[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65310-65314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2007-0562; FRL-9746-6]


Additional Air Quality Designations for the 2006 24-Hour Fine 
Particle National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental amendments; final rule.

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SUMMARY: The EPA is taking final action to establish the initial 2006 
24-hour fine particle (PM2.5) national ambient air quality 
standards (NAAQS) air quality designations for the Ak-Chin Indian 
Community located in Pinal County, Arizona, and the Gila River Indian 
Community located in Pinal County and Maricopa County, Arizona. On 
November 13, 2009, and February 3, 2011, the EPA promulgated air 
quality designations nationwide for all but these two areas for the 
2006 24-hour PM2.5 NAAQS. The EPA deferred initial 
PM2.5 air quality designations for the

[[Page 65311]]

Ak-Chin Indian Community and the Gila River Indian Community in the 
earlier promulgated designations.

DATES: The effective date of this rule is November 26, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2007-0562. All documents in the docket are 
listed in the www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.
    In addition, the EPA has established a Web site for this rulemaking 
at: http://www.epa.gov/pmdesignations/2006standards/index.htm. The Web 
site includes the EPA's final state and tribal designations, as well as 
state and tribal initial recommendation letters, the EPA modification 
letters, technical support documents, responses to comments and other 
related technical information.

FOR FURTHER INFORMATION CONTACT: Beth W. Palma, U.S. EPA, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mail Code 
C539-04, Research Triangle Park, NC 27711, telephone (919) 541-5432, 
email at [email protected] or Ginger Vagenas, Air Planning 
Office, U.S. Environmental Protection Agency, Mail Code AIR-2, 75 
Hawthorne Street, San Francisco, CA 94105, phone number (415) 972-3964 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: The public may inspect the rule and the 
technical supporting information by contacting Ginger Vagenas, Air 
Planning Office, U.S. Environmental Protection Agency, Mail Code AIR-2, 
75 Hawthorne Street, San Francisco, CA 94105, phone number (415) 972-
3964.

Table of Contents

    The following is an outline of the preamble.

I. Preamble Glossary of Terms and Acronyms
II. What is the purpose of this action?
III. What are the 2006 24-hour PM2.5 NAAQS designations 
promulgated in this action?
IV. Where can I find information forming the basis for this rule and 
exchanges between the EPA and tribes related to this rule?
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

    The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act
CAA Clean Air Act
CBSA Core Based Statistical Area
CFR Code of Federal Regulations
DC District of Columbia
EO Executive Order
EPA Environmental Protection Agency
FR Federal Register
NAAQS National Ambient Air Quality Standards
NTTAA National Technology Transfer Advancement Act
RFA Regulatory Flexibility Act
[micro]g/m\3\ micrograms per cubic meter
UMRA Unfunded Mandate Reform Act of 1995
TAR Tribal (Clean Air Act) Authority Rule
U.S. United States
VCS Voluntary Consensus Standards

II. What is the purpose of this action?

    This action finalizes the initial air quality designations for 
portions of Indian Country located in Arizona that were previously 
deferred. At the time that the EPA finalized designations for the 2006 
24-hour PM2.5 NAAQS (74 FR 58688, November 13, 2009), the 
EPA deferred designations for Pinal County, Arizona, and surrounding 
counties to evaluate further high fine particle concentrations during 
2006-2008, a period which indicated a possible new violating monitor in 
Pinal County, Arizona. The EPA also deferred designations for areas of 
Indian Country located within or near the deferred counties. On 
February 3, 2011 (76 FR 6056),\1\ the EPA took action to finalize 
designations for the deferred area, designating as ``nonattainment'' 
state lands in a portion of Pinal County, Arizona (West Central Pinal 
nonattainment area).\2\ The basis for establishing this nonattainment 
area was monitored air quality data for 2006-2008 indicating a 
violation of the NAAQS.\3\ The EPA designated the remaining portion of 
Pinal County, the surrounding deferred counties (Cochise, Gila, Graham, 
La Paz, Maricopa, Pima, Yavapai and Yuma counties), and, except as 
noted below, areas of Indian Country located within those areas, as 
``unclassifiable/attainment.''
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    \1\ A correction to the February 3, 2011, final rule was 
published at 76 FR 14812 (March 18, 2011).
    \2\ By ``state lands'' we mean all land within the state 
boundary that is not within Indian Country, including privately and 
federally-owned land.
    \3\ 2007-2009 data also showed this area to be in violation of 
the 2006 24-hour PM2.5 NAAQS, with a 2007-2009 design 
value of 40 [micro]g/m\3\.
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    The EPA continued its deferral of the designation of the Gila River 
Indian Community reservation, which is located in Pinal and Maricopa 
counties adjacent to the new nonattainment area, and the Ak-Chin Indian 
Community reservation, which is surrounded by the West Central Pinal 
nonattainment area, to allow for the completion of the tribal 
consultation process. (See 76 FR 6056, February 3, 2011).
    With this action, the EPA is promulgating initial area designations 
for the areas of Indian Country of the Ak-Chin Indian Community and the 
Gila River Indian Community in accordance with the requirements of 
Clean Air Act (CAA) section 107(d).

