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Federal Register / Vol. 70, No. 217 / Thursday, November 10, 2005 / Rules and Regulations 68339

the Federal Register. A major rule •'

cannot take effect until 60 days after it

is published in the Federal Register.

This rule 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

January 9, 2006. Filing a petition for

reconsideration by. the Administrator of

this final rule does not affect the finality

of this rule for the purpose of judicial

review nor does it extend the time

within which 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, Intergovernmental

regulations, Particulate matter,

Reporting and recordkeeping

requirements.

Dated: October 19, 2005.

Wayne Nastri,

Regional Administrbtor, Region 1K.

[FR Dec. 05-22378 Filed 11-9-05; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[OAR-2005-0150a; FRL-7995-3]

Designation of Areas for Air Quality

Planning Purposes; Arizona;

Correction of Boundary of Phoenix

Metropolitan 1-Hour Ozone

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action to correct the boundary of the

Phoenix metropolitan 1-hour ozone

nonattainment area to exclude the Gila

River Indian Reservation. EPA is taking

this action under the authority of

section 110(k)(6) of the Clean Air Act

and in light of the Federal trust

responsibility to the-Tribes. This action

is intended to facilitate and support the

Gila River Indian Community's efforts to

develop, adopt and implement a

comprehensive Tribal Implementation

Plan by. removing unnecessary

obligations that flow from the erroneous

inclusion of a portion of the Reservation

in the Phoenix metropolitan 1-hour

ozone nonattainment area.

DATES: This action will be effective on

January 9, 2006, without further notice,

unless EPA receives adverse comments

by December 12, 2005.

If we receive such comments, we will

publish a timely withdrawal in the

Federal Register to notify the public

that this rule will not take effect and

that we will respond to submitted

comments and take subsequent final

action.

ADDRESSES: Submit comments,

identified by docket number OAR2005-0150, by one of the following

methods:

1. Agency Web site: http://

docket.epa.gov/rmepub/. EPA prefers

receiving comments through this

electronic public docket and comment "

system. Follow the on-line instructions

to submit comments.

2. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the

on-line instructions.

3. E-mail: tax.wienke@epa.gov.

4. Mail or deliver: Wienke Tax, Office

of Air Planning (AIR-2), U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco., CA 94105-3901.

Instructions: All comments will be

included in the public docket without

change and may be made available

oniline at

http://doclet.epa.govIrmepub/,

including any personal information

provided, unless the comment includes

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by statute. Information that

you consider CBI or otherwise protected

should be clearly identified as such and

should not be submitted through the

agency Web site, eRulemakifig portal, or

e-mail. The agency Web site and

eRulemaking portal are "anonymous

access" systems, and EPA will not know

your identify or contact information

unless you provide it in the body of

your comment. If you send e-mail

directly to EPA, your e-mail address

will be automatically captured and

included as part of the public comment.

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.

Docket: The index to the docket for

this action is available electronically at

http://docket.epa.gov/rmepub and in

hard copy at EPA Region 9, 75

Hawthorne Street, San Francisco,

California. While all documents in the

docket are listed in the index, some

information may be publicly available

only at the hard copy location (e.g.,

copyrighted material), and some may

not be publicly available in either

location (e.g., CBI). To inspect'the hard

copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning, U.S.

Environmental Protection Agency,

Region 9, (520) 622-1622, e-mail:

tax. wienke@epa .gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms

"we," 'us," and "our" refer to EPA.

Table of Contents

I. Regulatory Context

II. Gila River Indian Community's Request for a Boundary Change

III. EPA Review of the Gila River Indian

Community's Request

A. CAA Authority to Correct Area

Designations

B. General Physical Description of the

Phoenix Metropolitan Area and Environs

C. Contribution by Emission Sources on the Reservation

D. Oxidants/Ozone Air Quality Conditions

on the Reservation

E. Ozone Planning Issues

F. Evaluation and Conclusion

IV. Final Action

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

C. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

H. Executive Order 13211: Actions that

Significantly Affect Energy Supply,

Distkibution, or Use

I. National Technology Transfer

Advancement Act

J. Congressional Review Act

I. Regulatory Context

On April 30, 1971 (36 FR 8186),

pursuant to section 109 of the Clean Air

Act (CAA or Act), as amended in 1970,

EPA promulgated national ambient air

quality standards (NAAQS) for six

criteria pollutants, including

photochemical oxidants ("oxidants").

EPA set the NAAQS for oxidants

(measured as ozone) at 0.08 parts per

million (ppm), 1-hour average. Under

section 110 of the Clean Air Act

Amendments of 1970, States were

required to adopt and submit plans that

provide for implementation,

maintenance, and enforcement of the

NAAQS. These original plans, generally

submitted and approved in the early

1970's, are known as State

Implementation Plans (SIPs).
68340. Federal Register/Vol. 70, No... 217/Thursday, November 10, 2005 / Rules and Regulations

Under EPA regulations promulgated

under the 1970 amended Act, States

were required to identify areas (referred

to as "air quality maintenance areas"

(AQMAs)) that were violating or that

had the potential to violate the NAAQS

by 1985, to submit detailed analyses of

the impacts on air quality of projected

groWth in these areas, and, where the

analysis indicates that the NAAQS will

not be maintained, to submit SIP "

revisions containing measures to ensure

maintenance during- the ensuing period.

In 1975, EPA approved Arizona's

identification of the Phoenix Standard

Metropolitan Statistical Area (SMSA) as

an AQMA for oxidants. See 40 FR 41942

(September 9, 1975). The Phoenix

SMSA includes all of Maricopa County,

which encompasses an area of

approximately 9,200 square miles in

south-central Arizona, and includes the

northern quarter of the Gila River Indian

Reservation.1

A task force consisting of

representatives of Federal, State, and

local government agencies as well as

community groups (but no Tribal

representatives) was created to guide the

preparation of the detailed air quality

maintenance analysis for the Phoenix

AQMA as required under EPA

regulations. The air quality maintenance

analysis focused on a study area of

approximately 1;700 square miles

covering the urbanized portions of the

Phoenix metropolitan area. The study

area was based on the Maricopa

Association of Governments 2 (MAG)

primary planning area, which included

only a small portion of the Maricopa

County portion of the Reservation. 3 The

final air quality maintenance analysis

report was published in July 1977.4 This

maintenance analysis report identified

and evaluated 11 specific control

The Gila River Indian Reservation lies south of

the urbanized portion of the Phoenix metropolitan.

area and stratldles the boundary between Maricopa

County and Pinal County. The Reservation

encompasses approximately 580 square miles, of

which approximately 140 square miles lie within

Maricopa County and 440 square miles lie within

Pinal County.

