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Federal Register/Vol. 76, No. 30/Monday, February 14, 2011/Rules and Regulations

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).

C. Petitions for Judicial Review

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 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. Parties with

objections to this direct final rule are

encouraged to file a comment in

response to the parallel notice of

proposed rulemaking for this action

published in the proposed rules section

of today's Federal Register, rather than

file an immediate petition for judicial

review of this direct final rule, so that

EPA can withdraw this direct final rule

and address the comment in the

proposed rulemaking. This action to

approve Virginia's revision to the

definition of "Volatile organic

compound" 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, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: February 1, 2011.

W.C. Early,

Acting Regional Administrator, Region IlL

40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority for citation for part 52

continues to read as follows:

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

Subpart VV-Virginia

* 2. In § 52.2420, the table in paragraph

(c) is amended by adding a seventh

entry under 5-10-20 to read as follows:

§ 52.2420 Identification of plan. * * * * *

(c) * * *

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State Explanation [former SIP

State citation Title/subject effective EPA approval date citation]

date

9 VAC 5 Chapter 10 ................ General Definitions [Part I]

5-10-20 .................................... Terms Defined ......................... 2/18/10 2/14/11 [Insert page number Revised definition of "Volatile

where the document begins], organic compound."

* * * * *

[FR Doe. 2011-3096 Filed 2-11-11; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0041; FRL-9264-1]

Finding of Failure To Submit State

Implementation Plan Revisions for

Particulate Matter, PM-10, Maricopa

County (Phoenix) PM-10

Nonattainment Area, AZ

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to

find that Arizona failed to make a state

implementation plan (SIP) submittal

required under the Clean Air Act (CAA

or Act) for the Maricopa County

(Phoenix) nonattainment area (Maricopa

area) for particulate matter of 10

microns or less (PM-10). The Maricopa

area is a serious PM-10 nonattainment

area which, having failed to attain the

PM-10 National Ambient Air Quality

Standards (NAAQS) by its required

statutory attainment deadline, is subject

to section 189(d) of the CAA. For such

areas, section 189(d) requires that states

submit within 12 months after the

applicable attainment date, plan

revisions which provide for attainment

of the PM-10 NAAQS, and from the

date of such submission until

attainment, for an annual reduction of

PM-10 or PM-10 precursor emissions

within the area of not less than 5

percent of the amount of such emissions

as reported in the most recent inventory

prepared for the area.

Arizona submitted a section 189(d)

plan for the Maricopa area on December

21, 2007, and EPA proposed action on

this plan on September 9, 2010. On

January 25, 2011, prior to final action on

the plan by EPA, Arizona withdrew the

submitted plan from the Agency's

consideration. As a result of the

withdrawal, EPA is today finding that

Arizona failed to make the submittal

required for the Maricopa area under

section 189(d) of the Act.

This action triggers the 18-month

clock for mandatory application of

sanctions and 2-year clock for a federal

implementation plan (FIP) under the

Act. This action is consistent with the

CAA mechanism for assuring SIP

submissions.

DATES: Effective Date: This action was

effective as of February 14, 2011.

FOR FURTHER INFORMATION CONTACT:

Gregory Nudd, U.S. Environmental

Protection Agency, Region 9, Air

Division (AIR-2), 75 Hawthorne Street,

San Francisco, CA 94105-3901,

Telephone: (415) 947-4107;

nudd.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The NAAQS are standards for certain

ambient air pollutants set by EPA to

protect public health and welfare. PM10 is among the ambient air pollutants

for which EPA has established healthbased standards. PM-10 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.

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On July 1, 1987 EPA revised the

health-based NAAQS (52 FR 24672),

replacing the standards for total

suspended particulates with new

standards applying only to particulate

matter up to ten microns in diameter

(PM-10). At that time, EPA established

two PM-10 standards, annual standards

and 24-hour standards. Effective

December 18, 2006, EPA revoked the

annual PM-10 standards but retained

the 24-hour PM-10 standards. 71 FR

61144 (October 17, 2006). The 24-hour

PM-10 standards of 150 micrograms per

cubic meter (pg/m 3 ) are attained when

the expected number of days per

calendar year with a 24-hour average

concentration above 150 pg/m 3, as

determined in accordance with

appendix K to 40 CFR part 50, is equal

to or less than one. 40 CFR 50.6 and 40

CFR part 50, appendix K.

