13710 Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Proposed Rules 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. A preliminary 

environmental analysis checklist 

supporting this preliminary 

determination is available in the docket 

where indicated under ADDRESSES. This 

proposed rule is categorically excluded, 

under figure 2–1, paragraph 34(g) of the 

Instruction. This proposed rule amends 

permanent safety zones established in 

the Captain of the Port Lake Michigan 

Zone to protect the public from the 

hazards associated during annual 

events. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and record keeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR Part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for Part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

2. Amend § 165.929 to revise 

(a)(15)(i), (a)(52)(i), and (a)(65)(i); and to 

add paragraphs (a)(82) and (a)(83) to 

read as follows: 

§ 165.929 Safety Zones; Annual events 

requiring safety zones in the Captain of the 

Port Lake Michigan zone. 

(a) * * * 

(15) Taste of Chicago Fireworks; 

Chicago, IL. 

(i) Location. All waters of Monroe 

Harbor and all waters of Lake Michigan 

bounded by a line drawn from 41°53′24′′ 

N, 087°35′59′′ W; then east to 41°53′15′′ 

N, 087°35′26′′ W; then south to 

41°52′49′′ N, 087°35′26′′ W; then 

southwest to 41°52′27′′ N, 087°36′37′′ W; 

then north to 41°53′15′′ N, 087°36′33′′ 

W; then east returning to the point of 

origin. (NAD 83) 

* * * * * 

(52) Gary Air and Water Show; Gary, 

IN. 

(i) Location. All waters of Lake 

Michigan bounded by a line drawn from 

41°37′42′′ N, 087°16′38′′ W; then east to 

41°37′54′′ N, 087°14′00′′ W; then south 

to 41°37′30′′ N, 087°13′56′′ W; then west 

to 41°37′17′′ N, 087°16′36′′ W; then 

north returning to the point of origin. 

(NAD 83) 

* * * * * 

(65) Venetian Night Fireworks; 

Chicago, IL. 

(i) Location. All waters of Monroe 

Harbor and all waters of Lake Michigan 

bounded by a line drawn from 41°53′03′′ 

N, 087°36′36′′ W; then east to 41°53′03′′ 

N, 087°36′21′′ W; then south to 

41°52′27′′ N, 087°36′21′′ W; then west to 

41°52′27′′ N, 087°36′37′′ W; then north 

returning to the point of origin. (NAD 

83) 

* * * * * 

(82) Cochrane Cup; Blue Island, IL. 

(i) Location. All waters of the Calumet 

Sag Channel from the South Halstead 

Street Bridge at 41°39′27′′ N, 087°38′29′′ 

W; to the Crawford Avenue Bridge at 

41°39′05′′ N, 087°43′08′′ W; and the 

Little Calumet River from the Ashland 

Avenue Bridge at 41°39′7′′ N, 087°39′38′′ 

W; to the junction of the Calumet Sag 

Channel at 41°39′23′′ N, 087°39′ W 

(NAD 83). 

(ii) Enforcement date and time. The 

first Saturday of May; 6:30 a.m. to 

5 p.m. 

* * * * * 

(83) World War II Beach Invasion Reenactment; St. Joseph, MI. 

(i) Location. All waters of Lake 

Michigan in the vicinity of Tiscornia 

Park in St. Joseph, MI beginning at 

42°06.55N, 086°29.23W; then west/ 

northwest along the north breakwater to 

42°06.59 N, 086°29.41 W; the northwest 

100 yards to 42°07.01 N, 086°29.44 W; 

then northeast 2,243 yards to 42°07.50N, 

086°28.43 W; the southeast to the 

shoreline at 42°07.39N, 086°28.27 W; 

then southwest along the shoreline to 

the point of origin (NAD 83). 

(ii) Enforcement date and time. The 

third Saturday of June; 8 a.m. to 2 p.m. 

* * * * * 

Dated: March 8, 2010. 

