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Citation: 71 Fed. Reg. 44920 2006

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### /Vol. 71, No. 152/Tuesday, Augustl 8, 2006/Rules and Rbgidations

(iii) The applicable further provisions ofthis section and §§ 3.1601 through 3.1610.

(2) For claims filed before December 16, 2003:

* * * * *
* 16. Amend § 3.1604 by:



### ma. Revising the authority citationat the end of paragraph (c). I b.Revising paragraph (d)(1)(i).



### mc. Adding paragraph (d)(5) following the authority citation at the end of paragraph (d)(4).

The revisions and addition read as follows:
§3.1604 Payment from non-Department of Veterans Affairssources.

(c) * * * (Authority: 38 U.S.C. 2303(b)(1)).



### (d)***

(i) The plot or interment allowance is payable based on the deceased veteran's eligibility for burial in anational Cemetery (or, in claims filed prior to December 16, 2003, the deceased veteran's service). See § 38.620 ofthis chapter.

* * * * *

(5) A plot or interment allowance may be paid to a state in addition to aburial allowance under § 3.1600(a) for claims filed on or after December 16, 2003.
[FRDoc. E6-12787 Filed 8-7-06; 8:45 am]

BILLING CODE 8320-01-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81 [EPA-R09-OAR-2006-AZ-0388; FRL-8206- 

### 4]
Approval and Promulgation of Implementation Plans; Designation of Areas forAir Quality Planning Purposes; State of Arizona; Finding of Attainment for RIllito Particulate Matter of 10 Micronsor Less (PM10) Nonattainment Area; Determination Regarding Applicabilityof Certain Clean Air ActRequirements; Correction

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to determine that the Rillito moderate PM 10 nonattainment area in Arizona attained the National Ambient Air Quality Standards forparticulate
matter with an aerodynamic diameter less than or equal to anominal I6 micrometers (PMo)by the applicable attainment date. EPA also finds that the Rillito area is currently attaining the PMo standards, and based on this latter finding, EPA is determining that certain Clean Air Act requirements are not applicable for so long as the Rillito area continues to attain the PM 1 standards. Lastly, EPA is correcting an error in a previous rulemaking that involved the classification ofPMjo nonattainment

areas within the State ofArizona. DATES: This rule is effective on October 10, 2006, without further notice, unless EPA receives adverse comments by September 7, 2006. Ifadverse comment is received, EPA will publish a timely withdrawal ofthe direct final rule in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket I) No. EPA-R09- OAR-2006-AZ-0388 by one ofthe following methods:

* Federal eRulemaking portal: http:// www.regulations.gov.Follow the on-line instructions for submitting comments. " E-mail: tax.wienke@epa.gov. * Fax: (415) 947-3579 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing 

### comments). * Mail: Wienke Tax, Office ofAir Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR2, 75 Hawthorne Street, San Francisco, California 94105-3901. * Hand Delivery: Wienke Tax, Office ofAir Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries ofboxed information.

-Instructions: Directyour comments to Docket ID No. EPA-R09-OAR-2006- AZ-0388. EPA's policy is that all
comments received will be included in the public docket without change and -may be made available online at http://www.regulations.gov,including any personal information provided, unless the comment includes information claimed to beConfidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI

or otherwise protected through http:// www.regulations.govor e-mail. The http://www.regulations.gov Web site is

an "anonymous access" system, which

means EPA will notknow your identity

or contact information unless you provide it in the body of your comment. Ifyou send an e-mail comment directly
to EPA, without going through http:// ivww.regulations.gov,your e-mail address will be automatically captured and included as part ofthe comment that is placed inthe public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your
name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. If EPA
cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment. Electronic files should avoid the use of special characters" any form of encryption, and be free ofany defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage athttp://

www.epa.gov/epahome/dockets.h tm. Docket:All documents inthe docket

are listed in the http:// www.regulations.govindex. Although listed in the index, some information is
not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard
copy form. Publicly available docket materials are available either electronically in http:// www.regulations.govor inhard copy atthe Office ofAir Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. EPA requests that ifat all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy ofthe docket. You may view the hard copy ofthe docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office ofAir Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901, (520) 622-1622,
tax. wienke@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, wherever "we," "us," or "our" is used, we mean the EPA.
Table ofContents
I.Background

A. What National Ambient Air Quality

Standards (NAAQS) Are Considered In Today's Finding?

