The Drug-Free Workplace Act of 1988 [Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq. ] was enacted as a part of omnibus drug legislation on November 18, 1988. Federal agencies issued an interim final common rule to implement the act as it applied to grants [53 FR 4946, January 31, 1989]. The rule was a subpart of the government-wide common rule on nonprocurement suspension and debarment. The agencies issued a final common rule after consideration of public comments [55 FR 21681, May 25, 1990].

The agencies proposed an update to the drug-free workplace common rule in 2002 [67 FR 3266, January 23, 2002] and finalized it in 2003 [68 FR 66534, November 26, 2003]. The updated common rule was redrafted in plain language and adopted as a separate part, independent from the common rule on nonprocurement suspension and debarment. Based on an amendment to the drug-free workplace requirements in 41 U.S.C. 702 [Pub. L. 105-85, Div. A, Title VIII, Sec. 809, Nov. 18, 1997, 111 Stat. 1838], the update also allowed multiple enforcement options from which agencies could select, rather than requiring use of a certification in all cases.

When it established Title 2 of the CFR as the new central location for OMB guidance and agency implementing regulations concerning grants and cooperative agreements [69 FR 26276, May 11, 2004], OMB announced its intention to replace common rules with OMB guidance that agencies could adopt in brief regulations. OMB began that process by proposing [70 FR 51863, August 31, 2005] and finalizing [71 FR 66431, November 15, 2006] government-wide guidance on non-procurement suspension and debarment in 2 CFR part 180.

As the next step in that process, OMB proposed [73 FR 55776, September 26, 2008] and finalized [74 FR 28149, June 15, 2009] government-wide guidance with policies and procedures to implement drug-free workplace requirements for financial assistance. The guidance requires each agency to replace the common rule on drug-free workplace requirements that the agency previously issued in its own CFR title with a brief regulation in 2 CFR adopting the government-wide policies and procedures. One advantage of this approach is that it reduces the total volume of drug-free workplace regulations. A second advantage is that it collocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.

As the OMB guidance requires, DOI is taking two regulatory actions. First, we are removing the drug-free workplace common rule from 43 CFR part 43. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR, Subtitle B, Chapter XIV, part 1401 to adopt the government-wide policies and procedures in the OMB guidance.

Taken together, these regulatory actions are solely an administrative simplification and are not intended to make any substantive change in policies or procedures. In soliciting comments on these actions, we therefore are not seeking to revisit substantive issues that were resolved during the development of the final common rule in 2003. We are inviting comments specifically on any unintended changes in substantive content that the new part in 2 CFR would make relative to the DOI common rule at 43 CFR part 43.

Under the Administrative Procedure Act, 5 U.S.C. 553, agencies generally propose a regulation and offer interested parties the opportunity to comment before it becomes effective. However, as described in the “Background” section of this preamble, the policies and procedures in this regulation have been proposed for comment two times—one time by Federal agencies as a common rule in 2002 and a second time by OMB as guidance in 2008—and adopted each time after resolution of the comments received.

This direct final rule is solely an administrative simplification that would make no substantive change in the DOI policy or procedures for drug-free workplace. We therefore believe that the rule is noncontroversial and do not expect to receive adverse comments, although we are inviting comments on any unintended substantive change this rule makes.

Accordingly, we find that the solicitation of public comments on this direct final rule is unnecessary and that “good cause” exists under 5 U.S.C. 553(b)(B). This rule will be effective on January 21, 2011 without further action, unless we receive adverse comment by December 22, 2010. If any comment on unintended changes is received, it will be considered and, if warranted, we will publish a timely revision of the rule.

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule does not raise novel legal or policy issues.

DOI certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq., is not required.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required.

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.

This proposed regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will 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.

In accordance with Executive Order 12988, this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Boehringer Ingelheim Vetmedica, Inc., 2621 North Belt Highway, St. Joseph, MO 64506-2002 has filed a supplement to NADA 55-058 for DRY-CLOX (cloxacillin benzathine) Intramammary Infusion for dry dairy cattle. The supplemental NADA provides for various minor revisions to labeling. The supplemental application is approved as of October 21, 2010, and the regulations in § 526.464a (21 CFR 526.464a) are amended to reflect the approval.

In addition, FDA has noticed that certain portions of § 526.464a were inadvertently removed when the regulations were amended to reflect a change of sponsorship (75 FR 10165, March 5, 2010). At this time, the regulations are being amended to reflect fully the approved conditions of use of this new animal drug product. This change is being made to improve the accuracy of the animal drug regulations.

Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-0972), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online ( http://www.regulations.gov ), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-0972,” click “Search,” and then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-0972” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES . Please explain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Jim Wetherington at the telephone number or e-mail address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

The subject bridge is the S443 Swing Bridge across the Bayou Liberty at mile 2.0, in St. Tammany Parish. The vertical clearance is 7.59 feet (2.31m) above the 2% flowline, elevation 2.5 feet (0.76m) NAVD 1988.

Presently, under 33 CFR 117.469, the draw of the S433 Bridge, mile 2.0, at Slidell, shall open on signal, except that between 7 p.m. and 7 a.m., the draw shall open on signal if at least two hours notice is given.

The owner requests a test to allow the public to experience the new schedule and determine if the two hour advance notice is sufficient. The current regulation has been in effect since 2008; however, the bridge for which the regulation was in place (a pontoon bridge) no longer exists. With the completion of the new bridge (a swing bridge) in April 2010, there has been an average of less than one opening per month, which is down from an average of 70 per month in previous years. Currently the land traffic outpaces marine traffic but most all traffic is local and marine traffic is recreational. Vessels will be able to pass under the bridge during the deviation and therefore no alternate routes are recommended at this time.

This request is in conjunction with a Notice of Proposed Rulemaking to make the test deviation schedule changes permanent.

This deviation is effective from December 7, 2010 through January 6, 2011.

Vessel counts were collected and analyzed by the owner and reflect a marked reduction in the number of required openings since the completion of the new bridge and removal of the old one. The expected impact on navigation during the test period will be minimal based on the increase in vertical clearance. The test deviation will allow the bridge to remain unmanned during most of the day by requiring a two-hour notice for an opening of the draw.

Coordination will be through Public Notice and Local Notice to Mariners upon date of publication in the Federal Register .

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

Throughout this document, references to “EPA,” “we,” “us,” or “our,” are intended to mean the U.S. Environmental Protection Agency. The supplementary information is arranged as follows:

EPA is now taking action, consistent with section 110(k)(3) of the Clean Air Act (CAA or Act), to approve portions of SIP submittals made by the State of Georgia, through the Georgia Environmental Protection Division (EPD), on October 31, 2006, March 5, 2007, and August 22, 2007. These SIP submittals consist of changes to the Georgia Rules for Air Quality Control, Chapter 391-3-1. Specifically, the October 31, 2006, revisions included changes to Rules 391-3-1-.02(7) “Prevention of Significant Deterioration of Air Quality” and 391-3-1-.03(8)(c) “Permit Requirements” related to NNSR. The March 5, 2007, submittal included changes to Rules 391-3-1-.02(7) “Prevention of Significant Deterioration of Air Quality,” and 391-3-1-.03(13)(c) “Emission Reduction Credits.” Finally, the August 22, 2007, submittal included changes to Rules 391-3-1-.02(7) “Prevention of Significant Deterioration of Air Quality,” and 391-3-1-.03(8) “Permit Requirements.”

EPA approved most of the non-NSR Reform portions of the submittals (rules 391-3-1-.01(llll), 391-3-1-.02(2)(jjj), 391-3-1-.02(6)(a)4, 391-3-1-.02(12), and 391-3-1-.03(6)(b)) in a previous action (74 FR 62249, November 27, 2009). EPA has not yet acted on rule 391-3-1-.02(2)(ooo). In addition, EPA is not acting on revisions to rules 391-3-1-.02(8)b, and 391-3-1-.03(9), because these rules are not part of the federally-approved SIP. EPA disapproved a portion of the March 5, 2007, submittal, subparagraph 391-3-1-.03(13)(c), related to “Emissions Reduction Credits,” in a previous action (73 FR 79653, December 30, 2008).

On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the CAA's PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on the reconsideration of the December 31, 2002, final rule changes. The December 31, 2002, and the November 7, 2003, final actions are collectively referred to as the “2002 NSR Reform Rules.” For additional information on the 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002). For information on the subsequent revisions to these rules, see http://www.epa.gov/nsr.

On October 31, 2006, March 5, 2007, and August 22, 2007, EPD submitted revisions to EPA for the purpose of including the revised State NSR permitting rules in the SIP. Copies of Georgia's revised NSR rules, as well as the State's Technical Support Document, can be obtained from the Docket, as discussed in the ADDRESSES section above.

On September 4, 2008 (73 FR 51606), EPA proposed to approve portions of the above-summarized SIP submittals as they pertain to Georgia's NSR program, with the exception of the revision to subparagraph 391-3-1-.03(13)(c), related to “Emissions Reduction Credits,” which EPA proposed to disapprove. 1 In response to requests for an extension of the public comment period, EPA extended the public comment period on that proposal through November 6, 2008 (73 FR 58084). One comment letter was received and it contained adverse comments. EPA's response to this comment letter is below in section III, Response to Comments. EPA's analysis of the State's NSR reform SIP submittals is contained in the September 4, 2008, Notice of Proposed Rulemaking (NPR). The NPR, the comment letter, and additional information regarding this action may be obtained from the Docket, as discussed in the ADDRESSES section above.

EPA received one comment letter from the National Resource Defense Council (NRDC) on the September 4, 2008, NPR; this letter included adverse comments. NRDC primarily commented on the requirements of the federal NSR rules, not Georgia's application of the federal requirements in its own rules. Notably, NRDC participated in litigation challenging EPA's 2002 promulgation of the NSR Reform Rules, where similar arguments were made by NRDC and dismissed by the DC Circuit Court. New York v. EPA, 413 F.3d 3 (DC Cir. 2005). NRDC's comments, including exhibits, do not raise any specific concerns with Georgia's rules, but rather, reiterate arguments made by NRDC to the DC Circuit regarding Sections 110(l) and 193 of the CAA. 2

While NRDC's comments provide citations to five portions of the Georgia rules, the comments make no attempt to specifically explain or demonstrate how those identified provisions are inconsistent with either Section 110(l) or Section 193 of the CAA. Furthermore, NRDC provides no evidence supporting its allegations that approval of the specific provisions would result in a violation of the CAA or otherwise be “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.” NRDC Comments at 2.