2 MAG is a Council of Governments that serves as

the regional agency for the Phoenix metropolitan

area. MAG was formed in 1967. In 1978, the

Governor of Arizona designated MAG as the lead

air quality planning agency for Maricopa County.

The Gila River Indiai Community joined MAG in

1989.

3 The portion of the Reservation that was

included in the Phoenix AQMA study area consists

of a rectangular area traversed by Interstate 10 and

defined by the Reservation boundaries to the north

and east and by a southward extension of Priest

Drive to the west and a westward extension of Hunt

Highway to the south. This area is about 24 square

miles, which represents approximately 17% of the

Maricopa County portion of the Reservation.

4 Aerovironment Inc., Air Quality Maintenance

Analysis in Phoenix, Arizona, Final Reflort, July

1977.

strategies for attaining and maintaining

the oxidants standard within the study

area, but was not submitted to EPA as

a SIP revision in anticipation of

different planning requirements and

deadlines under amendments to the

Clean Air Act then under active

consideration by Congress.

Congress did amend the Act in 1977,

and the Clean Air Act Amendments of

1977 replaced the AQMA approach with

a new approach, under which all areas

of the country were designated as

attainment, nonattainment, or

unclassifiable for each of the NAAQS.

Under the 1977 amended Act, "nonattainment area" meant an area

which is shown by monitored data or

which is calculated by air quality

modeling (or other methods determined

-by EPA to be reliable) to exceed any

NAAQS. On March 3, 1978 (43 FR

8962), under section 107(d)(2) of the

1977 Amended Act, EPA promulgated

area designations for each State with

respect to each of the NAAQS. The area

designations are found in 40 CFR part

81. The Clean Air Act Amendments of

1977 required specific types of SIP,

revisions for designated nonattainment

areas and other'types of SIP revisions

for unclassifiable/attainment areas.

Within the State of Arizona, EPA

designated Maricopa County as a

nonattainment area for the oxigtants

NAAQS. See 43 FR 8962, at 8968

(March 3, 1978). EPA designated the rest

of the State, which included the Pinal

County portion of the Gila River Indian

Reservation, as unclassifiable/

attainment for the oxidants NAAQS. As

such, the northern quarter of the

Reservation was located in the Maricopa

County nonattainment area and the

southern three-quarters was located

within the unclassifiable/attainment

area. The following year, EPA approved

a request by the State of Arizona to

reduce the size of this county-wide

nonattainment area to include only the

MAG urban planning area (see 44 FR

16388, March 19, 1979). The MAG

urban planning area is approximately

1,950 square miles and is 14 percent

larger than the MAG primary planning

area, which had been the study area for

the purposes of the AQMA arial3sis. The

MAG urban planning area also includes

the Maricopa County portion (i.e.,

northern quarter) of the Gila River

Indian Reservation.

Also in 1979, we established a new

ozone NAAQS to replace the oxidants

NAAQS (see 44 FR 8202, February 8,

1979). The new NAAQS was set at 0.12

ppm, 1-hour average. In September

1979, we replaced the Arizona table in

40 CFR part 81 that listed areas and

designations for the oxidants NAAQS

with a table that listed areas and

designations for the then-new 1-hour

ozone NAAQS. See 44FR 54294

(September 19, 1979). In that final rule,

we designated the Tucson area, which

had been designated as nonattainment

for the oxidants NAAQS, as

unclassifiable/attainment for the ozone

NAAQS, but we reaffirmed the previous

status (nonattainment) and boundary

(MAG urban planning area) designation

for the phoenix metropolitan area for

the new 1-hour ozone NAAQS as had

been established for the oxidants

NAAQS. We also reaffirmed the

unclassifiable/attainment designation

for "rest of state."

Under the Clean Air Act Amendments

of 1990, the concept of "nonattainment

area" was expanded to include areas

that contribute to ambient air quality in

a nearby area that does not meet a

NAAQS as well as the area that actually

experiences NAAQS violations. See

section 107(d)(1)(A) of the Act. Under

the 1990 amended Act, the designation

of "nonattainment" and boundary (i.e.,

the MAG urban planning area) for the

Phoenix metropolitan 1-hour ozone

nonattainment area was carried forward

by operation of law. Further, under the

1990,Act Amendments, the Phoenix -

metropolitan nonattainment area was

classified as "moderate" ozone

nonattainment. See 56 FR 56694; 56717

(November 6, 1991). On November 6,

1997, the Phoenix metropolitan 1-hour

ozone nonattainment area was

reclassified to "serious" due to a failure

to attain the 1-hour ozone NAAQS by

November 15, 1996. See 62 FR 60001

(November 6, 1997).

In 1997, we established a new 8-hour

ozone NAAQS to replace the 1-hour

ozone NAAQS that we had established

in 1979 (see 62 FR 38856, July 18, 1997).

The new NAAQS was set at 0.08 ppm,

8-hour average. In 2004, we published

final rules that designated all reas of

the country with respect to the 8-hour

ozone NAAQS, effective June 15, 2004,

and that established June 15, 2005 as the

date on which the 1-hour ozone NAAQS

would be revoked. See 69 FR 23858 and

69 FR 23951 (April 30, 2004). In

consultation with the State of Arizona

and the Gila River Indian Community,

we designated the Phoenix-Mesa area as

a nonattainment area for the 8-hour

ozone NAAQS, but this 8-hour ozone

nonattainment area does not include

any portion of the Gila River Indian

Reservation. See 69 FR 23858, at 23878-

23879 (April 30, 2004). All of the Gila

River Indian Reservation, i.e., both

Maricopa and Pinal County portions,

lies within the "rest of state"

unclassifiable/attainment area for the 8-

hour ozone NAAQS. Under the first

68340° Federal Register /Vol. 70, No.. 217 /Thursday, November 10, 2005/Rules and Regulations
Federal Register / Vol. 70, No. 217 / Thursday, November 10, 2005 / Rules and Regulations 68341

phase of the final rule implementing the

8-hour ozone NAAQS, certain

requirements-apply to.former 1-hour

ozone nonattainment areas that are

designated as attainment/unclassifiable

for the 8-hour ozone NAAQS (such as

the Maricopa County portion of the Gila

River Indian Reservation), such as the

preparation and submittal of a: SIP

revision consisting of a plan that.

provides for continued maintenance of

the 8-hour ozone NAAQS for 10 years

following designation and that includes

contingency measures. See 40 CFR

51.905(a)(3); 69 FR 23951, at 23999

(April 30, 2004).

