17868 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

on September 30, 2009, No. 645, 

effective October 1, 2009. 

* * * * * 

[FR Doc. 2010–7968 Filed 4–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0993; FRL–9134–8] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Interstate Transport of Pollution 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of New Mexico 

for the purpose of addressing the ‘‘good 

neighbor’’ provisions of the Clean Air 

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

1997 ozone standards and the 1997 

PM2.5 standards. This SIP revision 

satisfies a portion of the State of New 

Mexico’s obligation to submit a SIP 

revision that demonstrates that adequate 

provisions are in place to prohibit air 

emissions from adversely affecting 

another state’s air quality through 

interstate transport. This rulemaking 

action is being taken under section 110 

of the CAA and addresses one element 

of CAA section 110(a)(2)(D)(i), which 

pertains to prohibiting air pollutant 

emissions from within New Mexico 

from significantly contributing to 

nonattainment of the ozone and PM2.5

NAAQS in any state. 

DATES: This direct final rule will be 

effective June 7, 2010 without further 

notice unless EPA receives relevant 

adverse comments by May 10, 2010. If 

adverse comments are 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 No. EPA–R06– 

OAR–2007–0993, by one of the 

following methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. 

• Follow the online instructions for 

submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8 a.m. and 4 p.m. weekdays, 

and not on legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket No. EPA–R06–OAR–2007–0993. 

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. 

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. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The file will 

be made available by appointment for 

public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. Contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT paragraph below or Mr. Bill 

Deese at 214–665–7253 to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The state submittal is also available 

for public inspection during official 

business hours, by appointment, at the 

New Mexico Environment Department, 

Air Quality Bureau, 1190 St. Francis 

Drive, Santa Fe, New Mexico 87502. 

FOR FURTHER INFORMATION CONTACT: 

Emad Shahin, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–6717; fax number 

(214) 665–7263; e-mail address 

shahin.emad@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

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

EPA. 

Outline 

I. What Action Is EPA Taking? 

II. What Is a SIP? 

III. What Is the Background for This Action? 

IV. What Is EPA’s Evaluation of the State’s 

Submission? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What Action Is EPA Taking? 

We are approving a submission from 

the State of New Mexico demonstrating 

that New Mexico has adequately 

addressed one of the required elements 

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

element that prohibits air pollutant 

emissions from sources within a state 

from significantly contributing to 

nonattainment of the relevant NAAQS 

in any other state. We have determined 

that emissions from sources in New 

Mexico do not significantly contribute 

to nonattainment of the 1997 ozone 

standards or of the 1997 PM2.5 standards 

in any other state. The remaining three 


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Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 17869 

1See, ‘‘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 (May 

12, 2005). Information regarding CAA section 

110(a)(2)(D) SIPs can be found beginning of page 

25263. 

elements of section 110(a)(2)(D) are SIPs 

addressing: (i) Interference with the 

maintenance of the NAAQS in any other 

state; (ii) interference with measures 

required to prevent significant 

deterioration of air quality in any other 

state; and (iii) interference with 

measures required to protect visibility 

in any other state. The aforementioned 

3 elements will be evaluated and 

addressed in future rulemakings. 

EPA is publishing this rule without 

prior proposal because we view this as 

a noncontroversial amendment and 

anticipate no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, we 

are publishing a separate document that 

will serve as the proposal to approve the 

SIP revision if adverse comments are 

received. This rule will be effective on 

June 7, 2010 without further notice 

unless we receive adverse comment by 

May 10, 2010. If we receive adverse 

comments, we will publish a timely 

withdrawal in the Federal Register 

informing the public that the rule will 

not take effect. We will address all 

public comments in a subsequent final 

rule based on the proposed rule. We 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. Please note that if we receive 

adverse comment on an amendment, 

paragraph, or section of this rule and if 

that provision may be severed from the 

remainder of the rule, we may adopt as 

final those provisions of the rule that are 

not the subject of an adverse comment. 

