6570 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

has been named in the information 

request provided to the institution by 

FinCEN with any questions relating to 

the scope or terms of the request. Except 

as otherwise provided in the 

information request, a financial 

institution shall only be required to 

search its records for: 

* * * * * 

(iv) * * * 

(B)(1) A financial institution shall not 

disclose to any person, other than 

FinCEN or the requesting Treasury 

component, the law enforcement agency 

on whose behalf FinCEN is requesting 

information, or U.S. law enforcement 

attache ́ in the case of a request by a 

foreign law enforcement agency, which 

has been named in the information 

request, the fact that FinCEN has 

requested or has obtained information 

under this section, except to the extent 

necessary to comply with such an 

information request. 

(2) Notwithstanding paragraph 

(b)(3)(iv)(B)(1) of this section, a financial 

institution authorized to share 

information under § 103.110 may share 

information concerning an individual, 

entity, or organization named in a 

request from FinCEN in accordance 

with the requirements of such section. 

However, such sharing shall not 

disclose the fact that FinCEN has 

requested information concerning such 

individual, entity, or organization. 

(C) Each financial institution shall 

maintain adequate procedures to protect 

the security and confidentiality of 

requests from FinCEN for information 

under this section. The requirements of 

this paragraph (b)(3)(iv)(C) shall be 

deemed satisfied to the extent that a 

financial institution applies to such 

information procedures that the 

institution has established to satisfy the 

requirements of section 501 of the 

Gramm-Leach-Bliley Act (15 U.S.C. 

6801), and applicable regulations issued 

thereunder, with regard to the 

protection of its customers’ nonpublic 

personal information. 

* * * * * 

(4) Relation to the Right to Financial 

Privacy Act and the Gramm-LeachBliley Act. The information that a 

financial institution is required to report 

pursuant to paragraph (b)(3)(ii) of this 

section is information required to be 

reported in accordance with a federal 

statute or rule promulgated thereunder, 

for purposes of subsection 3413(d) of 

the Right to Financial Privacy Act (12 

U.S.C. 3413(d)) and subsection 502(e)(8) 

of the Gramm-Leach-Bliley Act (15 

U.S.C. 6802(e)(8)). 

(5) No effect on law enforcement or 

regulatory investigations. Nothing in 

this subpart affects the authority of a 

Federal, State or local law enforcement 

agency or officer, or FinCEN or another 

component of the Department of the 

Treasury, to obtain information directly 

from a financial institution. 

Dated: February 4, 2010. 

James H. Freis, Jr., 

Director, Financial Crimes Enforcement 

Network. 

[FR Doc. 2010–2928 Filed 2–9–10; 8:45 am] 

BILLING CODE 4810–02–P 

POSTAL SERVICE 

39 CFR Part 965 

Rules of Practice in Proceedings 

Relative to Mail Disputes 

AGENCY: Postal Service. 

ACTION: Final rule. 

SUMMARY: This document revises the 

rules of practice of the Postal Service’s 

Office of the Judicial Officer to allow 

qualified persons licensed to practice 

law to be designated by the Judicial 

Officer as presiding officers in 

proceedings relating to mail disputes. 

DATES: Effective Date: March 1, 2010. 

ADDRESSES: Judicial Officer Department, 

United States Postal Service, 2101 

Wilson Boulevard, Suite 600, Arlington, 

VA 22201–3078. 

FOR FURTHER INFORMATION CONTACT: 

Administrative Judge Gary E. Shapiro, 

(703) 812–1910. 

SUPPLEMENTARY INFORMATION: 

A. Executive Summary 

39 CFR Part 965 contains the rules 

governing proceedings involving Mail 

Disputes. Only one change is made. 

Paragraph (a) of section 965.4 of the 

rules has defined the ‘‘presiding officer’’ 

as an Administrative Law Judge or an 

Administrative Judge qualified in 

accordance with law. The revised rule 

expands the definition of presiding 

officer to include any other qualified 

person licensed to practice law 

designated by the Judicial Officer to 

preside over a proceeding conducted 

pursuant to this part. 

B. Summary of Change 

Expanding the definition of presiding 

officer in Part 965 is intended to permit 

qualified staff counsel employed in the 

Office of the Judicial Officer to be 

designated as the initial presiding 

official authorized to conduct 

proceedings and issue Initial Decisions 

in the resolution of mail disputes. 

Administrative Law Judges and 

Administrative Judges qualified in 

accordance with law will continue to be 

designated as presiding officers in such 

matters. The appellate procedure is 

unchanged. 

C. Effective Dates and Applicability 

These revised rules will govern 

proceedings under Part 965 docketed on 

or after March 1, 2010. 

List of Subjects in 39 CFR Part 965 

Administrative practice and 

procedure, Mail disputes, Postal 

Service. 