. B.What Is The Designation and

Classification ofThis PM1o Nonattainment Area? 

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C.How Do We Make Attainment,

Determinations?

H. What Is The Basis for EPA's Determination That the Rillito Area Has Attained The PM1oNAAQS? III. What Are the Applicable Planning Requirements For the Rillito Area as a Result ofEPA's Attainment Determination? IV. EPA's Final Action V. Statutory and Executive Order Reviews

I. Background

A. WhatNationalAmbientAir Quality Standards(NAAQS) Are Considered In Today'sFinding?

National Ambient Air Quality Standards (NAAQS) are safety thresholds for certain ambient air pollutants set by EPA to protect public health and welfare. Particulate matter with an aerodynamic diameter ofless than or equal to 10 micrometers, or PM 1o,is the subject ofthis action. PM1o is among the ambient air pollutants for which EPA has established health-based standards.

PMo causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.

On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for particulate matter with an indicator that.includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. See 40 CFR 50.6. The 24-hour primary PM10 standard is 150 micrograms per cubic
meter (gg/m3) with no more than one expected exceedance per year. The annual primary PM1o standard is 50 gg/ m3 as an annual arithmetic mean. The secondary PM1ostandards, promulgated to protect against adverse welfare effects, are identical to the primary standards.

B. WhatIs the Designationand ClassificationofThisPMo Nonattainment Area? Upon enactment ofthe 1990 Clean Air ActAmendments (CAA orthe Act), PM1oareas meeting the requirements of either (i) or (ii) ofsection 107(d)(4)(B) of the Act were designated nonattainment for PM1oby operation oflaw and classified "moderate." These areas included all former Group IPMo planning areas identified in 52 FR 29383 (August 7, 1987) and further clarified in 55 FR 45799 (October 31, 1990), and any other areas violating the NAAQS forPM10 prior to January .1, 1989 (many ofthese areas were identified by footnote 4 inthe October 31, 1990 Federal Register document). A Federal Register notice announcing the

areas designated nonattainment for PM10 upon enactment ofthe 1990 Act Amendments, known as "initial' PMo nonattaihment areas, was published on March 15, 1991,(56 FR 11101). A subsequent Federal Register document correcting some ofthese areas was published on August 8, 1991 (56 FR 37654). These nonattainment designations and moderate area classifications were codified in40 CFR part 81 in a Federal Register document published on November 6, 1991 (56 FR 56694). All other areas in the nation not designated nonattainment at enactment

were designated unclassifiable (see section 107(d)(4)(B)(iii) ofthe Act).

The Rillito planning area was amongthe areas listed by EPA as a Group I area (see 52 FR 29383, August 7, 1987) and

was designated nonattainment for PMo by operation oflaw and classified "moderate." In accordance with section 189(a)(2) ofthe CAA, Arizona was to submit a state implementation plan (SIP) by November 15, 1991 demonstrating attainment ofthe PMo standards by December 31, 1994 for the Rillito area.'

C.HowDo We MakeAttainment Determinations?

Pursuant to sections 179(c)(1) and 188(b)(2) ofthe Act, we have the responsibility ofdetermining within six months ofthe applicable attainment date whether, based on air quality data, PM10 nonattainment areas attained the NAAQS by that date. The "applicable attainment date" is December 31, 1994 for areas, such as Rillito, that were designated as "moderate" nonattainment forPM1oby Operation of law under the 1990 Amended Act. Determinations under section 179(c)(1) ofthe Act are tobe based upon an area's "air quality as of the attainment date." Section 188(b)(2) is consistent with this requirement.