The NRDC comments include a list of 31 exhibits which the comment letter incorporates by reference into the comments. NRDC Comments at 1. The 31 exhibits appear to all be related to the DC Circuit Court case New York v. EPA, and were either submitted to that Court for review, or are relevant to that adjudication. To the extent that these exhibits were provided to the DC Circuit, those issues were previously resolved by the Court and/or already responded to by EPA in its responsive court papers. Any other documents included in the 31 exhibits that were not provided to the DC Circuit Court do not provide EPA with any comments specific to the Georgia rules at issue.

Despite the lack of Georgia-specific discussion in NRDC's letter, EPA has responded to the few comments that appear related to the September 4, 2008, NPR to approve portions of Georgia's SIP submittals pertaining to EPA's 2002 NSR Reform Rules.

NRDC stated that finalizing the EPA rulemaking proposal at issue here would violate section 110(l) of the Act. As support for its conclusion, NRDC asserted that “[t]he 2002 NSR Reform Rule provisions that were not vacated by the DC Circuit in New York v. EPA [citation omitted] allow previously-prohibited emissions-increases to occur.” NRDC Comments at 3. Further, that “Georgia nevertheless made no `demonstration that the emissions that are allowed by its revised rule but are prohibited by the current SIP would not interfere with attainment or other applicable requirements.' ” As a result, NRDC stated that, “it cannot be said of Georgia's plan that it `will cause no degradation of air quality.' ” NRDC Comments at 5. NRDC also stated that EPA has not made any findings that Georgia's rule will not cause degradation of air quality or interfere with any applicable requirements concerning attainment and reasonable further progress, or any other applicable requirements of the CAA. NRDC Comments at 5.

EPA's 2002 NSR Reform Rules were upheld by the DC Circuit Court which reviewed them, with the exception of the pollution control project and clean unit provisions (and the remanded matters). The three significant changes in NSR Reform that were upheld by the DC Circuit were (1) Plantwide applicability limits (PALs), (2) the 2-in-10 baseline, and (3) the actual-to-projected actual emission test. The Supplemental Environmental Analysis of the Impact of the 2002 Final NSR Improvement Rules (November 21, 2002) (Supplemental Analysis) discussed each of these three changes individually, and addresses some of the issues raised by NRDC.

With regard to PALs, the Supplemental Analysis explained, “[t]he EPA expects that the adoption of PAL provisions will result in a net environmental benefit. Our experience to date is that the emissions caps found in PAL-type permits result in real emissions reductions, as well as other benefits.” Supplemental Analysis at 6. EPA further explained that,

With regard to the 2-in-10 baseline, EPA concluded that, “[t]he EPA believes that the environmental impact from the change in baseline EPA is now finalizing will not result in any significant change in benefits derived from the NSR program.” Supplemental Analysis at 13. This is mainly because “the number of sources receiving different baselines likely represents a very small fraction of the overall NSR permit universe, excludes new sources and coal fired power plants, and because the baseline may shift in either direction, we conclude that any overall consequences would be negligible.” Supplemental Analysis at 14. Additional information regarding the 2-in-10 baseline changes is available in the Supplemental Analysis, Appendix F.

With regard to the actual-to-projected actual test, EPA concluded, “we believe that the environmental impacts of the switch to the actual-to-projected actual test are likely to be environmentally beneficial. However, as with the change to the baseline, we believe the vast majority of sources, including new sources, new units, electric utility steam generating units, and units that actually increase emissions as a result of a change, will be unaffected by this change. Thus, the overall impacts of the NSR changes are likely to be environmentally beneficial, but only to a small extent.” Supplemental Analysis at 14 (see also Supplemental Analysis Appendix G).

For more information on the 2002 NSR Reform Rules, and its supporting technical documents, see, http://www.epa.gov/nsr/actions.html#2002 (last visited November 2, 2010).

Section 110(l) of the CAA states, in relevant part, that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress * * * or any other applicable requirement of this chapter.” CAA, 42 U.S.C. 7410(l). In “Approval and Promulgation of Implementation Plans; New Source Review; State of Nevada, Clark County Department of Air Quality and Environmental Management,” 69 FR 54006 (September 7, 2004), EPA stated that Section 110(l) does not preclude SIP relaxations. Rather, EPA stated that Section 110(l) only requires that the “relaxations not interfere with specified requirements of the Act including requirements for attainment and reasonable further progress,” and that, therefore, a state can relax its SIP provisions if it is able to show that it can attain or maintain the National Ambient Air Quality Standards (NAAQS) and meet any applicable reasonable further progress goals or other specific requirements. 69 FR at 54011-12.

Georgia's Proposed NSR reform rules track the federal NSR Reform Rules, with enhancements, as described in Georgia's submittal. EPA evaluated Georgia's rules consistent with its evaluation of the federal rules, and determined that Georgia's rules were equivalent to or more stringent than the 2002 NSR Reform Rules. Overall, as summarized above, EPA expects that changes in air quality as a result of implementing Georgia's rules will be consistent with EPA's position on the federal NSR Reform Rules—that there will be somewhere between neutral and providing a modest contribution to reasonable further progress between the NSR Reform and pre-Reform provisions. EPA's analysis for the environmental impacts of the three components of the NSR Reform rules (discussed earlier) is informative of how Georgia's adoption of NSR Reform (based on the federal rules) will affect emissions. EPA has no reason to believe that the environmental impacts will be different from those discussed in the Supplemental Analysis for the NSR Reform rules, and thus, approval of Georgia's SIP revision would not be contrary to Section 110(l) of the CAA.

NRDC cites to five general portions of Georgia's rules as provisions that would violate Section 110(l). These provisions are: Administrative Code of Georgia (ACG) 391-3-1-.02(7)(a), (7)(b)15, and (7)(b)(21) (from Georgia's PSD rules); and 391-3-1-.03(8)(c) and (8)(g) (from Georgia's NNSR rules). NRDC Comments at 2. NRDC provides no evidence supporting its contention that these specific provisions violate Section 110(l). The first provision noted by NRDC, 391-3-1-.02(7)(a), represents general requirements regarding Georgia's PSD program, which do include some changes per the SIP revision at issue. Nonetheless, without further specificity, it is not clear why or how NRDC believes this provision is a violation of Section 110(l). In addition, NRDC has provided no Georgia-specific documentation that indicates that EPA's analysis and conclusions regarding the impact of NSR Reform, in the Supplemental Analysis, is not applicable to Georgia's rules, which are equivalent to or more stringent than the federal rules.

In evaluating Georgia's SIP submissions, EPA compared Georgia's rules with the existing federal rules and determined that Georgia's rules were equivalent to or more stringent than the NSR reform (federal) rules. EPA also considered Georgia's approximately thirty enhancements to the federal NSR Reform provisions, including specific anti-backsliding provisions. This comparison was discussed in the proposal to approve Georgia's SIP revision. Georgia's anti-backsliding provisions are discussed in their SIP submittal and included in EPA's docket. EPA also considered Georgia's numerous responses to comments, included as part of the submittals, wherein Georgia discussed the two-year stakeholder process, as well as answered questions as to why it was including anti-backsliding provisions and discussed the NSR Reform changes in relation to their air quality program. Georgia determined that “the NAAQS, PSD increment, RFP demonstration and visibility will be protected if these SIP revisions are approved and implemented.” See Technical Support for SIP Submittal dated August 4, 2007. Finally, EPA also considered the Supplemental Analysis in reviewing Georgia's submittal and NRDC's comments. EPA concluded that approval of Georgia's SIP revision would not be contrary to Section 110(l) of the CAA. Absent more explicit information demonstrating that Georgia's plan for implementation of a specific provision of its rules would interfere with any applicable requirement of the CAA and thus should be disapproved under Section 110(l), Georgia's Technical Support and the Supplemental Analysis support approval. As a result, there is no basis to determine that approval of Georgia's rules would violate Section 110(l).

NRDC states that NSR is a “control requirement” and thus the requirements of Section 193 apply to the NSR rules at issue in the Georgia SIP revision. NRDC Comments at 7. NRDC further alleges that Georgia's revisions “ensure that emissions will not be reduced as much as under the pre-existing rules. In fact, the modifications allow emissions to increase in Georgia's nonattainment areas.” NRDC Comments at 9. Finally, NRDC states that “because section 193 lies within part D,” “if EPA approves Georgia's revised plan, that action will additionally exceed the agency's authority under section 110(k)(3) and violate section 100(l).” (Note, the last citation to 100(l) appears to be a typo and should read 110(l).) NRDC Comments at 10.

The response to the Section 193 issues raised by NRDC involves many of the same elements of the response above, to the Section 110(l) comments, which is also incorporated by reference here.

Section 193 states, in relevant part, that “[n]o control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.”

Assuming for purposes of this discussion that Section 193 does apply to the instant action, as was discussed earlier in this notice, EPA has previously determined and explained in the Supplemental Analysis, that implementation of the 2002 NSR Reform Rule provisions still in effect (that is, those not vacated by the DC Circuit) are expected to have at least a neutral environmental benefit. In addition, Georgia's rules include several differences from the federal rule that are likely to result in greater environmental protection. These provisions include, among others: (1) Adjusting the PAL limits downward upon renewal if average actual emissions are less than 80 percent of the PAL limit; (2) anti-backsliding provisions included in the major source baseline date to ensure that baseline dates established prior to the effective date of the rule changes remain in effect; (3) additional requirements related to the definition of projected actual emissions intended to result in more accurate estimates of emissions increases; (4) provisions that make the “demand growth” exclusion optional, and require additional recordkeeping to ensure the rules are implemented properly; (5) a requirement that baseline actual emissions not be based on a period for which there is inadequate information; (6) a requirement to adjust baseline actual emissions for new applicable requirements; (7) provisions that require submission of an application prior to construction for all major and minor sources; (8) requirements that the “reasonable possibility” recordkeeping reporting requirements are triggered whenever a minor source permit is required. Therefore, even if Section 193 did apply to this action, EPA does not agree with commenter's assertions that the SIP submissions approved in this action raise a Section 193 concern.