III. What are the 2006 24-hour PM2.5 NAAQS designations promulgated in 
this action?

    In this action, the EPA is designating as ``unclassifiable/
attainment'' the lands of the Ak-Chin Indian Community located in Pinal 
County, Arizona, and the Gila River Indian Community, located in Pinal 
County and Maricopa County, Arizona, for the 2006 24-hour 
PM2.5 NAAQS of 35 micrograms per cubic meter ([micro]g/
m\3\). These areas of Indian Country and the designation for each area 
appear in the table at the end of this final rule, which amends 40 CFR 
81.303.
    The basis for establishing these areas as unclassifiable/attainment 
is monitored air quality data from 2009-2011 from nearby monitors that 
indicate the area is attaining the 2006 24-hour PM2.5 NAAQS. 
The ``Cowtown'' monitor, which is located in the vicinity

[[Page 65312]]

of the lands of the Ak-Chin Indian Community and the Gila River Indian 
Community, previously violated the standard, leading to a nonattainment 
designation for state lands (West Central Pinal nonattainment area). In 
2009, however, PM2.5 values recorded at the Cowtown monitor 
dropped significantly and have remained below the level of the 
standard. The 2008-2010 24-hour PM2.5 design value for the 
Cowtown monitor is 31[micro]g/m\3\ and for 2009-2011 is 26[micro]g/
m\3\.\4\ Therefore, the West Central Pinal nonattainment area is no 
longer violating the 2006 24-hour PM2.5 NAAQS. No other 
monitor in Arizona is currently violating the 2006 24-hour 
PM2.5 NAAQS.\5\
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    \4\ See memorandum titled, ``Data Summary for Cowtown Monitor'' 
dated August 14, 2012, from Michael Flagg, EPA Region 9 Air Quality 
Analysis Office, to Ginger Vagenas, EPA Region 9 Air Planning 
Office, available in the docket for this action.
    \5\ See ``U.S. EPA Air Quality System Preliminary Design Value 
Report'' and map titled ``2009-2011 Design Values for the 2006 24-
Hour Fine Particulate Matter (PM2.5) National Ambient Air 
Quality Standards,'' available in the docket for this action.
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    In October of 2009, the EPA notified the Governor of Arizona and 
tribal leaders of Tribes with areas of Indian Country located in Pinal 
and Maricopa counties that the Cowtown monitor in Pinal County was 
violating the 2006 24-hour PM2.5 standards based on the most 
recent (2006-2008) air quality monitoring data at that time. Due to 
this new violation and the need for additional time to collect data and 
evaluate the area to determine an appropriate nonattainment area 
boundary, the EPA deferred the area designation of Pinal County, 
Maricopa County (the other county comprising the Phoenix-Mesa-
Scottsdale core-based statistical area (CBSA)), the seven nearby 
counties (Cochise, Gila, Graham, La Paz, Pima, Yavapai and Yuma 
counties) surrounding the Phoenix-Mesa-Scottsdale CBSA,\6\ and areas of 
Indian Country for the 2006 24-hour PM2.5 standards. The EPA 
then followed the designations process set forth in section 107(d) of 
the CAA, which culminated in the creation of the West Central Pinal 
nonattainment area for the 2006 24-hour PM2.5 NAAQS (76 FR 
6056, February 3, 2011). Designations for nearby areas of Indian 
Country remained deferred to allow the completion of the tribal 
consultation process.
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    \6\ As described in the EPA's rule promulgating initial 
PM2.5 designations for the 2006 24-hour standards, in 
evaluating areas potentially contributing to a monitored violation, 
the EPA examined those counties located in the surrounding 
metropolitan statistical area (in this case, Pinal and Maricopa 
counties), and those nearby counties one or two adjacent rings 
beyond. See ``Air Quality Designations for the 2006 24-hour Fine 
Particle (PM2.5) National Ambient Air Quality 
Standards,'' 74 FR 58688, November 13, 2009, page 58694.
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    The Gila River Indian Community and the Ak-Chin Indian Community 
recommended that the EPA designate their lands ``attainment/
unclassifiable'' on February 11, 2010, and September 2, 2010, 
respectively. On April 30, 2010, the EPA offered formal consultation to 
the leaders of the Ak-Chin Indian Community and the Gila River Indian 
Community and has discussed the PM2.5 designation with the 
tribes on several occasions. On April 5, 2012,\7\ the EPA contacted the 
Gila River Indian Community and on August 13, 2012,\8\ the EPA 
contacted the Ak-Chin Indian Community to provide opportunities to 
discuss the intended designations of ``unclassifiable/attainment'' for 
their areas of Indian Country based on 2009-2011data. Both tribes 
subsequently indicated that no further consultation was necessary.
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    \7\ See memorandum to file titled, ``Confirmation from Gila 
River Indian Community that Consultation Regarding 2006 24-hr 
PM2.5 Designation is Complete'' dated August 21, 2012, 
from Colleen McKaughan, EPA Region 9 Associate Director Air 
Division, available in the docket for this action.
    \8\ See memorandum to file titled, ``Communication with Brenda 
Ball about Potential Consultation with Ak-Chin Regarding 2006 24-hr 
PM2.5 Designation'' dated August 21, 2012, from Maeve 
Foley, EPA Region 9 Grants and Program Integration Office, available 
in the docket for this action.
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    All correspondence and supporting documentation related to deferred 
final designations can be found in docket ID No. EPA-HQ-OAR-2007-0562.