■ For the reasons stated in the preamble, 

the Postal Service amends 39 CFR Part 

965 as set forth below: 

■ 1. The authority citation for part 965 

continues to read as follows: 

Authority: 39 U.S.C. 204, 401. 

■ 2. In § 965.4, paragraph (a) is revised 

to read as follows: 

§ 965.4 Presiding officers. 

(a) The presiding officer shall be an 

Administrative Law Judge, an 

Administrative Judge qualified in 

accordance with law, or any other 

qualified person licensed to practice law 

designated by the Judicial Officer to 

preside over a proceeding conducted 

pursuant to this part. The Judicial 

Officer assigns cases under this part. 

Judicial Officer includes Associate 

Judicial Officer upon delegation thereto. 

The Judicial Officer may, on his or her 

own initiative or for good cause found, 

preside at the reception of evidence. 

* * * * * 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2010–2844 Filed 2–9–10; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2009–0014; FRL–9113–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Louisiana; Baton Rouge 1-Hour Ozone 

Nonattainment Area; Determination of 

Attainment of the 1-Hour Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA has determined that 

the Baton Rouge (BR) 1-hour ozone 

nonattainment area has attained the 1- 

hour ozone National Ambient Air 

Quality Standard (NAAQS). This 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6571 

1Our Clean Data Policy is set forth in a May 10, 

1995 EPA memorandum from John S. Seitz, 

Director, Office of Air Quality Planning and 

Standards, entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment Areas 

Meeting the Ozone Ambient Air Quality Standard.’’ 

determination is based upon three years 

of complete, quality-assured and 

certified ambient air monitoring data 

that show the area has monitored 

attainment of the 1-hour ozone NAAQS 

for the 2006–2008 monitoring period. 

Preliminary data for 2009 also indicate 

the area continues to attain the 1-hour 

ozone NAAQS. 

The requirements for this area to 

submit an attainment demonstration, a 

reasonable further progress plan, 

contingency measures, and other 

planning State Implementation Plan 

(SIP) requirements related to attainment 

of the 1-hour ozone NAAQS, are 

suspended for so long as the area 

continues to attain the 1-hour ozone 

NAAQS. 

DATES: This final rule is effective March 

12, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R06–OAR– 

2009–0014. All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Air Planning Section 

(6PDL), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The file will 

be made available by appointment for 

public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. 

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202– 

2733. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sandra Rennie, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7367, fax (214) 

665–7263, e-mail address 

rennie.sandra@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. This 

supplementary information section is 

arranged as follows: 

I. What Action Is EPA Taking? 

II. What Is the Effect of This Action? 

III. Responses to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What Action Is EPA Taking? 

We are determining that the BR 1- 

hour ozone nonattainment area is 

currently attaining the 1-hour ozone 

National Ambient Air Quality Standard 

(NAAQS). This determination is based 

upon complete, quality-assured and 

certified ambient air monitoring data 

that show the area has monitored 

attainment of the 1-hour ozone NAAQS 

for the 2006–2008 monitoring period. 

Preliminary data for 2009 also indicate 

that the area continues to attain the 1- 

hour ozone NAAQS and there were no 

monitored exceedances of the 1-hour 

standard at any monitor for this time 

period. Based on this determination, 

EPA is also determining that the 

requirements for this area to submit a 

severe attainment demonstration, a 

severe reasonable further progress plan 

(RFP), applicable contingency measures 

plans, and other planning State 

Implementation Plan (SIP) requirements 

related to attainment of the 1-hour 

ozone NAAQS, are suspended for so 

long as the area continues to attain the 

1-hour ozone NAAQS. 

The rationale for our action is 

explained in the Notice of Proposed 

Rulemaking (NPR) published on March 

26, 2009 (74 FR 13166) and elaborated 

upon below in today’s rulemaking. We 

received comments on the proposal 

which are addressed in this action. 

II. What Is the Effect of This Action? 

Pursuant to our determination of 

attainment and in accordance with the 

interpretation of the Clean Air Act 

(CAA) set forth in our Clean Data 

Policy,1 the effect of the determination 

is that the following requirements to 

submit SIP measures under the 1-hour 

anti-backsliding provisions, addressed 

in 40 CFR 51.905 and in the Court’s 

ruling in the South Coast case (See 

South Coast Air Quality Management 

District v. EPA, 472 F.3d 882 (DC Cir. 

2006), are suspended for so long as the 

area continues to attain the 1-hour 

standard: a severe area attainment 

demonstration with its RACM 

demonstration and other associated 

elements; the severe RFP plan 

requirements; and serious and severe 

area contingency measures under 

sections 172(c)(9) and 182(c)(9). 