Generally, we will determine whether

an area's air quality meets the PM1o NAAQS for purposes ofsection 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations (NAMS) in the nonattainment area and entered into EPA's Air Quality System (AQS) database. Data entered into the AQS have been determifed to meet federal monitoring requirements (see40 CFR

'Arizona submitted a moderate area PMloplan forthe Rillito areaon November 14, 1991. EPA found this plan tobe incomplete byletter dated May 14, 1992. On April 22, 1994,ADEQ submitted

a revised PMo plan for Rillito, and EPAfound it tobe complete by letter dated August 18, 1994. EPA has not taken action on this 1994 PM~o plan. 50.6; 40.CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may be used to determine the attainment status ofareas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meetthe federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment ofthe annual PMo standard is achieved when the annual arithmetic mean PM1oconcentration

over a three-year period is equal to or less than 50 g~g/m 3

. Attainment ofthe 24-hour standard is determined by calculating the expected number of days in a year with PM~o concentrations greater than 150 gg/m 3

. The 24-hour standard is attained when the expected number ofdays with levels above 150 gg/m3 (averaged over a three-year period) is less than or equal to one. Three consecutive years ofair quality data are necessary to show attainment of the 24-hour and annual standards for PM10. See 40 CFR part 50, appendix K. A complete year ofair quality data, as referred to in40 CFR part 50, appendix K, is composed ofall four calendar. quarters with each quarter containing data from at least 75 percent ofthe scheduled sampling days.

II. What Is the Basis for EPA's Determination Thatthe Rillito Area Has Attained the PMo NAAQS?

The Rillito PM1o nonattainment area is located innorth central Pima County, just northwest ofthe Tucson metropolitan area in southern Arizona.2
The nonattainment area encompasses the following nine townships: TilS, R9E through R12E; and T12S, R8E through R12E. The incorporated Town ofMarana with apopulation of approximately 8,000 is located within the nonattainment area. A smaller community, the unincorporated town of Rillito, is located in the portion ofthe nonattainment area historically associated with maximum ambient PMo concentrations. The land use around Rillito is predominantly agricultural. The only major (i.e., greater than 100
tons per year) stationary point source of air pollution in the nonattainment area

2In a 1996 rulemaking (61 FR21372, May 10, 1996) in whichwe found that thePhoenix Planning Area had not attained thePM~o NAAQS by the applicable attainment date for moderate PM~o nonattainment areas and thus reclassified the area
as "serious", we inadvertently introduced an error into the "Arizona-PM-lO" table in 40CFR 81.303 bymoving the entry forthe Rillito planning area from PimaCounty to Santa Cruz County.We are correcting this error in today's notice under CAA section .110(k)(6). 

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is an Arizona Portland Cement (APC) residential because it will absorb 0.5 miles northwest ofthe Arizona plant.APC is permitted by ADEQ. Most residential development from the Portland Cement plant. This monitor ofthe other stationary sources are sand Tucson metropolitan area. was selected by ADEQ to represent and gravel operations mining the The Rillito PM10 nonattainment area maximum PM10 concentration inthe alluvial deposits ofthe Santa Cruz River has one SLAMS monitor operated by the area to which the public is exposed. basin. The area in and around the Arizona Department ofEnvironmental Table 1 summarizes the one-in-six day nonattaiment area is expected to Quality (ADEQ). Located at 8820 West PM10 data collected there from 1988- change from rural agricultural to Water Street within the community of 2005. Rillito, this monitor is approximately

TABLE 1.-SUMMARY OF 24 HOUR AND ANNUAL PM1o CONCENTRATIONS (kG/M3) FOR RILLITO, 1988-2005

PM1oConcentrations

Year Maximum 24- hour concentra- Annual average 3-year annual tion average

1988 ...........................................................- , ........ ......... ...... 163 *69.2 NA 1989

................................................................................................................................. . 170 *83.3 N A 1990