IV. Where can I find information forming the basis for this rule and 
exchanges between the EPA and tribes related to this rule?

    Information providing the basis for the action in this notice, 
including applicable EPA guidance memoranda, and copies of 
correspondence regarding this process between the EPA and the Tribes 
are available in the identified docket. All docket information is 
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/pmdesignations/2006standards/index.htm. Other 
related state and tribal-specific information is available at the 
offices of EPA Region 9.

V. Statutory and Executive Order Reviews

    Upon promulgation of a new or revised NAAQS, the CAA requires the 
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, the EPA 
assigns designations to areas as required.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action responds to the requirement to promulgate air quality 
designations after promulgation of a new or revised NAAQS. This type of 
action is exempt from review under Executive Orders 12866 (58 FR 51735, 
October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This rule responds to the 
requirement to promulgate air quality designations after promulgation 
of a new or revised NAAQS. This requirement is prescribed in the CAA 
section 107. The present final rule does not establish any new 
information collection requirements.

C. Regulatory Flexibility Act

    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 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.

D. Unfunded Mandates Reform Act

    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

[[Page 65313]]

does not create any additional requirements beyond those of the CAA and 
PM2.5 NAAQS (40 CFR 50.13). The CAA establishes the process 
whereby states take primary responsibility in developing plans to meet 
the PM2.5 NAAQS.