In addition, the core of NRDC's argument seems to revolve around the DC Circuit Court decision in South Coast Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006) (finding that NSR associated with the 1-hour ozone standard included control requirements). At issue in South Coast was EPA's determination regarding the revocation of the entire 1-hour ozone program (and corresponding SIP elements), including all the 1-hour nonattainment NSR elements, and whether such elements would continue to be required as part of SIPs implementing the new (at that time) 8-hour ozone standard. The facts in the South Coast case are distinguishable from the instant matter where the Georgia SIP is merely being updated to include changes to the Federal NSR program. EPA is not removing the entirety of Georgia's NNSR program from the SIP as it pertains to a particular NAAQS. Rather, EPA is simply approving Georgia's SIP revision that implements rules equivalent to or more stringent than the federal rules; and as discussed earlier in this notice, EPA developed a Supplemental Analysis to support adoption of the federal rules. The Georgia SIP will continue to operate with the full suite of NSR related elements, including a comprehensive minor source program, and the restrictive `de-minimus rule,' which requires sources to aggregate 5-year emissions increases and offset emissions increases greater than 25 tons.

EPA is taking final action to approve portions of three revisions to the Georgia SIP submitted by the State of Georgia on October 31, 2006, March 5, 2007, and August 22, 2007, which address changes to Georgia's PSD and NNSR programs.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action merely ensures that State law meets Federal requirements, and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or North Dakota mean the State of North Dakota, unless the context indicates otherwise.

On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM 2.5 ). This action is being taken in response to the July 18, 1997 revision to the 8-hour ozone NAAQS, and PM 2.5 NAAQS. This action does not address the requirements for the 2006 24- hour PM 2.5 NAAQS, or the 2008 8-hour ozone NAAQS; those standards will be addressed in a later action.

Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i) which pertains to interstate transport of certain emissions. Section 110(a)(2)(D)(i) of the CAA requires that a state's SIP must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other state; (2) interfere with maintenance of the NAAQS by any other state; (3) interfere with any other state's required measures to prevent significant deterioration of air quality; or (4) interfere with any other state's required measures to protect visibility.

On April 6, 2009 the State of North Dakota submitted a SIP addressing the section 110(a)(2)(D)(i) four requirements, noted above, for the 1997 8-hour ozone NAAQS and for the 1997 annual and 24-hour PM 2.5 NAAQS. The state based its submittal on EPA's 2006 Guidance discussed below. As noted earlier, in this rulemaking EPA is addressing the requirement that pertains to preventing sources in the State from emitting pollutants in amounts which will interfere with the maintenance of the 1997 ozone and PM 2.5 NAAQS by any other state.

On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance) for SIP submissions that states should use to address the requirements of section 110(a)(2)(D)(i). EPA developed this guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 ozone NAAQS and 1997 PM 2.5 NAAQS.

In a Federal Register action dated September 17, 2010, EPA proposed approval of the North Dakota Interstate Transport SIP portions addressing the interference with maintenance requirement of section 110(a)(2)(D)(i). EPA concluded in its proposed action that the various factual and technical considerations supported a determination that emissions from North Dakota do not interfere with maintenance by any states with areas at risk for maintenance of the 1997 8-hour ozone NAAQS or for maintenance of the 1997 annual and 24-hour PM 2.5 NAAQS.

EPA did not receive comments that persuade the Agency that there is such interference with maintenance for the 1997 ozone or PM 2.5 NAAQS and thus in today's final action EPA is making a final regulatory determination that North Dakota's sources do not interfere with maintenance of the 1997 8-hour ozone NAAQS, and the 1997 PM 2.5 NAAQS in any other state.

EPA received one letter dated October 18, 2010 with comments from the WildEarth Guardians (WG) environmental organization. The WG letter includes three separate comments identifiable under sections A., B., and C., and is accessible online at regulations.gov under Docket No. EPA-R08-OAR-2009-0057. Later in this section EPA responds to the significant comments made by the commenter. WG clarifies in its introductory remarks on the letter's first page that its comments are directed to both the Colorado and the North Dakota Federal Register proposed rule actions of September 17, 2010 (75 FR 56935 and 75 FR 56928) because “EPA's rationale for approving both SIPs is the same.” EPA will consider WG's comments, as appropriate, equally applicable to the referenced EPA proposed rule actions for the Colorado and the North Dakota interstate transport SIPs. For clarity, however, in this action EPA will address WG's comments as if they were directed only to the proposed rule action for North Dakota (75 FR 56928). 1

Comment No. 1 —In its comments under section A., “Maintenance is Inappropriately Defined,” WG states that EPA's definition of interference with maintenance, and by implication the identification of maintenance receptors, appeared to be “inappropriately conflated with the definition of nonattainment.” It argues that the definition of maintenance appeared to be tied to nonattainment, asserting that “unless an area has violated or is in violation of the NAAQS, the agency will not consider whether * * * North Dakota [is] interfering with that area's ability to maintain compliance with the NAAQS.” For this reason, WG argues EPA did not give independent meaning to the interfere with maintenance prong of section 110(a)(2)(D)(i)(I).

EPA Response —The methodology EPA used to identify maintenance receptors gives independent meaning to the term “interfere with maintenance” and establishes a process to identify projected attainment receptors that, based on the historic variability of air quality at that site (which may be due to variability in emissions and/or meteorology), may have difficulty maintaining the standard. As explained in greater detail below, the commenter's objection to EPA's approach appears to be based on the misconception that the methodology EPA used to identify maintenance sites was dependent on base year NAAQS violations.

The definition of maintenance used by EPA is consistent with the direction given to EPA by the Court of Appeals for the DC Circuit in North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). 2 In that case, the court analyzed the definition of “interfere with maintenance” used in the Clean Air Interstate Rule (CAIR). The court found that the definition EPA used “gave no independent significance to the 'interfere with maintenance' prong of section 110(a)(2)(D)(i) to separately identify upwind sources interfering with downwind maintenance.”  3 It further reasoned that “[u]nder EPA's reading of the statute, a state can never ‘interfere with maintenance’ unless EPA determines that at one point it ‘contribute[d] significantly to nonattainment’.”  4 Based on this analysis, the court found the definition unlawful, holding that “[b]ecause EPA describes CAIR as a complete remedy to a section 110(a)(2)(D)(i)(I) violation and does not give independent significance to the “interfere with maintenance” language to identify upwind states that interfere with downwind maintenance, it unlawfully nullifies that aspect of the statute and provides no protection for downwind areas that, despite EPA's predictions, still find themselves struggling to meet NAAQS due to upwind interference in 2010.”  5

The approach used by EPA in its September 17, 2010 proposal to assess whether emissions from sources in North Dakota interfere with maintenance of the NAAQS in any other state takes into account the flaws identified by the court, by giving independent meaning to the section 110(a)(2)(D)(i) “interference with maintenance” requirement. Our September 17, 2010 proposed action relies on a process established by EPA's August 2, 2010 Transport Rule Proposal to identify any specific receptors in downwind states that, even though they are projected to be in attainment and thus would not be nonattainment receptors, may have difficulty maintaining the NAAQS in question. These receptors are referred to as maintenance receptors.

The commenter's statement that EPA's designation of maintenance receptors is “firmly hitched to a finding that the maximum design value based on a single three-year period between 2003 and 2007 is in excess of the NAAQS” appears to be based on a misunderstanding of the methodology used by EPA to identify maintenance receptors. EPA's methodology did not, as the commenter appears to assume, require a site to have a design value above the NAAQS for one of the three base periods (2003-2005, 2004-2006, 2005-2007) to be considered a maintenance site. The methodology is based on an analysis of the future year average and future year maximum design values. 6 It does not depend on the whether the base year design values exceed the NAAQS. The Transport Rule Proposal explained that EPA used the average concentrations of the three design values for three base periods noted above to determine the 2012 average design value at monitoring sites. Monitoring sites with projected average design values above the NAAQS would be in nonattainment, while those with projected average design values below the NAAQS would be in attainment in 2012. To identify among the attainment monitoring sites those at risk for maintenance of the NAAQS, EPA also projected to 2012 each of the three design values for the base periods noted above. If the maximum of the three was above the NAAQS, then monitoring site was identified as at risk for maintenance of the NAAQS, or as a “maintenance receptor.”  7 The maximum design value referenced in this sentence is the maximum future design value calculated using each of the three base design value periods separately. Whether or not one of the three base period design values exceeded the NAAQS was not a factor considered in determining whether a site was a maintenance receptor.

To better understand this concept, it is useful to compare the methodologies used in the Transport Rule proposal (75 FR 45210, Aug. 2, 2010) to identify nonattainment and maintenance receptors. In the Transport Rule proposal, base period (2003-2007) ambient data were projected to the future (using model outputs) to identify both nonattainment and maintenance receptors. In both cases, receptors were identified by projected future design values; however, because more conservative data were used for the maintenance analysis, this analysis could identify receptors that were projected by the nonattainment analysis to be in attainment; yet might have difficulty attaining the standard due to historic variability of air quality at that site. To identify future nonattainment sites we calculated the future year design values by projecting the 5-year weighted average design value for each site. Only if this future year design value exceeded the NAAQS was the site considered to be a nonattainment receptor. However, to identify projected maintenance sites we used a different methodology that took into account historic variability in air quality at each receptor. For this approach we calculated the maximum future year design value by processing each of the three base design value periods (2003-2005, 2004-2006, and 2005-2007) separately. The highest of the three future values is the maximum design value, which is used to determine maintenance receptors.