On the date of enactment of the 1990

Clean Air Act Amendments (CAA or the

Act), many areas, including the

Maricopa area, meeting the

qualifications of section 107(d)(4)(B) of

the amended Act were designated

nonattainment by operation of law. 56

FR 11101 (March 15, 1991). The

Maricopa area is located in the eastern

portion of Maricopa County and

encompasses the cities of Phoenix,

Mesa, Scottsdale, Tempe, Chandler,

Glendale, as well as 17 other

jurisdictions and unincorporated

County lands. The nonattainment area

also includes the town of Apache

Junction in Pinal County. EPA codified

the boundaries of the Maricopa area at

40 CFR 81.303.

Once an area is designated

nonattainment for PM-10, section 188

of the CAA outlines the process for

classifying the area as moderate or

serious and establishes the area's

attainment deadline. In accordance with

section 188(a), at the time of

designation, all PM-10 nonattainment

areas, including the Maricopa area, were

initially classified as moderate.

A moderate PM-10 nonattainment

area must be reclassified to serious PM10 nonattainment by operation of law if

EPA determines after the applicable

attainment date that, based on air

quality, the area failed to attain by that

date. CAA sections 179(c) and 188(b)(2).

On May 10, 1996, EPA reclassified the

Maricopa area as a serious PM-10

nonattainment area. 61 FR 21372.

As a serious PM-10 nonattainment

area, the Maricopa area acquired a new

attainment deadline of no later than

December 31, 2001. CAA section

188(c)(2). However CAA section 188(e)

allows states to apply for up to a 5-year

extension of that deadline if certain

conditions are met. Arizona requested

an attainment date extension under

CAA section 188(e) from December 31,

2001 to December 31, 2006. On July 25,

2002, EPA approved the serious area

PM-10 plan for the Maricopa area and

granted Arizona's request to extend the

attainment date for the area to December

31, 2006. 67 FR 48718. This final action,

as well as the two proposals preceding

it, provide a more detailed discussion of

the history of PM-10 planning in the

Maricopa area. See 65 FR 19964 (April

13, 2000) and 66 FR 50252 (October 2,

2001).

On June 6, 2007, EPA found that the

Maricopa area failed to attain the 24-

hour PM-10 NAAQS by December 31,

2006 (72 FR 31183) and required the

submittal of a new plan meeting the

requirements of section 189(d) by

December 31, 2007.

On December 19, 2007, the Maricopa

Association of Governments (MAG)

adopted the "MAG 2007 Five Percent

Plan for PM-10 for the Maricopa County

Nonattainment Area" (189(d) plan). On

December 21, 2007 the Arizona

Department of Environmental Quality

(ADEQ) submitted the 189(d) plan.

MAG adopted and ADEQ submitted this

SIP revision in order to address the CAA

requirements in section 189(d).

CAA section 110(k)(1) requires EPA to

determine whether a SIP submission is

complete within 60 days of receipt. This

section also provides that any plan that

has not been affirmatively determined to

be complete or incomplete shall become

complete within 6 months by operation

of law. EPA's completeness criteria are

found in 40 CFR part 51, appendix V.

The 189(d) plan submittal became

complete by operation of law on June

21, 2008.

EPA proposed to partially approve

and partially disapprove the 189(d) plan

on September 9, 2010 (75 FR 54806). On

January 25, 2011, prior to any final EPA

action, Arizona withdrew the 189(d)

plan from the Agency's consideration.

II. Final Action

A. Finding of Failure To Submit

Required SIP Revisions

If Arizona does not submit the

required plan revisions within 18

months of the effective date of today's

rulemaking, pursuant to CAA section

179(a) and 40 CFR 52.31, the offset

sanction identified in CAA section

179(b) will be applied in the affected

area. If the State has still not made a

complete submittal 6 months after the

offset sanction is imposed, then the

highway funding sanction will apply in

the affected area. in accordance with 40

CFR 52.31.1 The 18-month clock will

stop and the sanctions will not take

effect if, within 18 months after the date

of the finding, EPA finds that the State

has made a complete submittal

addressing the 189(d) PM-10

requirements for the Maricopa area. In

addition, CAA section 110(c)(1)

provides that EPA must promulgate a

federal implementation plan (FIP) no

later than 2 years after a finding under

section 179(a) unless EPA takes final

action to approve the submittal within

2 years of EPA's finding.