If EPA subsequently determines, after 

notice-and-comment rulemaking in the 

Federal Register, that the BR area has 

violated the 1-hour ozone NAAQS, the 

basis for the suspension of the 

requirements would no longer exist, and 

EPA would take action to withdraw the 

determination and direct the area to 

address the suspended requirements. 

This action is limited to a 

determination that the BR area has 

attained the 1-hour ozone NAAQS, and 

the effect of such a determination on the 

obligation to submit specified 1-hour 

anti-backsliding requirements. It does 

not formally determine whether the area 

has attained the 8-hour ozone NAAQS. 

Nor does it address the 1-hour ozone 

anti-backsliding requirement for section 

185 penalty fees or severe 

nonattainment new source (NNSR) 

review. In our proposal, we stated that 

EPA would address separately the status 

of 1-hour ozone anti-backsliding 

requirements for section 185 penalty 

fees, based on the outcome of a future 

rulemaking in response to the South 

Coast decision. EPA has issued final 

guidance on 185 fees entitled ‘‘Guidance 

on Developing Fee Programs Required 

by Clean Air Act Section 185 for the 1- 

hour Ozone NAAQS’’ (January 5, 2010). 

However, in today’s rulemaking 

proceedings, EPA has not proposed and 

is not finalizing any action regarding the 

status of 1-hour section 185 fees 

requirements. As appropriate, EPA will 

undertake a separate action to address 

the status of 1-hour anti-backsliding 

requirements for section 185 fees 

program in the BR area. Regarding 

severe nonattainment new source 

review, the requirement may change 

after the area is redesignated and has an 

approved maintenance plan. Please note 

that the Louisiana PSD (Prevention of 

Significant Deterioration) SIP 

requirements would apply in the BR 

ozone area only upon the effective date 

of an EPA action approving the removal 

of the NNSR SIP program from the BR 

ozone SIP. 

III. Responses to Comments 

EPA received five comment letters in 

response to the proposed rulemaking. 

The comment letters are available for 

review in the docket for this 

rulemaking. These comment letters were 

submitted by Tulane University’s 

Environmental Law Clinic on behalf of 

the Louisiana Environmental Action 

Network (LEAN) (hereinafter LEAN), 

Louisiana Chemical Association (LCA), 


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6572 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

2On September 16, 2009 we announced that we 

are reconsidering our 2008 decision setting national 

standards for ground-level ozone. The reconsidered 

standard was announced on January 6 and 

proposed on January 19, 2010 (75 FR 2938). We 

expect by August 2010 to have completed our 

reconsideration of the standard and designations to 

proceed thereafter. When and if EPA designates BR 

as nonattainment of the reconsidered standard, 

LDEQ will be required to prepare a new ozone plan 

that addresses that standard. 

BASF the Chemical Company (BASF), 

Shell Chemical Company (Shell), and 

the Baton Rouge Area Chamber (BRAC). 

LCA, Shell, BRAC and BASF expressed 

support for EPA’s proposal to find BR is 

attaining the 1-hour standard and for 

EPA’s proposal to suspend certain SIP 

requirements under EPA’s Clean Data 

Policy. EPA summarizes and responds 

below to some additional comments 

submitted by LCA, and to adverse 

comments received from LEAN. 

LCA submitted the following 

additional comments: 

Comment: LCA asserted that the BR 

area also attained the 1-hour standard 

during the 2004–2006 time period, and 

EPA did not take action on the State’s 

request that EPA make a clean data 

determination. LCA stated in its 

comments that it reserves the right to 

request a determination that the area 

actually attained the standard at an 

earlier time, contending that this would 

have potential consequences with 

respect to anti-backsliding measures 

that may be required. 

Response: The scope of this action is 

limited to a finding of attainment for the 

1-hour ozone standard based on LDEQ’s 

request for such a finding for the time 

period between 2006–2008, and 

continuing until the present. A 

determination of attainment for 

purposes of the clean data policy is 

based on the most recent three years of 

complete, quality-assured monitoring 

data, and its duration is conditioned on 

the area remaining in attainment. Any 

findings related to other historical 

periods are not relevant to today’s 

rulemaking. 

Comment: LCA stated in its comments 

that it also reserves the right to request 

a determination that the BR area 

actually attained the 1-hour ozone 

standard by the November 15, 2005 

deadline. 

Response: The scope of this 

rulemaking is limited to a determination 

of attainment for the 1-hour ozone 

standard based on LDEQ’s request for 

such a determination for the time period 

between 2006–2008, and continuing 

until the present. In this rulemaking, 

EPA is not addressing the BR area’s 

attainment status with respect to any 

other historical time period, or its status 

as of its 2005 attainment date. 