................................................................................................................................. 94 *39.0 *63.8 1991

................................................................................................................................. 133 37.1 

### *53.1 1992

................................................................................................................................. 96 33 .6 36.6 1993

................................................................................................................................. 68 27.6 32.8 1994

.................................................................................................................................. 63 28.3 29.8 1995

.................................. ............................................................................................. . 91 36.2 30.7 1996

................................................................................................................................. . 84 38.3 34.3 1997

................................................................................................................................. 129 4 1.9 38.8 1998

................................................................................................................................. 81 32 .4 37.5 1999

................................................................................................................................. 102 37.8 37.4 2000

................................................................................................................................. 129 *42.1 37.4 2001

................................................................................................................................. 89 33 .6 *37.8 2002

................................................................................................................................. 70 37.1 *37.6 2003

................................................................................................................................. 118 39.5 36.7 2004

................................................................................................................................. 93 32.2 36.3 2005

................................................................... 84 39.1 36.9

*Indicates thatthe mean does not satisfy criteria for a complete data set. *Values shown inbold text represent exceedances of the applicable standard.

As noted above, the 24-hour PM 10 standard is attained when the expected number ofdays with levels above 150 gg/m 3 (averaged over athree-year period) is less than or equal to one. Based on the data summarized intable 1, above, we find no exceedances of the 24-hour PM10 standard for the 1992- 1994 period and thus the expected number ofdays with levels above 150 gg/m 3 (averaged over that three-year period) is zero. As such, we find that Rillito attained the 24-hour PM 0 NAAQS by the applicable attainment date (1994). Furthermore, since 1994, no exceedances ofthe 24-hour PM10 standard have been recorded at the Rillito monitoring station and thus, we find that the area has continued to

. attain, and is currently attaining, the 24- hour standard.

Also as noted above, attainment ofthe annual PM10 standard is achieved when the annual arithmetic mean PM10 concentration over a three-year period is equal to or less than 50 jg/m3

. Review ofthe data for calendar years 1992-1994 reveals an arithmetic average of 29.8 ktg/

M 3

. As such, we find that Rillito attained the annual PM10 standard by the applicable attainment date (1994). Since 1994, there have been no exceedances ofthe annual PM 10 standard, and thus, we find thatthe area has continued to attain, and is currently attaining, the annual standard.

III. What Are The Applicable Planning Requirements ForThe Rillito Area As A Result OfEPA's Attainment Determination?

The air quality planning requirements for moderate PM10 nonattainment areas, such as the Rillito nonattainment area,

are set out in part D, subparts 1 and 4 oftitle Iofthe Act. We have issued guidance in a General Preamble 3 describing how we will review SIPs and SIP revisions submitted under title I of the Act, including those containing moderate PM 10 nonattainment area SIP provisions.

In some designated nonattainment
areas, monitored data demonstrates that the NAAQS has already been achieved. Based on its interpretation ofthe Act, EPA has determined that certain requirements ofpart D, subparts 1 and

I "General Preamble for the Implementation of Title I ofthe Clean Air Act Amendments of 1990" (57 FR 13498, April 16, 1992, as supplemented 57 FR 18070, April 28, 1992). 2 (oftitle I) ofthe Act do not apply and therefore do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress (RFP)requirements, attainment demonstrations and contingency measures, because these provisions have the purpose ofhelping achieve attainment of the NAAQS.

