1532 Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Rules and Regulations 

1The Hayden planning area straddles Gila and 

Pinal counties at the confluence of the Gila and San 

Pedro rivers in east central Arizona. The 

nonattainment area covers roughly 700 square miles 

of mountainous terrain. Cities and towns within 

this area include Kearney (population roughly 

2,800), Hayden (population roughly 800), and 

Winkelman (population roughly 400). 

2The Nogales planning area covers approximately 

70 square miles along the border with Mexico 

within Santa Cruz County. The only significant 

population center in this area is the city of Nogales 

with a population of roughly 21,000. The 

population of Nogales, Mexico, which lies just 

State citation Title/subject 

State 

approval/ 

submittal 

date 

EPA approval date Explanation 

Section 116.922 ........ Notice of Final Action ................. 12/16/1999 1/11/2011, [Insert FR page number where document begins].

Section 116.926 ........ Permit Fee .................................. 5/22/2002 1/11/2011, [Insert FR page number where document begins].

Section 116.928 ........ Delegation .................................. 5/22/2002 1/11/2011, [Insert FR page number where document begins].

Section 116.930 ........ Amendments and Alterations 

Issued Under this Subchapter.

5/22/2002 1/11/2011, [Insert FR page number where document begins].

Section 116.931 ........ Renewal ..................................... 12/16/1999 1/11/2011, [Insert FR page number where document begins].

* * * * * * * 

■ 3. Section 52.2273 is amended by 

adding a new paragraph (f) to read as 

follows: 

§ 52.2273 Approval status. 

* * * * * 

(f) EPA is disapproving the Texas SIP 

revision submittals under 30 TAC 

Chapter 116—Control of Air Pollution 

by Permits for New Construction or 

Modification as follows: 

(1) Subchapter I—Electric Generating 

Facility Permits—Section 116.911(a)(2) 

(Electric Generating Facility Permit), 

adopted December 16, 1999, and 

submitted January 3, 2000. 

[FR Doc. 2011–222 Filed 1–10–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R09–OAR–2010–0718; FRL–9250–1] 

Determinations of Attainment by the 

Applicable Attainment Date for the 

Hayden, Nogales, Paul Spur/Douglas 

PM10 Nonattainment Areas, Arizona 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is making final 

determinations that the Hayden, 

Nogales, and Paul Spur/Douglas 

nonattainment areas in Arizona attained 

the National Ambient Air Quality 

Standard (NAAQS) for particulate 

matter with an aerodynamic diameter of 

less than or equal to a nominal ten 

micrometers (PM10) by their applicable 

attainment dates of December 31, 1994. 

On the basis of these determinations, 

EPA concludes that these three 

‘‘moderate’’ nonattainment areas are not 

subject to reclassification by operation 

of law to ‘‘serious.’’ EPA is not finalizing 

determinations with respect to the air 

quality in these areas subsequent to 

their 1994 attainment dates. 

DATES: Effective Date: This rule is 

effective on February 10, 2011. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2010–0718 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 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 at telephone number: (415) 

947–4192; e-mail address: 

tax.wienke@epa.gov, or the above EPA, 

Region IX address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean 

EPA. Information is organized as 

follows: 

Table of Contents 

I. Context for Today’s Actions 

II. Summary of Proposed Actions 

III. Public Comments and EPA Responses 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Context for Today’s Actions 

On November 2, 2010 (75 FR 67220), 

we published a direct final rule that 

made certain determinations we are 

making in this document. On November 

2, 2010 (75 FR 67303), we also 

published a corresponding proposed 

rule in the event that we received 

adverse comment leading us to 

withdraw the direct final rule. In our 

direct final rule, we indicated that we 

would withdraw the direct final rule if 

we received adverse comments, and 

address public comments in a 

subsequent final rule based on the 

proposed rule. On November 3, 2010, 

we received adverse comments, and 

subsequently withdrew the direct final 

rule (75 FR 72964, November 29, 2010). 

Today, we take final action based on our 

November 2, 2010 proposed rule and 

our consideration of the public 

comments received. 

