2007, 

from James N. Goldstene, Executive Officer, CARB, 

to Wayne Nastri, Regional Administrator, EPA 

Region 9, with enclosures, and CARB Resolution 

No. 07–28 (September 27, 2007). 

3See ‘‘Technical and Clarifying Modifications to 

April 26, 2007 Revised Draft Air Resources Board’s 

Proposed State Strategy for California’s 2007 State 

Implementation Plan and May 7, 2007 Revised Draft 

Appendices A through G,’’ included as Attachment 

A to CARB’s Board Resolution 07–28 (September 

27, 2007). 

4The term ‘‘State’’ is defined in the Clean Air Act 

as ‘‘a State, the District of Columbia, the 

Commonwealth of Puerto Rico, the Virgin Islands, 

Guam, and American Samoa and includes the 

Commonwealth of the Northern Mariana Islands.’’ 

CAA section 302(d). 

5Both Tribes acknowledge that they do not 

currently have TAS status under the CAA. As 

described below, however, EPA has evaluated the 

sufficiency of the State’s SIP submission in light of 

potential impacts on the Tribes’ reservations from 

sources located in surrounding State areas. Thus, 

we do not need to address in this action the 

question whether CAA section 110(a)(2)(D)(i)(I) 

requires that a SIP address impacts on Indian 

country geographically located within the 

submitting State or how the TAS status of the 

potentially-affected Tribe(s) may be relevant to that 

issue. Similarly, we also do not need to address the 

Tribes’ comment regarding TAS under the Clean 

Water Act as that does not affect the analysis of 

CAA requirements EPA conducted for this action. 

provides recommendations to States for 

making submissions to meet the 

requirements of section 110(a)(2)(D)(i) 

for the 1997 8-hour ozone and PM2.5

standards (2006 Guidance).1

On November 16, 2007, the California 

Air Resources Board (CARB) submitted 

the ‘‘Proposed State Strategy for 

California’s 2007 State Implementation 

Plan’’ to attain the 1997 8-hour ozone 

and PM2.5 NAAQS (2007 State 

Strategy).2 Appendix C of the 2007 State 

Strategy, as modified by Attachment A,3

contains California’s SIP revision to 

address the Transport SIP requirements 

of CAA section 110(a)(2)(D)(i) for the 

1997 8-hour ozone and PM2.5 NAAQS 

(2007 Transport SIP). The State based its 

submittal on EPA’s 2006 Guidance. As 

explained in the 2006 Guidance, the 

‘‘good neighbor’’ provisions in section 

110(a)(2)(D)(i) require each State to 

submit a SIP that contains adequate 

provisions to prohibit emissions from 

sources within that State from adversely 

affecting another State in the ways 

contemplated in the statute. Section 

110(a)(2)(D)(i) identifies four distinct 

elements related to the evaluation of 

impacts of interstate transport of air 

pollutants. In this rulemaking EPA is 

addressing the first two elements: 

(1) Significant contribution to 

nonattainment of these NAAQS in any 

other State, and (2) interference with 

maintenance of these NAAQS by any 

other State. 

II. Proposed Action 

On March 17, 2011, EPA proposed to 

find that the California SIP is adequate 

to prevent significant contribution to 

nonattainment of, and interference with 

maintenance of, the 1997 8-hour ozone 

NAAQS and the 1997 PM2.5 NAAQS in 

any other State, as required by CAA 

section 110(a)(2)(D)(i)(I). See 76 FR 

14616. Our proposed action did not 

address the remaining two elements of 

CAA section 110(a)(2)(D)(i) regarding 

interference with measures required to 

prevent significant deterioration of air 

quality or to protect visibility in another 

State. We intend to evaluate and act 

upon these remaining elements of 

California’s SIP submittal in separate 

actions, subject to notice and comment 

and publication in the Federal Register. 

For a more detailed discussion of the 

2007 Transport SIP, the requirements of 

CAA section 110(a)(2)(D)(i), and the 

rationale for our proposed action, please 

see our March 17, 2011 proposed rule 

(76 FR 14616) and related Technical 

Support Document, both of which can 

be found in the docket for today’s 

action. 

III. Public Comments and EPA 

Responses 

The publication of EPA’s proposed 

rule on March 17, 2011 (76 FR 14616) 

started a 30-day public comment period 

that ended on April 18, 2011. During 

this period, we received a comment 

letter from the Morongo Band of 

Mission Indians (Morongo) and a 

comment letter from the Pechanga Band 

of Luisen ̃o Mission Indians (Pechanga). 

