27944 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

1An exceedance is defined as a daily value that 

is above the level of the 24-hour standard (150 μg/ 

m3) after rounding to the nearest 10 μg/m3 (i.e., 

values ending in 5 or greater are to be rounded up). 

Thus, a recorded value of 154 μg/m3 would not be 

an exceedance since it would be rounded down to 

150 μg/m3 whereas a recorded value of 155 μg/m3

would be an exceedance since it would be rounded 

up to 160 μg/m3. See 40 CFR part 50, appendix K, 

section 1.0. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2010–0172; FRL–9153–3] 

Approval and Promulgation of 

Implementation Plans; Designation of 

Areas for Air Quality Planning 

Purposes; State of California; PM–10; 

Determination of Attainment for the 

Coso Junction Nonattainment Area; 

Determination Regarding Applicability 

of Certain Clean Air Act Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing its 

determination that the Coso Junction 

nonattainment area (CJNA) has attained 

the 24-hour National Ambient Air 

Quality Standard (NAAQS) for 

particulate matter with an aerodynamic 

diameter less than or equal to a nominal 

10 micrometers (PM–10). This 

determination is based upon qualityassured and certified air quality 

monitoring data for the PM–10 NAAQS 

from 2006–2008. In addition, reported 

data in EPA’s Air Quality System (AQS) 

show that the CJNA continued to attain 

the PM–10 NAAQS through 2009 and 

preliminary data available to date for 

2010 show that the CJNA continues to 

attain. Also, EPA is finalizing its 

determination that, because the CJNA 

has attained the PM–10 NAAQS, the 

State’s obligation to make submissions 

to meet certain Clean Air Act (CAA or 

the Act) requirements is not applicable 

for as long as the CJNA continues to 

attain the PM–10 NAAQS. 

DATES: Effective Date: This rule is 

effective on June 18, 2010. 

ADDRESSES: You may inspect the 

supporting information for this action, 

identified by docket number EPA–R09– 

OAR–2010–0172, by one of the 

following methods: 

• Federal eRulemaking portal, http:// 

www.regulations.gov, please follow the 

on-line instructions; or, 

• Visit our regional office at, U.S. 

Environmental Protection Agency 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., Confidential 

Business Information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Wamsley, EPA Region IX, (415) 947– 

4111, Wamsley.Jerry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used, we mean 

EPA. 

Table of Contents 

I. Summary of Proposed Actions 

II. Public Comments and EPA Responses 

III. Additional Preliminary Air Quality Data 

Since Proposed Rule 

IV. EPA’s Final Action 

V. Statutory and Executive Order Reviews 

I. Summary of Proposed Actions 

On March 23, 2010, EPA proposed to 

determine that the CJNA has attained 

the 24-hour NAAQS for PM–10 (75 FR 

13710). Our proposed determination 

was based on complete, quality-assured 

and certified data gathered at 

established state and local air 

monitoring stations (SLAMS) in the 

nonattainment area and entered into the 

EPA AQS database for the period 2006– 

2008. In addition, EPA found that 

quality-assured AQS data showed that 

the CJNA continued to attain through 

2009 and that preliminary data then 

available for 2010 showed no 

exceedances of the 24-hour PM–10 

NAAQS. Id. 

EPA also proposed, under its Clean 

Data Policy, to determine that the 

obligation to submit certain CAA 

requirements was not applicable for as 

long as the CJNA continued to attain the 

PM–10 NAAQS. Specifically, we 

proposed that the State’s obligation to 

submit the following CAA requirements 

would be suspended if EPA finalized its 

rulemaking: The part D, subpart 4 

obligations to provide an attainment 

demonstration pursuant to section 

189(a)(1)(B), the reasonably available 

control measure (RACM) provisions of 

189(a)(1)(C), the reasonable further 

progress (RFP) provisions established by 

section 189(c)(1), and the attainment 

demonstration, RACM, RFP and 

contingency measure provisions of part 

D, subpart 1 contained in section 172 of 

the Act. 

For a more detailed discussion of our 

proposed action, including background 

topics, such as development of the PM– 

10 NAAQS, the designation, 

classification and air quality planning 

history for the CJNA; our Clean Data 

Policy; and our general requirements for 

making attainment determinations, 

please refer to our proposed rule. 

II. Public Comments and EPA 

Responses 

EPA provided for a 30-day public 

comment period on our proposed 

action. This period ended on April 22, 

2010. We received no comments. 

III. Additional Preliminary Air Quality 

Data Since Proposed Rule 

Subsequent to our proposal, and after 

the close of the comment period, the 

Great Basin Unified Air Pollution 

Control District (GBUAPCD) informed 

EPA that preliminary data showed two 

exceedances of the 24-hour PM–10 

standard were recorded at the CJNA 

monitor in March 2010, one on March 

9, 2010 (222 micrograms per cubic 

meter (μg/m3)) and another on March 

18, 2010 (157 μg/m3). See May 4, 2010 

e-mail from Duane Ono, Deputy Air 

Pollution Control Officer, GBUAPCD, to 

Doris Lo, Environmental Protection 

Specialist, EPA, with 

CosoJunction2010_MetAndTEOM.xlsx 

attachment. The preliminary air quality 

data for the first quarter of 2010 (January 

through March), which contain these 

exceedances, have not been verified 

through the GBUAPCD’s data validation 

process, nor have they been entered into 

EPA’s AQS database. The GBUAPCD is 

still in the process of reviewing the first 

quarter data which does not have to be 

submitted into the AQS database until 

June 30, 2010. See 52 FR 24634 and 40 

CFR 58.16(b). 