Comment: LCA contended that EPA 

can rely on a level of 90 ppb averaged 

on an 8-hour basis for ozone as being an 

equivalent level of protection to the 1- 

hour standard in the absence of any 

effective 1-hour standard. LCA argues 

that, because the 1-hour standard was 

legally revoked during the time period 

at issue (as of November 2005) EPA 

rationally could look to the 8-hour data 

for the BR area and conclude that a 

design value of 90 ppb was equivalent 

to the revoked 1-hour standard. 

Response: LCA’s comment addresses 

issues that are beyond the scope of this 

rulemaking. EPA has not made a finding 

that 90 ppb averaged on an 8 hour basis 

is equivalent to 120 ppb averaged on a 

1-hour basis. This action considers only 

whether the area has attained the 1-hour 

ozone standard of 120 ppb (or 124 ppb 

when rounding is considered), based on 

monitoring data for that standard. 

Comment: LCA states that it reserves 

the right to request that the requirement 

for LDEQ to adopt additional 

antibacksliding requirements in the SIP, 

including but not limited to 185 fees, be 

suspended by the Clean Data Policy 

attainment determination. LCA asserts 

that it understands that EPA is in the 

process of developing a rulemaking and/ 

or guidance concerning whether 

achieving 1-hour standard attainment 

(and/or achieving 8-hour standard 

attainment) suspends the obligation to 

impose section 185 fees where such 

have not yet been required by a state for 

a severe nonattainment area. 

Response: The scope of today’s action 

is limited to an attainment 

determination for the 1-hour ozone 

standard that suspends the requirements 

to submit an attainment demonstration, 

a severe reasonable further progress 

plan, and applicable contingency 

measures plans for that standard for so 

long as the area remains in attainment 

of the standard in the future. As we 

stated in the proposal, and in the 

section above on the effect of today’s 

rulemaking, EPA will address the 

section 185 fees anti-backsliding 

requirements for the 1-hour ozone 

standard in a separate proceeding or 

rulemaking. 

Comment: LCA states that it believes 

it is fully consistent with the CAA to 

suspend the requirement to submit the 

185 fees program or an equivalent 

program when an area is determined to 

be attaining the 1-hour standard. 

Response: As stated above and in the 

previous response to comment, the 

scope of this action is limited to 

suspending the requirements to submit 

an attainment demonstration, a severe 

reasonable further progress plan, and 

applicable contingency measures plans 

for the 1-hour ozone standard for so 

long as the area remains in attainment 

of the standard in the future. EPA will 

address BR’s 1-hour anti-backsliding 

requirements for CAA section 185 fees 

in a separate rulemaking action. 

LEAN made the following comments: 

Comment: LEAN asserts generally that 

EPA cannot suspend certain 1-hour 

ozone requirements under EPA’s Clean 

Data Policy. 

Response: As set forth in detail below, 

EPA’s longstanding interpretation of the 

CAA under the Clean Data Policy is 

valid and reasonable, and has been 

upheld by every court in which it has 

been challenged. We respond to LEAN’s 

specific comments below. 

Comment: LEAN asserts that the 1- 

hour standard is no longer relevant for 

determining whether an area’s air 

quality is requisite to protect public 

health. 

Response: While EPA agrees that it 

has issued an 8-hour ozone standard 

that is more protective than the 1-hour 

standard, certain 1-hour antibacksliding requirements remain 

applicable to the BR area. Thus the issue 

of whether an area meets the 1-hour 

anti-backsliding requirements is still 

relevant. EPA’s Clean Data Policy was 

originally directed at requirements 

under the 1-hour standard, and that 

interpretation has now been 

incorporated in the form of a regulation 

for implementation of the 8-hour ozone 

requirements. Under the Clean Data 

Policy, an attainment determination for 

the 1-hour standard has consequences 

for an area’s obligation to submit certain 

regulatory requirements for that 

standard. For the reasons set forth in the 

proposal and in EPA’s responses to 

comments here, a determination that the 

BR area has attained the 1-hour ozone 

standard suspends the requirement to 

submit 1-hour attainment 

demonstration, 1-hour reasonable 

further progress and 1-hour contingency 

measures for so long as the area 

continues to meet the 1-hour standard. 

This determination has no bearing on 

the requirements for the 8-hour ozone 

standard. 

Comment: LEAN asserts that BR has 

not attained the revised 1997 8-hour 

ozone standard, which is 75 ppb (the 

2008 8-hour standard). See 73 FR 

16435–16514 (March 27, 2008) 2

Response: As set forth in responses to 

comments above, our action here is 

limited to a determination that the BR 

area has attained the 1-hour ozone 

standard based on complete, qualityassured monitoring data for 2006–2008, 

and preliminary data for 2009. The 

preliminary 2009 data show the 1-hour 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6573 

ozone design value continues to be 114 

ppb. There were no monitored 

exceedances for this time period. 

