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Citation: 76 Fed. Reg. 8300 2011

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 76, No. 30/Monday, February 14, 2011/Rules and Regulations

ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A majorrule cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2).

C.Petitions forJudicialReview

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed inthe United States Court ofAppeals for the appropriate circuit by April 15, 2011. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis actionfor the purposes ofjudicial review nor does it extend the time within which apetition forjudicial review maybe filed, and shall not postpone the effectiveness of such rule or action. Parties with objections tothis 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 oftoday's Federal Register, rather than file an immediate petition forjudicial review ofthis 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 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: February 1, 2011. W.C. Early, ActingRegional Administrator, RegionIlL
40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority forcitation forpart 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart VV-Virginia

* 2.In §52.2420, the table inparagraph (c) is amended by adding a seventh entry under 5-10-20 to read as follows: §52.2420 Identification of plan.

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### (c)* * *

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State Explanation [former SIP State citation Title/subject effective EPA approval date citation] date

9VAC 5Chapter 10

................ General Definitions [Part I]

5-10-20

.................................... Terms Defined

......................... 2/18/10 2/14/11 [Insertpage number Revised definition of "Volatile where the document begins], organic compound."

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

AGENCY

40 CFR Part 52 [EPA-R09-OAR-2011-0041; FRL-9264-1] Finding of Failure To Submit State Implementation Plan Revisionsfor 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 failedto make a state implementation plan (SIP) submittal required under the Clean Air Act (CAA

orAct) for the Maricopa County (Phoenix)nonattainment area (Maricopa area) for particulate matter of10 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 itsrequired statutory attainment deadline, is subject to section 189(d) ofthe 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 ofthe 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 ofnotless than 5 percent ofthe amount ofsuch emissions

as reported in the mostrecent 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 planby EPA, Arizona withdrew the submitted plan from the Agency's consideration. As a result ofthe withdrawal, EPA is today finding that Arizona failed to make the submittal required for the Maricopa area under section 189(d) ofthe 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: EffectiveDate:This action was effective as ofFebruary 14, 2011.

FOR FURTHER INFORMATION CONTACT: Gregory Nudd, U.S. Environmental Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, SanFrancisco, 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 mostvulnerable. 8300

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On July 1, 1987EPA revised the health-based NAAQS (52 FR 24672), replacing the standards for total suspended particulates with new standards applying only to particulate matter up toten microns in diameter (PM-10). At thattime, 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 ofdays per calendar year with a 24-hour average concentration above 150 pg/m 3

, as determined in accordance with appendix K to 40 CFRpart 50, is equal to or less than one. 40 CFR 50.6 and 40 CFR part 50, appendix K.

On the date ofenactment ofthe 1990 Clean Air Act Amendments (CAA orthe 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 oflaw. 56 FR 11101 (March 15, 1991). The Maricopa area is located in the eastern portion ofMaricopa County and encompasses the cities ofPhoenix, Mesa, Scottsdale, Tempe, Chandler, Glendale, as well as 17 other jurisdictions and unincorporated County lands. The nonattainment area also includes the town ofApache Junction in Pinal County. EPA codified theboundaries ofthe Maricopa area at 40 CFR 81.303.

Once an area is designated nonattainment for PM-10, section 188 ofthe 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 mustbe reclassified to serious PM10 nonattainment by operation oflaw if EPA determines after the applicable attainment date that, based on air quality, the area failed to attainby 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 ofno later than December 31, 2001. CAA section 188(c)(2). However CAA section 188(e) allows states to apply forup to a 5-year extension ofthat deadline ifcertain conditions are met.Arizona requested an attainment date extension under CAA section 188(e) from December 31, 2001 to December 31, 2006. OnJuly 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 ofPM-10 planning inthe Maricopa area. See 65 FR 19964 (April 13, 2000) and 66 FR 50252 (October 2, 2001).

On June 6, 2007, EPA foundthat the Maricopa area failed to attain the 24- hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required the submittal ofa 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 ofEnvironmental Quality (ADEQ) submitted the 189(d)plan. MAG adopted and ADEQsubmitted 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 ofreceipt. This section also provides that any planthat has notbeen affirmatively determined to be complete or incomplete shall become complete within 6 months by operation oflaw. EPA's completeness criteria are found in 40 CFR part 51, appendix V. The 189(d) plan submittal became complete by operation oflaw on June 21, 2008.

EPA proposed topartially 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. FindingofFailureTo Submit RequiredSIPRevisions

IfArizona does not submitthe required plan revisions within 18 months ofthe effective date oftoday's rulemaking, pursuant to CAA section 179(a) and40 CFR 52.31, the offset sanction identified in CAA section 179(b) will be applied in the affected

area. Ifthe State has still not made a complete submittal 6 months after the offset sanction is imposed, thenthe 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 ofthe finding, EPA finds thatthe 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 thatEPA must promulgate a federal implementation plan (FIP)no later than 2years after afinding under section 179(a)unless EPA takes final action to approve the submittal within 2years ofEPA's finding.