We have summarized the comments 

from the Morongo and Pechanga 

(collectively the ‘‘Tribes’’ or 

‘‘commenters’’) and provided our 

responses below. 

Comment #1: The Tribes assert that 

neither California nor EPA analyzed 

potential impacts of transported ozone 

and PM2.5 air pollution on their 

respective reservations or on other 

Indian country immediately downwind 

of California nonattainment areas, and 

that EPA did not acknowledge their 

existence as affected, downwind 

governments. The Tribes assert that they 

are each ‘‘comparable to a state’’ with 

respect to the effect of upwind emission 

sources in California, which contribute 

overwhelmingly to nonattainment in 

their reservations, and that they are both 

in the process of seeking ‘‘Treatment in 

the Same Manner as a State (TAS)’’ 

under the CAA. The Tribes also assert 

that they have either received TAS or 

completed the application process for 

TAS under the Clean Water Act. Finally, 

the Tribes claim that, if EPA were to 

require that the California SIP ‘‘treat the 

Tribe[s] equitably’’ in addressing the 

provisions of CAA section 

110(a)(2)(D)(i)(I), then additional control 

measures for the South Coast Air Basin 

would be needed to prohibit emissions 

that would contribute significantly to 

nonattainment of the 1997 8-hour ozone 

and 1997 PM2.5 NAAQS or interfere 

with maintenance of these standards in 

their respective reservations, analogous 

to the prohibition against having such 

effect in any other State. 

Response #1: Section 110(a)(2)(D)(i)(I) 

of the CAA requires that each SIP 

contain adequate provisions to prohibit 

any source or other type of emissions 

activity within the State from 

‘‘contribut[ing] significantly to 

nonattainment’’ of the NAAQS or 

‘‘interfer[ing] with maintenance’’ of the 

NAAQS in ‘‘any other State.’’ 4 The 

commenters provide no specific factual 

or analytical support for their claim that 

emissions from California sources 

contribute significantly to 

nonattainment or interfere with 

maintenance of the 1997 8-hour ozone 

or 1997 PM2.5 NAAQS in their 

respective reservations or other Indian 

country, nor do they provide any 

support for their assertion that 

evaluation of such impacts under CAA 

section 110(a)(2)(D)(i) for these 

standards would have resulted in a 

requirement for California to adopt 

additional control measures for sources 

in the South Coast Air Basin.5

Nevertheless, in response to these 

comments, EPA has considered whether 

emissions from California sources could 

have the prohibited adverse impacts in 

the Morongo or Pechanga reservations 

in accordance with the methodologies 

we use to evaluate SIP submittals for 

these standards under section 

110(a)(2)(D)(i) with respect to transport 

impacts on states. Based on this 

evaluation, we conclude that 

California’s SIP currently contains 

adequate provisions to prohibit such 

impacts for the 1997 8-hour ozone and 

1997 PM2.5 NAAQS. 

We began our analysis by reviewing 

the ozone and PM2.5 air quality monitors 

that we identified as ‘‘receptor’’ 

locations for purposes of evaluating SIPs 

submitted to address the requirements 

of CAA section 110(a)(2)(D)(i) for the 

1997 8-hour ozone or 1997 PM2.5

NAAQS. As described in our proposed 

rule (76 FR 14616), EPA evaluated data 

from existing monitors over three 

overlapping 3-year periods (i.e., 2003– 

2005, 2004–2006, and 2005–2007), as 

well as air quality modeling data, to 

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6See ‘‘Finding of Significant Contribution and 

Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of 

Reducing Regional Transport of Ozone,’’ 63 FR 

57356, 57371–57372 (October 27, 1998) (‘‘NOX SIP 

Call’’). 7See ‘‘Rule to Reduce Interstate Transport of Fine 

Particulate Matter and Ozone (Clean Air Interstate 

Rule); Revisions to Acid Rain Program; Revisions to 

the NOX SIP Call; Final Rule,’’ 70 FR 25162 at 

25167 (May 12, 2005) (‘‘CAIR’’). 8 Michigan v. U.S. EPA, 213 F.3d 663, 674–681 

(DC Cir. 2000); North Carolina v. EPA, 531 F.3d 

896, 913–916 (DC Cir. 2008) (upholding EPA 

approach to determining threshold despite 

remanding other aspects of CAIR). 