II. What Is a SIP? 

Section 110(a) of the CAA requires 

each state to develop a plan that 

provides for the implementation, 

maintenance, and enforcement of the 

national ambient air quality standards 

(NAAQS). EPA establishes NAAQS 

under section 109 of the CAA. 

Currently, the NAAQS address six 

criteria pollutants: Carbon monoxide, 

nitrogen dioxide, ozone, lead, 

particulate matter, and sulfur dioxide. 

The plan developed by a state is 

referred to as the state implementation 

plan (SIP). The content of the SIP is 

specified in section 110 of the CAA, 

other provisions of the CAA, and 

applicable regulations. SIPs can be 

extensive, containing state regulations 

or other enforceable measures and 

various types of supporting information, 

such as emissions inventories, 

monitoring networks, and modeling 

demonstrations. 

A primary purpose of the SIP is to 

provide the air pollution regulations, 

control strategies, and other means or 

techniques developed by the state to 

ensure that the ambient air within that 

state meets the NAAQS. However, 

another important aspect of the SIP is to 

ensure that emissions from within the 

state do not have certain prohibited 

impacts upon the ambient air in other 

states through interstate transport of 

pollutants. This SIP requirement is 

specified in section 110(a)(2)(D). 

Pursuant to that provision, each state’s 

SIP must contain provisions adequate to 

prevent, among other things, emissions 

that significantly contribute to 

violations of the NAAQS in any other 

state. 

States are required to update or revise 

SIPs under certain circumstances. One 

such circumstance is EPA’s 

promulgation of a new or revised 

NAAQS. Each state must submit these 

revisions to EPA for approval and 

incorporation into the federallyenforceable SIP. 

III. What Is the Background for This 

Action? 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone and fine 

particulate matter (PM2.5). This action is 

being taken in response to the July 18, 

1997 revision to the 8-hour ozone 

standards and PM2.5 standards. This 

action does not address the 

requirements for the 2006 PM2.5

standards or the 2008 8-hour ozone 

standards; those standards will be 

addressed in a later action. 

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

states to submit SIPs to address a new 

or revised NAAQS within 3 years after 

promulgation of such standards, or 

within such shorter period as EPA 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 its 

‘‘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’’ (‘‘Guidance’’) for SIP 

submissions that states should use to 

address the requirements of section 

110(a)(2)(D)(i). EPA developed this 

guidance to make recommendations to 

states for making submissions to meet 

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

for the 1997 8-hour ozone standards and 

1997 PM2.5 standards. 

On September 17, 2007, we received 

a SIP revision from the State of New 

Mexico to address the requirements of 

section 110(a)(2)(D)(i) for both the 1997 

8-hour ozone standards and 1997 PM2.5

standards. This SIP submittal follows 

EPA’s Guidance. As identified in the 

Guidance, the ‘‘good neighbor’’ 

provisions in section 110(a)(2)(D)(i) 

require each State to submit a SIP that 

prohibits emissions that adversely affect 

another state in the ways contemplated 

in the statute. Section 110(a)(2)(D)(i) 

contains four distinct requirements 

related to the impacts of interstate 

transport; however, in this rulemaking 

EPA is addressing only the requirement 

that pertains to preventing sources in 

the state from emitting pollutants in 

amounts which will contribute 

significantly to nonattainment of the 

1997 8-hour ozone standards and 1997 

PM2.5 standards in any other state. In its 

submission, the State of New Mexico 

indicated that its current SIP is adequate 

to prevent such significant contribution 

to nonattainment in any other state, and 

thus no additional emissions controls 

are necessary at this time to alleviate 

interstate transport. 

IV. What Is EPA’s Evaluation of the 

State’s Submission? 

In accordance with EPA’s Guidance, 

the State of New Mexico has made a SIP 

submission addressing interstate 

transport for the 1997 8-hour ozone 

standards and 1997 PM2.5 standards. 