II. Summary of Proposed Actions 

In our November 2, 2010 proposed 

rule, we proposed to determine, 

pursuant to section 188(b)(2) of the 

Clean Air Act, that three Arizona 

‘‘moderate’’ PM10 nonattainment areas 

(Hayden, Nogales, and Paul Spur/ 

Douglas) had attained the PM10 NAAQS 

by the applicable attainment date 

(December 31, 1994), and that, based on 

these proposed determinations, we 

concluded that none of these areas is 

subject to reclassification to serious by 

operation of law. We also proposed to 

find that more recent data for 2007– 

2009 show none of the areas is currently 

attaining the standard. More detailed 

information is contained in the 

November 2 direct final rule, which is 

summarized in the paragraphs that 

follow. 

First, our direct final rule described 

the relevant NAAQS, 150 micrograms 

per cubic meter (μg/m3), 24-hour 

average, against which monitored 

ambient concentrations of PM10 in the 

three subject areas (Hayden,1 Nogales,2


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Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Rules and Regulations 1533 

across the border from Nogales, Arizona is roughly 

160,000. 

3The Paul Spur/Douglas planning area covers 

approximately 220 square miles along the border 

with Mexico within Cochise County. Cities and 

towns within this area include Douglas (population 

roughly 20,000) and Pirtleville (population roughly 

1,500). The population of Agua Prieta, Mexico, 

which lies just across the border from Douglas is 

roughly 70,000. 

4An exceedance is defined as a daily value that 

is above the level of the 24-hour standard (150 μg/ 

m3) after rounding to the nearest 10 μg/m3 (i.e., 

values ending in 5 or greater are to be rounded up). 

Thus, a recorded value of 154 μg/m3 would not be 

an exceedance since it would be rounded to 150 μg/ 

m3 whereas a recorded value of 155 μg/m3 would 

be an exceedance since it would be rounded to 160 

μg/m3. See 40 CFR part 50, appendix K, section 1.0. 

5Table 2 (‘‘Summary of PM10 Monitoring Data, 

Nogales Nonattainment Area, 1992–1994’’), as 

published in our November 2, 2010 direct final rule, 

contains a publisher’s error that erroneously 

combines certain columns and rows and thereby 

causes a mismatch between concentrations and the 

corresponding years in which they were monitored. 

The correct values for the highest 24-hour PM10

concentrations (μg/m3) are 153 in 1992, 119 for 

1993, and 116 for 1994 from the Nogales Post Office 

monitor. Also, the maximum concentrations shown 

for the other three monitors located in Nogales were 

collected in 1994, not 1993. These errors do not 

appear in the version of the direct final rule that 

was signed by the EPA Region IX Regional 

Administrator. In any event, these errors would not 

have affected the outcome of our attainment 

determinations since none of the values for any of 

the years exceeded 154 μg/m3. 

and Paul Spur/Douglas 3) are to be 

compared in evaluating whether the 

areas attained the standard. Next, we 

described the designations and 

classifications of these three areas, all of 

which are classified as ‘‘moderate’’ 

nonattainment with an applicable 

attainment date of December 31, 1994 

under CAA section 188(c). Also, we 

discussed the status of the various air 

quality plans submitted by the State of 

Arizona to address moderate area PM10

requirements in the three subject areas 

(Hayden, Nogales, Paul Spur/Douglas). 

In our direct final rule, we also 

described how EPA makes attainment 

determinations. As explained therein, 

the 24-hour PM10 standard is attained 

when the expected number of days per 

calendar year with a 24-hour 

concentration in excess of the standard 

(referred to herein as an ‘‘exceedance’’), 

as determined in accordance with 40 

CFR part 50, appendix K, is equal to or 

less than one.4 See 40 CFR 50.6 and 40 

CFR part 50, appendix K. Generally, 

EPA determines whether an area’s air 

quality is meeting the PM10 NAAQS 

based upon complete (minimum of 75 

percent of scheduled PM10 samples 

recorded in each quarter), qualityassured data gathered at established 

state and local air monitoring stations 

(SLAMS) and national air monitoring 

stations (NAMS) in the nonattainment 

area and entered into the EPA Air 

Quality System (AQS) database. 