L. Barndt, 

Captain, U.S. Coast Guard, Captain of the 

Port Lake Michigan. 

[FR Doc. 2010–6294 Filed 3–22–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2010–0172; FRL–9129–3] 

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: Proposed rule. 

SUMMARY: EPA is proposing to 

determine that the Coso Junction 

nonattainment area (CJNA) in California 

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 proposed determination is based 

upon monitored air quality data for the 

PM–10 NAAQS during the years 2006– 

2008. In addition, data for 2009 

contained in EPA’s Air Quality System 

(AQS) shows the CJNA continued to 

attain the PM–10 NAAQS through 2009, 

and preliminary data for 2010 available 

to date show no exceedances of the 24- 

hour NAAQS have been recorded at the 

CJNA monitoring site. EPA is also 

proposing to determine that, because the 

CJNA has attained the PM–10 NAAQS, 

the 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: Written comments must be 

received on or before April 22, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0172, by one of the 

following methods: 

(1) Federal eRulemaking portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

(2) E-mail: mahdavi.sarvy@epa.gov. 

(3) Mail or deliver: Sarvy Mahdavi 

(AIR–2), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 


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you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through the 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

anonymous access system, and EPA will 

not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send 

e-mail directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

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., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: 

Sarvy Mahdavi, EPA Region IX, (415) 

972–3173, mahdavi.sarvy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

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

EPA. 

Table of Contents 

I. Background 

A. The NAAQS for PM–10 

B. Designation, Classification and Air 

Quality Planning for PM–10 for the CJNA 

C. Attainment Determinations 

II. Proposed Attainment Determination for 

the CJNA 

III. Applicability of Clean Air Act Planning 

Requirements 

IV. EPA’s Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. The NAAQS for PM–10 

Particulate matter with an 

aerodynamic diameter of less than or 

equal to 10 micrometers (PM–10) is the 

subject of this proposed action. The 

NAAQS are limits for certain ambient 

air pollutants set by EPA to protect 

public health and welfare. PM–10 is 

among the ambient air pollutants for 

which EPA has established a healthbased standard. 

On July 1, 1987 (52 FR 24634), EPA 

revised the NAAQS for particulate 

matter with an indicator that includes 

only those particles with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers. The 24- 

hour primary PM–10 standard was set at 

150 micrograms per cubic meter (μg/m3) 

with no more than one expected 

exceedance per year. The annual 

primary PM–10 standard was set at 50 

μg/m3 as an annual arithmetic mean. 

The secondary PM–10 standards, 

promulgated to protect against adverse 

welfare effects, were identical to the 

primary standards. 

On October 17, 2006, EPA revised the 

primary PM–10 standards by revoking 

the annual standard of 50 μg/m3, but 

retained the 24-hour standard of 150 μg/ 

m3. EPA also revised the secondary PM– 

10 standards to be the same as the 

primary standards. The revised PM–10 

NAAQS became effective on December 

18, 2006. See 71 FR 61144 and 40 CFR 

50.6. 

B. Designation, Classification and Air 

Quality Planning for PM–10 for the 

CJNA 

In 1990, Congress amended the Clean 

Air Act to address, among other things, 

continued nonattainment of the PM–10 

NAAQS. On the date of enactment of 

the 1990 Clean Air Act Amendments, 

PM–10 areas meeting the qualifications 

of section 107(d)(4)(B) of the amended 

Act were designated nonattainment by 

operation of law. See 56 FR 11101 

(March 15, 1991). At that time, the CJNA 

was within the boundaries of the Searles 

Valley planning area and EPA codified 

the boundaries of the Searles Valley 

planning area at 40 CFR 81.305; 

however, EPA subsequently changed the 

boundaries of the Searles Valley area by 

dividing it into three separate 

nonattainment areas: The CJNA, Indian 

Wells and Trona planning areas. 67 FR 

50805 (August 6, 2002). 