In this way, EPA's analysis identifies those areas that are projected to be attainment, but may have difficulty maintaining attainment of the standard, for example in a year with particularly severe meteorology (weather that is conducive to ozone and/or particulate formation). In other words, this analysis does exactly what the D.C. Circuit directed EPA to do in North Carolina. It gives independent meaning to the “interfere with maintenance” prong of 110(a)(2)(D)(i) and provides protection to any areas that, although they are predicted to attain the standard (and thus upwind sources could not be found to significantly contribute to nonattainment in that area) may have difficulty maintaining the standard. 8

EPA used this same approach to identify any potential maintenance receptors for purposes of evaluating North Dakota's SIP submission. For the reasons explained above, this approach is both reasonable and consistent with the direction given to EPA by the DC Circuit in North Carolina.

Comment No. 2 —In its comments under section B., “Even Under EPA's Definition of Maintenance, Maintenance Receptors are not Consistently Defined,” WG cited a variety of information suggesting that that receptors in the Denver Metropolitan Area/North Front Range (DMA/NFR) area should also be considered for maintenance purposes under 110(a)(2)(D)(i) in this action. The commenter points out that EPA itself has stated, “Data for 2005-2007 and 2006-2008 reflect violations of the 8-hour ozone NAAQS at the Rocky Flats North monitor (values of [0.085] and 0.086 ppm, respectively).” The commenter also argued that modeling prepared in conjunction with Colorado's DMA/NFR attainment demonstration shows that by 2010, the three-year design value is only projected to be lowered to 0.084 parts per million, barely in compliance with the NAAQS, and that certain portions of the DMA/NFR area of Colorado would violate the 1997 ozone NAAQS in 2010 at grid cells west of Fort Collins. The commenter referenced several documents that are part of the Colorado's DMA/NFR 8-hour Ozone Attainment Demonstration in support of its arguments. The commenter cited the report's language that indicated that the modeling projection of a value above the 1997 8-hour standard to the west of Fort Collins is not “implausible” and explaining, “In the case of the Denver ozone modeling, higher ozone concentrations are estimated west of Fort Collins than at the locations of the two monitors in Fort Collins on some days and this does not appear to be an error in the modeling system.”  9 Finally, the commenter argued that EPA's failure to consider the DMA/NFR area as a receptor for evaluating interference with maintenance in this action reflects the very problem that the D.C. Circuit warned could result without giving independent meaning to the term “interfere with maintenance.”  10

EPA's Response —EPA disagrees with WG's argument that EPA has inappropriately identified the correct monitors for maintenance receptors. As discussed in greater detail in the previous response to comment no. 1, EPA has selected a method that identifies maintenance receptors separately from nonattainment receptors and gives an independent meaning to the interfere with maintenance prong of section 110(a)(2)(D)(i). EPA has consistently applied this method to all potential receptors in States potentially impacted by North Dakota's emissions including those in the DMA/NFR area.

The commenter's argument EPA did not consistently identify maintenance receptors is premised on the same fundamental misunderstanding discussed in response to comment no. 1—that EPA's identification of nonattainment receptors was based on current or past NAAQS violations. As explained above, this is not correct. EPA did not base its identification of maintenance receptors on an analysis of whether air quality at those receptors exceeded the NAAQS in the base years. The methodology EPA used to identify maintenance areas takes into account historic variability of emissions at specific monitoring sites to analyze whether or not monitoring sites projected to be in attainment in 2012 will nonetheless remain at risk of slipping into nonattainment in that year. The commenter provided a number of modeling or monitoring analyses for 2010 or earlier. As we have addressed in responses elsewhere in this notice, EPA continues to believe 2012 is the appropriate year for this analysis. Thus, modeling or monitoring data for other years is not directly relevant to this rulemaking. Nonetheless, below we address the commenter's specific assertions about the monitoring and modeling.

The commenter asserts that monitoring data for 2005-07 and 2006-08 for the Rocky Flats North monitor reflect violations of the 8-hour NAAQS and therefore EPA should consider this Rocky Flats North monitor as a “maintenance receptor.” The commenter further cites to modeling prepared in conjunction with Colorado's DMA/NFR attainment demonstration to support its assertion that EPA has applied inconsistently its definition of interference with maintenance. The modeling data referenced by the commenter, however, only identifies monitors that, in the commenter's view, are at risk of being in nonattainment or having maintenance problems in 2010. The monitoring data cited indicates high ozone levels in the past. The underlying issue raised is thus substantively the same as that raised in comment no. 3 below which argues that EPA's analysis is faulty because it identifies receptors likely to have difficulty maintaining the standard in 2012 and not at the present or in the past. EPA's response to comment no. 3 below, illustrates how its approach, based on modeling analyses that identify receptors at risk for maintenance in the year 2012, is appropriate and consistent with the D.C. Circuit decision in North Carolina v. EPA.

EPA's method is based on model projection values that take into account multi-year variability in ozone data at specific monitors. For identification of maintenance receptors, EPA utilized the monitoring data from the 2003-2007 period to calculate 2012 future year modeling design value projections. The 2003-07 period includes three Design Value (DV) periods (2003-2005, 2004-2006, and 2005-2007). The 2012 future year DVs were calculated by multiplying a 3-year DV (base year) by the ratio of the Future Year average of the daily 8-hour ozone maximums around a monitor over the Base Year average of the daily 8-hour ozone maximums around a monitor. This calculation was performed for each of the three 3-year DVs (2003-2005, 2004-2006, and 2005-2007). This approach yielded three different projected 2012 design values and thus, tests for variability in meteorology. If any of the three 2012 projections was above the 1997 ozone standard, then the receptor would be considered a maintenance receptor. None of the 2012 projections for the DMA/NFR area was above the standard so the area was not considered a maintenance area. This approach was the same as the approach used for every potential receptor evaluated. It is worth noting that EPA's analysis included the 2005-2007 data for the Rocky Flats monitor (which is one of the highest monitored DVs in recent years for this monitor) that the commenter raised as a concern and pursuant to its methodology as previously described EPA's analysis determined that the Rocky Flats monitor would not be a maintenance receptor in 2012.

Further, EPA disagrees with commenter's conclusion that the modeling performed for the DMA/NFR attainment demonstration with the 2010 model projections establishes that any of the areas identified will have maintenance problems for the 1997 8-hour ozone NAAQS. We disagree with WG's conclusion that the DMA/NFR area monitors should be identified as “maintenance receptors” in large part because it bases its conclusion on projections for 2010 instead of 2012. This modeling used projections for 2010 not 2012, which as explained above and in response to comment no. 3 below is not the correct year for comparison, given the approach EPA has developed for determining maintenance receptors. EPA's analysis of maintenance receptors, which is based on the approach developed in the Transport Rule Proposal to be consistent with the D.C. Circuit's opinion in North Carolina v. EPA and uses projections for 2012, did not identify any maintenance receptors in the DMA/NFR area. This conclusion is consistent with evidence suggesting emissions are likely to trend downward (for example, with two more years of fleet turnover, this modeling would likely have projected lower levels of ozone in 2012) and preliminary monitoring data for 2010, which indicates that the DMA/NFR area is meeting the 1997 ozone standard. Further, EPA has reviewed Colorado's attainment demonstration for the DMA/NFR area and proposed that the combination of the modeling and Weight of Evidence analyses demonstrates that Denver will be in attainment in 2010. 11

In addition, the commenter's concern that an area west of Fort Collins, might exceed 84 ppb in 2010 is based on exceedance values in the Colorado modeling analysis from a special analysis, called the Unmonitored Area Analysis (UAA), that is recommended for model grid cells that are not analyzed in the monitor based attainment demonstration because they are not located near a monitor. EPA does not believe that the UAA establishes that this area should be considered a maintenance receptor area for the purposes of 110(a)(2)(D)(i).

First, the UAA analysis is for 2010, which as noted above is not the correct analysis year. Second, EPA guidance indicates that NAAQS violations in the UAA should be handled on a case by case basis. 12 The guidance stresses that due to the lack of measured data, the examination of ozone concentrations as part of the unmonitored area analysis is more uncertain than the monitor based attainment test. This is true even in situations such as this where, as the commenter points out; no known errors were identified by the contractor in the modeling analysis. As a result, the UAA results are recommended to be treated as a separate test from the monitor based attainment test with less weight put on the conclusions of the UAA analysis. EPA's attainment demonstration guidance indicates, “While it is expected that States will implement additional emission controls to eliminate predicted violations of the monitor based test, the same requirements may not be appropriate in unmonitored areas.”  13 The guidance recommends that it may be appropriate to deploy additional monitors in an area where the unmonitored analysis indicates a potential future year violation.

To address the concerns raised by the UAA, Colorado installed an additional ozone monitor in the area West of Fort Collins to determine whether the model predicted ozone concentrations are, in fact, valid. The special purpose monitor, located in Rist Canyon, began operation on May 14, 2009. The Rist Canyon monitoring station has collected data for two ozone seasons (approximately 16 months) since it began operating and the fourth highest daily maximum 8-hour average ozone concentration reading is 69 ppb for May through December of 2009 and 72 ppb for January through August 2010. 14

Therefore, EPA does not believe the modeling performed for the State of Colorado's Denver/NFR area SIP can support the conclusion that this area should be considered a maintenance receptor area for the purposes of 110(a)(2)(D)(i). The methodology developed to identify maintenance receptors for the purpose of analyzing interference with maintenance with respect to the 1997 ozone and PM 2.5 NAAQS relies on base period monitoring data to identify monitor locations that are projected to have maintenance problems in 2012. The methodology does not identify receptors based on modeling data alone. While the monitor has not operated long enough to account for variability in ozone levels, the newly installed monitor in the relevant area is reading well below the standard and this fact further confirms that the modeling results and the UAA results do not support the conclusion that receptors in the DMA/NFR area should be considered maintenance receptors for the purpose of CAA section 110(a)(2)(D)(i).

In conclusion, EPA disagrees with the commenter. We have used a fully consistent approach in identifying areas that may have difficulty in maintaining attainment of the NAAQS. It is these areas that we have further evaluated to see if North Dakota's emissions would interfere with maintenance of the NAAQS.