EPA's Clean Data Policy is the subject oftwo memoranda setting forth our interpretation ofthe provisions of the Act as they apply to areas that have attained the relevant NAAQS. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part ofits "Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard-Phase 2" (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71645-71646 (November 29, 2005). EPA believes that the legal bases set forth in detail in ourPhase 2 Final Rule; our May 10, 1995 memorandum from John S. Seitz, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard" (Seitz memo); and our 

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December 14, 2004 memorandum from Stephen D. Page entitled "Clean Data Policy for the Fine Particle National Ambient Air Quality Standards" (Page memo) are equally pertinent to the interpretation ofprovisions ofsubparts 1 and 4 applicable to PMo. EPA's interpretation ofhow the provisions of the Act apply to areas with "clean data" is not logically limited to ozone and PM2. 5, because the rationale is not dependent upon the type ofpollutant. Our interpretation that an area that is attaining the standard is relieved of obligations to demonstrate RFP and to provide an attainment demonstration and contingency measures pursuant to part D ofthe CAA, pertains whether the standard is PM10, ozone, orPM2
.5.

The reasons for relieving an area that has attained the relevant standard of certain part D, subparts 1and 2 obligations, applies equally to part D, subpart 4, which contains specific attainment demonstration and RFP provisions for PMmo nonattainment

areas. As we have explained in the Phase 2 Final Rule and our ozone and PM2. 5 clean data memoranda, EPA believes it is reasonable to interpret provisions regarding.RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions ifan area subject to those requirements is already attaining the NAAQS (i.e.,attainment of the NAAQS is demonstrated with three consecutive years ofcomplete, qualityassured air quality monitoring data). Three U.S. Circuit Courts ofAppeals have upheld EPA rulemakings applying its interpretation ofsubparts 1 and 2 with respect to ozone. SierraClubv. EPA, 99 F.3d 1551 (lothCir. 1996); SierraClubv. EPA, 375 F.3d 537 (7th Cir. 2004); OurChildren's Earth 

### Foundationv.

### EPA, No. 04-73032 (9th Cir. June 28, 2005)(memorandum opinion). It has been EPA's longstanding interpretation that the general 

## . provisions ofpart D, subpart 1 ofthe Act (sections 171 and 172) do not require the submission ofSIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated:

[Riequirements for RFP will not apply in evaluating arequest for redesignation to attainment since, ata minimum, the air quality data for the area must show that the

area has already attained. Sh~wing that the State will make RFP towards attainment will, therefore, have no meaning at thatpoint. 57 FR at 13564.
EPA believes the same reasoning applies
to the PM 0 provisions ofpart D, subpart 4. Withrespect to RFP, section 171(1) states that, for purposes ofpart D oftitle I, RFP "means such annual incremental reductions in emissions ofthe relevant air pollutant as are required by this part

or mayreasonably be required by the Administrator forthe purpose of ensuring attainment ofthe applicable NAAQS by the applicable date." Thus, whether dealing with the general RFP requirement ofsection 172(c)(2), the ozone-specific RFP requirements of sections 182(b) and (c), orthe specific RFP requirements for PM1oareas ofpart D, subpart 4, section 189(c)(1), the stated purpose ofRFP is to ensure attainment by the applicable attainment date. Section 189(c)(1) states that:

Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, asdefined in section 7501(1) of this title,toward attainment by the applicable date.

Although this section states that revisions shall contain milestones 'which are to be achieved until the area is redesignated to attainment, such milestones are designed to show reasonable further progress "toward attainment by the applicable attainment date", as defined by section 171. Thus, *it is clear that once the area has attained

the standard, no further milestones are necessary ormeaningful. This interpretation is supported by language in section 189(c)(3), which mandates that a state that fails to achieve a milestone must submit a plan that

assures that the state will achieve the next milestone or attain the NAAQS if there is no next milestone. Section 189(c)(3) assumes that the requirement to submit and achieve milestones does
not continue after attainment ofthe NAAQS.