Attainment of the 24-hour PM10

standard is determined by calculating 

the expected number of exceedances of 

the standard in a year. The 24-hour 

PM10 standard is attained when the 

expected number of exceedances 

averaged over a three-year period is less 

than or equal to one at each monitoring 

site within the nonattainment area. 

Generally, three consecutive years of air 

quality data are required to show 

attainment of the 24-hour PM10

standard. See 40 CFR part 50 and 

appendix K. 

Based on the available monitoring 

data for the 1992–1994 period collected 

in the three subject Arizona 

nonattainment areas (Hayden, Nogales,5

and Paul Spur/Douglas) and the 

application of the PM10 NAAQS 

attainment criteria described above, we 

proposed to determine that all three 

areas attained the PM10 NAAQS by the 

December 31, 1994 attainment date for 

‘‘moderate’’ areas, and thus, are not 

subject to reclassification to ‘‘serious’’ by 

operation of law under CAA section 

188(b)(2). In addition, we proposed to 

find that, although the three areas 

attained the standard by the applicable 

attainment date, none appears to be 

currently attaining based on the most 

recent available data, although Hayden 

appears likely to attain in the near 

future if current trends continue. We 

indicated that we plan to address the 

PM10 needs for Nogales and Paul Spur/ 

Douglas areas over the next few years. 

In today’s action, EPA is not finalizing 

any of the proposed determinations 

with respect to recent data. Instead, we 

plan to further assess recent data, 

including data available for 2010 and 

2011, in the context of future 

rulemaking actions on the submitted, 

but not yet approved, air quality plans 

for these areas. Section 188(b)(2) 

obligates EPA to make a determination 

only as to whether these areas have 

attained by their applicable 1994 

attainment dates, and we are not 

required by that section to make 

determinations regarding subsequent 

time periods. Other portions of the 

Clean Air Act authorize EPA to address 

current air quality issues as needed 

through separate statutory authority and 

mechanisms. 

Please see our November 2, 2010 

direct final rule for more information 

about our proposal of the same date. 

III. Public Comments and EPA 

Responses 

As noted previously, we published a 

proposed rule (75 FR 67303) on 

November 2, 2010. We received 

comments from WildEarth Guardians 

(‘‘WildEarth’’), dated November 3, 2010, 

challenging EPA’s interpretation of CAA 

section 188(b)(2) that limits 

reclassifications by operation of law to 

the air quality conditions as of the 

applicable attainment date. 

Comment: WildEarth contends that 

section 188(b)(2) of the Clean Air Act 

does not state that the EPA is limited 

only to considering air quality data up 

until the attainment date when it makes 

its finding, but rather requires any 

moderate nonattainment area that fails 

to attain ‘‘after the applicable attainment 

date’’ to be reclassified to ‘‘serious’’ 

regardless of whether EPA makes a 

timely finding. 

WildEarth finds further support for its 

interpretation by noting that CAA 

section 188(b)(2) uses both past-tense 

and present-tense wording with regards 

to the context of EPA’s assessment of an 

area’s attainment status. Specifically, 

the statute states that EPA’s finding 

‘‘shall determine whether the area 

attained ***’’ (emphasis added), but 

then states ‘‘If the Administrator finds 

that any Moderate Area is not in 

attainment ***’’ (emphasis added). 

WildEarth contends that use of both the 

past-tense and present-tense in this 

context indicates that, although the 

Clean Air Act intended EPA to assess an 

area’s attainment status based on 

whether it attained the NAAQS by the 

attainment date, it also required that a 

moderate nonattainment area be 

reclassified to ‘‘serious’’ if it ‘‘is not in 

attainment’’ at the time the EPA makes 

its finding. If EPA’s assessment were to 

be limited only to whether an area 

‘‘attained’’ in the past, WildEarth 

contends that it would render 

meaningless the Clean Air Act’s 

substantive requirement that a moderate 

area be bumped up to ‘‘serious’’ if it ‘‘is 

not in attainment’’ when EPA makes its 

finding. WildEarth contends that, as 

such, EPA’s interpretation reads a 

substantive provision out of the Clean 

Air Act. 