9See Memorandum from Brian Timin, EPA Office 

of Air Quality Planning and Standards, 

‘‘Documentation of Future Year Ozone and Annual 

PM2.5 Design Values for Monitors in Western 

States,’’ August 23, 2010 (Timin Memo). 

10 In addition to relying upon these 

methodologies for identifying ‘‘nonattainment 

receptors’’ and ‘‘maintenance receptors’’ based on 

2003–2007 monitoring data, EPA reviewed more 

recent, preliminary monitoring data for the 2007– 

2009 period available in EPA’s Air Quality System 

(AQS) database from all ozone and PM2.5

monitoring sites in Oregon, Nevada, and Arizona 

and found no violations of the 1997 8-hour ozone 

or 1997 PM2.5 standards in these adjacent States 

during this period. See 76 FR 14616 at 14621, 

14623, and 14625. These data further support our 

findings but are not a necessary basis for our 

conclusion that emissions from California sources 

do not have the prohibited adverse impacts on any 

other State for the 1997 8-hour ozone or 1997 PM2.5

NAAQS. 

11For the Morongo Reservation, EPA’s AQS 

database contains ozone monitoring data starting in 

2006. See U.S. EPA AQS, Quick Look Report for 8- 

hour ozone, Site ID TT–582–1016 (2003–2011). For 

the Pechanga Reservation, EPA’s AQS database 

contains ozone monitoring data starting in 2008 and 

PM2.5 monitoring data starting in 2010. See U.S. 

EPA AQS, Quick Look Report for 8-hour ozone and 

PM2.5, Site ID TT–586–0009 (2003–2011). 

12See Timin Memo at Appendix A and 

Appendix B. 

13We note that data from the ozone monitor on 

the Morongo Reservation during the more recent 

2006–2011 period appear to indicate that the area 

is violating the 1997 8-hour ozone NAAQS (see U.S. 

EPA AQS, Quick Look Report for 8-hour ozone, Site 

ID TT–582–1016 (2003–2011)). However, EPA has 

not yet verified the validity of these data for 

regulatory purposes in accordance with section 2.5 

of 40 CFR part 58, Appendix A. In the event that 

EPA confirms this data is valid and this monitor 

continues to show violations of the 1997 8-hour 

ozone NAAQS in the future, EPA may evaluate 

whether additional actions are appropriate or 

necessary under the CAA to bring this area into 

attainment, based upon subsequently available data 

and analyses. 

14The entire Los Angeles-South Coast Air Basin, 

including Indian country located within its borders, 

is also designated and classified as ‘‘extreme’’ 

nonattainment for the 1-hour ozone NAAQS. 40 

CFR 81.305. 

determine which areas are predicted to 

be violating these NAAQS in 2012, and 

which areas are predicted potentially to 

have difficulty maintaining attainment 

as of that date. 76 FR 14616 at 14618. 

We identified as ‘‘nonattainment 

receptors’’ those monitoring sites that 

are projected to be violating the NAAQS 

in 2012, based on the average of these 

three overlapping periods. Id. 

Separately, we identified as 

‘‘maintenance receptors’’ those 

monitoring sites that were violating the 

NAAQS based on the highest single 

three-year period during 2003–2007, but 

not over the average of the three 

periods. Id. at 14619, 14623. We 

described these ‘‘maintenance 

receptors’’ as those monitoring sites that 

remain at risk of slipping into 

nonattainment in 2012 if there are 

adverse variations in meteorology or 

emissions. Id. 

These methodologies for identifying 

‘‘nonattainment receptors’’ and 

‘‘maintenance receptors’’ take into 

account historic variability of emissions 

at specific monitoring sites to analyze 

whether or not the relevant areas are 

expected to be violating or attaining the 

NAAQS in 2012. In both the 1998 NOX

SIP Call 6 and the 2005 Clean Air 

Interstate Rule,7 EPA evaluated 

significant contribution to 

nonattainment as measured or predicted 

at monitors in a comparable fashion. 

EPA believes that this approach to 

evaluating significant contribution is 

correct under CAA section 110(a)(2)(D), 

and EPA’s general approach to this 

threshold determination has not been 

disturbed by the courts.8 As explained 

in the proposal, EPA is addressing 

interference with maintenance 

separately in order to address concerns 

that the Agency had not previously 

given sufficient independent meaning to 

that requirement. 