On March 21, 2005 (70 FR 13425), we

published a notice in the Federal

Register proposing this same boundary

change as part of a notice that also

proposed approval of various submittals

of revisions to the Arizona State

Implementation Plan (SIP) and a request

by the State of Arizona for redesignation

of the Phoenix metropolitan 1-h6ur

ozone nonattainment area to, attainment.

We received no comments related to the

proposed boundary change, but we

decided to withdraw the boundary

change portion of the March 21, 2005

proposal. See 70 FR 34362 (June 14,

2005). We withdrew the proposed

boundary change because we decided to

review the action as a correction under

section 110(k)(6) rather than as a

redesignation under section 107(d)(3)(A)

as had been proposed, based on our

preliminary conclusion that we had

incorrectly included the northern

portion of the Gila River Indian

Reservation in the nonattainment area

boundary back in the late 1970's. In our

final rule approving the redesignation

request for the Phoenix metropolitan

1-hour ozone nonattainment area (70 FR

34362, June 14, 2005), we indicated that

we intended to address the boundary

change issue in a separate rulemaking.

This notice constitutes that separate

rulemaking.

II. Gila River Indian Community's

Request for a Boundary Change

On March 2, 2005, the Gila River

Indian Community, a federallyrecognized tribal government,5 adopted

and submitted a resolution requesting

EPA to revise the boundary for the

Phoenix metropolitan 1-hour ozone

nonattainment area to exclude the Gila

River Indian Reservation. 6 The Gila

River Indian Community's request

includes background information

5 See 67 FR 46328, 46329 (July 12, 2002).

6 As noted previously, the Phoenix metropolitan

1-hour ozone nonattainment area includes the

portion of the Reservation that lies within Maricopa

County, approximately the northern 25 percent of

the Reservation:

regarding the procedural history leading

to the designation of the boundary of the

Phoenix metropolitan 1-hour oxidants

(then ozone) nonattainment area, an

analysis of air quality monitoring data

existing at the time of and subsequent

• to the original designation in 1978, and

a description of population,

employment, land use, and traffic

associated with the Reservation.

The Gila River Indian Community

concludes that inclusion of the

Maricopa County portion of the

Reservation in the Phoenix metropolitan

1-hour ozone nonattainment area was

incorrect based on air quality

considerations at the time of the original

designation and that continued

inclusion of the Reservation in the

nonattainment area will frustrate their

current efforts to regulate air quality on

their own lands through preparation,

adoption, and implementation of a

comprehensive Tribal Implementation

Plan (TIP). The Community's request

and supporting documentation are

included in the docket for this action.

III. EPA Review of the Gila River

Indian Community's Request

A. CAA Authority To Correct Area

Designations

Section 110(k}(6) of the Clean Air Act

provides, "Whenever the Administrator

determines that the Administrator's

action approving, disapproving, or

promulgating any plan or plan revision

(or part thereof), area deiignation,

redesignation, classification, or

reclassification was in error, the

Administrator may in the same manner

as the approval; disapproval, or -

promulgation revise such action as

appropriate without requiring any

further submission from the State. Such

determination and the basis thereof

shall be provided to the State and

public." We interpret this provision to

authorize the Agency to make

corrections to a promulgated regulation

when it is shown to our satisfaction that

(1) we clearly erredin failing to'

consider or in inappropriately

considering information made available

to EPA at the-time of the promulgation,

or the information made available at the

time of promulgation is subsequently

demonstrated to have been clearly

inadequate, and (2) other information

persuasively supports a change in the

regulation. See 57 FR 56762, at 56763

(November 30, 1992).

We have reviewed the documentation

submitted by the Gila River Indian

Community, and based on that review

and an independent assessment of the

air quality data and circumstances

behind our actions designating,

redesignating or affirming air quality

planning areas for the oxidants and

ozone NAAQS, we agree with the Gila

River Indian Community that a

correction of the boundary to exclude

the Gila River Indian Reservation from

the Phoenix metropolitan 1-hour ozone

nonattainment area is warranted. Our

rationale is provided in the following

subsections.

B. General Physical Description of the

Phoenix Metropolitan Area and

Environs 7 -'

The Phoenix metropolitan area is in

south-central Arizona. The area

occupies an almost-flat alluvial plain

studded and surrounded by hills, buttes,

and mountain ranges. The elevation of

the valley floor is approximately 1,100

feet. Thb dominating mountain ranges

around the area include the Sierra

Estrella Mountains to the southwest, the

White Tank Mountains to the west; the

Hieroglyphic and New River Mountains

to the north; the Superstition and

Goldfield and Mazatzal Mountains to

the east; and the Santan and Sacaton

Mountains to the southeast. Elevations

range from 3,000 feet in the southeast,

to.4,000 feet in the west and southwest,

and to 5,000 to 7,000 feet in the north

and east. The principal natural

drainages are the Salt River, the Agua

Fria River, and the Gila River. The Gila

River carves a route between the South

Mountains and the Sierra Estrella

Mountains and is joined by the Salt

River near the northwest corner of the

Gila River Indian Reservation. The

South Mountains rise to an elevation of

approximately 2,700 feet and partially

separate the urbanized portions of the

Phoenix metropolitan area to the north

from the Gila River Indian Reservation

to the south. -

The climate of the area varies

depending on the occurrence of the

natural topographic features but is

generally a warm, desert type climate

with low annual rainfall.and low

relative humidity. Summers are usually

long and hot, winters short and mild,

with gradual temperature transitions in

the spring and fall seasons.

The most significant terrain, in term

of influence on local wind flow, is

located to the north and east of the

Phoenix area. During the morning and

afternoon, sunlight warms this terrain

causing the air immediately above it to

rise and pull air from the lower

7 Sources of information for this section of the

notice include the Army Corps of Engineers'

Phoenix Urban Study, Background Information

Appendix (February 1977) and the Arizona

Department of Environmental Quality's Final

Serious Area Ozone State Implementation Plan for

Maricopa County (December 2000).
68342 Federal Register/Vol. 70, No. 217/Thursday, November 10, 2005/Rules and Regulations

elevations in the direction of the higher

terrain to replace the rising air. In

Phoenix, this "valley" breeze (up-valley

flow) usually begins around noon with

a west wind that persists until midnight.