Once an area is designated 

nonattainment for PM–10, section 188 

of the CAA outlines the process for 

classifying the area and establishes the 

area’s initial attainment deadline. In 

accordance with section 188(a), at the 

time of designation, all PM–10 

nonattainment areas, such as the Searles 

Valley, were initially classified as 

moderate nonattainment. When EPA 

changed the boundaries of the Searles 

Valley area, the Agency also classified 

the newly created CJNA, Indian Wells 

and Trona planning areas as moderate. 

In the same action, EPA determined that 

the Trona planning area had attained 

the PM–10 NAAQS by the statutory 

attainment deadline. 67 FR 50805. EPA 

redesignated the Indian Wells planning 

area to attainment for the PM–10 

NAAQS on December 17, 2002. 67 FR 

77196. This proposed action concerns 

only the moderate CJNA. 

C. Attainment Determinations 

We generally determine whether an 

area’s air quality meets the PM–10 

NAAQS for purposes of sections 

179(c)(1) and 188(b)(2) based upon data 

gathered at established state and local 

air monitoring stations (SLAMS) in the 

nonattainment area and entered into the 

EPA Air Quality System (AQS) 

database. Data from air monitors 

operated by state/local agencies in 

compliance with EPA monitoring 

requirements must be submitted to the 

EPA AQS database. Heads of monitoring 

agencies annually certify that these data 

are accurate to the best of their 

knowledge. Accordingly, EPA relies 

primarily on data in its AQS database 

when determining the attainment status 

of areas. See 40 CFR 50.6; 40 CFR part 

50, appendix J; 40 CFR part 53; 40 CFR 

part 58, appendices A, C, D and E. We 

will also consider air quality data from 

other air monitoring stations in the 

nonattainment area regardless of 

whether they have been entered into the 

EPA AQS database if the stations meet 

the federal monitoring requirements for 

SLAMS. See 40 CFR 58.20 and August 

22, 1997 Memorandum ‘‘Agency Policy 

on the Use of Special Purpose 

Monitoring Data,’’ from John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, to the Regional Air 

Directors. All data are reviewed to 

determine the area’s air quality status in 

accordance with our guidance at 40 CFR 

part 50, appendix K. 

Attainment of the 24-hour PM–10 

standard is determined by calculating 

the expected number of days in a year 

with PM–10 concentrations greater than 

150 μg/m3. The 24-hour standard is 

attained when the expected number of 

days per year with levels above 150 μg/ 

m3 (averaged over a three-year period) is 

less than or equal to one. Three 

consecutive years of air quality data are 

necessary to show attainment of the 24- 

hour standard for PM–10. See 40 CFR 

part 50, appendix K. A complete year of 

air quality data, as referred to in 40 CFR 

part 50, appendix K, includes all four 

calendar quarters with each quarter 

containing data from at least 75 percent 

of the scheduled sampling days. 

II. Proposed Attainment Determination 

for the CJNA 

The CJNA has one SLAMS site 

operated by the Great Basin Unified Air 

Pollution Control District (District or 

GBUAPCD). This monitoring site is 

located in the Rose Valley of Coso 

Junction at the southern end of Inyo 

County and currently has a continuous 


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1The Federal Reference Method (FRM) for PM– 

10 monitoring sites is a manual sampler operated 

on a once every six day schedule. These samplers 

draw ambient air through a quartz fiber filter which 

is weighed before and after sampling in order to 

determine the mass of PM–10 that is collected after 

the 24-hour run period. The GBUAPCD was 

operating two FRMs at the CJNA monitoring site on 

a staggered once every six day schedule that 

enabled the District to collect a 24-hour PM–10 

sample every three days until June 30, 2006 when 

the FRMs were terminated. See EPA AQS Database, 

Monitor Description Report. Prior to terminating the 

FRMS, the GBUAPCD added a tapered element 

oscillating microbalance (TEOM) analyzer on May 

11, 2006. Id. The TEOM analyzer, which records 

PM–10 levels continuously, is not a FRM but has 

been designated a Federal equivalent method (FEM) 

by EPA. All exceedances monitored from 2006 to 

date were recorded by this TEOM. 