While EPA agrees that compliance 

with the 1-hour standard is not 

equivalent to attainment of the more 

protective 1997 or 2008 8-hour 

standards, certain 1-hour requirements 

remain applicable to BR for antibacksliding purposes. Under the Clean 

Data Policy, a determination of 

attainment for the 1-hour standard 

suspends the obligation to submit 

certain SIP measures, including the 1- 

hour attainment demonstration, 1-hour 

reasonable further progress and 1-hour 

contingency measures for so long as the 

area continues to meet the 1-hour 

standard. EPA’s longstanding 

interpretation, which Courts have 

upheld, is that for an area meeting the 

1-hour standard, submissions for the 

reasonable further progress 

requirements are not necessary or 

meaningful, because the goal of the rate 

of progress reductions—attainment—has 

been met. Similarly, EPA believes—and 

Courts have agreed—that a plan to attain 

the 1-hour standard is unnecessary for 

an area that is meeting the standard. 

Moreover, contingency measures, which 

are tied to rate of progress and 

attainment plan requirements, are no 

longer needed where an area is meeting 

the standard. EPA’s rationale for its 

interpretation is more fully explained in 

our Clean Data Policy, in EPA’s 8-hour 

ozone implementation rulemaking and 

the 1-hour ozone rulemakings cited 

therein. See 70 FR 71612 (November 29, 

2005) and in the cases that have upheld 

EPA’s Clean Data Policy. As discussed 

in more detail below, the Clean Data 

Policy has been upheld in a number of 

court cases, including the DC, 7th, 9th 

and 10th Circuits. See NRDC v. EPA, 

571 F.3d 1245 (DC Cir. 2009); Sierra 

Club v. EPA, 99 F. 3d 1551 (10th Cir. 

1996); Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004) and Our Children’s Earth 

Foundation v. EPA, No. 04–73032 (9th 

Cir. June 28, 2005) (memorandum 

opinion). The Courts have made clear 

that a determination of attainment, for 

either the 1-hour or 8-hour standard, is 

a valid, reasonable, and legitimate 

alternative way of satisfying the 

requirements to submit attainment 

demonstrations, reasonable further 

progress requirements, and contingency 

measures, for that standard. Upon EPA’s 

final determination that the BR area is 

attaining the 1-hour standard, the 

submission of those measures is no 

longer legally required for as long as the 

area remains in attainment. Thus the 

commenter is incorrect in asserting that 

EPA is removing mandatory controls 

from the SIP. The Commenter’s claim 

that the severe 1-hour measures are 

necessary is belied by the fact that the 

sole purpose of these measures is to 

bring about attainment of the 1-hour 

standard. EPA is determining that this 

attainment has already occurred and it 

continues, and that submission of 

measures designed to create attainment 

is not necessary for so long as the area 

continues to attain. Contrary to 

Commenter’s assertion, no further 

reductions to bring about attainment of 

the 1-hour standard are necessary or 

required. The application of the Clean 

Data Policy for the 1-hour standard does 

not in any way hinder or interfere with 

attainment of the 8-hour standard. 

Requirements for the 1997 8-hour ozone 

standard remain in place to address the 

8-hour standard for which the area is 

currently designated nonattainment, 

and those requirements are not affected 

by this rulemaking. As discussed further 

below, the DC Circuit Court has upheld 

the regulation embodying the Clean 

Data Policy for the 8-hour ozone 

standard that suspends 8-hour 

requirements for attainment 

demonstrations, RFP, and contingency 

measures upon a determination of 

attainment for that standard. 40 CFR 

51.918. The regulation upheld was 

based on EPA’s interpretation of the 

Clean Data Policy under the 1-hour 

ozone standard. Moreover, since it is 

incontrovertible that a determination of 

attainment for the 8-hour ozone 

standard legally suspends certain 8-hour 

submission requirements, it would be 

inconsistent and nonsensical to adopt a 

contradictory interpretation for the 

identical requirements under the 1-hour 

standard. 

Comment: LEAN argues that 

Louisiana’s five-parish BR area has 

never met minimum federal healthprotection standards for ozone air 

pollution. 

Response: As set forth in the 

responses to comment above, EPA’s 

rulemaking action today is limited to a 

determination that the BR area has 

attained the 1-hour ozone standard 

based on complete, quality-assured 

2006–2008 air monitoring data, and 

preliminary data for 2009 that show the 

area continues in attainment of the 1- 

hour ozone standard. An area violates 

the 1-hour ozone standard if, over a 

consecutive 3-year period, more than 3 

days of expected number of exceedances 

occur at the same monitor. See CAA, 

section 107(d)(4); 40 CFR Part 50, App. 