The State has made a showing that 

emissions from New Mexico do not 

significantly contribute to violations of 

either NAAQS in other states by two 

different means. For PM2.5 the State has 

relied primarily upon technical analysis 

performed by EPA in connection with 

another regional rulemaking that 

addresses interstate transport. For 

ozone, the State has relied primarily on 

additional modeling to address the 

extent of interstate transport. We believe 

that the submission adequately 

establishes that emissions from New 

Mexico do not significantly contribute 

to violations of either NAAQS in other 

states, for the reasons explained below. 

To support a determination of no 

‘‘significant contribution’’ for the 1997 

PM2.5 standards, the state has relied on 

EPA’s Clean Air Interstate Rule (CAIR) 1

analysis. This approach is consistent 

with EPA’s Guidance to states for this 

SIP submission. In CAIR, EPA evaluated 

which states significantly contribute to 

violations of the 1997 8-hour ozone 

standards and 1997 PM2.5 standards in 

other states. Based upon its analysis, 

EPA did not include New Mexico in the 

CAIR region. In the CAIR preamble, EPA 

provided its rationale for the exclusion 


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17870 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

of the western states, including New 

Mexico, from further consideration of 

transport for 8-hour ozone and PM2.5

and the requirements of CAIR. 

The ‘‘Technical Support Document for 

the Interstate Air Quality Rule Air 

Quality Modeling Analysis’’, January 

2004 (available at http://www.epa.gov/ 

cair/technical.html) contains 

documentation of the modeling used to 

support CAIR. This modeling included 

an analysis of the maximum impact of 

emissions from States without CAIR 

controls applied on areas projected in 

PM2.5 nonattainment in 2010. A 

maximum impact level of 0.15 μg/m3

was considered significant for this 

analysis (Note: In the final CAIR EPA 

changed the maximum impact level for 

this significance test to 0.20 μg/m3). 

EPA’s modeling indicated that the 

maximum impact from emissions from 

sources in New Mexico on any projected 

nonattainment area in another state was 

0.03 μg/m3. This value is 20% of the 

significant impact level that EPA used 

in the CAIR proposal, and therefore EPA 

determined that emissions from the 

state of New Mexico do not significantly 

contribute to pollutant levels in any area 

projected to be nonattainment of the 

PM2.5 standard in that analysis. 

CAIR was remanded by the U.S. Court 

of Appeals for the District of Columbia, 

and EPA is currently in the process of 

developing a replacement rule to 

address interstate transport for the 1997 

8-hour ozone and 1997 PM2.5 standards. 

We do not believe that the CAIR remand 

affects New Mexico’s reliance on EPA’s 

CAIR analysis for the purpose of 

evaluating New Mexico’s PM 2.5 impacts 

on other states. Specifically, EPA’s 

modeling was conducted without 

including the impact of any CAIR 

controls, and thus the evaluation is not 

impacted by any uncertainty in the 

implementation of CAIR controls due to 

the remand. Also, despite remand of the 

CAIR rules, EPA’s reliance on the 

maximum impact level of 0.20 μg/m3 as 

the cutoff for the inclusion of a state in 

the CAIR region was upheld by the 

court. Therefore, with respect to the 

1997 PM2.5 standards, we believe that 

New Mexico’s submission adequately 

establishes that sources in that state are 

not significantly contributing to 

violations of that NAAQS in any other 

state. 

To support a determination of no 

‘‘significant contribution’’ for the 8-hour 

ozone NAAQS, New Mexico could not 

rely upon EPA’s CAIR analysis because 

western states including New Mexico 

were not included in the area modeled 

for ozone. Instead, New Mexico 

provided an additional modeling 

analysis of the impact of emissions from 

the state on projected 8-hour ozone 

nonattainment in downwind states. We 

note that modeling is not necessarily 

required to support this type of SIP 

submission, but this approach is 

consistent with EPA’s Guidance to 

states for this SIP submission. 