Response: First, we note that 

WildEarth does not object to any aspect 

of EPA’s proposed rulemaking other 

than the interpretation as to the legal 

consequences that they contend would 

flow from finalizing determinations 

that, although the three areas attained 

by their applicable 1994 attainment 

dates, sixteen years later they are not 

currently in attainment. First, we note 

that in today’s rulemaking EPA is not 

finalizing any proposed determinations 

with respect to the air quality in these 

areas subsequent to the areas’ applicable 

dates. Nor does section 188(b)(2) impose 

such an obligation. Pursuant to section 


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1534 Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Rules and Regulations 

6EPA’s sole obligation under CAA section 

188(b)(2) is to determine whether the three Arizona 

areas attained the PM10 standard by the applicable 

attainment date, and while the statute requires EPA 

to make this determination within six months of the 

applicable attainment date, the applicable 

attainment date (in this case, December 31, 1994) 

remains the same no matter when EPA actually 

makes the determination. EPA was not obligated in 

the November 2, 2010 proposed rule, nor in this 

final rule, to determine whether the areas are 

attaining the standard at the present time. As stated 

above, EPA is not here finalizing any 

determinations as to the current air quality in the 

area, but is merely noting what more recent 

monitoring data suggest about the current air 

quality area quality in these areas, sixteen years 

after the 1994 attainment dates that are the subject 

of the final rulemaking here. We included the 

observations about current air quality in our 

proposed rule because we believe that such 

observations, and the related discussion of future 

Agency actions, is of as much public interest, if not 

more, as are the determinations of the air quality 

conditions that occurred sixteen years ago. 

7While EPA believes that the plain language of 

section 188(b)(2) supports EPA’s interpretation that 

reclassifications to ‘‘serious’’ are to be based only on 

air quality conditions as of the applicable 

attainment date, and not thereafter, EPA believes 

that, to the extent section 188(b)(2) is ambiguous, 

EPA’s interpretation is reasonable in that it is 

consistent with the statutory scheme for SIP 

revisions upon findings of failure to attain under 

subpart 1 and for mandatory reclassifications under 

subparts 2 and 3 for ozone and carbon monoxide 

areas. See CAA sections 179(c) and (d), 181(b)(2) 

and 186(b)(2) and compare the language from these 

sections to section 188(b)(2). While the language for 

such SIP revisions under subpart 1 and for 

reclassifications for ozone and carbon monoxide 

areas under subparts 2 and 3 uses slightly different 

language to link SIP revisions and reclassifications 

solely to air quality ‘‘as of the attainment date’’ than 

the language for reclassification of PM10 areas under 

subpart 4, we find no reason that Congress would 

have established a different scheme for PM10 areas 

under subpart 4 than generally applicable under 

subpart 1 or for ozone or carbon monoxide areas 

under subparts 2 and 3. For further explanation of 

EPA’s interpretation of reclassification under the 

Clean Air Act, see the responses to comments in 

EPA’s final Determination of Attainment of 1-hour 

Ozone Standard as of November 15, 1993 for the 

Birmingham, AL Marginal Ozone Nonattainment 

Area (67 FR 67113, November 4, 2002). To the 

extent relevant here, EPA reaffirms and 

incorporates by reference the responses to 

comments contained in our November 4, 2002 final 

rule. 

188(b)(2), EPA is finalizing here its 

determinations that the areas attained 

the standard ‘‘by that [applicable 

attainment] date.’’ Section 188(b)(2) does 

not impose upon EPA any obligation to 

make a final determination of 

attainment except with respect to an 

area’s applicable attainment date. 