2Based on data from the EPA AQS database. 

3We note that the GBUAPCD has reported the 4th 

quarter data for 2009 before the deadline. Under 40 

CFR 58.16(b), quarterly data are not required to be 

reported in the AQS database until 90 days after the 

quarter; thus the data for the 4th quarter of 2009 

must be reported by no later than March 31, 2010. 

The AQS data for the year 2009 must be certified 

by May 1, 2010. See 40 CFR 58.15. 

4 ‘‘General Preamble for the Implementation of 

Title I of the Clean Air Act Amendments of 1990,’’ 

57 FR 13498 (April 16, 1992), as supplemented at 

57 FR 18070 (April 28, 1992). 

PM–10 analyzer which records PM–10 

concentrations on an hourly basis.1

PM–10 data collected in the CJNA is 

reported by the GBUAPCD to the EPA 

AQS database. The database contains 

three consecutive years of complete, 

quality-assured and certified data for 

2006–2008 for CJNA. Table 1 

summarizes the exceedances of the 24- 

hour PM–10 NAAQS of 150 μg/m3

measured in the CJNA during the 2006– 

2008 period. This table also summarizes 

data for 2009 that are contained in the 

AQS database but not yet certified. 

TABLE 1—CJNA 24-HOUR PM–10 EXCEEDANCES, 2006–2009 

Monitoring site Date of 

exceedance 

Maximum 

(μg/m3) 

Number of 

expected 

exceedances 

2006–2008 

Number of 

expected 

exceedances 

2007–2009 

Coso Junction .................................................................................. 12/8/06 295 1 1 

6/5/07 217 

12/6/07 283 

*12/22/09 *168 

Source: EPA AQS Database. 

* The 2009 data have been submitted to the AQS database but are not yet certified. 

As noted above, the 24-hour PM–10 

standard is attained when the expected 

number of days per year with levels 

above 150 μg/m3 (averaged over a threeyear period) is less than or equal to one. 

As can be seen from Table 1, there were 

three exceedances of the 24-hour PM–10 

NAAQS for both the 2006–2008 and 

2007–2009 periods; therefore the 

expected number of days per year with 

levels above 150 μg/m3 (averaged over 

that three-year period) for both of these 

periods is one.2 3 EPA is not aware of 

any exceedances to date during the year 

2010. Thus, based on quality-assured 

and certified data for the period 2006– 

2008 and data in AQS for the period 

2007–2009 that show the area continues 

to attain, we propose to find that the 

CJNA has attained the 24-hour PM–10 

NAAQS. Before EPA finalizes its 

rulemaking on a determination of 

attainment for CJNA, the Agency will 

consider the most current data available 

at that time. 

III. Applicability of Clean Air Act 

Planning Requirements 

The air quality planning requirements 

for moderate PM–10 nonattainment 

areas, such as the CJNA, are set out in 

part D, subparts 1 and 4 of title I of the 

Act. EPA has issued guidance in a 

General Preamble 4 describing how we 

will review state implementation plans 

(SIPs) and SIP revisions submitted 

under title I of the Act, including those 

containing moderate PM–10 

nonattainment area SIP provisions. 

In nonattainment areas where 

monitored data demonstrate that the 

NAAQS have already been achieved, 

EPA has determined that certain 

requirements of part D, subparts 1 and 

2 of the Act do not apply. Therefore, we 

do not require certain submissions for 

an area that has attained the NAAQS. 

These include reasonable further 

progress (RFP) requirements, attainment 

demonstrations, reasonably available 

control measures (RACM), and 

contingency measures, because these 

provisions have the purpose of helping 

achieve attainment of the NAAQS. 

