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 Administrator, Region IX. 

[FR Doc. 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 OAR–

2005–0150, 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 

online at 

http://docket.epa.gov/rmepub/, 

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, eRulemaking 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 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, 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 

1The Gila River Indian Reservation lies south of 

the urbanized portion of the Phoenix metropolitan 

area and straddles 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. 

2MAG 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 Indian Community joined MAG in 

1989. 

3The 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. 

4Aerovironment Inc., Air Quality Maintenance 

Analysis in Phoenix, Arizona, Final Report, July 

1977. 

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 

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 oxidants 

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 analysis. 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 44 FR 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 areas 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 

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

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

6As 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. 

7Sources 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). 

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-hour 

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 

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 designation, 

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 erred in 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. The 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 

68342 Federal Register / Vol. 70, No. 217 / Thursday, November 10, 2005 / Rules and Regulations 

8The 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 #3, 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 central Phoenix. 

EPA approved this plan in 1982. See 47 FR 19326 

(May 5, 1982). 

9No oxidants/ozone dispersion modeling was 

conducted during this period; instead, the 

demonstrations of attainment in the various plans 

relied upon a linear rollback technique. 

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 

Phoenix’’ 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 

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 day in 

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 metropolitan 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, November 10, 2005 / Rules and Regulations 68343 

10The Gila River Indian Community became a 

member of MAG in November of 1989. 

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 is 

documented 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 10 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 portions 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 

designations for the 8-hour ozone 

NAAQS, we agreed with the Gila River 

Indian Community that the Reservation, 

including both Maricopa 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 

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

11With 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. 

12 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). 

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 section 110(a)(1) of the Act. 

area) as the geographic basis for the 

Phoenix metropolitan 1-hour ozone 

nonattainment area.11 Our September 

1979 action affirming the oxidants 

nonattainment area boundary for the 

purposes of the 1-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 of the 1-hour 

ozone NAAQS; and (4) the former 

nonattainment status of the Maricopa 

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 the Proposed 

Rules section of 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) 

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 burden 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 

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

provide information to or for a Federal 

agency. This includes the time 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 an 

information 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 governments, 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 have 

Federalism implications because it does 

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, 2005 / 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 community 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. 

I. 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 specifications, 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 to 

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: November 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] 

■ 1. The authority citation for part 81 

continues 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)’’ is 

amended by revising the entry for the 

Phoenix Area to read as follows: 

§ 81.303 Arizona. 

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[1-Hour Standard] 

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

Phoenix Area: Maricopa County (part) ................................... 6/14/05 Attainment.

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, Range 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 common 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; 

68348 Federal Register / Vol. 70, No. 217 / Thursday, November 10, 2005 / Rules and Regulations 

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Designation Classification 

Date 1 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 National 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 Township 6 North to a point of intersection with the Maricopa-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 68349 

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Designated area 

Designation Classification 

Date 1 Type Date 1 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 line of 

Township 2 South; 

28. 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. 

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1This date is October 18, 2000 unless otherwise noted. 

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

BILLING CODE 6560–50–P