After sunset, under clear sky conditions,

the surface undergoes radiative cooling,

lowering the temperatures of the air

above it and reversing the flow. The "mountain" breeze (down-valley flow),

which is out of the east for most of the

Phoenix area, begins about midnight

and lasts until noon, when the reversal

to up-valley flow takes over.

The systematic mountain-valley

circulation over the Phoenix area directs

the timing and geographic distribution

of ozone and its precursors. Early

morning commute emissions are slowly

transported to the west by drainage

winds. By afternoon, the flow is'

reversed and emissions are transported

to the east, back over the urbanized area,

entraining additional surface emissions.

During this period of ample sunlight

and precursor emissions, the conditions

are conducive for ozone formation. As

the day progresses into late afternoon,

ozone continues to build and is further

transported toward the higher terrain,

resulting in the maximum ozone

concentration typically monitored east

or north of the urbanized area.

C. Contribution by Emission Sources on

the Reservation

In general, ambient ozone

concentrations are caused by on-road

and nonroad mobile emissions sources,

area sources, large stationary sources

and biogenic sources that emit ozone

precursors (i.e., volatile organic

compounds,, or VOC, and oxides of

nitrogen oxides, or NOx). The level of

mobile source emissions, often the

largest part of the inventory in a major

metropolitan area, can be generally

correlated to population density and

land use patterns.

The Gila River Indian Community has

historically been, and continues to be,

primarily a rural, agricultural

community with few industrial uses and

no major population centers. The Gila

River Indian Community has an onReservation population of

approximately 11,300 people, of which

approximately 2,700 people live in the

Maricopa County portion of the

Reservation. The on-Reservation

population density is approximately 20

persons per square mile. By comparison,

the population living within the

Phoenix metropolitan 1-hour ozone area

as a whole is approximately 3 million

people with a population density of

approximately 1,500 persons per square

mile, and there are at least six major

population centers in the Phoenix

nonattainment area, including Phoenix,

Mesa, Scottsdale, Glendale, Tempe, and

Chandler. Thus, emissions generated by

uses on the Reservation can be assumed

to have essentially no effect on ambient

ozone concentrations in the urbanized

portions of the Phoenix metropolitan

area.8 Our assumption in this regard is

supported by emissions inventory

estimates prepared by the.Gila River

Indian Reservation from which we find

that ozone precursor emissions

associated with the Maricopa County

portion of the Reservation represent less

than 0.2% and 0.6% of VOC and NOx

emissions, respectively, of total

estimated ozone precursor emissions

generated within the Phoenix

metropolitan 1-hour ozone

nonattainment area.

D. Oxidants/Ozone Air Quality

Conditions on the Reservation

The oxidants/ozone designations for

the MAG urban planning area in 1978

and 1979 were based on ambient air

quality data collected at a small number'.

of monitoring stations located within

the urbanized portions of Maricopa

County.9 During the 1970's,there was

no monitoring station located on the

Gila River Indian Reservation. During

this period, the ozone monitoring

station that was closest to the Gila River

Indian Reservation was the "South

Phoepix" station located at 4732 South

Central Avenue. The South Phoenix

station is located north of the South

Mountains while the Reservation lies

south of that range. The distance

between the South Phoenix station and

the closest Reservation boundary is

approximately eight miles. We believe

that the South Phoenix monitor

provides data that is sufficiently

representative of conditions in the

Maricopa County portion of the

Reservation to justify its use for the

purposes of this correction notice

although we recognize that ozone

concentrations would generally be

The State of Arizona's Nonattainment Area Plan

for Carbon Monoxide and Photochemical Oxidants,

Maricopa County, Urban Planning Area (revised

February 16, 1979) was based in part on traffic

assignments in the MAG primary planning area,

which essentially excludes the Maricopa County

portion of the Reservation (see footnote 43, above),

rather than the larger urban planning area (that

defines the nonattainment area and that includes all

of the Maricopa County portion of the Reservation)

but justified the use of traffic assignments from the

smaller area by concluding that the additional longrange fringe development would contribute

negligibly to the highest carbon monoxide and

ozone concentrations measured in cdntral Phoenix.

EPA approved this.plan in 1982. See 47 FR 19326

(May 5, 1982).

9 No oxidants/ozone dispersion modeling was

conducted during this period; instead, the

demonstrations of attainment in the various plans

relied upon a linear rollback technique.

expected to decrease with increasing

distance in a southerly direction from

the Phoenix urbanized area given the

prevailing mountain-valley (i.e., eastwest) wind circulation characteristic of

the area.

A review of EPA's Air Quality System

(AQS) database and the Arizona

Department of Environmental Quality's

Nonattainment Area Plan for Carbon

Monoxide and Photochemical Oxidants,

Maricopa County Urban Planning Area

(revised February 16, 1979) reveals that

(1) violations of the oxidants NAAQS

(0.08 ppm, hourly average) were

recorded at the South Phoenix station

during the 1975-1978 period, (2) no

violations of the 1-hour ozone NAAQS

(0.12 ppm) were recorded at the South

Phoenix station during this same period,

(3) maximum ozone levels at the South

Phoenix station were generally less than

those at the four other stations that were

operating continuously through this

same period. Thus, the available data

supports the conclusion that, during the

mid-to late-1970's, while the Maricopa

County portion of the Reservation may

well have experienced violations of the

oxidants NAAQS, it did not experience

violations of the less stringent 1-hour

ozone NAAQS.-'From 1979 through

2004, exceedances of the 1-hour ozone

NAAQS were measured on only 5 days

at the South Phoenix station: one dayin

1981, two days in 1983, one day in.1990

and one day in 1995..

Since mid-2002, the Gila River Indian

Community has operated an ozone

monitoring station within the Maricopa

County portion of the Reservation (the

St. Johns station) and another in the

Pinal County portion of the Reservation

(the Sacaton station). Data have been

collected at these stations from mid2002 through the end of the 2004 ozone

season. No exceedances of the 1-hour

ozone NAAQS have been recorded at

either station.

E. Ozone Planning Issues

Ozone planning efforts for the

Phoenix metropolitani area began in

earnest in the mid-1970's at the

direction of the Phoenix AQMA Task

Force, including the identification and

evaluation of control strategies focused

on the AQMA study area. The Phoenix

AQMA Task Force included

representatives from EPA and various

State and local agencies as well as

representatives from certain nongovernmental entities such as the

Phoenix Chamber of Commerce and the

League of Women Voters. The Gila River

Indian Community, however, was not a

member of the AQMA Task Force nor is

there any evidence that suggests that the

community's views or concerns were
Federal Register/Vol. 70, No. 217/Thursday, Novembei 10, 2005/Rules and Regulations 68343

taken into account in identification of

the appropriate study area, the analysis

of air quality conditions and projects, or

in the identification and evaluation of

possible control strategies, which isdocumented in a final report entitled,

Air Quality Maintenance Analysis in

Phoenix, Arizona (July 1977).