B. Effective Date Under the

Administrative Procedures Act

This final action is effective on

February 14, 2011.

Under the Administrative Procedures

Act (APA), 5 U.S.C. 553(d)(3), an agency

rulemaking may take effect before 30

days after the date of publication in the

Federal Register if an agency has good

cause to mandate an earlier effective

date. Today's action concerns SIP

revisions that are already overdue and

the State has been aware of applicable

provisions of the CAA relating to

overdue SIPs. In addition, today's action

simply starts a "clock" that will not

result in sanctions for 18 months, and

that the State may "turn off" by a

complete SIP submittal addressing the

189(d) PM-10 requirements for the

Maricopa area. These reasons support

an effective date prior to 30 days after

the date of publication.

C. Notice-and-Comment Under the

Administrative Procedures Act

This final agency action is not subject

to the notice-and-comment

requirements of the APA, 5 U.S.C.

533(b). EPA believes that because of the

limited time provided to make findings

of failure to submit regarding SIP

submissions, Congress did not intend

such findings to be subject to noticeand-comment rulemaking. However, to

the extent such findings are subject to

notice-and-comment rulemaking, EPA

invokes the good cause exception

pursuant to the APA, 5 U.S.C. 553(d)(3).

Notice and comment are unnecessary

because no EPA judgment is involved in

making a nonsubstantive finding of

failure to submit SIPs required by the

'In a 1994 rulemaking, EPA established the

Agency's selection of the sequence of these two

sanctions: The offset sanction under section

179(b)(2) shall apply at 18 months, followed 6

months later by the highway sanction under section

179(b)(1) of the Act. EPA does not choose to deviate

from this presumptive sequence in this instance.

For more details on the timing and implementation

of the sanctions, see 59 FR 39832 (August 4, 1994),

promulgating 40 CFR 52.31, "Selection of sequence

of mandatory sanctions for findings made pursuant

to section 179 of the Clean Air Act."

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CAA. Furthermore, providing notice

and comment would be impracticable

because of the limited time provided

under the statute for making such

determinations. Finally, notice and

comment would be contrary to the

public interest because it would divert

Agency resources from the critical

substantive review of submitted SIPs.

See 58 FR 51270, 51272, note 17

(October 1, 1993); 59 FR 39832, 39853

(August 4, 1994).

III. Statutory and Executive Order

Reviews

A. Executive Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled "Regulatory Planning and

Review."

B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Burden is

defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This final rule will not have a

significant impact on a substantial

number of small entities because

findings of failure to submit required

SIP revisions do not by themselves

create any new requirements. Therefore,

I certify that this action will not have a

significant economic impact on a

substantial number of small entities.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates Act"), signed into

law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that today's

action does not include a Federal

mandate that may result in estimated

costs of $100 million or more to either

State, local, or tribal governments in the

aggregate, or to the private sector. The

CAA provision discussed in this rule

requires states to submit SIPs. This rule

merely finds that Arizona has not met

that requirement. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

E. Executive Order 13132, Federalism

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure "meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications." "Policies that have

federalism implications" is defined in

the Executive Order to include

regulations that have "substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government." Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it does

not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

F. Executive Order 13175, Coordination

With Indian Tribal Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." This final rule does not

have tribal implications, as specified in

Executive Order 13175. It will not have

substantial direct effects on tribal

governments, on the relationship

between the Federal government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal government and Indian tribes.

Thus, Executive Order 13175 does not

apply to this rule.

G. Executive Order 13045, Protection of

Children From Environmental Health

Risks and Safety Risks

EPA interprets Executive Order 13045

(62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

Order has the potential to influence the

regulation. This rule is not subject to

Executive Order 13045 because it

merely finds that Arizona has failed to

make a submission that is required

under the Clean Air Act.

H. Executive Order 13211, Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This rule is not subject to Executive

Order 13211, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

FR 28355, May 22, 2001) because it is

not a significant regulatory action under

Executive Order 12866.

