[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65310-65314]
From the Federal Register Online via the Government Printing 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 palma.elizabeth@epa.gov 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 vagenas.ginger@epa.gov.
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
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* * * * * * *
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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