This interpretation of the CAA is 

known as the Clean Data Policy and is 

the subject of two EPA memoranda. EPA 

also finalized the statutory 

interpretation set forth in the policy in 

its final rule, 40 CFR 51.918, as part of 

its ‘‘Final Rule to Implement the 8-hour 

Ozone National Ambient Air Quality 

Standard—Phase 2’’ (Phase 2 Final 

Rule). See discussion in the preamble to 

the rule at 70 FR 71612, 71645–46 

(November 29, 2005). The D.C. Circuit 

upheld this Clean Data regulation as a 

valid interpretation of the Clean Air Act 

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

2009). EPA also finalized its 

interpretation in a regulation that was 

part of its Implementation Rulemaking 

for the PM2.5 NAAQS. 40 CFR 

51.1004(c). Thus, EPA has codified the 

policy when it established final rules 

governing implementation of new or 

revised NAAQS for the pollutants. 70 

FR 71612, 71644–46 (November 29, 

2005) (ozone); 72 FR 20585, 20665 

(April 25, 2007) (PM–2.5). Otherwise, it 

applies the policy in individual 

rulemakings related to specific 

nonattainment areas. See, e.g., 75 FR 

6571 (February 10, 2010). EPA believes 

that the legal bases set forth in detail in 

our Phase 2 Final rule, our May 10, 1995 

memorandum from John S. Seitz, 

entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National 

Ambient Air Quality Standard,’’ our 

PM–2.5 implementation rule, and our 

December 14, 2004 memorandum from 

Stephen D. Page entitled ‘‘Clean Data 

Policy for the Fine Particle National 

Ambient Air Quality Standards’’, are 

equally pertinent to the interpretation of 

provisions of subparts 1 and 4 

applicable to PM–10. Our interpretation 

that an area that is attaining the 

standards is relieved of obligations to 

demonstrate RFP and to provide an 

attainment demonstration, RACM and 

contingency measures pursuant to part 

D of the CAA, pertains whether the 

standard is PM–10, ozone or PM–2.5. 

In our recent proposed and final 

rulemakings determining that the San 

Joaquin Valley nonattainment area 

attained the PM–10 standard, EPA set 

forth at length our rationale for applying 

the Clean Data Policy to PM–10. The 


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5Thus, we believe that it is a distinction without 

a difference that section 189(c)(1) speaks of the RFP 

requirement as one to be achieved until an area is 

‘‘redesignated attainment,’’ as opposed to section 

172(c)(2), which is silent on the period to which the 

requirement pertains, or the ozone nonattainment 

area RFP requirements in sections 182(b)(1) or 182 

(c)(2), which refer to the RFP requirements as 

applying until the ‘‘attainment date,’’ since section 

189(c)(1) defines RFP by reference to section 171(1) 

of the Act. Reference to section 171(1) clarifies that, 

as with the general RFP requirements in section 

172(c)(2) and the ozone-specific requirements of 

section 182(b)(1) and 182(c)(2), the PM-specific 

requirements may only be required ‘‘for the purpose 

of ensuring attainment of the applicable national 

ambient air quality standard by the applicable 

date.’’ 42 U.S.C. section 7501(1). As discussed in the 

text of this rulemaking, EPA interprets the RFP 

requirements, in light of the definition of RFP in 

section 171(1), and incorporated in section 

189(c)(1), to be a requirement that no longer applies 

once the standard has been attained. 

Ninth Circuit subsequently upheld this 

rulemaking, and specifically EPA’s 

Clean Data Policy in the context of the 

PM–10 standard. Latino Issues Forum v. 

EPA, Nos. 06–75831 and 08–71238 (9th 

Cir.) Memorandum Opinion, March 2, 

2009. In rejecting petitioner’s challenge 

to the Clean Data Policy for PM–10, 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. 