Ifan area has in fact attained the standard, the stated purpose ofthe RFP requirement will have already been fulfilled.4 EPA tookthis position with

4Thus we believe that it is a distinction without

a difference that section 189(c)(1)speaks ofthe RFP requirement as one to be achieved until an area is "redesignated attainment", as opposed to section 172(c)(2), which is silent on the period to which the requirement pertains, or the ozone nonattainment

area RFPrequirements in sections 182(b}(1) or 182 (c)(2), which refer to the RFPrequirements as applying until the "attainment date", since, section 189(c)(1) defines RFP by reference to section 171(1) ofthe Act. Reference to section 171(1) clarifies that,

as with the general RFP requirements in section 172(c)(2) andthe ozone-specific requirements of section 182(b)(1) and 182(c)(2), the PM-specific requirements may onlybe required "for the purpose ofensuring attainment ofthe applicable national ambient air quality standard bythe applicable date." 42 U.S.C. section 7501(1). As discussed in thetext ofthis rulemaking, EPA interprets the RFP requirements, in light ofthe definition ofRFP in section 171(1), and incorporated in section respect to the general RFP requirement ofsection 172(c)(2)in the April 16, 1992 General Preamble and also inthe May 10, 1995 memorandum with respect to the requirements ofsections 182(b) and (c). We are extending that interpretation
to the specific provisions ofpart D, subpart 4. Inthe General Preamble, we stated, in the context ofa discussion of the requirements applicable to the evaluation ofrequests to redesignate nonattainment areas to attainment, that the "requirements for RFP will not apply in evaluating arequest for redesignation to attainment since, at a minimum, the air quality data for the

area must show that the area has already attained. Showing that the State will make RFPtowards attainment will, therefore, have no meaning at that point." (57 FR 13564): See also our September 4, 1992 memorandum from John Calcagni, entitled "Procedures for Processing Requests to Redesignate Areas to Attainment" (Calcagni memo), p. 6

.

With respect to the attainment demonstration requirements of section 189(a)(1)(B), an analogous rationale leads to the same result. Section 189(a)(1)(B) requires that the plan provide for "a demonstration (including air quality modeling) that the [SIP] will provide for attainment by the applicable attainment date. * * *" As with the
RFP requirements, ifan area is already monitoring attainment ofthe standard, EPAbelieves there is no need for an
area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation ofthe section 172(c) requirements provided by EPA in the General Preamble, the Page
memo, and the section 182(b) and (c) requirements set forth in the Seitz

memo. As EPA stated inthe General Preamble, no other measures to provide for attainment Would be needed by areas seeking redesignation to attainment since "attainment will have been reached." (57 FR at 13564).

Other SIP submission requirements

are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of sections 172(c)(9) and 182(c)(9). We have interpreted the contingency

measure requirements ofsections 172(c)(9) and 182(c)(9) as no longer applying when.an area has attained the standard because those "contingency

measures are directed at ensuring RFP

189(c)(1), tobe arequirement that no longerapplies
once thestandard hasbeen attained. 

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and attainment by the applicable date." (57 FR at 13564); Seitz memo, pp. 5-6.

Both sections 172(c)(1) and 189(a)(1)(C) require "provisions to

assure that reasonably available control measures" (i.e., RACM) are implemented in a nonattainment area. The General Preamble, 57 FR at 13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so that RACM requirements are a "component" of an area's attainment demonstration. Thus, for the same reason the attainment demonstration no longer applies by its own terms, the ' requirement for RACM no longer applies. EPA has consistently interpreted this provision to require only implementation ofpotential RACM

measures that could contribute to reasonable further progress orto attainment. General Preamble, 57 FR at 13498. Thus, where an areais already attaining the standard, no additional RACM measures are required. 5 EPA is interpreting section 189(a)(1)(C) consistent with its interpretation of section 172(c)(1).

Here, as in both our Phase 2 Final Rule and ozone and PM2. 5 clean data memoranda, we emphasize that the suspension ofa requirement to submit SIP revisions concerning these RFP, attainment demonstration, RACM, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment ofthe standard. If such an area experiences a violation ofthe NAAQS, the basis for the requirements being suspended would no longer exist. Therefore, the

area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one ofthe SIP submittals
amounts to no more than a suspension ofthe requirements for so long as the

area continues to attain the standard. However, once EPA ultimately redesignates the area to attainment, the

area will be entirely relieved ofthese requirements to the extent the maintenance plan for the area does not rely on them.