Thus, it is not necessary for the 

purposes of our final actions here, 

which are limited to determinations of 

attainment as of the areas’ applicable 

attainment dates, to respond to 

WildEarth’s assertions regarding the 

legal consequences of determinations 

regarding air quality in subsequent 

decades. Nevertheless, we note our 

disagreement with WildEarth’s 

interpretation that CAA section 

188(b)(2) would require reclassification 

of any moderate PM10 nonattainment 

area if EPA were to make a final 

determination that the area was not 

attaining after the applicable attainment 

date, regardless of the air quality 

conditions as of the applicable 

attainment date itself. 

EPA’s interpretation of section 

188(b)(2) as requiring and authorizing 

reclassification to serious based only on 

air quality conditions as of the 

applicable attainment date, and not 

thereafter, is confirmed by a reading of 

that section in its entirety: 

Within 6 months following the applicable 

attainment date for a PM–10 nonattainment 

area, the Administrator shall determine 

whether the area attained the standard by 

that date. If the Administrator finds that any 

Moderate Area is not in attainment after the 

applicable attainment date— 

(A) The area shall be reclassified by 

operation of law as a Serious Area; and 

(B) the Administrator shall publish a notice 

in the Federal Register no later than 6 

months following the attainment date, 

identifying the area as having failed to attain 

and identifying the reclassification described 

under subparagraph (A). 

While the second sentence of section 

188(b)(2) contains the language quoted 

by WildEarth (‘‘any Moderate Area is not 

in attainment after the applicable 

attainment date’’), it is clear that in the 

context of the first sentence of the 

provision, which is the sentence that 

establishes the duty to make an 

attainment determination, that the duty 

is to ‘‘determine whether the area 

attained the standard by that date 

[referring to the phrase ‘‘applicable 

attainment date’’ in the opening clause 

of the first sentence].’’ Thus, EPA’s duty 

is to determine whether the area 

attained by its attainment date and the 

language in the second sentence 

regarding a finding after the attainment 

date may reasonably be interpreted as 

referring to the date the finding is made, 

which would necessarily be after the 

attainment date, not to the date used in 

the determination as the benchmark for 

determining attainment. 

Further, the second sentence of CAA 

section 188(b)(2), i.e., the one that 

includes the language cited by 

WildEarth (‘‘any Moderate Area is not in 

attainment after the applicable 

attainment date’’), includes two 

subparagraphs, one of which provides 

for reclassification of a moderate area to 

serious by operation of law and another 

that refers to publication of a notice in 

the Federal Register six months after 

the attainment date, identifying the area 

‘‘as having failed to attain’’ that clearly 

relates back to the earlier, legally 

relevant attainment date (in this case, 

December 31, 1994). Thus, whether 

EPA’s obligation under CAA section 

188(b)(2) is viewed in its entirety, or 

whether the second sentence of CAA 

section 188(b)(2) is viewed in isolation, 

it is clear that the question of whether 

an area must be reclassified is 

considered along with the question of 

whether an area has achieved 

attainment by the attainment date.6 To 

accept WildEarth’s interpretation would 

be to ignore the reference to a specific 

point in time (‘‘no later than 6 months 

following the attainment date’’) for 

publishing a notice in subparagraph (B) 

of CAA section 188(b)(2) in identifying 

the appropriate benchmark for 

reclassifying moderate areas to serious 

under subparagraph (A).7

Commenter’s interpretation of section 

188(b)(2) fails to harmonize the second 

sentence of the section with the first 

sentence and with the sentences that 

follow. Indeed, it could more plausibly 

be argued that the second sentence adds 

a cumulative condition for 

reclassification—that is, an area will be 

reclassified if and only it fails to attain 

by its attainment date and ‘‘if the 

Administrator finds [the area] is not in 

attainment after the applicable 

attainment date.’’ Contrary to 

commenter’s contention, EPA does not 

believe that Congress intended for the 

language regarding determining 

attainment as of the attainment date not 

to apply when an attainment 

determination occurs more than six 

months after the attainment date. The 

second sentence of section 188(b)(2) 

does not somehow override the 

language of the first sentence and 

require reclassification if an area slips 

back into nonattainment after its 

attainment date. EPA’s reading is 

consistent with the language of section 

188(b)(2) and with other provisions of 

the Clean Air Act, as well as with its 

structure and purpose. EPA believes 

that other parts of the Act, notably 

section 110(k)(5), provide the means to 

address nonattainment that occurs after 

an area’s attainment date. Contrary to 

commenter’s contention, EPA’s reading 

does not ‘‘nullif[y]’’ applicable text. 