H. The data show that during this threeyear period, no single monitor recorded 

more than three expected number of 

exceedances. EPA did not receive any 

comments that challenge EPA’s 

determination that the area has 

monitored attainment of the 1-hour 

ozone standard for 2006–2008, the most 

recent three-year period for which 

complete, quality-assured data are 

available. Nor is there any challenge to 

EPA’s conclusion that preliminary data 

for 2009 also indicate that the area 

continues to be in attainment for the 1- 

hour ozone standard. While this 

rulemaking does not address any ozone 

standard other than the 1-hour standard, 

EPA notes that recent monitoring data 

suggest that the BR area is also currently 

attaining the 1997 8-hour ozone 

standard. 

Comment: LEAN argues that the 

Court’s decision in South Coast Air 

Quality Management District v. EPA, 

472 F.3d 882 (DC Cir. 2006), prohibits 

BR from removing controls until it has 

attained the standard EPA has 

determined is requisite to public health, 

which they assert is the 75 ppb 2008 8- 

hour ozone standard. LEAN contends 

that the South Coast case made it clear 

that EPA cannot release an area from 

applicable controls until it has achieved 

‘‘safe’’ air quality. They further assert 

that allowing BR to escape 

antibacksliding requirements because it 

attained the 1-hour standard would be 

ignoring Congress’ intent when enacting 

the CAA that ‘‘air quality should be 

improved until safe and never allowed 

to retreat thereafter.’’ 

Response: The suspension of the 

obligation to submit the attainment 

demonstration, RFP plan, and 

contingency measures for the 1-hour 

ozone standard does not remove any 

controls that are in place, or any 

controls that are required when the area 

is attaining the 1-hour standard. It is 

directed only at plan measures aimed 

specifically at attainment of the 1-hour 

standard, which are not necessary once 

the area has attained, and continues to 

attain that standard. The obligations for 

submissions being suspended here do 

not bear on any obligations linked to the 

revised 2008 8-hour ozone standards. 

We will address any new 8-hour 

requirements in a separate proceeding 

or rulemaking. Moreover, as set forth 

above, the DC Circuit upheld EPA’s 

regulation embodying the Clean Data 

Policy in 40 CFR 51.918. That regulation 

provides that a determination of the 

1997 8-hour standard will result in the 

suspension of requirements to submit 

requirements related to the 1997 8-hour 

standard. Thus, contrary to commenter’s 

contention, the DC Circuit supports, and 

does not prohibit, EPA’s application of 

the Clean Data Policy for purposes of 

the 1-hour standard. EPA’s defense of 

the Clean Data Policy for the 1997 8- 

hour standard was identical to and 


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6574 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

based upon its interpretation and 

practice with respect to the 1-hour 

ozone standard. See Phase 2 Rule, 70 FR 

71644–71646 (November 29, 2005) and 

NRDC v. EPA, 571 F.3d 1245 (DC Cir. 

2009). Thus the DC Circuit has rejected 

the arguments LEAN raises against the 

Clean Data Policy, and the Court has 

upheld EPA’s interpretation as 

consistent with the Clean Air Act. 

As noted in footnote two, EPA is 

currently reconsidering the 2008 8-hour 

ozone standard of 75 ppb. We expect by 

August 2010 to have completed our 

reconsideration of the standard and 

designations to proceed thereafter. 

When and if EPA designates BR as 

nonattainment of the reconsidered 

standard, LDEQ will be required to 

prepare a new ozone plan that addresses 

that standard. 

Comment: LEAN argues that EPA 

cannot lawfully suspend controls from a 

SIP without going through the 

comprehensive redesignation 

procedures of 42 U.S.C. 7407(d)(3). 

Response: This action does not 

constitute a redesignation to attainment 

pursuant to section 107(d)(3). 

Consequently, the criteria of section 

107(d)(3) do not apply to this action. 

See 60 FR 36723. Nor does the existence 

of the separate statutory redesignation 

procedure prevent EPA from applying 

its interpretation of CAA requirements 

under the Clean Data Policy. 

Several Circuit Courts have upheld 

the use of the Clean Data Policy to 

suspend the requirement to submit 

certain SIP planning measures for the 1- 

hour ozone standard. The Tenth, 

Seventh and Ninth Circuits have upheld 

EPA rulemakings applying the Clean 

Data Policy. See Sierra Club v. EPA, 99 

F. 3d 1551 (10th Cir. 1996); Sierra Club 

v. EPA, 375 F.3d 537 (7th Cir. 2004) and 

Our Children’s Earth Foundation v. 

EPA, No. 04–73032 (9th Cir. June 28, 

2005) memorandum opinion. See also 

the discussion and rulemakings cited in 

the Phase 2 8-Hour Ozone 

Implementation Rule, 70 FR 71644– 

71646 (November 29, 2005). 