L National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use "voluntary

consensus standards" (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today's

action does not require the public to

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perform activities conducive to the use

of VCS.

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Population

Executive Order (EO) 12898 (59 FR

7629 (Feb. 16, 1994)) establishes federal

executive policy on environmental

justice. Its main provision directs

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

EPA lacks the discretionary authority

to address environmental justice in this

rulemaking.

K. Congressional Review Act

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. 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. section 804(2). This

rule will be effective February 14, 2011.

L. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by April 15, 2011.

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)).

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

Dated: January 3, 2011.

Jared Blumenfeld,

Regional Administrator, Region IX.

[FR Doe. 2011-3027 Filed 2-11-11; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations

System

48 CFR Parts 216 and 252

RIN 0750-AF51

Defense Federal Acquisition

Regulation Supplement; Award-Fee

Contracts (DFARS Case 2006-D021)

AGENCY: Defense Acquisition

Regulations System, Department of

Defense (DoD).

ACTION: Final rule.

SUMMARY: DoD is issuing a final rule

amending the Defense Federal

Acquisition Regulation Supplement

(DFARS) to address award-fee contracts,

including eliminating the use of

provisional award-fee payments.

DATES: Effective Date: February 14,

2011.

FOR FURTHER INFORMATION CONTACT: Mr.

Mark Gomersall, Defense Acquisition

Regulations System, OUSD (AT&L)

DPAP/DARS, 3060 Defense Pentagon,

Room 3B855, Washington, DC 20301-

3060. Telephone 703-602-0302;

facsimile 703-602-0350. Please cite

DFARS Case 2006-D021.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the

Federal Register (75 FR 22728) on April

30, 2010, to revise guidance for awardfee evaluations and payments, eliminate

the use of provisional award-fee

payments, and incorporate DoD policy

guidance on the use of objective criteria.

A new clause entitled Award Fee sets

forth the use of award fees in DoD

contracts.

II. Discussion and Analysis

A. Analysis of Public Comments

In response to the proposed rule, DoD

received comments from three

respondents. A discussion of the

comments is provided below:

1. Making 40 Percent of the Award-Fee

Pool Available for the Final Evaluation

a. Comment: The respondents

considered the language aligning fee

distributions with contract performance

and cost schedules. One respondent

stated that holding 40 percent of the

award fee until the final evaluation does

not consider the completion of

individual contract line items or

undefinitized work.

DoD Response: The purpose of

making 40 percent of the award-fee pool

available under the final evaluation

period is to set aside a sufficient amount

to protect the taxpayer's interest in the

event a contractor fails to meet

contractual obligations. Assuming the

contract is properly structured, there is

nothing in the rule that prohibits

contractors from being paid for

completed contract line items or work

performed under undefinitized

contracts.

b. Comment: The respondents

expressed concern that holding 40

percent award fee until the final

evaluation does not reward contract

performance, particularly if a contract is

terminated before the final evaluation.

One respondent was concerned that by

making a specified percentage of the

award fee available for the final

evaluation period, in the event of a

termination for convenience, the

contractor may not have the ability to

earn that final award-fee percentage.

DoD response: The rule does not

change the current procedures for

terminations for convenience. In the

event of a termination for convenience

prior to the final evaluation period,

contractors will be eligible to earn

award fee available up to the point of

the termination.

c. Comment: One respondent was

concerned that holding of 40 percent of

the award fee until final evaluation will

negatively affect cash flow. The

respondents were also concerned that

the proposed rule will increase financial

risk to Government contractors and

result in an imbalance in the risk/

reward relationship. One respondent

was concerned, therefore, that the rule

will unfavorably impact DoD's supplier

base by adversely impacting suppliers'

ability to attract debt and equity

investment.

DoD Response: Contractors will

continue to be paid incurred costs on

cost-type contracts, completed work

under fixed-price contracts with

progress payments, or milestones

achieved under fixed-price contracts

with performance-based payments.

Accordingly, a contractor's cash flow

should not be significantly impacted.

Since contractors who consistently meet

contractual performance requirements

will maximize the amount of award fee

earned, there is no imbalance in the

risk/reward relationship. There should

be little, if any, impact on a superior

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