Likewise, there is no evidence that

suggests that the Gila River Indian

Community was consulted by EPA, the

State of Arizona, or MAG 1o in the

decision-making process leading to the

nonattainment designation first on a

county-wide basis for oxidants under

the Clean Air Act Amendments of 1977,

then on a MAG urban planning area

boundary basis for the oxidants NAAQS

(and later affirmed for the 1-hour ozone

NAAQS). Ever since this time, the Gila

River Indian Reservation has been split

into two air quality planning areas for

the purposes of the 1-hour-ozone .

NAAQS: a Maricopa County portion

that is part of a nonattainment area and

a Pinal County portion that is part of an "unclassifiable/attainment" area.

Since the late 1970's, EPA has

approved various State and local

regulations and other control measures

that have helped to attain the 1-hour

ozone NAAQS in the Phoenix

metropolitan nonattainment area and

that provided the basis upon which EPA

recently approved the State's

redesignation request for the area to

"attainment." See 70 FR 34362 (June 14,

2005). It is important to note that, under

the CAA, the State and local air

pollution control agencies do not have

authority to administer air regulatory

programs over the Reservation;

consequently, the SIP rules that have

been adopted and implemented within

the non-Tribal port-ions of the Phoenix

metropolitan area and that have

provided for attainment of the 1-hour

ozone NAAQS do not apply within the

Gila River Indian Reservation.

Furthermore, due to the Reservation's

lack of ozone precursor sources, it was

never considered necessary to apply

ozone precursor limits to sources on the

Reservation.

In 2004, we designated all areas of the

country as nonattainment, attainment,

or unclassifiable for the 8-hour ozone

NAAQS. See 69 FR 23858 (April 30,

2004). In contrast to the process

undertaken in connection with the area

designations established in the late

1970's, we made a significant effort to

consult with the Tribes on the

appropriate designations for their lands

for the new (8-hour) ozone NAAQS: In

our final rule establishing area

10 The Gila River Indian Community became a.

member of MAG in November of 1989.

designations for the 8-hour ozone

NAAQS, we agreed with the Gila River

Indian Community that the Reservation,

including both Maritopa and Pinal

County portions, should be included in

the larger area designation of

"unclassifiable/ attainment." Thus, in

contrast to the status of the Reservation

relative to the 1-hour ozone

designations, the Gila River Indian

Reservation is not split into different air

quality planning areas for the 8-hour

ozone NAAQS, and no part of the

Reservation is included in the Phoenix

metropolitan 8-hour ozone

nonattainment area.

Under phase 1 of our 8-hour ozone

implementation rule, areas designated

as "unclassifiable/attainment" for the 8-

hour ozone NAAQS that were

designated nonattainment for the 1-hour

ozone NAAQS at the time of the initial

8-hour ozone designation (i.e., mid2004) are subject to certain requirements

(such as a vehicle inspection and

maintenance program, stage II vapor

recovery, and a clean fuels fleet

program) that applied by virtue of their

1-hour ozone nonattainment status and

that continue to apply even after

revocation of the 1-hour ozone standard

(which occurred on June 15, 2005).

These areas are also subject to a

requirement to prepare and submit a

plan that provides for continued

maintenance of the 8-hour ozone

NAAQS for 10 years following

designation and that includes

contingency measures. See 40 CFR

51.900(f), 40 CFR 51.905(a)(3), 69 FR

23951, at 23979 (April 30, 2004) and 70

FR 30592 (May 26, 2005). The Maricopa

County portion of the Gila River Indian

Reservation is one of the areas that was

designated as unclassifiable/attainment

for the 8-hour ozone NAAQS but, at the

time of that designation, was designated "nonattainment" for the 1-hour ozone

NAAQS.

. On June 14, 2005, we redesignated the

Phoenix "serious" 1-hour ozone

nonattainment area (including the

Maricopa County portion of the Gila

River Indian Reservation) to attainment,

and our redesignation was predicated

on our finding that all applicable

requirements for that nonattainment

area had been met. See 70 FR 34362

(June 14, 2005). However, because none

of the State and local adopted control

measures that were relied upon for

redesignation apply within the Gila

River Indian Reservation, the obligation

to adopt (at least as contingency

measures) the requirements listed in 40

CFR 51.900(f) that apply within former

"serious" 1-hour ozone nonattainment

areas (such as an enhanced inspection

and maintenance program, stage II vapor

recovery, and a clean fuels fleet

program) remains in effect for the

Maricopa County portion of the

Reservation, notwithstanding the

redesignation of the Phoenix

metropolitan 1-hour nonattainment area

to attainment, and notwithstanding the

revocation of the 1-hour ozone NAAQS

on June 15, 2005. In addition, the

Maricopa County portion of the

Reservation is subject to the

requirement under 40 CFR 51.905(a)(3)

to prepare and submit a plan that

provides for continued maintenance of

the 8-hour ozone NAAQS for 10 years

following designation and that includes

contingency measures. See EPA

Memorandum dated May 20, 2005:

"Maintenance Plan Guidance for Certain

8-Hour Ozone Areas Under Section

110(a)(1) of the Clean Air Act."

Meanwhile, the Gila River Indian

Community is in the final stages of

preparing, adopting and submitting a

Tribal Implementation Plan (TIP) to

EPA for approval. The TIP contains

several ordinances including permit

requirements and fees; administrative

appeals procedures; enforcement

provisions (civil and criminal); and

controls on non-metallic mineral

mining; secondary aluminum

processing operations; solvent metal

cleaning; VOC usage, storage and

handling; aerospace manufacturing and

rework processes; and open burning and

visible emissions. As such, the Gila •

River Indian Community is developing

a comprehensive air quality regulatory

program, but the Community is doing so

with the view that their historic

inclusion in the Phoenix metropolitan

1-hour ozone nonattainment area was

erroneous. EPA.supports the

Community's efforts to manage its own

air quality regulatory program through

development, adoption and

implementation of the TIP and

recognizes that the control measure and

planning antibacksliding obligations

that apply to the Maricopa County

portion of the Reservation under our

phase 1 implementation rule for the 8-

hour ozone NAAQS (by virtue of its

inclusion within the Phoenix

metropolitan 1-hour ozone

nonattainment area) represent an

obstacle to the Community's objectives

in this regard.