Comment No. 3 —In its comment under section C., “EPA has not Assessed New Mexico's [sic] Interference with Maintenance in the Present,” WG asserts that EPA's analysis ignores whether North Dakota is, at the present, interfering with maintenance of the 1997 8-hour ozone NAAQS, and the 1997 PM 2.5 NAAQS, in other States. It argues EPA erred by considering only whether emissions from North Dakota will interfere with maintenance in areas that by 2012 would be considered “maintenance receptors.”

WG argues that this approach is inconsistent with the approach taken to determine whether New Mexico significantly contributes to nonattainment in other States (citing 75 FR 33174-33190) and that this alleged inconsistent application “raises serious concerns that EPA is again simply finding excuses to avoid requiring North Dakota to do its part to limit air pollution that adversely affects neighboring states, including Colorado.” They agree that “EPA should ensure that North Dakota does not interfere with maintenance or contribute significantly to nonattainment in other states in the future” but argue that “the agency's duties under Section 110(a)(2)(D)(i)(I) apply both in the present and the future. EPA's approach is flawed, WG concludes, because EPA identifies maintenance areas likely to exist by 2012 and does not identify maintenance areas that currently exist. WG also asserts that EPA's approach ignores whether North Dakota is presently interfering with maintenance of the 1997 8-hour ozone NAAQS in downwind states. 15

EPA Response —EPA disagrees with the commenter concerning the evaluation of significant contribution versus interference with maintenance. Section 110(a)(2)(D)(i)(I) of the Clean Air Act requires that a state SIP “contain adequate provisions prohibiting * * * any source or other type of emission activities within the state from emitting any air pollutants in amount which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any [ ] national primary or secondary ambient air quality standard.”

In determining the appropriate year to analyze to determine whether emissions from North Dakota will interfere with maintenance by any other State, EPA used an approach upheld by the DC Circuit in North Carolina v. EPA. In that case, the Court examined EPA's definition of “will” in “will contribute significantly.” The placement of the word “will” at the end of section 110(a)(2)(D)(i) clarifies that it applies to all of the provisions that follow—both those in 110(a)(2)(D)(i)(I) and those in 110(a)(2)(D)(i)(II). Thus the DC Circuit's discussion of the meaning of the word “will” in “will significantly contribute” also applies to the meaning of the word will in “will * * * interfere with maintenance.”

In North Carolina v. EPA, the DC Circuit rejected North Carolina's argument that EPA erred in limiting its analysis of downwind areas by excluding areas that were currently monitored nonattainment but projected to be in attainment at a future date. Like WG argues here, North Carolina had argued that EPA was obligated to analyze the significant contribution of states that were contributing to areas of North Carolina that were in nonattainment at the time the rule was promulgated even though those areas were projected to come into attainment by the year selected for the future base case analysis. In rejecting this argument, the DC Circuit explained that the approach used by EPA was identical to the one used previously in the NO X SIP Call and that “because `will' can mean either certainty or indicate the future tense,” EPA's approach was reasonable. In other words, the court approved EPA's approach that entailed the evaluation of interstate transport impacts at a future date in time.

Contrary to the assertions of the commenter, EPA believes that evaluation of interference with maintenance using a future date is the most appropriate approach for that requirement. As explained in the proposed action, the court decision affecting the CAIR rule required EPA to reevaluate its approach to the interfere with maintenance requirement of section 110(a)(2)(D) and to develop a new approach to give that requirement separate meaning. In doing so, EPA has developed an approach that necessarily requires a number of years of data, and an analysis that evaluates where there may be difficulties with maintaining attainment at a specific point in time, in this instance 2012. In the prior action cited by WG, EPA's evaluation of whether emissions would significantly contribute to nonattainment in other states was based on the data available at the time of that evaluation and before EPA had developed its approach for evaluating interference with maintenance. It is reasonable and appropriate for EPA to use, in this rulemaking, the current approach to identifying maintenance receptors for purposes of section 110(a)(2)(D)(i) that EPA developed to be consistent with the direction given to EPA in North Carolina v. EPA.

Finally, we note that comments on the validity or reasonableness of the approach to determining significant contribution are not directly relevant to this rulemaking. This rulemaking addresses only the “interfere with maintenance” requirement of section 110(a)(2)(D)(i). EPA published a prior proposal (75 FR 16026) and final rule (75 FR 31290) analyzing the North Dakota SIP submission for the “significant contribution” prong of section 110(a)(2)(D)(i).

The Environmental Protection Agency is approving portions of the Interstate Transport of Air Pollution SIP submitted by the State of North Dakota on April 6, 2009. Specifically, in this action EPA is approving the language in Section 7.8.1, subsection B., “Nonattainment and Maintenance Area Impact,” that specifically addresses element (2) of section 110(a)(2)(D)(i), the requirement that the SIP contain adequate provisions prohibiting emissions from North Dakota from interfering with maintenance of the NAAQS by any other state. EPA has concluded that the evidence evaluated by EPA establishes that emissions from North Dakota sources do not interfere with maintenance of the 1997 8-hour ozone or the 1997 PM 2.5 NAAQS in any other state. Therefore, the State's SIP does not need to include additional substantive controls to reduce emissions for purposes of section 110(a)(2)(D)(i)(I) for these NAAQS.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words Colorado and State mean the State of Colorado.

On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM 2.5 ). This action is being taken in response to the July 18, 1997 revision to the 8-hour ozone NAAQS. This action does not address the requirements for the 1997 PM 2.5 NAAQS, the 2006 PM 2.5 NAAQS, or the 2008 8-hour ozone NAAQS; those standards will be addressed in a later action.

Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i) which pertains to interstate transport of certain emissions. Section 110(a)(2)(D)(i) of the CAA requires that a state's SIP must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other state; (2) interfere with maintenance of the NAAQS by any other state; (3) interfere with any other state's required measures to prevent significant deterioration of air quality; or (4) interfere with any other state's required measures to protect visibility.

On June 18, 2009 the State of Colorado submitted a SIP addressing the section 110(a)(2)(D)(i)(I) requirements (1) and (2), noted above, for the 1997 8-hour ozone NAAQS. The state based its submittal on EPA's 2006 Guidance discussed below. As noted earlier, in this rulemaking EPA is addressing the requirement that pertains to preventing sources in the State from emitting pollutants in amounts which will interfere with the maintenance of the 1997 8-hour ozone NAAQS by any other state.

On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance) for SIP submissions that states should use to address the requirements of section 110(a)(2)(D)(i). EPA developed this guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS.

In a Federal Register action dated September 17, 2010, EPA proposed approval of the Colorado Interstate Transport SIP portions addressing the interference with maintenance requirement of section 110(a)(2)(D)(i)(I). EPA concluded in its proposed action that the various factual and technical considerations supported a determination that emissions from Colorado do not interfere with maintenance by any states with areas at risk for maintenance of the 1997 8-hour ozone NAAQS. EPA did not receive comments that persuade the Agency that there is such interference, and thus in today's final action EPA is making a final regulatory determination that Colorado emissions sources do not interfere with maintenance of the 1997 8-hour ozone NAAQS in any other state.

EPA received one letter dated October 18, 2010 with comments from the WildEarth Guardians (WG) environmental organization. The WG letter includes three separate comments under sections A., B., and C., and is accessible online at regulations.gov under Docket No. EPA-R08-OAR-2007-1035. Later in this section EPA responds to the significant comments made by the commenter. WG clarifies in its introductory remarks on the letter's first page that its comments are directed to both the Colorado and the North Dakota Federal Register proposed rule actions of September 17, 2010 (75 FR 56935 and 75 FR 56928) because “EPA's rationale for approving both SIPs is the same.” EPA will consider WG's comments, as appropriate, equally applicable to the referenced EPA proposed rule actions. For clarity, however, in this action EPA will address WG's comments as if they were directed only to the proposed rule action for Colorado (75 FR 56935). 1

Comment No. 1— In its comments under section A., “Maintenance is Inappropriately Defined,” WG states that EPA's definition of interference with maintenance, and by implication the identification of maintenance receptors, appeared to be “inappropriately conflated with the definition of nonattainment.” It argues that the definition of maintenance appeared to be tied to nonattainment, asserting that “unless an area has violated or is in violation of the NAAQS, the agency will not consider whether * * * Colorado [is] interfering with that area's ability to maintain compliance with the NAAQS.” For this reason, WG argues EPA did not give independent meaning to the interfere with maintenance prong of section 110(a)(2)(D)(i)(I).

EPA Response— The methodology EPA used to identify maintenance receptors gives independent meaning to the term “interfere with maintenance” and establishes a process to identify projected attainment receptors that, based on the historic variability of air quality at that site (which may be due to variability in emissions and/or meteorology), may have difficulty maintaining the standard. As explained in greater detail below, the commenter's objection to EPA's approach appears to be based on the misconception that the methodology EPA used to identify maintenance sites was dependent on base year NAAQS violations.

The definition of maintenance used by EPA is consistent with the direction given to EPA by the Court of Appeals for the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). 2 In that case, the court analyzed the definition of “interfere with maintenance” used in the Clean Air Interstate Rule (CAIR) rule. The court found that the definition EPA used “gave no independent significance to the ‘interfere with maintenance' prong of section 110(a)(2)(D)(i)(I) to separately identify upwind sources interfering with downwind maintenance.”  3 It further reasoned that “[u]nder EPA's reading of the statute, a state can never `interfere with maintenance' unless EPA determines that at one point it `contribute[d] significantly to nonattainment'.”  4 Based on this analysis, the court found the definition unlawful, holding that “[b]ecause EPA describes CAIR as a complete remedy to a section 110(a)(2)(D)(i)(I) violation and does not give independent significance to the ‘interfere with maintenance' language to identify upwind states that interfere with downwind maintenance, it unlawfully nullifies that aspect of the statute and provides no protection for downwind areas that, despite EPA's predictions, still find themselves struggling to meet NAAQS due to upwind interference in 2010.”  5

The approach used by EPA in its September 17, 2010 proposal to assess whether emissions from sources in Colorado interfere with maintenance of the NAAQS in any other state takes into account the flaws identified by the court, by giving independent meaning to the section 110(a)(2)(D)(i) “interference with maintenance” requirement. Our September 17, 2010 proposed action relies on a process established by EPA's August 2, 2010 Transport Rule Proposal to identify any specific receptors in downwind states that, even though they are projected to be in attainment and thus would not be nonattainment receptors, may have difficulty maintaining the NAAQS in question. These receptors are referred to as maintenance receptors.