The modeling relied upon by the state 

is described in greater detail in its 

technical support document in the 

submission, and is available at http:// 

www.regulations.gov, Docket No. 

EPA–R06–OAR–2007–0993. We note 

that EPA assisted the state with this 

analysis, including the development of 

the modeling demonstration. In order to 

develop a model scenario that could 

evaluate New Mexico’s impacts, the 

state and EPA determined that it was 

appropriate to rely on data developed by 

the Central Regional Air Planning 

Association (CENRAP). Modeling was 

conducted using a 2002 third quarter 

CENRAP modeling dataset that included 

New Mexico in the modeling domain. 

While a more recent dataset might be 

assumed to be more appropriate to 

support this action, a 2010 dataset was 

not available from CENRAP. However, 

we believe that the use of the 2002 

dataset is adequate to evaluate the 

degree of contribution of New Mexico 

emissions sources to violations of the 

1997 8-hour ozone standards. Because 

the analysis is based on year 2002 

emissions, we believe it is a 

conservative estimate of potential 

transport impacts in 2010, as New 

Mexico’s emissions have been 

decreasing since 2002 due to various 

recent federal control programs 

(including On-Road and Nonroad 

reductions). This trend is confirmed by 

available 2005 inventory. In other 

words, if data from 2002 establish that 

there is no significant contribution to 

violations of the 1997 8-hour ozone 

standards in other states, then New 

Mexico sources would have even lower 

impacts currently and consequently no 

significant contribution. 

In the Guidance, we recommended a 

number of ways that states might elect 

to evaluate whether or not there is 

significant contribution, and we 

suggested that states might consider 

assessing the potential for contribution 

using assumptions similar to those used 

by EPA in CAIR. The state’s analysis 

considered three factors comparable to 

those used by EPA as screening criteria 

in determining significance for states in 

CAIR: (a) The magnitude of the 

contribution, (b) the frequency of the 

contribution, and (c) the relative amount 

of contribution. The additional 

modeling yielded consistent results 

showing New Mexico emissions do not 

contribute significantly to 8-hour ozone 

nonattainment in any of the areas 

analyzed. New Mexico’s highest overall 

contribution to total nonattainment for 

any nonattainment area at the time of 

the modeling was for Dallas/Fort Worth. 

New Mexico’s highest impact on the 

Dallas/Fort Worth area was a daily 

average contribution of 0.4%, with a 

contribution average of 0.4 ppb. By 

EPA’s own metrics (as established in 

CAIR and upheld by the court), these 

impacts are considered to be small and 

infrequent and well below screening 

criteria established at 1% and 2 ppb, 

respectively. Moreover, not a single 

metric of the three contribution factors 

was found to be above the significance 

threshold established by EPA for any of 

the downwind counties. For more 

details please see the document titled 

‘‘Modeling Data and Report for New 

Mexico from EPA Regions 6 and 7’’ that 

is included in the docket materials for 

this action. 

At the time the modeling was 

performed, Denver’s air quality was 

meeting the standard. (The 2004–2006 

8-Hour Ozone Design Value (DV) was 81 

ppb). Therefore the state did not 

evaluate New Mexico’s ozone impacts 

on Denver. Denver had a very high 

ozone season in 2007 that temporarily 

pushed the area into nonattainment. 

The preliminary 2007–2009 DV 

(awaiting final data validation) is 82 ppb 

so the area appears to now be back in 

attainment. The preliminary 2007–2009 

DV is based upon 4th High values of 90 

ppb in 2007, 79 ppb in 2008, and 79 ppb 

in 2009 (preliminary). With the last two 

4th Highs of 79 ppb, Denver would have 

to monitor a 4th High value of 97 ppb 

in 2010 to go back into nonattainment 

for the period 2008–2010. Denver has 

not had a 4th High value of more than 

92 ppb in the last 15 years, so it is 

unlikely that Denver will be in 

nonattainment at the end of the 2010 

ozone season for the 84 ppb standard. 