F. Evaluation and Conclusion

Based on the historic ambient

monitoring data and prevailing. wind

patterns in the area, we conclude that

we clearly erred in failing to consider

data made available at the time of our

-September 1979 affirmation of the

preexisting oxidants nonattainment area

boundary (i.e., the MAG urban planning
No. 217/Thursday, November 10, 2005/Rules and Regulations

area) as the geographic basis for the

Phoenix metropolitan 1-hour ozone nonattainment area. 1' Our September

1979 action affirming the oxidants

nonattainment area boundary for the

purposes of the i-hour ozone NAAQS

had the effect of including a portion of

the Gila River Indian Reservation (the

Maricopa County portion) that was not

experiencing violations of the 1-hour

ozone NAAQS into the larger urbanized

nonattainment area where violations of

the 1-hour ozone NAAQS were

relatively frequent and widespread and

thereby unnecessarily splitting the

Reservation into two different air

quality planning areas. In support of this conclusion, we find

that, had we considered the available

data for the purpose of determining

whether the Reservation should be

included in the ozone nonattainment

area (as opposed to the oxidants

nonattainment area), we would have

-concluded based on data from the South

Phoenix station and the prevailing

mountain-valley (east-west) wind

circulation in the area that no part of the

Reservation was experiencing violations

of the 1-hour ozone NAAQS, and that

affirming the pre-existing oxidants

nonattainment boundary for the

purposes of the 1-hour ozone NAAQS

and thereby continuing the split of the

Reservation into two air quality

planning areas with different

designations would be inappropriate.

We also find that other information

persuasively supports a correction in

the boundary to exclude the Gila River

Indian Reservation at this time: Namely,

(1) The Reservation is not a significant

source area for ozone precursor

emissions and thus has essentially no

effect on ambient ozone concentrations

in the urbanized portions of the Phoenix

metropolitan area; (2) data from the

South Phoenix station indicates that

ambient ozone levels on the

Reservation, with the possible exception

-of a period in the early 1980's, have

never violated the 1-hour ozone NAAQS; (3) available ambient ozone

data collected at the two monitoring

stations located on the Reservation

indicate that the area currently is not

experiencing violations 6f the 1-hour

ozone NAAQS; and (4) the former

nonattainment status of the Maricopa

11 With respect to our promulgation of a Countywide designation for the oxidants NAAQS (in the

March 1978) and our approval of a reduction in the

size of the oxidants nonattainment area to conform

to the MAG urban planning area boundary (in

March 1979), we find that our inclusion of the

Maricopa County portion of the Gila River Indian

Reservation in those areas, while questionable, was

not clearly in error because of the violations of the

oxidants NAAQS measured at the South Phoenix

station.

County portion of the Reservation for

the 1-hour ozone NAAQS will

unnecessarily complicate and frustrate

the Gila River Indian Community's

development and implementation of a

Tribal Implementation Plan.

IV. Final Action

Therefore, as authorized in section

110(k)(6) of the CAA and at the request

of the Gila River Indian Community,

EPA is correcting the boundary of the

Phoenix metropolitan 1 -hour ozone

nonattainment area to exclude the Gila

River Indian Reservation. 12 This action

revises the description of the Phoenix

metropolitan 1-hour ozone

nonattainment area in the table entitled

"Arizona-Ozone (1-Hour Standard)" in

40 CFR 81.303.

We do not anticipate any objections to

this action, so we are finalizing the

correction action without proposing it

in advance. However, in theProposed

Rules section 6f this Federal Register,

we are simultaneously proposing this

same action to correct the boundary. If

we receive adverse comments by

December 12, 2005, we will publish a

timely withdrawal in the Federal

Register to notify the public that the

direct final approval will not take effect

and we will address the comments in a

subsequent final action based on the

proposal. If we do not receive timely

adverse comments, the direct final

action will be effective without further

notice on January 9, 2006.

The effect of this action is to attach

the Maricopa County portion of the Gila

River Indian Reservation to the preexisting "unclassifiable/attainment"

area for the 1-hour ozone NAAQS that

consists of all of those portions of the

State of Arizona (including the rest of

the Reservation that lies in Pinal

County) that are not designated as a

"nonattainment" area or as an

"attainment" area subject to a

.maintenance plan. Also, this action

relieves the Agency and the Gila River

Indian Community from any specific

obligations that flow from the former

nonattainment status of the Maricopa

County portion of the Gila River Indian

Reservation under our phase 1

implementation rule for the 8-hour

ozone NAAQS, including the applicable

requirements listed in 40 CFR 51.900(f)

2 In so doing, we note the similarities between

our action here and previous EPA actions in which

we corrected 1-hour ozone nonattainment

designations that had originally been established for.

the oxidants NAAQS and that were erroneously

affirmed for the purposes of the 1-hour ozone

NAAQS. See 62 FR 14641 (March 27, 1997) (direct

final rule correcting ozone nonattainment

designations in New Hampshire and Maine); and 61

FR 5707 (February 14, 1996) (final rule correcting

ozone nonattainment designations in Michigan).

and the preparation and submittal of a

plan under 40 CFR 51.905(a)(3) that

provides for continued maintenance -of

the 8-hour ozone NAAQS for 10 years

following designation and that includes

contingency measures for that portion of

the Reservation. 13

V. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order 12866, [58 FR

51735 (October 4, 1993)] the Agency

must determine whether the regulatory

action is "significant" and therefore

subject to OMB review and the "

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may: (1) Have an

annual effect on the economy of $100

million or more or adversely affect in a

material way the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; .(3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

.programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President's priorities, or

the principles set forth in'the Executive

Order."

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 reduces

the size of a nonattainment area for air

quality planning purposes.

B. Paperwork Reduction Act

This action does not impose an

information collection bi4rden under the

provisions of the Paperwork Reduction

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

means the total time, effort, or financial

resources expended by persons to

generate, maintain, retain, or disclose or

13While no longer subject to the specific -

maintenance plan requirements under 40 CFR

51.905(a)(3), the Gila River Indian Reservation, like

other areas designated as unclassifiable/attainment

for the 8-hour ozone NAAQS, remains subject to the

general requirement to provide for implementation,

maintenance, and enforcement of the 8-hour ozone

NAAQS under se'ction 110(a)(1) of the Act.