Therefore, we believe that-,for the

reasons set forth here and established in

our prior "clean data" memoranda and rulemakings, a PMio nonattainment area that has "clean data," should be

5The EPA's interpretation that the statute only requires implementation ofRACM measures that would advance attainoment was upheld by the United States Court ofAppeals for theFifth Circuit (SierraClubv. EPA, 314 F.3d 735, 743-745 (sth Cir. 2002), and bythe United States Court ofAppeals for the D.C. Circuit (SierraClubv.EPA, 294 F.3d 155. 162-163 (D.C. Cir. 2002)). relieved ofthe part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and the RFP. provisions established by section 189(c)(1) ofthe Act, as well as the aforementioned attainment demonstration, RACM, RFP and contingency measure provisions ofpart D, subpart 1 contained in section 172 of the Act. 6

Should EPA at some future time determine that an area that had clean data, but which has not yet been redesignated as attainment for a NAAQS, has violated the relevant standard, the area would again be required to submitthe pertinent. requirements under the SIP for the area. Attainment determinations under the policy do not shield an area from other required actions, such as provisions to address pollution transport.

As set forth above, EPA finds that because the Rillito area has continued to attain the NAAQS, the requirement of

an attainment demonstration, reasonable further progress, reasonably available control measures and contingency measures no longer applies for so long as the area continues to monitor attainment ofthe PM1oNAAQS. Ifmeasurements of ambient PM 1 0 concentration in the Rillito area reveal

a violation ofthe PM1oNAAQS, then the State ofArizona would again be required to submit the pertinenrCAA requirements for this nonattainment

area.7

6Inprior rulemakings involving the Clean Data Policy and PM10 ,EPA has applied criteria in addition to that ofattainment ofthe standard. See,
e.g., 67 FR43020 (June 26, 2002). EPA does not believe that those additional criteria are required by
statute or are necessary for application ofthe policy forPM10 areas, and does not employ them in applying the policy to ozone andPM 2., areas. EPA intends to make its application ofthe policy consistent for ozone, PMto, and PM 2.5, and does not intend to require an areato meet additional criteria for PM 1.

7 Note, however, that onJanuary 17, 2006, EPA published proposed revisions to the NAAQS for particulate matter. See http://www.epa.gov/fedrgstr/ EPA-AIR/2006/January/Day-1 7/.The proposed revisions address two categories ofparticulate
matter: fineparticles which are particles 2.5 micrometers in diameter and smaller; and "inhalable coarse" particles which are particles between 2.5 and 10 micrometers (PM 1o-2.5). Upon finalization ofa primary 24-hour standard for PM1- 2.5,EPAproposes to revoke thecurrent 24- hourPMis standard in all areas ofthe country except in areas where there is at least one monitor located in an urbanized area (as defined by the U.S. Bureau ofthe Census) with a minimum population of 100,000 that violates the current 24-hour PM 0 standard based onthe most recent three years of data. In addition, EPA proposes to revoke the
current annual PM 15 standard upon finalization of

aprimary 24-hour standard for PM1-2.5. IV. EPA's Final Action
Based on quality-assured data meeting the requirements of40 CFR part 50, appendix K, we find that the Rillito, Arizona nonattainment area attained the PM50 NAAQS by the applicable attainment date (1994) and is currently attaining the standard. This action is not

aredesignation to attainment under CAA section 107(d)(3) because we have not yet approved a maintenance plan as meeting the requirements ofsection 175A ofthe CAA or determined that the

area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 will remain moderate nonattainment for this area until such time as Arizona meets the CAA requirements for redesignation ofthe Rillito area to attainment. See footnote 7.EPA also finds that, because the Rillito area has continued to attain the NAAQS, the following CAA requirements no longer apply: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions ofpart D, subpart 1 contained in section 172 of the Act.