Consistent with these methodologies, 

to determine whether emissions from 

California sources contribute 

significantly to nonattainment or 

interfere with maintenance of the 1997 

8-hour ozone or 1997 PM2.5 NAAQS in 

any other State, EPA evaluated air 

quality monitoring data from the eastern 

portion of the U.S. under consideration 

in EPA’s Transport Rule Proposal (75 FR 

45210) without regard to the 

jurisdictional status of different areas 

within each State. See 76 FR 14616 at 

14618–14619. EPA conducted a similar 

analysis of air quality data for the 

western U.S. not covered by the 

Transport Rule Proposal. Id. This 

analysis for western States is embodied 

in the ‘‘Timin Memo.’’ 9 10

Although by its terms CAA section 

110(a)(2)(D)(i)(I) explicitly addresses 

impacts on States, in response to the 

commenters’ concerns, EPA reviewed 

air quality monitoring data from 

monitors located on the Morongo 

Reservation and on the Pechanga 

Reservation. For both reservations, EPA 

found that ozone and PM2.5 air quality 

monitoring data is not available for the 

full 2003–2007 period, the time period 

that provided the basis for our 

evaluation methodology under CAA 

section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone and 1997 PM2.5 NAAQS.11

Thus, neither reservation has a monitor 

for ozone or for PM2.5 that EPA 

projected to be violating either NAAQS 

in 2012, based on the average of the 

three overlapping periods that EPA 

evaluated for these purposes (i.e., 2003– 

2005, 2004–2006, and 2005–2007). 

Additionally, neither reservation has a 

monitor that EPA projected to remain at 

risk of slipping into nonattainment of 

either NAAQS in 2012, based on the 

highest single three-year period during 

2003–2007. Id. EPA therefore did not 

identify any ‘‘nonattainment receptors’’ 

or ‘‘maintenance receptors’’ for these 

standards on either reservation.12 13

Because neither the Morongo 

Reservation nor the Pechanga 

Reservation contains any 

‘‘nonattainment receptor’’ or 

‘‘maintenance receptor’’ appropriate for 

purposes of evaluating California’s 2007 

Transport SIP in accordance with the 

requirements of CAA section 

110(a)(2)(D)(i)(I) and the analytical 

approach that EPA is using to evaluate 

potential transport impacts between 

states, we do not have a basis for 

concluding that emissions from 

California sources ‘‘contribute 

significantly to nonattainment’’ or 

‘‘interfere with maintenance’’ of the 

1997 8-hour ozone or 1997 PM2.5

NAAQS in either reservation at this 

time. The Tribes’ comments provide no 

specific information to support such a 

conclusion. 

Furthermore, we note that the 

Morongo Reservation and most of the 

Pechanga Reservation are located within 

the geographic borders of the Los 

Angeles-South Coast Air Basin in 

southern California, which is currently 

designated and classified as an 

‘‘extreme’’ nonattainment area for the 

1997 8-hour ozone NAAQS. See 40 CFR 

81.305; see also 75 FR 24409 (May 5, 

2010) (reclassifying South Coast Air 

Basin from ‘‘severe-17’’ to ‘‘extreme’’ 

nonattainment for 8-hour ozone NAAQS 

but deferring reclassification of Indian 

country pertaining to Morongo and 

Pechanga).14 As such, California is 

already subject to the most stringent air 

quality planning and control 

requirements for ozone nonattainment 

areas under subpart 2 of part D, title I 

of the CAA. For example, ‘‘extreme’’ 

ozone nonattainment areas are subject to 

the most stringent New Source Review 

regulatory threshold and offset ratio 

(CAA sections 182(e), 182(f)) and must 

require that certain electric utility and 

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15See WildEarth Guardians v. U.S. EPA (Case No. 

4:09–CV–02453–CW), Consent Decree dated 

November 10, 2009. 

industrial and commercial boilers either 

primarily burn low-polluting fuels or 

use advanced control technology to 

reduce emissions of NOX (CAA section 

182(e)(3)). 

The Los Angeles-South Coast Air 

Basin is also designated as 

nonattainment for the 1997 PM2.5

NAAQS and, therefore, subject to 

stringent air quality planning and 

control requirements for PM2.5

nonattainment areas under subpart 1 of 

part D, title I of the CAA. For example, 

CAA section 172(c)(1) requires that 

California adopt and implement all 

reasonably available control measures 

(including, at a minimum, reasonably 

available control technology for 

stationary sources) that will provide for 

attainment of the PM2.5 NAAQS in this 

area as expeditiously as practicable. See 

40 CFR 51.1010. EPA is currently 

evaluating the nonattainment plans for 

the Los Angeles-South Coast Air Basin 

submitted by the State of California and 

the South Coast Air Quality 

Management District to meet these 

requirements of part D, title I of the 

CAA for the 1997 8-hour ozone NAAQS 

and the 1997 PM2.5 NAAQS. 