The D.C. Circuit has also upheld the 

Clean Data Policy, as it is embodied in 

40 CFR 51.918, which was challenged in 

the context of the 8-hour ozone standard 

in the Phase 2 Rule ozone litigation in 

See NRDC v. EPA, 571 F.3d 1245 (DC 

Cir. 2009). The DC Circuit specifically 

rejected the arguments that the Clean 

Data Policy is inconsistent with the 

redesignation provisions of the CAA: 

We think the statute unclear as to whether 

those sections apply to an area that is already 

attaining the NAAQS. For the reasons below, 

we join the Tenth Circuit in holding the 

EPA’s interpretation is reasonable. See Sierra 

Club v. EPA, 99 F.3d 1551 (10th Cir.1996). 

* * * The EPA’s reasoning disposes as well 

of the NRDC’s contentions that the Clean 

Data Policy unlawfully circumvents the 

redesignation requirements, CAA 

§ 107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E), 

violates the mandate that all Part D 

requirements remain in force until an area 

has an approved maintenance plan in place, 

CAA § 175A(c), 42 U.S.C. 7505a(c), and 

disregards the Supreme Court’s admonition 

that the EPA cannot ‘‘render Subpart 2’s 

carefully designed restrictions on EPA 

discretion utterly nugatory,’’ Whitman v. Am. 

Trucking Ass’ns, 531 U.S. 457, 484, 121 S.Ct. 

903, 149 L.Ed.2d 1 (2001). The Clean Data 

Policy does not effect a redesignation; an area 

must still comply with the statutory 

requirements before it can be redesignated to 

attainment. Furthermore, Part D—including 

Subpart 2—remains in force insofar as it 

applies but, as we have just seen, the EPA 

has reasonably concluded the provisions of 

the Act requiring percentage reductions do 

not apply to an area that has attained the 

NAAQS. 

See also Latino Issues Forum v. EPA, 

No. 0675831 (9th Cir.) Memorandum 

Opinion, March 2, 2009, in which the 

9th Circuit upheld EPA’s Clean Data 

Policy in the context of the PM–10 

standard. In rejecting petitioner’s 

challenge to the Clean Data Policy, the 

Court stated: 

As the EPA rationally explained, if an area 

is in compliance with PM–10 standards, then 

further progress for the purpose of ensuring 

attainment is not necessary. 

Thus, the Courts have considered and 

rejected the commenter’s arguments that 

the Clean Data Policy is at odds with the 

redesignation process, and have ruled in 

favor of EPA’s interpretation of the 

Clean Data Policy, finding it consistent 

with the provisions of the CAA. 

Comment: LEAN contends that the 

Clean Data Policy is illegal and cannot 

be used to ignore the statutorilyrequired redesignation procedures of 42 

U.S.C. 7407(d)(3). 

Response: See above response. As the 

Courts have recognized, EPA’s 

interpretation under the Clean Data 

Policy does not circumvent or ignore the 

Act’s redesignation provisions. Nor does 

the CAA indicate that Congress 

intended the redesignation provisions to 

preclude a determination of attainment 

from suspending requirements to submit 

that by their terms are inoperative if an 

area is attaining the NAAQS. Even after 

application of the Clean Data Policy, an 

area remains in nonattainment status 

until EPA redesignates the area after 

making the other findings required 

under Section 107(d). See 

107(d)(3)(E)(i)–(v) (redesignation 

requirements); see also, e.g., 60 FR 

37366 (July 20, 1995) and 61 FR 31831 

(June 21, 1996) (suspension of 

requirements was followed by separate 

redesignation rule). Applying the Clean 

Data Policy does not relax any control 

measures already in place, nor does it 

affect any other applicable requirements 

under Part D or other parts of the 

statute. See, e.g., 60 FR 36723, 36725 

(July 18, 1995). In addition, until the 

area is redesignated, it faces the risk that 

the suspended obligations will be 

reimposed if the area lapses back into 

nonattainment, and the further risk that 

the area will be reclassified if the lapse 

causes it to miss its attainment deadline. 

Therefore, States in which areas attain 

the NAAQS have every incentive to 

ensure that those areas remain in 

attainment and to develop the long-term 

maintenance plan under Section 175A 

that is required, in part, to obtain 

redesignation. See CAA section 

107(d)(3)(E)(v), Sierra Club v. EPA, 99 F. 

3d 1551, 1558 (10th Cir. 1996). 

Comment: LEAN asserts that EPA has 

never identified a lawful contingency 

measure for the BR area or has yet to 

approve a lawful contingency measures 

plan. The effect of EPA’s action is to 

reward delay tactics by canceling those 

pollution reductions it has unlawfully 

delayed. 