68344 Federal Register /Vol. 70,
Federal Register / Vol. 70, No. 217 / Thursday, November 10, 2005 / Rules and Regulations 68345

provide information to or for a Federal

agency. This includes thetime needed

to review instructions; develop, acquire,

install, and utilize technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

This rule does not impose aninformation collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.). An

agency may not conduct or sponsor, and

a person is not required to respond to

a collection of information unless it

displays a currently valid OMB-control

number. The OMB control numbers for

EPA's regulations in 40 CFR are listed

in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA)

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that this rule will not have a significant

economic impact on a substantial

number of small .entities. Small entities

include small businesses, small

organizations, and small governmental

jurisdictions.

For purposes of assessing the impacts

of today's rule on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today's rule on small entities,

I certify that this action will not have a

significant economic impact on a

substantial number of small entities.

This rule 'will not impose any direct

requirements on small entities. EPA is

taking direct final action to correct the

boundary of the Phoenix metropolitan

1-hour ozone nonattainment area to

exclude the Gila River Indian

Reservation. This action is intended to

facilitate and support the Gila River

Indian Community's efforts to develop,

adopt and implement a comprehensive

Tribal Implementation Plan by

removing unnecessary obligations that

flow from the erroneous inclusion of a

portion of the Reservation in the

Phoenix metropolitan 1-hour ozone

nonattainment area.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104-

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with "Federal mandates" that may

result in expenditures to State, local,

and tribal governients, in the aggregate,.

or to the private sector, of $100 million

or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, -most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory_ requirements.

Today's rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector. The rule imposes no

enforceable duty on any State, local or tribal governments or-the private sector.

In any event, EPA has determined that

this rule does not contain a Federal

mandate that may result in expenditures

of $100 million or more for State, local,

and tribal governments, in the aggregate,

or the private sector in any one year.

Thus, today's rule is not subject to the

requirements of sections 202 and 205 of

the UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999), 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."

This action also does not fiave

Federalism implications because it d6es

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

reduces the size of a nonattainment area

for air quality planning purposes and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act.

F. Executive Order 13175: Consultation

and 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." "Policies that have tribal

implications" are defined in the

Executive Order to include regulations

that have "substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes."

Under section 5(b) of Executive Order

13175, EPA may not issue a regulation

that has tribal implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides
68346 'Federal Register/Vol. 70, No. 217/Thursday, November 10, 20"05/Rules and Regulations

the funds necessary to pay the direct

compliance costs incurred by tribal

governments, or EPA consults with

tribal officials early in the process of

developing the proposed regulation.

Under section 5(c) of Executive Order

13175, EPA may not issue a regulation

that has tribal implications. and that

preempts tribal law, unless the Agency

consults with tribal.officials early in the

process of developing the proposed

regulation.

EPA has concluded that this action

may have tribal implications.

Representatives of the Gila River Indian

Community approached EPA two years

ago and requested that EPA make this

boundary correction. Consistent with

EPA policy, EPA consulted with

representatives of the community early

in the process of developing this action

to permit them to have meaningful and

timely input into its development. We

agree with the technical and policy

rationale that the cbmmiinity provided

for this boundary correction, and

believe that all tribal concerns have

been met. EPA's action corrects the

boundary of the Phoenix metropolitan

1-hour ozone area to exclude the Gila

River Indian Reservation. As such, it

Will neither impose substantial direct

compliance costs on tribal governments,

nor preempt tribal law. Thus, the

requirements of sections 5(b) and 5(c) of

the Executive Order do not apply to this

rule.

G. Executive Order 13045: Protection of.

Children From Environmental Health

and Safety Risks

Executive Order 13045: "Protection of

Children from Environmental health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) is determined to be "economically

significant' '-as defined under Executive

Order 12866, and (2) concerns an environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule 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 as defined in Executive

Order 12866, and because the Agency

does not have reason to believe the

environmental health or safety risks

addressed by this rule present a

disproportionate risk to children.

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

Executive Order 13211, "Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355 (May

22, 2001), requires EPA to prepare and

submit a Statement of Energy Effects to

the Administrator of the Office of

Information and Regulatory Affairs,

Office of Management and Budget, for

certain actions identified as "significant

energy actions." Section 4(b) of

Executive Order 13211 defines "significant energy actions" as "any'

action by an agency (normally

published in the Federal Register) that

promulgates or is expected to lead to the

promulgation of a final rule or,

regulation, including notices of inquiry,

advance notices of proposed

rulemaking, and notices of proposed

rulemaking: (1)(i) that is a significant

regulatory action under Executive Order

12866 or any successor order, and (ii) is

likely to have a significant adverse effect

on the supply, distribution, or use of

energy; or (2) that is designated by the

Administrator of the Office of

Information and Regulatory Affairs as a

significant energy action."

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

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law No.

104-113, 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specification s, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This rule does not involve

establishment of technical standards,

and thus, 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 to this

action.

J. 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).

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 January 9, 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 o

enforce its requirements. (See CAA

section 307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

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

Dated: Novem~ber 3, 2005.

Stephen L. Johnson,

Administrator.

* Part 81, chapter I, title 40 of the Code

of Federal Regulations are amended as

follows:

PART 81--[AMENDED]

m 1. The authority citation for part 81

cqntinues to read as follows:

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

Subpart C-[Amended]

* 2. In § 81.303, the table entitled

"Arizona-Ozone (1-Hour Standard)" i

amended by revising the entry for the

Phoenix Area to read as follows:

§ 81.303 Arizona.
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Designation Classification

Designated area Date'! Type Date 1 Type

Phoenix Area: Maricopa County (part) ...................................