Since based on preliminary 2007–2009 

data, Denver is attaining the standard, 

New Mexico’s emissions should not be 

considered as contributing to 

nonattainment in Denver. 

With respect to the 1997 8-hour ozone 

standards, we believe that New 

Mexico’s submission adequately 

establishes that sources in that state are 

not significantly contributing to 

violations of that NAAQS in any other 

state. As noted previously, EPA will be 

acting on the other elements of Section 

110(a)(2)(D)(i) in separate rulemakings. 

V. Final Action 

We are approving revisions to the 

New Mexico SIP which adequately 

demonstrates that air pollutant 

emissions from sources within New 


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Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 17871 

Mexico do not add significantly to 

nonattainment of the relevant NAAQAS 

on any other state. 

Based on the information provided by 

NMED in the technical demonstration, it 

has sufficiently been demonstrated that 

emissions from New Mexico do not 

significantly contribute to downwind 

nonattainment. Thus, EPA concludes 

that the New Mexico SIP complies with 

CAA section 110(a)(2)(D)(i)(I). 

VI. Statutory and Executive Order 

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 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 June 7, 2010. 

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 section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: March 30, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 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 GG—New Mexico 

■ 2. The second table in § 52.1620(e) 

entitled ‘‘EPA Approved Nonregulatory 

Provisions and Quasi-Regulatory 

Measures in the New Mexico SIP’’ is 

amended by adding an entry to the end 

to read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(e) * * * 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP 

Name of SIP provision Applicable geographic 

or nonattainment area 

State submittal/effective 

date 

EPA approval date Explanation 

*******

CAA 110(a)(2)(D)(i)(I) SIP—Interstate Transport.New Mexico ............... 09/17/07 04/08/10 [insert FR page number 

where the document begins].


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17872 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

[FR Doc. 2010–7868 Filed 4–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 36 and 54 

[WC Docket No. 05–337, CC Docket No. 80– 

286; FCC 10–44] 

High-Cost Universal Service Support, 

Jurisdictional Separations, and 

Coalition for Equity in Switching 

Support Petition for Reconsideration 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission addresses an inequitable 

asymmetry in its current rules governing 

the receipt of universal service high-cost 

local switching support (LSS) by small 

incumbent local exchange carriers 

(LECs). Since the adoption of the 

current rules, incumbent LEC lines have 

begun to decrease, and, as a result of the 

one-way rule, many small LECs that 

have lost lines receive less support than 

other LECs with a similar number of 

lines that face nearly identical 

circumstances. By modifying the 

Commission’s rules to permit 

incumbent LECs that lose lines to 

receive additional LSS when they cross 

a threshold, the Commission will 

provide LSS to all small LECs on the 

same basis. The Commission also 

dismisses the petition for 

reconsideration filed by the Coalition 

for Equity in Switching Support in the 

jurisdictional separations freeze 

proceeding. 

DATES: Effective April 8, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Theodore Burmeister, Wireline 

Competition Bureau, 

Telecommunications Access Policy 

Division, (202) 418–7400 or TTY: (202) 

418–0484. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Order in 

WC Docket No. 05–337 and CC Docket 

No. 80–286, FCC 10–44, adopted March 

17, 2010, and released March 18, 2010. 