Lastly, under CAA section 110(k)(6),

we are correcting the entry for the Rillito moderate PM10 nonattainment

area in the "Arizona-PM-10" table in 40 CFR 81.303 so that it is identified as

a subarea within Pima County instead of Santa Cruz County.

We are publishing thisrule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section ofthis Federal Register publication, EPA is publishing a separate document that will serve as the proposal should adverse comments be filed. This action will be effective October 1b,2006, without further notice unless the EPA receives relevant adverse comments by September 7, 2006.

Ifwe receive such comments, then we will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period. Parties interested in commenting should do so at thistime. Ifno such comments
ape received, the public is advised that this rule will be effective on October 10, 

### 44924

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### Federal, Register/Vo,. '71,' No. 152/Tuesday, August 8, 2006/Rules 

### aid Regulations 4

2006 

### and no further. ctonwillbe iakenr

on the proposed rule.

V. Statutory andExecutive Order Reviews

Under Executive Order 12866 (58FR 51735,October 4, 1993), this action is not a "significant regulatory action" and 

### therefore is not subject to reviewby the Office ofManagement and Budget. For thisreason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66FR28355,May 22, 2001). This action merely makes a determination based on air quality data and does not impose any additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). Because this rule does notimpose any additional enforceable duty, it does notcontain any unfunded mandate or significantly

or uniquely affect small governments, as described inthe Unfunded Mandates Reform Act of1995 (Pub.L. 104-4).



### Thisrule also does not have tribal implications because it willnot have a substantial direct effect on one or more Indian tribes, onthe relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified by Executive Order 13175 (65 FR 97249;November 9, 2000). This 

### action also does not have Federalism implications because it does nothave substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64FR43255, August 10, 1999). This action merely makes a determination based on air quality data and does not alter the relationship orthe distribution ofpower and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 "Protection of Children from Environmental Health Risks and Safety Risks" (62FR 19885, April 23, 1997), because it is.not economically significant.

The requirements ofsection 12(d) of the National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) do not apply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 et seq.).

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 ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPAwill submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A 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 sectibn 307(b)(1)'ofthe CAA, petitions forjudicial review ofthis action must be filed inthe United States Court ofAppeals forthe appropriate circuit by October 10, 2006. Filing a petition for reconsideration by the 'Administrator ofthis final rule does not affect the finality ofthis rule forthe purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview 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 ofSubjects in40 CFRPart81

Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: July 25, 2006. 

### Wayne Nastri, Regional Administrator, Region9.



### mPart 81, chapter I,title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 81--[AMENDED]

m1. Theauthority citation forpart 81 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart C-[Amended]

m2.In §81.303,the table entitled "Arizona-PM-lO" is amended by revising the entries forSanta Cruz County and PimaCounty to read as follows: §81.303 Arizona.

ARIZONA.-PM-1 0
Designation Classification Designated area Date Type Date Type

Santa Cruz County: Nogales planning area
........................................................................................ 11/15/90 Nonattainment 11/15/90 Moderate. The portions of the followingTownships which are within the State of Arizona and lie east of 111 degrees longitude: T23S, R13E, T23S, R14E, T24S, R13E, T24S, R14E Pima County: Rillito planning area

............................................................................................ 11/15/90 Nonattiinment 11/15/90 Moderate. Townships: T11S, R9E, T11S, R10E, T11S, R11E, T11S, R12E, T12S,

R8E, T12S, R9E, T12S,R1OE, T12S, R11E,T12S,R12E Ajo planning area
................................................................................................ 11/15/90 Nonattainment 11/15/90 Moderate. Township T12S, R6W, and the following sections of Township T12S,

R5W:

a. Sections 6-8 b. Sections 17-20, and
c. Sections 29-32 - lli l I F II T I III I II I I il " I I I 

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