Phoenix nonattainment Forest area boundary:

1. Commencing at a point which is the intersection.of

the eastern line of Range 7 East, Gila and Salt River

Baseline and Meridian, and the southern line of

Township 2 South, said point is the southeastern corner of the Maricopa Association of Governments

Urban Planning Area, which is the point of beginning;

2. Thence, proceed northerly along the eastern line of

Range 7 East which is the common boundary between Maricopa and Pinal Counties, as described in

Arizona Revised Statutes- Section 11-109, to a point

where the eastern line of Range 7 East intersects the

northern line of Township 1 North, said point is also

the intersection of the Maricopa County Line and the

Tonto National Forest Boundary, as established by

Executive Order 869 dated July 1, 1908, as amended

and shown on the U.S. Forest Service 1969 Planimetric Maps; "

3. Thence, westerly along the northern line of Township

1 North to approximately the southwest corner of the

southeast quarter of Section 35, Township 2 North,

- Range 7 East, said point being the boundary of the

Tonto National Forest and Usery Mountain Semi-Regional Park;

4. Thence, northerly along the Tonto National Forest

Boundary, which is generally the western line of the

east half of Sections 26 and 35 of Township 2 North,

Range 7 East, to a point which is where the quarter

section line intersects with the northern line of Section

26, Township 2 North, Range 7 East, said point also

being the northeast corner- of the Usery Mountain

Semi-Regional Park;

5. Thence, westerly along the Tonto National Forest

Boundary, which is generally the south line of Sections 19, 20, 21 and 22 and the southern line of the

west half of Section 23, Township 2 North, Range 7

East, to a point which is the southwest corner of Section 19, Township 2 North, R&nge 7 East;

6. Thence, northerly along the Tonto National Forest

Boundary to a point where the Tonto National Forest

Boundary intersects with the eastern boundary of the

Salt River Indian Reservation, generally described as

the center line of the Salt River Channel;

7. Thence, northeasterly and northerly along the com-

.mon boundary of the Tonto National Forest and the

Salt River Indian Reservation to a point which is the

northeast corner of the Salt River Indian Reservation

and the southeast corner of the Fort McDowell Indian

Reservation, as shown on the plat dated July 22,

1902, and recorded with the U.S. Government on

June 15, 1902;

8. Thence, northeasterly along the common boundary

between the Tonto National Forest and the Fort

McDowell Indian Reservation to a point which is the

northeast corner of the Fort McDowell Indian Reservation;

9. Thence, southwesterly along the northern boundary

of the Fort McDowell Indian Reservation, which line is

a common boundary with the Tonto National Forest,

to a point where the boundary intersects with the

eastern line of Section 12, Township 4 North, Range

6 East;

6/14/05 Attainment,

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Designation Classification Designated area

Date Type Date 1 Type

10. Thence, northerly along the eastern line of Range 6

East to a point where the eastern line of Range 6

East intersects with the southern line of Township 5

North, said. line is the- boundary between the Tonto

National Forest and the east boundary of McDowell

Mountain Regional Park;

11. Thence, westerly along the southern line of Township 5 North to a point where the southern line intersects with the eastern line of Range 5 East which line

is the boundary of Tonto Nationl Forest and the

north boundary of McDowell Mountain Regional Park;

12. Thence, northerly along the eastern line of Range 5

East to a point where the eastern line of Range 5

East intersects with the northern line of Township 5

North, which line is the boundary of the Tonto National Forest;

13. Thence, westerly along the northern line of Township 5 North to a point where the northern line of

Township 5 North intersects with the easterly line of

Range 4 East, said line is the boundary of Tonto National Forest;

14. Thence, northerly along the eastern line of Range 4

East to a point where the eastern line of Range 4

East intersects with the northern line of Township 6

North, which line is the boundary of the Tonto National Forest;

15. Thence, westerly along the northern line of Townshtip 6 North to a point of intersection with the Marcopa-YaVapai County line, which is generally described in Arizona Revised Statutes Section 11-109

as the center line of the Aqua Fria River (Also the

north end of Lake Pleasant);

16. Thence, southwesterly and southerly along the Maricopa-Yavapai County line to a point which is described by Arizona Revised Statutes Section 11-109

as being on the center line of the Aqua. Fria River,

two miles southerly and below the mouth of Humbug

Creek;

17. Thence, southerly along the center line of Aqua Fria

River to the intersection of the center line of the Aqua

Fria River and the center line of Beardsley Canal,

said point is generally in the northeast quarter of Section 17, Township 5 North,' Range 1 East, as shown

on the U.S. Geological Survey's Baldy Mountain, Arizona Quadrangle Map, 7.5 Minute series (Topographic), dated 1964;

18. Thence, southwesterly and southerly along the center line of Beardsley Canal to a point which is the

center line of Beardsley Canal where it intersects with

the center line of Indian School Road;

19. Thence, westerly along the center line of West Indian School Road to a point where the center line of

West Indian School Road intersects with the center

line of North Jackrabbit Trail;

20. Thence, southerly along the center line of Jackrabbit)

Trail approximately nine and three-quarter miles to a

point where the center line of Jackrabbit Trail intersects with the Gila River, said point is generally on

the north-south quarter section line of Section 8,

Township 1 South, Range 2 West;

21. Thence, northeasterly and easterly up the Gila River

to a point where the Gila River intersects with the

northern extension of the western boundary of

Estrella Mountain Regional Park, which point is generally the quarter corner of the northern line of Section 31, Township 1 North, Range 1 West;
Federal Register/Vol. 70, No. 217/Thursday, November 10, 2005/Rules and Regulations

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Designation Classification Designated area Date1 Type Date1 Type

22. Thence, southerly along the extension of the western boundary and along the western boundary of

Estrella Mountain Regional Park to a point where the

southern extension of the western boundary of

Estrella Mountain Regional Park intersects with the

southern line of Township 1 South;

23. Thence, easterly along the southern line of Township 1 South to a point where the south line of Township 1 South intersects with the western line of Range

1 East, which line is generally the southern boundary

of Estrella Mountain Regional Park;

24. Thence, southerly along the western line of Range 1

East to the southwest corner of Section 18, Township

2 South, Range 1 East, said line is the western

boundary of the Gila River Indian Reservation;

25. Thence, easterly along the southern boundary of the

Gila River Indian Reservation which is the southern

line of Sections 13, 14, 15, 16, 17, and 18, Township

2 South, Range 1 East, to the boundary between

Maricopa and Pinal Counties as described in Arizona

Revised Statutes Sections 11-109 and 11-113, which

-is the eastern line of Range 1 East;

26. Thence, northerly along the eastern boundary of

Range 1 East, which is the common boundary between Maricopa and Pinal Counties, to a point where

the eastern line of Range 1 East intersects the Gila

River;

27. Thence, southerly up the Gila River to a point where

the Gila River intersects with the southern tine of

Township 2 South;

2& Thence, easterly along the southern line of Township 2 South to the point of beginning which is a point

where the southern line of Township 2 South intersects with the eastern line Range 7 East;

29. Except that portion of the area defined by paragraphs 1 through 28 above that lies within the Gila

River Indian Reservation.

This date is October 18, 2000 unless otherwise noted.

[FR Doc. 05-22371 Filed 11-9-05; 8:45 am]

BILLING CODE 6560-50-P

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