B. EffectiveDate Underthe AdministrativeProcedures Act
This final action is effective on February 14, 2011.

Under the Administrative Procedures Act (APA), 5U.S.C. 553(d)(3), an agency rulemaking may take effect before 30 days after the date ofpublication in the Federal Register ifan 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 ofthe 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 ofpublication.
C.Notice-and-Comment Underthe AdministrativeProcedures Act
This final agency action isnot subject to the notice-and-comment requirements ofthe APA, 5U.S.C. 533(b). EPA believes thatbecause ofthe limited time provided to make findings offailure to submitregarding 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, 5U.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 bythe

'In a 1994 rulemaking, EPA established the Agency's selection ofthe sequence ofthese two sanctions: The offset sanction under section 179(b)(2) shall apply at 18 months, followed 6 months laterby the highway sanction under section 179(b)(1) ofthe Act. EPA does not choose to deviate from this presumptive sequence in this instance. For more details on the timing and implementation ofthe sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 52.31, "Selection ofsequence ofmandatory sanctions for findings made pursuant to section 179 ofthe Clean Air Act." 8301

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CAA. Furthermore, providing notice and comment would be impracticable because ofthe limited time provided under the statute for making such determinations. Finally, notice and comment would be contrary to the public interest because itwould 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 (August4, 1994).
III. Statutoryand Executive Order Reviews
A. Executive Order12866,Regulatory PlanningandReview

The Office ofManagement and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled "Regulatory Planning and Review."

B. Paperwork ReductionAct
This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.Burden is defined at 5CFR 1320.3(b).
C.RegulatoryFlexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unlessthe agency certifies thatthe rule will not have a significant economic impact on
a substantial number of small entities. Small entities include smallbusinesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will nothave a significant impact on a substantial number ofsmall entities because findings offailure to submit required SIP revisions do notby themselves create any new requirements. Therefore, I certify thatthis action will not have a significant economic impact on a substantial number of small entities.
D. UnfundedMandatesReformAct

Under section 202 of the Unfunded Mandates Reform Act of 1995 ("UnfundedMandates Act"), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes aFederal 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 leastburdensome alternative that achieves the objectives ofthe 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 impactedby the rule.

EPA has determined thattoday's action does not include a Federal mandate that may resultin estimated costs of$100 million or more to either State, local, or tribal governments inthe 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, orto the private sector, result from this action.

E.Executive Order13132,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 ofregulatory policies that have federalism implications." "Policiesthat have federalism implications" is defined in the Executive Order to include regulations thathave "substantial direct effects onthe States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels ofgovernment." 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 andlocal governments, orEPA consults with State and local officials early in the process ofdeveloping the proposed regulation. EPA also may not issue a regulation thathas federalism implications and thatpreempts State law unless the Agency consults with State and local officials early in the process ofdeveloping the proposed regulation.

This rule will not have substantial direct effects on the States, onthe relationship between the national government and the States, or onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132, because itdoes not alterthe relationship or the distribution ofpower and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 ofthe Executive Order do not apply to this rule.

F.Executive Order13175, Coordination WithIndian TribalGovernments

Executive Order 13175, entitled "Consultation andCoordination 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 thathave tribal implications." This final rule does not have tribal implications, as specified in Executive Order 13175. Itwill not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or onthe distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.
G.Executive Order13045,Protectionof ChildrenFromEnvironmentalHealth Risks andSafetyRisks

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 thatthe analysis required under section 5-501 ofthe 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 thatis required under the Clean Air Act.

H. Executive Order13211,Actions That Significantly Affect EnergySupply, 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 itis not a significant regulatory action under Executive Order 12866.

L NationalTechnology Transferand AdvancementAct

Section 12 ofthe National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing anew regulation. To comply with NTTAA, EPA must consider anduse "voluntary

consensus standards" (VCS) ifavailable 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 ofVCS.

J.Executive Order12898:Federal Actions ToAddressEnvironmental Justicein MinorityPopulations and Low-Income Population

Executive Order (EO) 12898 (59FR 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 oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheirprograms, 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 ReviewAct

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A majorrule cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. section 804(2). This rule will be effective February 14, 2011.

L. Petitions forJudicial Review

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed inthe United States Court ofAppeals for the appropriate circuit by April 15, 2011. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which apetition forjudicial review maybe 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 etseq. Dated: January 3, 2011. JaredBlumenfeld, RegionalAdministrator, RegionIX.
[FRDoe. 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: EffectiveDate: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 inthe Federal Register (75 FR 22728) on April 30, 2010, to revise guidance for awardfee evaluations and payments, eliminate the use ofprovisional award-fee payments, and incorporate DoD policy guidance on the use ofobjective criteria. A new clause entitled Award Fee sets forth the use ofaward fees in DoD contracts.
II. Discussion and Analysis
A. Analysis ofPublicComments

In response to the proposed rule, DoD received comments from three respondents. A discussion ofthe comments is providedbelow: 1.Making 40 Percent ofthe 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 statedthat holding 40 percent ofthe award fee until the final evaluation does not consider the completion of individual contract line items or undefinitized work.

DoDResponse:The purpose of making 40 percent ofthe award-fee pool available under the final evaluation period isto 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 frombeing paid for completed contract line items orwork 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 ifa contract is terminated before the final evaluation. One respondent was concerned thatby making a specified percentage ofthe award fee available for the final evaluation period, in the event ofa termination for convenience, the contractor may not have the ability to

earn that final award-fee percentage.

DoDresponse: 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 willbe eligible to earn award fee available up to the point of the termination.

c. Comment:One respondent was concerned thatholding of40 percent of the award fee until final evaluation will negatively affect cash flow. The respondents were also concerned that the proposed rule willincrease financial risk to Government contractors and result in an imbalance in the risk/ reward relationship. One respondent

was concerned, therefore, thatthe rule will unfavorably impact DoD's supplier base byadversely impacting suppliers' ability to attract debt and equity investment.

DoDResponse: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, acontractor's cash flow should not be significantly impacted. Since contractors who consistently meet contractual performance requirements will maximize the amount ofaward fee earned, there is no imbalance in the risk/reward relationship. There should be little, ifany, impact on a superior 8303

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