The commenter's statement that EPA's designation of maintenance receptors is “firmly hitched to a finding that the maximum design value based on a single three-year period between 2003 and 2007 is in excess of the NAAQS” appears to be based on a misunderstanding of the methodology used by EPA to identify maintenance receptors. EPA's methodology did not, as the commenter appears to assume, require a site to have a design value above the NAAQS for one of the three base periods (2003-2005, 2004-2006, 2005-2007) to be considered a maintenance site. The methodology is based on an analysis of the future year average and future year maximum design values. 6 It does not depend on the whether the base year design values exceed the NAAQS. The Transport Rule Proposal explained that EPA used the average concentrations of the three design values for the three base periods noted above to determine the 2012 average design value at monitoring sites. Monitoring sites with projected average design values above the NAAQS would be in nonattainment, while those with projected average design values below the NAAQS would be in attainment in 2012. To identify among the attainment monitoring sites those at risk for maintenance of the NAAQS, EPA also projected to 2012 each of the three design values for the base periods noted above. If the maximum of the three was above the NAAQS, then monitoring site was identified as at risk for maintenance of the NAAQS, or as a “maintenance receptor.”  7 The maximum design value referenced in this sentence is the maximum future design value calculated using each of the three base design value periods separately. Whether or not one of the three base period design values exceeded the NAAQS was not a factor considered in determining whether a site was a maintenance receptor.

To better understand this concept, it is useful to compare the methodologies used in the Transport Rule proposal (75 FR 5210, Aug. 2, 2010) to identify nonattainment and maintenance receptors. In the Transport Rule proposal, base period (2003-2007) ambient data were projected to the future (using model outputs) to identify both nonattainment and maintenance receptors. In both cases, receptors were identified by projected future design values; however, because more conservative data were used for the maintenance analysis, this analysis could identify receptors that were projected by the nonattainment analysis to be in attainment; yet might have difficulty attaining the standard due to historic variability of air quality at that site. To identify future nonattainment sites we calculated the future year design values by projecting the 5-year weighted average design value for each site. Only if this future year design value exceeded the NAAQS was the site considered to be a nonattainment receptor. However, to identify projected maintenance sites we used a different methodology that took into account historic variability in air quality at each receptor. For this approach we calculated the maximum future year design value by processing each of the three base design value periods (2003-2005, 2004-2006, and 2005-2007) separately. The highest of the three future values is the maximum design value, which is used to determine maintenance receptors.

In this way, EPA's analysis identifies those areas that are projected to be attainment, but may have difficulty maintaining attainment of the standard, for example in a year with particularly severe meteorology (weather that is conducive to ozone and/or particulate formation). In other words, this analysis does exactly what the DC Circuit directed EPA to do in North Carolina. It gives independent meaning to the “interfere with maintenance” prong of 110(a)(2)(D)(i) and provides protection to any areas that, although they are predicted to attain the standard (and thus upwind sources could not be found to significantly contribute to nonattainment in that area) may have difficulty maintaining the standard. 8

EPA used this same approach to identify any potential maintenance receptors for purposes of evaluating Colorado's SIP submission. For the reasons explained above, this approach is both reasonable and consistent with the direction given to EPA by the DC Circuit in North Carolina.

Comment No. 2 —In its comments under section B., “Even Under EPA's Definition of Maintenance, Maintenance Receptors are not Consistently Defined,” WG argues that EPA's approach to evaluating interference with maintenance is inappropriate because it did not take into account current high ambient concentrations in certain places. The commenter thus contends that EPA's identification of maintenance receptors is inconsistently applied. The commenter identifies several areas that it believes should have been considered as at risk for maintenance for the 1997 8-hour ozone NAAQS. WG specifies the Wasatch Front and Uintah County in Utah, the Phoenix area in Arizona, portions of western Wyoming, and San Juan County in New Mexico, as areas appropriate for an assessment of whether emissions from Colorado interfere with their difficulty (in the commenter's view) in maintaining the 1997 8-hour ozone NAAQS. 9

EPA Response —EPA shares the commenter's concern about areas presently affected by elevated ozone concentrations, but disagrees with the commenter's assertion that the September 17, 2010, proposed rule action for the Colorado SIP “overlooked areas impacted by Colorado that are projected to barely attain the 1997 ozone NAAQS.” First, the underlying issue raised in this comment is substantively the same as that raised in comment no. 3 below, which argues that EPA's analysis is faulty because it identifies receptors likely to have difficulty maintaining the standard in 2012 and not at the present time. EPA's response to comment no. 3 below illustrates how its approach, based on modeling analyses that identify receptors at risk for maintenance in the year 2012, is appropriate and consistent with the D.C. Circuit decision in North Carolina v. EPA.

Second, EPA has developed in the Transport Rule Proposal of August 2, 2010 an approach that necessarily requires years of data, and an analysis that evaluates where there may be difficulties with maintaining attainment at a specific point in time (in this instance 2012) to evaluate whether there is interference with maintenance to meet the statutory requirement of section 110(a)(2)(D)(i). 10 To assist in the evaluation of whether states' emissions interfere with maintenance of the NAAQS in western states, EPA has developed, independent of the Transport Rule Proposal, a modeling analysis using an approach similar to the Transport Rule Proposal for the identification of monitors at risk for maintenance of the NAAQS within a modeling domain that includes the western states. The analysis is presented in the August 23, 2010 memo, “Documentation of Future Year Ozone and Annual PM 2.5 Design Values for Western States” (Western States Design Values). 11 Because none of the areas of concern to the commenter was identified by EPA as a maintenance receptor through that analysis, 12 it was appropriate for the September 17, 2010 proposed rule not to assess whether emissions from Colorado sources impact the areas noted by the commenter, such as Uintah County and Wasatch Front in Utah, the Phoenix area in Arizona, portions of western Wyoming, and San Juan County in New Mexico. In short, based on EPA's analysis, none of the areas named by the commenter is appropriate for consideration as a maintenance receptor at this time.

EPA also notes that, except for Uintah County, the commenter provides no specific facts—such as the location of monitoring receptors, ozone concentrations, or time span during which high ozone concentrations were monitored—to support its arguments concerning these areas. Thus, WG has not identified any reasons that EPA should consider these areas as maintenance receptors, making it difficult for EPA to address properly WG's concerns about interference with maintenance in the Wasatch Front, the Phoenix area in Arizona, portions of western Wyoming, or San Juan County in New Mexico. As for the commenter's reference to Uintah County, where in February 2010 monitors in Ouray and Red Wash registered ozone concentrations above 120 ppb, EPA notes that the two monitors were installed as recently as July 2009, and therefore their data does not provide the historical variability background that is an essential component for the identification of maintenance receptors. 13 EPA is concerned about the ambient levels of ozone in this area, but at present EPA does not have the necessary years of data to evaluate whether this area is appropriate for use as a maintenance receptor for the 1997 8-hour ozone NAAQS in accordance with the Agency's approach to this requirement. 14

Comment No. 3 —In its comment under section C., “EPA has not Assessed New Mexico's [sic] Interference with Maintenance in the Present,” WG asserts that EPA's analysis ignores whether Colorado is, at the present, interfering with maintenance in other States. It argues EPA erred by considering only whether emissions from Colorado will interfere with maintenance of the 1997 8-hour ozone NAAQS in areas that would be considered “maintenance receptors” as of 2012.

WG argues that this approach is inconsistent with the approach taken in a previous action regarding significant contribution to nonattainment in other states (citing 75 FR 33174-90). The commenter agrees that “EPA should ensure that Colorado does not interfere with maintenance or contribute significantly to nonattainment in other states in the future” but argues that “the agency's duties under Section 110(a)(2)(D)(i)(I) apply both in the present and the future.” EPA's approach is flawed, WG concludes, because EPA identifies maintenance areas likely to exist by 2012 and does not identify interference with maintenance that currently exists. WG also asserts that EPA's approach ignores whether Colorado is presently interfering with maintenance of the 1997 8-hour ozone NAAQS in downwind states. 15

EPA Response —EPA disagrees with the commenter concerning the evaluation of significant contribution versus interference with maintenance. Section 110(a)(2)(D)(i)(I) of the Clean Air Act requires that a state SIP “contain adequate provisions prohibiting * * * any source or other type of emission activities within the state from emitting any air pollutants in amount which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any [ ] national primary or secondary ambient air quality standard.”

In determining the appropriate year to analyze to determine whether emissions from Colorado will interfere with maintenance by any other state, EPA used an approach upheld by the DC Circuit in North Carolina v. EPA. In that case, the Court examined EPA's definition of “will” in “will contribute significantly.” The placement of the word “will” at the end of section 110(a)(2)(D)(i) clarifies that it applies to all of the provisions that follow—both those in 110(a)(2)(D)(i)(I) and those in 110(a)(2)(D)(i)(II). Thus the DC Circuit's discussion of the meaning of the word “will” in “will significantly contribute” also applies to the meaning of the word will in “will * * * interfere with maintenance.”

In North Carolina v. EPA, the DC Circuit rejected North Carolina's argument that EPA erred in limiting its analysis of downwind areas by excluding areas that were currently monitored nonattainment but projected to be in attainment at a future date. Like WG argues here, North Carolina had argued that EPA was obligated to analyze the significant contribution of states that were contributing to areas of North Carolina that were in nonattainment at the time the rule was promulgated even though those areas were projected to come into attainment by the year selected for the future base case analysis. In rejecting this argument, the DC Circuit explained that the approach used by EPA was identical to the one used previously in the NO X SIP Call and that “because ‘will’ can mean either certainty or indicate the future tense,” EPA's approach was reasonable. In other words, the court approved EPA's approach that entailed the evaluation of interstate transport impacts at a future date in time.