Response: While we agree with the 

Commenter that BR does not have 

serious or severe area contingency 

measures for the 1-hour standard in 

place, for the reasons set forth in the 

responses to comments above and in the 

proposal, the obligation to submit such 

measures is suspended upon a finding 

of attainment for the 1-hour standard 

per the Clean Data Policy. Since EPA is 

determining that the area is attaining the 

1-hour standard, and for as long as the 

area continues to attain, the requirement 

to submit contingency measures is 

suspended and no additional reductions 

are necessary to attain that standard. 

EPA is not rewarding delay tactics, but 

rather is simply recognizing that it is 

unnecessary and not required at this 

time to compel the State to submit 

measures whose sole purpose is to bring 

about attainment that is already 

occurring. 

Comment: LEAN comments that, 

while EPA states in the proposed rule 

that the suspended requirements would 

be re-implemented if BR falls out of 

attainment for the 1-hour standard, the 

proposed rule makes no mention of how 

quickly the suspended requirements to 

submit would have to be put back in 

place if BR fell out of attainment. LEAN 

speculates that the requirements could 

be re-imposed and then re-suspended in 

an illegal manner. 

Response: EPA will make a future 

determination in notice-and-comment 

rulemaking if the BR falls out of 

attainment for the 1-hour standard. The 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6575 

3As referenced in footnote 1, see May 10, 1995 

EPA memorandum from John S. Seitz, Director, 

Office of Air Quality Planning and Standards, 

entitled ‘‘Reasonable Further Progress, Attainment 

Demonstration, and Related Requirements for 

Ozone Nonattainment Areas Meeting the Ozone 

Ambient Air Quality Standard.’’ See also 70 FR 

71644–71646 (November 29, 2005). 

Clean Data Policy lays out the process 

to implement a suspended measure: 

[i]f EPA subsequently determines that an area 

has violated the standard, the basis for the 

determination that the area need not make 

the pertinent SIP revisions would no longer 

exist. The EPA would notify the State of that 

determination and would also provide notice 

to the public in the Federal Register. Such 

a determination would mean that the area 

would thereafter have to address the 

pertinent SIP requirements within a 

reasonable amount of time, which EPA 

would establish taking into account the 

individual circumstances surrounding the 

particular SIP submission at issue.3

Thus EPA has undertaken to act 

reasonably and responsibly in the future 

to re-impose the obligation for the State 

to submit the measures should EPA 

determine that the area has fallen out of 

attainment. The Commenter is thus 

wrong to assume that EPA’s exercise of 

its discretion with regard to timing of 

reinstatement of obligations would bring 

about absurd or illegal results. Any such 

concerns are entirely speculative and 

without foundation in fact. 

IV. Final Action 

For the reasons set forth in the 

proposed rulemaking and in this final 

rulemaking, and based on complete, 

quality-assured data for 2006–2008, and 

data for 2009 that are currently 

available, we are determining that the 

BR 1-hour ozone nonattainment area has 

attained and continues to attain the 1- 

hour ozone standard. Thus, the 

requirements for submitting the 1-hour 

ozone severe nonattainment area 

attainment demonstration SIP with its 

RACM demonstration and other 

associated elements, the severe RFP 

requirements, and section 172(c)(9) and 

section 182(c)(9) serious and severe 

contingency measures are suspended for 

so long as the area is attaining the 1- 

hour ozone standard. 

V. Statutory and Executive Order 

Reviews 

This action merely makes a 

determination of attainment based upon 

air quality that results in suspensions of 

certain Clean Air Act requirements, and 

does not impose additional 

requirements. 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 there is no 

federally recognized Indian country 

located in the states, 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 rules 

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 

these actions must be filed in the United 

States Court of Appeals for the 

appropriate circuit by April 12, 2010. 

Filing a petition for reconsideration by 

the Administrator of these final rules 

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).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: January 29, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart T—Louisiana 

■ 2. Section 52.977 is added to read as 

follows: 

§ 52.977 Control strategy and regulations: 

Ozone. 

Determination of Attainment. 

Effective March 12, 2010 EPA has 

determined the Baton Rouge 1-hour 

ozone nonattainment area has attained 

the 1-hour ozone National Ambient Air 

Quality Standard (NAAQS). Under the 

provisions of EPA’s Clean Data Policy, 

this determination suspends the 

requirements for this area to submit a 

severe attainment demonstration, a 

severe reasonable further progress plan, 

applicable contingency measures plans, 

and other planning Louisiana State 

Implementation Plan (SIP) requirements 

related to attainment of the 1-hour 

ozone NAAQS for so long as the area 

continues to attain the 1-hour ozone 

NAAQS. 

[FR Doc. 2010–2961 Filed 2–9–10; 8:45 am] 

BILLING CODE 6560–50–P 


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