E. Executive Order 13132: Federalism

    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 PM2.5 NAAQS. This rule will not modify the relationship 
of the states and the EPA for purposes of developing programs to 
implement the PM2.5 NAAQS. Thus, Executive Order 13132 does 
not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action will 
not have tribal implications because the areas of Indian Country 
affected by this rule are being designated as ``unclassifiable/
attainment,'' and thus do not have a substantial cost or direct effect 
on one or more Indian Tribes, on the relationship between the federal 
government and Indian Tribes, or on the distribution of power and 
responsibilities between the federal government and tribes. The rule 
does not alter the relationship between the federal government and 
Tribes as established in the CAA and the TAR. Thus, Executive Order 
13175 does not apply to this action.
    However, because this action designates areas of Indian Country, 
the EPA consulted with tribal officials early in the process of 
developing this regulation to ensure meaningful and timely input into 
its development. At the beginning of the designations process, letters 
were sent to tribes expected to be impacted by designations for the 
2006 24-hour PM2.5 NAAQS. These letters not only informed 
the tribes of the overall designations process, but also offered 
consultation to ensure early communication and coordination. 
Additionally, letters were sent to potentially affected tribes 
indicating the EPA's intended designations for their areas of Indian 
Country. These letters offered an additional opportunity for 
consultation. All consultations were completed prior to promulgating 
this rule. During consultation, the primary concerns raised by tribes 
included the following: Impact of a potential nonattainment designation 
on future economic development; appropriateness of using data from 
monitors not on tribal land to characterize the air quality on tribal 
land; and ensuring final decisions are consistent with the EPA's 
``Policy for Establishing Separate Air Quality Designations for Areas 
of Indian Country'' (December 20, 2011). During the consultation with 
the tribes affected by this regulatory action, the EPA's office in 
Region 9 ensured that the tribes fully understood the basis for the 
EPA's intended designations decisions and how those decisions are 
informed by the most recent certified air quality data and all other 
relevant information, including the EPA's ``Policy for Establishing 
Separate Air Quality Designations for Areas of Indian Country.'' To the 
extent possible, the EPA included the tribes' input into the final 
decision-making process for designations of their areas of Indian 
Country for the 2006 24-hour PM2.5 NAAQS.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 
12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus 
standards (VCS) in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impracticable. VCS 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 the EPA to provide Congress, 
through the Office of Management and Budget, explanations when the 
agency decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, the 
EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 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 minority or low-income populations because this rule does 
not affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
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 November 26, 2012.

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by the EPA. 
This section provides, in part, that petitions for review must be filed 
in the Court of Appeals for the District of Columbia

[[Page 65314]]

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 2006 24-hour PM2.5 
NAAQS is ``nationally applicable'' within the meaning of section 
307(b)(1). This rule establishes designations for certain areas for the 
2006 24-hour PM2.5 NAAQS. In addition, this action relates 
to the prior nationwide rulemakings in which the EPA promulgated 
designations for numerous other areas nationwide. At the core of this 
rulemaking is the 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. In determining 
which areas should be designated ``nonattainment'' (or conversely, 
should be designated attainment or unclassifiable), the EPA used an 
analytical approach that it applied consistently across the U.S. in 
this rulemaking, and in the prior related rulemakings.
    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). In these circumstances, section 
307(b)(1) 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.

List of Subjects in 40 CFR Part 81

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

    Dated: October 19, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons set forth in the preamble, 40 CFR part 81, subpart 
C is amended as follows:

PART 81--DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

0
2. In Sec.  81.303, the ``Arizona--PM2.5 (24-hour NAAQS)'' 
table is amended by:
0
a. Revising the entry for ``Maricopa County''; and
0
b. Revising entries for ``Lands of the Gila River Indian Community in 
Pinal County'' and ``Lands of the Ak-Chin Indian Community''.
    The revised text reads as follows.


Sec.  81.303  Arizona.

* * * * *

                                         Arizona--PM2.5 (24-Hour NAAQS)
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                                    Designation for the 1997 NAAQS \a\     Designation for the 2006 NAAQS \a\
         Designated area          ------------------------------------------------------------------------------
                                      Date \1\             Type               Date \2\               Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Maricopa County (remainder,                        Unclassifiable/                           Unclassifiable/
 excluding lands of the Gila                        Attainment.                               Attainment.
 River Indian Community).
 
                                                  * * * * * * *
Lands of the Gila River Indian                     Unclassifiable/      11/26/2012.........  Unclassifiable/
 Community in Pinal County and                      Attainment.                               Attainment.
 Maricopa County.
Lands of the Ak-Chin Indian                        Unclassifiable/      11/26/2012.........  Unclassifiable/
 Community in Pinal County.                         Attainment.                               Attainment.
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.
\2\ This date is 30 days after November 13, 2009, unless otherwise noted.

[FR Doc. 2012-26405 Filed 10-25-12; 8:45 am]
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