The preliminary 24-hour 

concentrations for March 9 and 18, if 

confirmed after quality assurance and 

control procedures are completed, 

would exceed the 24-hour PM–10 

standard of 154 μg/m3. 40 CFR 50.6.1

The District has also indicated that it 

may flag the March 9, 2010 exceedance 

for possible exclusion from 

consideration in a determination of 

attainment. 

The determination of whether an area 

has attained the PM–10 standard is 

based on the most recent three 

consecutive calendar years of qualityassured data. As discussed above and in 

our proposed rule, the CJNA has 

attained the PM–10 standard based on 

complete, quality-assured and certified 

data for the three-year period 2006–2008 


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Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 27945 

2While it is necessary to have three years of 

representative monitoring data to demonstrate that 

a monitor is attaining the standard, 40 CFR part 50, 

appendix K, section 2.3(c) states that there are less 

stringent data requirements for showing that a 

monitor has failed to attain. Since the 24-hour PM– 

10 standard is violated once a monitor averages 

more than one expected exceedance per year 

(averaged over three years), a monitor with four or 

more observed or expected exceedances has 

violated the 24-hour NAAQS even if there are fewer 

than three years of data (four exceedances divided 

by three years is greater than one per year). 

3The status of the preliminary exceedances may 

change after the data validation process is 

concluded and after any flagging issues are 

addressed. 

and data in AQS for the period 2007– 

2009. 75 FR 13710, 13712. These 

quality-assured data show that the CJNA 

monitor has an expected number of 

exceedances of less than or equal to one 

per year, averaged over the three-year 

period. 

Because 2010 has not ended, EPA 

cannot determine whether the area has 

attained the standard based on the 

three-year period from 2008 through 

2010. We can, however, determine with 

less than three years of data whether the 

CJNA has failed to attain in the period 

from 2008 to date. See 40 CFR part 50, 

appendix K, section 2.3(c).2

In 2008 there were no exceedances of 

the PM–10 NAAQS and in 2009 there 

was one exceedance on December 22, 

2009. 75 FR 13710. If we include the 

preliminary data showing two 

additional exceedances in March 2010, 

the expected number of exceedances at 

the CJNA monitor during the period 

from 2008 through 2010 would be three. 

Thus, even with two additional 

exceedances in March 2010, the CJNA 

continues to attain the PM–10 NAAQS 

to date because the CJNA monitor has 

an expected number of exceedances of 

less than or equal to one per year, 

averaged over the three-year period from 

2008 through 2010.3

While to date the CJNA continues to 

attain, EPA will continue to assess the 

attainment status of the CJNA as 

additional data are received, reviewed, 

and entered into the AQS database. 

IV. EPA’s Final Action 

Based on a three-year period (2006– 

2008) of complete, quality-assured and 

certified data meeting the requirements 

of 40 CFR part 50, appendix K, EPA is 

finalizing its determination that the 

CJNA has attained the 24-hour PM–10 

NAAQS. In addition, EPA’s 

determination is based on reported data 

in EPA’s AQS database for 2009 

showing that the CJNA continued to 

attain the PM–10 NAAQS for the period 

2007–2009, and available preliminary 

data to date for 2010 that are consistent 

with continued attainment. 

This determination of attainment of 

the PM–10 NAAQS for the CJNA does 

not constitute a redesignation to 

attainment under CAA section 107(d)(3) 

because we have neither approved a 

maintenance plan as required under 

section 175(A) of the CAA, nor 

determined that the area has met the 

other CAA requirements for 

redesignation. The classification and 

designation status in 40 CFR part 81 

remains moderate nonattainment for the 

CJNA until such time as California 

meets the CAA requirements for 

redesignation of the CJNA to attainment. 

EPA is also finalizing its 

determination that, because the CJNA is 

attaining the NAAQS, the obligation to 

submit the following CAA requirements 

is not applicable for so long as the area 

continues to attain the PM–10 standard: 

The part D, subpart 4 obligations to 

provide an attainment demonstration 

pursuant to section 189(a)(1)(B), the 

RACM provisions of 189(a)(1)(C), the 

RFP provisions established by section 

189(c)(1), and the attainment 

demonstration, RACM, RFP and 

contingency measure provisions of part 

D, subpart 1 contained in section 172 of 

the Act. Subsequently, if we determine 

after notice and comment rulemaking in 

the Federal Register that the CJNA has 

violated the standard (prior to a 

redesignation to attainment), these 

requirements would once again become 

applicable. 