Contrary to the assertions of the commenter, EPA believes that evaluation of interference with maintenance using a future date is the most appropriate approach for that requirement. As explained in the proposed action, the court decision affecting the CAIR rule required EPA to reevaluate its approach to the interfere with maintenance requirement of section 110(a)(2)(D) and to develop a new approach to give that requirement separate meaning. In doing so, EPA has developed an approach that necessarily requires a number of years of data, and an analysis that evaluates where there may be difficulties with maintaining attainment at a specific point in time, in this instance 2012. In the prior action cited by WG, EPA's evaluation of whether emissions would significantly contribute to nonattainment in other states was based on the data available at the time of that evaluation and before EPA had developed its approach for evaluating interference with maintenance. It is reasonable and appropriate for EPA to use, in this rulemaking, the current approach to identifying maintenance receptors for purposes of section 110(a)(2)(D)(i) that EPA developed to be consistent with the direction given to EPA in North Carolina v. EPA.

Finally, we note that comments on the validity or reasonableness of the approach to determining significant contribution in prior actions are not directly relevant to this rulemaking. This rulemaking addresses only the “interfere with maintenance” requirement of section 110(a)(2)(D)(i). EPA published a prior proposal (75 FR 16032) and final rule (75 FR 31306) analyzing the Colorado SIP submission for the “significant contribution” prong of section 110(a)(2)(D)(i).

EPA is partially approving the Interstate Transport SIP submitted by the State of Colorado on June 18, 2009. Specifically, in this action EPA is approving the portions of that SIP submission that address the requirement of Section 110(a)(2)(D)(i)(I) that emissions from sources in that State do not “interfere with maintenance” of the 1997 8-hour ozone NAAQS by any other state. EPA has concluded that the State's submission, and additional evidence evaluated by EPA, establish that emissions from Colorado sources do not have such an impact on other states for purposes of the 1997 8-hour ozone NAAQS. Therefore, the State's SIP does not need to include additional substantive controls to reduce emissions for purposes of section 110(a)(2)(D)(i)(I) for these NAAQS. In a Federal Register action of June 3, 2010 EPA approved those portions of the Interstate Transport SIP submitted by the State of Colorado on June 18, 2009 addressing the requirement of Section 110(a)(2)(D)(i)(I) that emissions from sources in that State do not “significantly contribute” to violations of the 1997 8-hour ozone NAAQS in any other state.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

Region I—Robert McConnell (617) 918-1046,

Region II—Mazeeda Khan (212) 637-3715,

Region III—Melissa Linden (215) 814-2096,

Region IV—Lynorae Benjamin (404) 562-9040,

Region V—Andy Chang (312) 886-0258,

Region VI—Emad Shahin (214) 665-6717,

Region VII—Stephanie Doolan (913) 551-7719,

Region VIII—Kevin Leone (303) 312-6227,

Region IX—Ginger Vagenas (415) 972-3964,

Region X—Steve Body (206) 553-0782.

The public may inspect the rule and state-specific technical support information at the following locations:

The following is an outline of the Preamble.

The purpose of this action is to announce and promulgate designations and boundaries for areas of the country not meeting the 2008 Pb NAAQS based on available information, in accordance with the requirements of the CAA. The list of areas being designated nonattainment in each state, and the boundaries of each area, appear in the table at the end of this final rule. EPA has been working closely with the states involved in these designations and several steps have been taken to announce that this rule is available. EPA has posted the notice on several EPA Web sites and provided a copy of the rule to those states with nonattainment areas.

This notice identifies the 16 areas being designated as nonattainment areas for the 2008 Pb NAAQS. The basis for designating these areas as “nonattainment” is monitored air quality data from calendar years 2007-2009 indicating a violation of the NAAQS. For these areas being designated nonattainment, states must develop a State Implementation Plan (SIP) that meets the requirements of section 172(c) and 191 of the CAA and provides for attainment of the NAAQS as expeditiously as practicable, but no later than December 31, 2015. These SIPs must be submitted to EPA within eighteen months of the effective date of these designations, i.e., by June 30, 2012. 1

Lead (Pb) is a metal found naturally in the environment and present in some manufactured products. The major sources of Pb air emissions were historically motor vehicles (such as cars and trucks) and industrial sources. Motor vehicle emissions of Pb have been dramatically reduced with the phase-out of leaded gasoline, but Pb is still used as an additive in general aviation gasoline used in piston-engine aircraft and remains a trace contaminant in other fuels. Larger industrial sources of Pb emissions currently include metals processing, particularly primary and secondary Pb smelters. Lead is also emitted from sources such as: Iron and steel foundries; primary and secondary copper smelters; industrial, commercial, and institutional boilers; waste incinerators; glass manufacturing; and cement manufacturing.

Lead is generally emitted in the form of particles, which can end up being deposited in water, soil and dust. People may be exposed to Pb by inhaling it, or by ingesting lead-contaminated food, water, soil, or dust. Once in the body, Pb is quickly absorbed into the bloodstream and can result in a broad range of adverse health effects. These include damage to the central nervous system, cardiovascular function, kidneys, immune system, and red blood cells. Children are particularly vulnerable to Pb exposure, in part because they are more likely to ingest Pb and in part because their still-developing bodies are more sensitive to the effects of Pb. Urban children are also of particular risk if the mother is exposed to lead. The harmful effects to children's developing nervous systems (including their brains) arising from Pb exposure may include IQ loss, poor academic achievement, long-term learning disabilities, and an increased risk of delinquent behavior.

Lead is persistent in the environment and accumulates in soils and sediments through deposition from air sources, direct discharge of waste streams to water bodies, mining, and erosion. Ecosystems near some longstanding point sources of Pb demonstrate a wide range of adverse effects including losses in biodiversity, changes in community composition, decreased growth and reproductive rates in plants and animals, and neurological effects in vertebrates.

After the promulgation of a new or revised NAAQS, EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The Administrator signed a final rule revising the Pb NAAQS on October 15, 2008, which was published in the Federal Register on November 12, 2008, and became effective January 12, 2009. Based on the Administrator's review of the scientific evidence, including numerous studies published since the last review of the Pb NAAQS, and taking into consideration the comments expressed by the Clean Air Scientific Advisory Committee and the public, the Administrator revised the standard from a level of 1.5 µg/m 3 to a level of 0.15 µg/m 3 . In addition, the Administrator changed the averaging time and form to a rolling 3-month average evaluated over a 3-year period. The rule also established new requirements for Pb monitoring networks, including the requirement that new Pb monitors be located in close proximity to the largest Pb emissions sources by January 1, 2010.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires EPA to complete the initial area designation process within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, EPA has the authority to extend the designation process by up to one additional year. In light of the new monitoring network which is generating additional information that could be used to support additional designations in the upcoming year, EPA intends to complete the initial area designations for Pb in two rounds. In this rule, EPA is completing the first round by designating as “nonattainment” any area that is violating the 2008 Pb NAAQS based on 2007-2009 air quality data from the pre-2010 monitoring network. For all other areas, EPA is extending the deadline for designations by up to 1 year so that data from the newly deployed monitors can be considered in making appropriate designation decisions. EPA intends to complete the second round of area designations for the Pb NAAQS no later than October 15, 2011.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state Governor is required to recommend air quality designations, including the appropriate boundaries for areas, to EPA. EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by EPA. If EPA is considering modifications to a state's initial recommendation, EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to EPA's promulgation of the final designation. If the state does not agree with EPA's modification, it then has an opportunity to respond to EPA and to demonstrate why it believes the modification proposed by EPA is inappropriate, as contemplated by section 107(d)(1)(B)(ii). Even if a state fails to provide any recommendation for an area, in whole or in part, EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to section 107(d)(1)(B)(ii).

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. If an area meets either prong of this definition, then EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.”

EPA believes that section 107(d) provides the Agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, EPA believes that the statute does not require the Agency to establish bright line tests or thresholds for what constitutes contribution or nearby for purposes of designations. 2

Similarly, EPA believes that the statute permits EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, and contiguous or non-contiguous areas, as may be appropriate for a particular NAAQS. For example, section 107(d)(1)(B)(ii) explicitly provides that EPA can make modifications to designation recommendations for an area “or portions thereof,” and under section 107(d)(1)(B)(iv), a designation remains in effect for an area “or portion thereof” until EPA redesignates it.

Designation activities for federally-recognized tribes are covered under the authority of section 301(d) of the CAA. This provision of the CAA authorizes EPA to treat eligible tribes in a similar manner as states. Pursuant to section 301(d)(2), we promulgated regulations, known as the Tribal Authority Rule (TAR), on February 12, 1999. 63 FR 7254, codified at 40 CFR 49 (1999). That rule specifies those provisions of the CAA for which it is appropriate to treat tribes in a similar manner as states. Under the TAR, tribes may choose to develop and implement their own CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by which tribes may request from EPA a determination of eligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to EPA. In addition, CAA section 301(d)(4) gives EPA discretionary authority, in cases where it determines that treatment of tribes as identical to states is “inappropriate or administratively infeasible,” to provide for direct administration by regulation to achieve the appropriate purpose.

To date, one tribe has applied under the TAR for eligibility to submit its own recommendations under section 107(d). Nonetheless, EPA invited all tribes to submit recommendations concerning designations for the 2008 Pb NAAQS. EPA worked with the tribes that requested an opportunity to submit designation recommendations. Tribes were provided an opportunity to submit their own recommendations and supporting documentation and could also comment on state recommendations and EPA modifications.

Designation recommendations and supporting documentation were submitted by most states and a few tribes to EPA by October 15, 2009. After receiving recommendations from states and tribes, and after reviewing and evaluating each recommendation, EPA provided a response to the states and tribes on June 15, 2010. In these letter responses, we indicated whether EPA intended to make modifications to the initial state or tribal recommendations and explained EPA's reasons for making any such modifications. EPA requested that states and tribes respond to any proposed EPA modifications by August 16, 2010. We received comments from some states suggesting changes to EPA's proposed modifications and providing additional information. EPA evaluated these comments, and all of the timely supporting technical information provided. As a result, some of the final designations reflect further modifications to the initial state and tribal recommendations. The state and tribal letters, including the initial recommendations, and EPA's June 2010 responses to those letters, including any modifications, and the subsequent state and tribal comment letters are in the docket for this action.