The complete text of this document is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Information Center, 

Portals II, 445 12th Street, SW., Room 

CY–A257, Washington, DC 20554. The 

document may also be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc., 

445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, telephone (800) 

378–3160 or (202) 863–2893, facsimile 

(202) 863–2898, or via the Internet at 

http://www.bcpiweb.com. It is also 

available on the Commission’s Web site 

at http://www.fcc.gov. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

I. Introduction 

1. In the Report and Order, we 

address an inequitable asymmetry in the 

Commission’s current rules governing 

the receipt of universal service high-cost 

local switching support (LSS) by small 

incumbent local exchange carriers 

(LECs). Under the current rules, which 

were adopted by the Commission at a 

time when incumbent LEC lines had 

largely only increased over time, the 

amount of LSS that an incumbent LEC 

may receive decreases when its line 

counts increase above a particular 

threshold, but does not increase when 

its line counts decrease below that same 

threshold. Since the adoption of these 

rules, incumbent LEC lines have begun 

to decrease, and, as a result of the oneway rule, many small LECs that have 

lost lines receive less support than other 

LECs with a similar number of lines that 

face nearly identical circumstances. By 

modifying our rules to permit 

incumbent LECs that lose lines to 

receive additional LSS when they cross 

a threshold, we will provide LSS to all 

small LECs on the same basis. We 

emphasize that nothing in the Report 

and Order is intended to address the 

long-term role of LSS in the 

Commission’s high-cost universal 

service policies, which we are 

considering as part of comprehensive 

universal service reform. We also 

dismiss the petition for reconsideration 

filed by the Coalition for Equity in 

Switching Support in the jurisdictional 

separations freeze proceeding. The 

issues raised in that petition are 

essentially the same as those raised in 

its petition for clarification. This 

decision and the Coalition Petition 

Order and LSS NPRM wholly address 

those issues, and therefore we dismiss 

the petition for reconsideration as moot. 

II. Discussion 

2. We conclude that our rules should 

be modified to permit an incumbent 

LEC’s DEM weighting factor to increase 

as well as decrease when its line counts 

cross one of the thresholds provided in 

our rules. As described, we find that 

amending the rules will ensure that 

similarly situated incumbent LECs will 

be treated similarly under our rules. 

Although this will increase the total 

amount of high-cost universal service 

support disbursed, we find that the 

increase will not have a significant 

effect on the overall size of the universal 

service fund. We emphasize that this 

relatively minor change to existing rules 

is not intended to reflect or prejudge our 

consideration of LSS as part of any 

comprehensive universal service reform. 

3. Based on the record in this 

proceeding, we find no basis for 

continuing to provide different amounts 

of LSS to otherwise similarly situated 

incumbent LECs solely because one 

incumbent LEC had previously 

exceeded a threshold in our rules but 

the other had not. The LSS mechanism’s 

existence and design are based on the 

relative inability of small incumbent 

LECs to achieve economies of scale in 

switching costs. A small incumbent LEC 

that has lost a significant number of 

lines, causing it to cross a DEM 

weighting threshold, suffers the same 

lack of economies of scale. We find that 

such a carrier should, by the logic 

underpinning the LSS mechanism, 

receive support in the same manner as 

a small incumbent LEC with a line 

count that never crossed a threshold. 

There is no evidence that the 

Commission, at the time it adopted the 

LSS rules, considered the possibility 

that small incumbent LECs would lose 

lines and the effect of line loss on LSS. 

Indeed, as the Coalition has noted, at 

that time incumbent LEC lines had 

grown, almost without exception, for 

more than 50 years. 

4. The Coalition has provided 

evidence that failing to provide the 

higher level of LSS has caused or 

threatens to cause small incumbent LEC 

some hardship. Many affected carriers 

reportedly crossed above an access line 

threshold initially because their 

subscribers took second lines to access 

dial-up Internet service, and decreased 

below the threshold as the carriers 

deployed, and those same customers 

adopted, advanced services. We find 

that our current rules that reduce a 

carrier’s LSS when line counts increase 

without a corresponding increase in LSS 

when line counts decrease have caused 

hardship for some small incumbent LEC 

and may affect the provision or 

affordability of service to customers. 

5. We also find that amending our 

rules as proposed would not create 

undue growth in universal service 

support that would threaten the fund. 

The National Exchange Carrier 

Association (NECA), which collects cost 

and line count data for many of the 

carriers that could be affected by the 


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