Although the fact that areas adjacent 

to the Morongo Reservation and 

Pechanga Reservation are subject to 

stringent planning and control 

requirements does not eliminate the 

possibility of pollution transport from 

these areas, the stringency of the control 

requirements in this particular 

geographic area would be an important 

element of EPA’s analysis under CAA 

section 110(a)(2)(D)(i)(I). EPA evaluates 

‘‘significant contribution to 

nonattainment’’ and ‘‘interference with 

maintenance’’ under section 

110(a)(2)(D)(i)(I) by considering not only 

the potential for pollution transport and 

the amount of such transport if it exists, 

but also the level and cost of control in 

an upwind area that would be necessary 

to prohibit such transport to the 

downwind area. See Transport Rule 

Proposal, 75 FR 45210 at 45273–45274 

(August 2, 2010) (citing North Carolina 

v. EPA, 531 F.3d 896 at 908, 917–920 

(DC Cir. 2008), in which the court 

confirmed that EPA may use cost of 

control as a factor in evaluating 

interstate transport). Thus, a technical 

finding that pollutants from an upwind 

area are transported to a downwind area 

does not, in itself, constitute a finding 

of ‘‘significant contribution to 

nonattainment’’ or ‘‘interference with 

maintenance’’ for regulatory purposes 

under section 110(a)(2)(D)(i)(I) of the 

CAA. Given these considerations, even 

if we were to conclude that emissions 

from California sources adversely 

impact air quality at monitors suitable 

for treatment as nonattainment receptors 

or maintenance receptors in the 

Pechanga or Morongo Reservations, 

section 110(a)(2)(D)(i)(I) of the CAA 

would not necessarily require that 

California adopt additional control 

measures to address such pollution 

impacts. We could not disapprove 

California’s SIP submission without 

having completed that analysis and 

concluded that the state needed to 

impose additional controls in order to 

eliminate significant contribution or 

prevent interference with maintenance, 

which is a determination which is 

partially dependent upon the cost of 

control. 

In sum, although by its terms section 

110(a)(2)(D)(i)(I) explicitly addresses 

States, in response to these specific 

comments from Morongo and Pechanga, 

we have conducted a preliminary 

evaluation of potential impacts on the 

Tribes’ reservations based on our 

current methodology for evaluating SIPs 

submitted to address the requirements 

of CAA section 110(a)(2)(D)(i)(I) for the 

1997 8-hour ozone and 1997 PM2.5

NAAQS. Based on this evaluation and 

available air quality monitoring data, we 

have determined that California’s SIP 

contains provisions adequate to satisfy 

the requirements of CAA section 

110(a)(2)(D)(i)(I) for these NAAQS. This 

determination does not, however, apply 

to California’s obligations to address 

interstate transport of pollution under 

CAA section 110(a)(2)(D)(i)(I) for other 

NAAQS, which EPA intends to evaluate 

in separate actions, in accordance with 

applicable requirements and available 

air quality monitoring data, as 

appropriate. Moreover, if subsequent 

facts or analyses indicate that further 

action is necessary in this area to 

address nonattainment throughout the 

South Coast Air Basin, EPA can act at 

a later time after the initial section 

110(a)(2)(D) submissions to call for 

revisions of the SIP to provide for 

additional emissions controls if such 

action is warranted. EPA recognizes the 

commenters’ concerns about the 

impacts of air pollutant emissions 

throughout the South Coast Air Basin 

and is committed to working with the 

Tribes and the State to address these air 

quality concerns. 

Comment #2: The Tribes assert that 

EPA failed to consult with them 

regarding potential impacts on their 

reservations or other Federally 

recognized tribal lands immediately 

downwind of California nonattainment 

areas, referencing EPA’s ‘‘Proposed 

Final Policy on Consultation and 

Coordination With Indian Tribes,’’ 

75 FR 78198 (December 15, 2010) in 

support of this comment. The Tribes 

assert that this failure to consult or to 

consider the Tribes as ‘‘affected ‘state[s]’ 

subject to overwhelming transport 

emissions from California’’ is a major 

flaw in EPA’s proposed rulemaking. 