V. Statutory and Executive Order 

Reviews 

This final action makes a 

determination of attainment based on 

air quality and results in the suspension 

of certain 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 final 

action does not 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 July 19, 2010. 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)). 


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27946 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Reporting 

and recordkeeping requirements. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: May 13, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

[FR Doc. 2010–12093 Filed 5–18–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 222, and 252 

RIN 0750–AG70 

Defense Federal Acquisition 

Regulation Supplement; Restrictions 

on the Use of Mandatory Arbitration 

Agreements (DFARS Case 2010–D004) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

to implement section 8116 of the DoD 

Appropriations Act for Fiscal Year 2010. 

Section 8116 restricts the use of 

mandatory arbitration agreements when 

using funds appropriated or otherwise 

made available by this DoD 

Appropriations Act to award contracts 

that exceed $1 million. It allows the 

Secretary of Defense to waive 

applicability to a particular contractor 

or subcontractor, if determined 

necessary to avoid harm to national 

security. 

DATES: Effective date: May 19, 2010. 

Comment date: Comments on this 

interim rule should be submitted in 

writing to the address shown below on 

or before July 19, 2010, to be considered 

in the formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2010–D004, 

using any of the following methods: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D004 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Julian E. Thrash, 

OUSD (AT&L) DPAP (DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian E. Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 8116 of the DoD 

Appropriations Act for Fiscal Year 2010 

(FY 10) (Pub. L. 111–118) prohibits the 

use of funds appropriated or otherwise 

made available by the FY 10 DoD 

Appropriations Act for any contract 

(including task or delivery orders and 

bilateral modifications adding new 

work) in excess of $1 million, if the 

contractor restricts its employees to 

arbitration for claims under title VII of 

the Civil Rights Act of 1964, or tort 

related to or arising out of sexual assault 

or harassment, including assault and 

battery, intentional infliction of 

emotional distress, false imprisonment, 

or negligent hiring, supervision, or 

retention, hereinafter the ‘‘covered 

areas.’’ 

This rule does not apply to the 

acquisition of commercial items, 

including commercially available offthe-shelf items. After June 17, 2010, 

section 8116(b) requires the contractor 

to certify compliance by subcontractors. 

Additionally, enforcement of this rule 

does not affect the enforcement of other 

aspects of an agreement that is not 

related to the covered areas. 

This rule allows the Secretary of 

Defense to waive applicability to a 

particular contract or subcontract, if 

determined necessary to avoid harm to 

national security. 

The following examples are provided 

to help determine applicability: 

• A new order that exceeds $1 

million using funds appropriated or 

otherwise made available by the FY 10 

DoD Appropriations Act, placed against 

an indefinite-delivery/indefinitequantity contract for an applicable item 

or service, is covered by this restriction, 

regardless of whether the basic 

indefinite-delivery/indefinite-quantity 

contract was covered. 

• A funding modification adding 

more than $1 million of funds 

appropriated or otherwise made 

available by the FY 10 DoD 

Appropriations Act to a contract that 

does not contain the clause at 252.222– 

7006 or 252.222–7999 (Deviation), is not 

covered. 

• A bilateral modification adding new 

work that uses funds appropriated or 

otherwise made available by the FY 10 

DoD Appropriations Act in excess of $1 

million is covered. 

• The award of a new order using 

funds appropriated or otherwise made 

available by the FY 10 DoD 

Appropriations Act with a value of 

$700,000 is not covered, since the value 

is under $1 million. 

• A contract valued at $1.5 million 

awarded today, and only $10,000 in 

funds appropriated or otherwise made 

available by the FY 10 DoD 

Appropriations Act will be obligated, 

with the remaining balance being FY 11 

funding, is not covered, because the 

total value of funds appropriated or 

otherwise made available by the FY 10 

DoD Appropriations Act is less than $1 

million. 

• An entity or firm that does not have 

a contract in excess of $1 million 

appropriated or otherwise made 

available by the FY 10 DoD 

Appropriations Act is not affected by 

the clause. The term ‘‘contractor’’ is 

narrowly applied only to the entity that 

has the contract. Unless a parent or 

subsidiary corporation is a party to the 

contract, it is not affected. 

Contracting officers will modify 

existing contracts, on a bilateral basis, if 

using funds appropriated or otherwise 

made available by the FY 10 DoD 

Appropriations Act, when such funds 

will be used for bilateral modifications 

adding new work or orders that exceed 

$1 million and are issued after the 

effective date of this interim rule. In the 

event that a contractor refuses to accept 

such a modification, the contractor will 

not be eligible for receipt of funds 

appropriated or otherwise made 

available by the FY 10 DoD 

Appropriations Act on such 

modifications or orders. 

This is a significant regulatory action 

and, therefore, was subject to review 

under section (6)b of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This is not a 

major rule. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of this rule is to 

implement section 8116 of the DoD 

Appropriations Act for Fiscal Year 2010 

(Pub. L. 111–118). The clause at 

252.222–7006, Restrictions on the Use 

of Mandatory Arbitration Agreements, 

prohibits the use of funds appropriated 


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