Although not required by section 107(d) of the CAA, EPA also provided an opportunity for members of the public to comment on EPA's June 2010 response letters. In order to gather additional information for EPA to consider before making final designations, EPA published a notice on July 8, 2010 (75 FR 39254) which invited the public to comment on EPA's intended designations. In that notice, EPA provided the opportunity to all interested parties other than states and tribes to submit comments by August 16, 2010. State and tribal initial recommendations and EPA's responses, including modifications, were posted on a publically accessible Web Site ( http://www.epa.gov/leaddesignations/2008standards/index.html ). Timely comments from the public and EPA's responses to significant comments are in the docket for this action.

In the notice of proposed rulemaking for the revised Pb NAAQS (73 FR 29184), EPA issued proposed guidance on its approach to implementing the standard, including its approach to initial area designations. EPA solicited comment on that guidance and, in the notice of final rulemaking (73 FR 66964), adopted guidance concerning how to determine the boundaries for nonattainment areas for the Pb NAAQS. 3 In that guidance EPA recommended that monitoring data from the three most recent calendar years be used to identify a violation of the Pb NAAQS. This is appropriate because the form of the Pb NAAQS is calculated over 36 consecutive valid 3-month site means (specifically for a 3 calendar year period and the 2 previous months). 4 EPA is basing these final designations on monitored Pb concentrations from Federal Reference Method (FRM) monitors from calendar years 2007-2009. EPA notes that data from 2006-2008 were the most recent data available to states when states made their recommendations to EPA. Accordingly, although the determination of whether an area violates the standard was based on 2007-2009 data, EPA considered state recommendations and data from 2006-2008 as appropriate in determining boundaries for nonattainment areas.

In the guidance, EPA stated that the perimeter of a county containing a violating monitor would be the initial presumptive boundary for nonattainment areas, but also stated that the state, tribe and/or EPA could conduct additional area specific analyses that could justify establishing either a larger or smaller area. EPA indicated that the following factors should be considered in an analysis of whether to exclude portions of a county and whether to include additional nearby areas outside the county as part of the designated nonattainment area: (1) Emissions in areas potentially included versus excluded from the nonattainment area; (2) Air quality in potentially included versus excluded areas; (3) Population density and degree of urbanization including commercial development in included versus excluded areas; (4) Expected growth (including extent, pattern and rate of growth); (5) Meteorology (weather/transport patterns); (6) Geography/topography (mountain ranges or other air basin boundaries); (7) Jurisdictional boundaries (e.g., counties, air districts, reservations, etc.); and (8) Level of control of emission sources. EPA further indicated that we would consider information provided by the state resulting from one or more of the following techniques: (1) Qualitative analysis; (2) spatial interpolation of air quality monitoring data; or (3) air quality simulation by dispersion modeling.

EPA received comments on the proposed guidance suggesting that violations of the Pb NAAQS were likely to occur in close proximity to stationary sources of Pb. In response, EPA indicated that it agreed that Pb emissions do not generally transport over long distances (e.g., as compared to fine particulate matter), and that in situations where a single source, rather than multiple sources, is causing a NAAQS violation, EPA believes that a state may well be able to use area-specific analyses to determine whether a nonattainment area that is smaller than the county boundary is appropriate.

EPA found that states did use the factors and the variety of techniques identified by EPA in making recommendations for nonattainment areas smaller than the county. In recommending boundaries, EPA and states began with monitors that recorded a violation of the 2008 Pb NAAQS. As provided in Appendix R to 40 CFR part 50, all valid Pb-TSP data and all valid Pb-PM 10 data measured by a FRM or equivalent method submitted to EPA's Air Quality System (AQS), or otherwise available to EPA, and meeting the requirements of 40 CFR part 58, including Appendices A, C, and E are used in design value calculations. 5 In some cases, states requested unclassifiable designations for areas around monitors with a design value exceeding the standard. EPA does not believe such a designation would be consistent with the requirements of the CAA when we have valid data supporting a designation of nonattainment.

For areas with a violating monitor, the designated nonattainment area must encompass the entire area that does not meet, and any nearby area that contributes to ambient air quality in the area that does not meet, the 2008 Pb NAAQS. Given the sources and characteristics of Pb emissions, states and EPA generally found factors such as emissions, air quality and meteorology to be particularly relevant in determining appropriate boundaries, while factors such as population density and expected growth were not as relevant for the 2008 Pb NAAQS, and thus did not play a significant role in determining boundaries. In some cases, states made a judgment that it was important to follow jurisdictional boundaries, particularly where jurisdictional boundaries smaller than a county exist. In other cases, states chose to rely primarily on air dispersion modeling to determine the recommended boundaries for nonattainment areas. In each case, EPA reviewed the state recommendations and, for the most part, EPA has accepted the state's recommendations; however, where EPA felt that changes were necessary to a state's initial recommendation, we conveyed those issues to the state and have worked with the state to revise the boundaries.

The final Pb designations contained in this action are based upon air quality monitoring data from calendar years 2007-2009. Some stakeholders have requested that EPA delay designations, or designate areas unclassifiable, by not considering all relevant data (e.g., excluding 2007 or 2008 data) in making designation decisions. As discussed previously, the form of the standard requires comparison of monitoring values from 36 three-month rolling averages (i.e., 3 years, plus 2 preceding months). Thus, a violation will have generally occurred if any of the 36 three-month average concentrations of either Pb-TSP or Pb-PM 10 exceeds the level of the NAAQS, and a finding of compliance will require that all 36 three-month averages of Pb-TSP be at or below the level of the NAAQS. 6 Moreover, pursuant to the CAA, EPA is making designations as expeditiously as practicable. Accordingly, where sufficient data from 2007-2009 are available to support a nonattainment designation, EPA does not have discretion to postpone designations or to exclude certain years from consideration in considering whether monitored data results in a violation of the Pb NAAQS pursuant to 40 CFR 50.16. Section 107(d) requires EPA to designate areas as nonattainment if sufficient data exist to support such a designation. EPA can only delay designations for up to one extra year if we do not have sufficient data to make a designation within the prescribed 2-year period.

All counties, partial counties or Air Quality Control Regions listed in the table at the end of this document are designated as indicated. For the first round of Pb designations, EPA is only designating nonattainment areas. There are no areas in Indian country being designated nonattainment at this time.

Information providing the basis for this action and related decisions are provided in the technical support documents (TSDs), response to comments document, and other information in the docket. The TSDs, applicable EPA guidance memoranda, copies of correspondence regarding this process between EPA and the states, tribes, and other parties, and EPA's responses to comments, are available for review at the EPA Docket Center listed above in the addresses section of this document and on our designation Web site at http://www.epa.gov/leaddesignations/2008standards/index.html. State specific information is available from the EPA Regional Offices.

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, EPA assigns designations to areas as required.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

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 is defined at 5 CFR 1320.3(b). This rule responds to the requirement to promulgate air quality designations after promulgation of a NAAQS. This requirement is prescribed in the CAA section 107 of title 1. The present final rule does not establish any new information collection.

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is not subject to the APA and is subject to CAA section 107(d)(2)(B), which does not require that the Agency issue a notice of proposed rulemaking before issuing this rule.

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and Pb NAAQS (40 CFR 50.16); therefore, no UMRA analysis is needed. This rule establishes nonattainment designations for certain areas of the country for the Pb NAAQS. The CAA requires states to develop plans, including control measures, based on the designations for areas within the state.

One mandate that may apply as a consequence of this action to all designated nonattainment areas is the requirement under CAA section 176(c) and associated regulations to demonstrate general conformity of federal actions to SIPs. These rules apply to federal agencies making conformity determinations. The EPA concludes that such conformity determinations will not cost $100 million or more in the aggregate.

The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this federal action will not impose mandates that will require expenditures of $100 million or more in the aggregate in any one year.

Nonetheless, EPA carried out consultation with government entities affected by this rule, including states, tribal governments, and local air pollution control agencies.

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, or the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will 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. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the Pb NAAQS. This rule will not modify the relationship of the states and EPA for purposes of developing programs to implement the Pb NAAQS. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 2, 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.” This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule concerns the designation of areas as attainment and nonattainment for the Pb NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas based on their designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs such as programs to attain and maintain the Pb NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the Pb NAAQS (40 CFR section 50.16). This rule establishes the designation for certain areas of the country for the Pb NAAQS but no areas in Indian country are being designated under this rule. Additionally, no tribe has implemented a CAA program to attain the Pb NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have tribal implications, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, EPA communicated with tribal leaders and environmental staff regarding the designations process. EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2008 Pb NAAQS, to provide the EPA designations guidance, and to offer consultation with EPA. EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to EPA about EPA's intended designations for the Pb standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to EPA about the general designations process for the Pb NAAQS, as well as concerns specific to a tribe, and informed EPA about key tribal concerns regarding designations as the rule was under development.

The action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866. However, the protection offered by the Pb NAAQS may be especially important for children because neurological effects in children are among if not the most sensitive health endpoints for Pb exposure. Because children are considered a sensitive population, in setting the Pb NAAQS we carefully evaluated the environmental health effects of exposure to Pb pollution among children. These effects and the size of the population affected are summarized in the EPA's 2006 Air Quality Criteria Document for Pb and in the proposed and final Pb NAAQS rules. ( http://www.epa.gov/airquality/lead/fr/20081112.pdf)

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on any population, including minority or low-income populations.

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 U.S. The 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 U.S. prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 31, 2010.

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This rule designating areas for the 2008 Pb NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2008 Pb NAAQS. At the core of this rulemaking is EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the DC Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register .

This is a synopsis of the Commission's Report and Order, MB Docket No. 08-86, adopted November 3, 2010, and released November 5, 2010. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (800) 378-3160, or via the company's Web site, http://www.bcpiweb.com. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2010 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA is 18,687 metric tons, as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2010 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that further catches of Pacific cod caught by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 12, 2010.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.