The reasons for relieving an area that 

has attained the relevant standard of 

certain part D, subparts 1 and 2 

obligations, applies equally to part D, 

subpart 4, which contains specific 

attainment demonstration and RFP 

provisions for PM–10 nonattainment 

areas. As we have explained in the 

Phase 2 Final Rule and our ozone and 

PM–2.5 clean data memoranda, EPA 

believes that it is reasonable to interpret 

provisions regarding RFP and 

attainment demonstrations, along with 

related requirements, so as not to 

require SIP submissions if an area 

subject to those requirements is already 

attaining the NAAQS (i.e. attainment of 

the NAAQS is demonstrated with three 

consecutive years of complete, qualityassured air quality monitoring data). 

Every U.S. Circuit Court of Appeals that 

has considered the Clean Data Policy 

has upheld EPA rulemakings applying 

its interpretation, for both ozone and 

PM–10. Sierra Club v. EPA, 99 F.3d 

1551 (10th Cir. 1996); Sierra Club v. 

EPA, 375 F. 3d 537 (7th Cir. 2004); Our 

Children’s Earth Foundation v. EPA, N. 

04–73032 (9th Cir. June 28, 2005) 

(memorandum opinion), Latino Issues 

Forum, supra. 

It has been EPA’s longstanding 

interpretation that the general 

provisions of part D, subpart 1 of the 

Act (sections 171 and 172) do not 

require the submission of SIP revisions 

concerning RFP for areas already 

attaining the ozone NAAQS. In the 

General Preamble, we stated: 

[R]equirements for RFP will not apply in 

evaluating a request for redesignation to 

attainment since, at a minimum, the air 

quality data for the area must show that the 

area has already attained. Showing that the 

State will make RFP towards attainment will, 

therefore, have no meaning at that point. 

57 FR at 13564. EPA believes the same 

reasoning applies to the PM–10 

provision of part D, subpart 4. 

With respect to RFP, section 171(1) 

states that, for purposes of part D of title 

I, RFP ‘‘means such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

or may reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

NAAQS by the applicable date.’’ Thus, 

whether dealing with the general RFP 

requirement of section 172(c)(2), the 

ozone-specific RFP requirements of 

sections 182(b) and (c), or the specific 

RFP requirements for PM–10 areas of 

part D, subpart 4, section 189(c)(1), the 

stated purpose of RFP is to ensure 

attainment by the applicable attainment 

date. Section 189(c)(1) states that: 

Plan revisions demonstrating attainment 

submitted to the Administrator for approval 

under this subpart shall contain quantitative 

milestones which are to be achieved every 3 

years until the area is redesignated 

attainment and which demonstrate 

reasonable further progress, as defined in 

section 7501(1) of this title, toward 

attainment by the applicable date. 

Although this section states that 

revisions shall contain milestones 

which are to be achieved until the area 

is redesignated to attainment, such 

milestones are designed to show 

reasonable further progress ‘‘toward 

attainment by the applicable attainment 

date,’’ as defined by section 171. Thus, 

it is clear that once the area has attained 

the standard, no further milestones are 

necessary or meaningful. This 

interpretation is supported by language 

in section 189(c)(3), which mandates 

that a state that fails to achieve a 

milestone must submit a plan that 

assures that the state will achieve the 

next milestone or attain the NAAQS if 

there is no next milestone. Section 

189(c)(3) assumes that the requirement 

to submit and achieve milestones does 

not continue after attainment of the 

NAAQS. 

In the General Preamble, we noted 

with respect to section 189(c) that ‘‘the 

purpose of the milestone requirement is 

to ‘provide for emission reductions 

adequate to achieve the standards by the 

applicable attainment date’ (H.R. Rep. 

No. 490 101st Cong., 2d Sess. 267 

(1990)).’’ 57 FR 13539 (April 16, 1992). 

If an area has in fact attained the 

standard, the stated purpose of the RFP 

requirement will have already been 

fulfilled.5 EPA took this position with 

respect to the general RFP requirement 

of section 172(c)(2) in the April 16, 1992 

General Preamble and also in the May 

10, 1995 memorandum with respect to 

the requirements of sections 182(b) and 

(c). We are extending that interpretation 

to the specific provisions of part D, 

subpart 4. In the General Preamble, we 

stated, in the context of a discussion of 

the requirements applicable to the 

evaluation of requests to redesignate 

nonattainment areas to attainment, that 

the ‘‘requirements for RFP will not apply 

in evaluating a request for redesignation 

to attainment since, at a minimum, the 

air quality data for the area must show 

that the area has already attained. 

