+(,121/,1(

Citation: 71 Fed. Reg. 6352 2006 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Wed Jul 11 17:54:16 2012

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
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.

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

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

n 1. The authority citation for part 52

continues to read as follows:

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

Subpart F-California

N 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 (PM 1o)

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 (PMIO).

This determination is based upon

monitored air quality data for the PM 0

NAAQS during the years 2002-2004.

EPA also finds that the Ajo area has

continued to attain the PMIo 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 PMio 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-RO9-

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).

e Mail: Wienke Tax, Office of Air

Planning, Environmental Protection

Agency (EPA), Region 9, Mailcode AIR2, 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

HeinOnline -- 71 Fed. Reg. 6352 2006
Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006/ Rules 'and Regulations

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 PM,o

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 PMio

NAAQS?

II. 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 (NAAQSJ 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. PM,o is among the

ambient air pollutants for which EPA

has established health-based standards.

PMi0 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 PM 0

standard is 150 micrograms per cubic

meter (gtg/m 3

) with no more than one

expected exceedance per year. The

annual primary PM, 0 standard is 50 gg/

m 3 as an annual arithmetic mean. The

secondary PMIo standards, promulgated

to protect against adverse welfare

effects, are identical to the primary

standards.

B. What Is the Designation and

Classificatioh 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 PM1 o by operation of law and

classified "moderate." These areas

included all former Group I PM, 0

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 PMo 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 V'ederal Register document

published on November 6, 1991 (56 F.R

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 PM,0

by operation of law and classified

"moderate." In accordance with section

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

submit a state implementation plari

(SIP) by November 15, 1991

demonstrating attainment of the PM10

standards by December 31, 1994 for the

Ajo area.'

I Arizona submitted a moderate area plan for the

Ajo area on November i4, 1991 but EPA has not

taken action on it.

C. How Do We Make Attainment

Determinations?

Pursuant to sections 179(c) and

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

responsibility of determihing within six

months of the applicable attainment

date whether, based on air quality data,

PM, 0 nonattainment areas attained the

NAAQS by thaf 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 PMo

NAAQS for purposes of gection

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

gufidance at 40 CFR part 50, appendix K.

Attainment of the annual PM, 0

standard is achieved when the annual

arithmetic mean PMio concentration

over a three-year period is equal to or

less than 50 [g/m3. Attainment of the

24-hour standard is determined by.

calculating the expected number of days

in a year with PM,0 concentrations

greater than 150 tg/m 3

. The 24-hour

standard is attained when the expected"

number of days with levels above 150

gg/m 3 (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 PM,0. 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.

Il. What Is the Basis for EPA's

Determination That the Ajo Area Has

Attained the PM1

o NAAQS?

The Ajo PMo nonattainment area is

located in western Pima County in

southern Arizona. The town of Ajo is

6353

HeinOnline -- 71 Fed. Reg. 6353 2006
6354 Federal Register/Vol. 71, No. 26/Wednesday, February 8, 2006/Rules and Regulations

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 fn 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 I

summarizes the one-in-six'day PM1o

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 PM 10 CONCENTRATIONS

([tg/m 3

) FOR AJO, 2002-2004

Maximum 24 hour

concentration .......

Annual average ......

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

50 139 1 43

18.7 22.7 19.3

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

PM1o NAAQS. There vas 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 PM 1

o nonattainment areas

are set out in subparts 1 and 4 of title

I of the Act. We have issued guidance

2 We have received AQS data from ADEQ through

September 30, 2005 and the Ajo nonattainment area

continues to attain both PM~o standards. State6 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.

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, anal 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 PM 1o, ozone or PM2.

5 .

4

It has been EPA's longstanding

interpretation that the general

provisions of part D, subpart 1 of the

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).

4 Three 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 (loth 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).

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 PM1o provisions

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

applicable to PMo 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

demongtration 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 nolonger 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 PMIo 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,

HeinOnline -- 71 Fed. Reg. 6354 2006
Federal Register/Vol, 71, No. 26/Wednesday, February 8, 2006/,Rures and Regulations

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 PM 2. 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 attainedthe PM 10 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 t5

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

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

proposed revisions to the NAAQS for particulate

matter. See 71 FR 2620, January 17, 2,006. The

proposed revisons 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 (PMmo 2.3). Upon

finalization ota primary 24-hour standard for

PMID 2.5, EPA proposes to revoke the current 24-

hour PM 1 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 PM15

standard based on the most recent three years of

data. In addition, EPA proposes to revoke the -

current annual PMio standard upon finalization of

a primary 24-hour standard for PM1o-2.5.

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

zelevant 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 'n 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

subIhit 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).)

6355

HeinOnline -- 71 Fed. Reg. 6355 2006
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-HO-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-Himidazol-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-lH-imidazol-2-yll-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.

BASFCorporation 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 underDocket

identification (ID) number EPA-HQOPP-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. Thi.s

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. o 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 read-etegarding 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 rhiight 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

HeinOnline -- 71 Fed. Reg. 6356 2006