Rather, EPA is properly reading 

188(b)(2) as requiring EPA to determine 

whether an area has attained by its 

attainment date, with reclassification as 

a consequence for areas that fail to do 

so. 

In the present case, the air quality 

data from the years 1992–1994 are the 

relevant data for determining whether 

the three Arizona areas must be 

reclassified to serious because their 

applicable attainment date is December 

31, 1994, and because we have 


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Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Rules and Regulations 1535 

determined that the areas did in fact 

attain by the applicable attainment date, 

they are not subject to reclassification to 

serious by operation of law under CAA 

section 188(b)(2). 

This does not mean that the Clean Air 

Act provides no means to address 

NAAQS violations in areas that had 

initially attained the standard by the 

applicable attainment date but then 

experience subsequent violations years 

after the applicable attainment date. For 

example, EPA could issue a ‘‘SIP call’’ 

under CAA section 110(k)(5) if EPA 

were to determine that the SIP is 

‘‘substantially inadequate’’ to attain the 

PM10 NAAQS in areas where violations 

of the PM10 NAAQS occur after the 

applicable attainment date. Such SIP 

calls require the State to revise the SIP 

as necessary to correct the inadequacies. 

The SIP call, unlike reclassification, is 

capable of addressing and correcting the 

specific circumstances causing 

nonattainment sixteen years after the 

applicable attainment date. While EPA 

has no current plans to issue SIP calls 

for any of the three subject Arizona 

moderate PM10 nonattainment areas, 

EPA is working with the State of 

Arizona to update the state’s earliersubmitted, but not yet EPA-approved air 

quality plans. EPA intends to ensure 

that the plans meet all applicable 

requirements for moderate PM10

nonattainment areas through both 

cooperative efforts with the State and 

through subsequent EPA rulemaking 

actions on the updated plans. 

IV. Final Action 

EPA has reviewed the comments that 

have been submitted, and concluded 

that none of them convince us to change 

our action as proposed on November 2, 

2010 with respect to determinations of 

attainment as of the applicable 

attainment date. Thus, under section 

188(b)(2) of the Clean Air Act, and 

based on sufficient, quality-assured 

data, we take final action to determine 

that the Hayden, Nogales, and Paul 

Spur/Douglas PM10 nonattainment areas 

attained the 24-hour PM10 NAAQS by 

the applicable attainment date, 

December 31, 1994. On the basis of this 

determination, EPA concludes that 

these three ‘‘moderate’’ nonattainment 

areas are not subject to reclassification 

to ‘‘serious’’ by operation of law. 

V. Statutory and Executive Order 

Reviews 

This action merely make 

determinations based on air quality data 

and does not impose any additional 

Federal requirements. 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 CAA; 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 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 March 14, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. 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 81 

Environmental protection, Air 

pollution control, National parks, 

Particulate matter, Wilderness areas. 

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

Dated: December 30, 2010. 

Jared Blumenfeld, 

Regional Administrator, EPA Region IX. 

[FR Doc. 2011–221 Filed 1–10–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2010–0003] 

Final Flood Elevation Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: Base (1% annual-chance) 

Flood Elevations (BFEs) and modified 

BFEs are made final for the 

communities listed below. The BFEs 

and modified BFEs are the basis for the 

floodplain management measures that 

each community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

remain qualified for participation in the 

National Flood Insurance Program 

(NFIP). 

DATES: The date of issuance of the Flood 

Insurance Rate Map (FIRM) showing 

BFEs and modified BFEs for each 

community. This date may be obtained 

by contacting the office where the maps 

are available for inspection as indicated 

in the table below. 

ADDRESSES: The final BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 


emcdonald on DSK2BSOYB1PROD with RULES