Response #2: EPA endeavors to 

consult with Federally recognized tribal 

governments when Agency actions and 

decisions may have ‘‘tribal 

implications’’ or affect tribal interests, 

pursuant to long-standing EPA policy 

on consultation and coordination with 

Indian Tribes. See ‘‘EPA Policy for the 

Administration of Environmental 

Programs on Indian Reservations’’ 

(November 8, 1984); Executive Order 

13175, ‘‘Consultation and Coordination 

With Indian Tribal Governments,’’ 65 

FR 67249 (November 9, 2000); ‘‘EPA 

Policy on Consultation and 

Coordination with Indian Tribes’’ 

(May 4, 2011). 

Because the California SIP is not 

approved to apply in Indian country 

located in the State, this action has no 

regulatory consequences for emission 

sources in Indian country and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. We 

note, however, that EPA is currently 

consulting with both Morongo and 

Pechanga in response to their requests 

for boundary changes to establish 

separate nonattainment areas or, in the 

alternative, to extend the boundaries of 

adjacent, lower-classified nonattainment 

areas to include the Tribes’ Indian 

country. See 75 FR 24409, 24411 

(May 5, 2010) (deferring reclassification 

of the Morongo and Pechanga 

Reservations within the South Coast Air 

Basin pending EPA’s final decisions on 

the Tribes’ boundary change requests). 

EPA has also initiated a process to 

consult with interested Indian Tribes on 

issues related to the Transport Rule 

Proposal (75 FR 45210, August 2, 2010) 

and will conclude this consultation 

before making final decisions on those 

issues. See 76 FR 1109 at 1118 (January 

7, 2011) (requesting comment on 

options for allocating allowances to 

covered units that might in the future be 

constructed in Indian country located 

within the Transport Rule region). 

Due to a court-ordered deadline to 

take final action on California’s 2007 

Transport SIP by May 10, 2011,15 we are 

proceeding with this rulemaking action 

at this time. We encourage both Tribes, 

however, to participate in other 

processes that are already underway to 

address their concerns regarding crossboundary air pollution impacts. 

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34876 Federal Register / Vol. 76, No. 115 / Wednesday, June 15, 2011 / Rules and Regulations 

As to the Tribes’ assertion that EPA’s 

failure to consider them affected 

‘‘States’’ subject to overwhelming 

transport of emissions from California is 

a major flaw in our proposed rule, we 

disagree for the reasons discussed above 

in Response #1. 

IV. Final Action 

Under CAA section 110(k)(3), EPA is 

fully approving the 2007 Transport SIP 

submitted by CARB on November 17, 

2007, as adequate to prohibit emissions 

from California sources that will 

contribute significantly to 

nonattainment of the 1997 8-hour ozone 

or 1997 PM2.5 NAAQS in any other 

State, as required by CAA section 

110(a)(2)(D)(i)(I). EPA is also approving 

the 2007 Transport SIP as adequate to 

prohibit emissions from California 

sources that will interfere with 

maintenance of these NAAQS by any 

other State, as required by section 

110(a)(2)(D)(i)(I). Accordingly, we find 

that the California SIP contains 

provisions adequate to prevent 

significant contribution to 

nonattainment of, and interference with 

maintenance of, these NAAQS. 

EPA will address in separate actions, 

subject to notice and comment and 

publication in the Federal Register, the 

remaining two elements of CAA section 

110(a)(2)(D)(i) regarding interference 

with measures required to prevent 

significant deterioration of air quality or 

to protect visibility in any other State. 

V. Statutory and Executive Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this 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 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

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). 

In addition, this final rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State and EPA notes that 

it 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 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 August 15, 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 CAA 

section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Air pollution control, Environmental 

protection, Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: May 10, 2011. 

Jared Blumenfeld, 

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)(386)(ii)(A)(3) to 

read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(386) * * * 

(ii) * * * 

(A) * * * 

(3) 2007 Transport SIP at pages 19–20 

(Attachment A) (‘‘Evaluation of 

Significant Contribution to 

Nonattainment or Interference with 

Maintenance of Attainment Standards 

in Another State’’). 

* * * * * 

■ 3. Section 52.283 is amended by 

adding paragraph (a)(2) to read as 

follows: 

§ 52.283 Interstate Transport. 

(a) * * * 

(2) The requirements of CAA section 

110(a)(2)(D)(i)(I) regarding significant 

contribution to nonattainment of the 

1997 standards in any other State and 

interference with maintenance of the 

1997 standards by any other State. 

* * * * * 

[FR Doc. 2011–14480 Filed 6–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

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