Showing that the State will make RFP 

towards attainment will, therefore, have 

no meaning at that point.’’ (57 FR 

13564). See also our September 4, 1992 

memorandum from John Calcagni, 

entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment’’ (Calcagni memo), p. 6. 

Similarly, the requirements of section 

189(c)(2) with respect to milestones no 

longer apply so long as an area has 

attained the standard. Section 189(c)(2) 

provides in relevant part that: 

Not later than 90 days after the date on 

which a milestone applicable to the area 

occurs, each State in which all or part of such 

area is located shall submit to the 

Administrator a demonstration * * * that 

the milestone has been met. 

Where the area has attained the 

standard and there are no further 

milestones, there is no further 

requirement to make a submission 

showing that such milestones have been 

met. As noted above, this is consistent 

with the position that EPA took with 

respect to the general RFP requirement 

of section 172(c)(2) in the April 16, 1992 

General Preamble and also in the May 

10, 1995 Seitz memorandum with 

respect to the requirements of section 

182(b) and (c). In the May 10, 1995 Seitz 

memorandum, EPA also noted that 

section 182(g), the milestone 

requirement of Subpart 2, which is 

analogous to provisions in section 

189(c), is suspended upon a 

determination that an area has attained. 

The memorandum, also citing 

additional provisions related to 

attainment demonstration and RFP 

requirements, stated: 

Inasmuch as each of these requirements is 

linked with the attainment demonstration or 

RFP requirements of section 182(b)(1) or 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
13714 Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Proposed Rules 

6The EPA’s interpretation that the statute only 

requires implementation of RACM measures that 

would advance attainment was upheld by the 

United States Court of Appeals for the Fifth Circuit 

(Sierra Club v. EPA, 314 F.3d 735, 743–745 (5th Cir. 

2002), and by the United States Court of Appeals 

for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 

155, 162–163 (D.C. Cir. 2002)). 

7We note that our application of the Clean Data 

Policy to the CJNA is consistent with actions we 

have taken for other PM–10 nonattainment areas 

that we also determined were attaining the 

standard. See 71 FR 6352 (February 8, 2006) (Ajo, 

Arizona area); 71 FR 13021 (March 14, 2006) 

(Yuma, Arizona area); 71 FR 40023 (July 14, 2006) 

(Weirton, West Virginia area); 71 FR 44920 (August 

8, 2006) (Rillito, Arizona area); 71 FR 63642 

(October 30, 2006) (San Joaquin Valley, California 

area) and 72 FR 14422 (March 28, 2007) (Miami, 

Arizona area). 

182(c)(2), if an area is not subject to the 

requirement to submit the underlying 

attainment demonstration or RFP plan, it 

need not submit the related SIP submission 

either. 

1995 Seitz memorandum at 5. 

With respect to the attainment 

demonstration requirements of section 

189(a)(1)(B), an analogous rationale 

leads to the same result. Section 

189(a)(1)(B) requires that the plan 

provide for ‘‘a demonstration (including 

air quality modeling) that the [SIP] will 

provide for attainment by the applicable 

attainment date * * *.’’ As with the RFP 

requirements, if an area is already 

monitoring attainment of the standard, 

EPA believes there is no need for an 

area to make a further submission 

containing additional measures to 

achieve attainment. This is also 

consistent with the interpretation of the 

section 172(c) requirements provided by 

EPA in the General Preamble, the Page 

memo, and the section 182(b) and (c) 

requirements set forth in the Seitz 

memo. As EPA stated in the General 

Preamble, no other measures to provide 

for attainment would be needed by areas 

seeking redesignation to attainment 

since ‘‘attainment will have been 

reached.’’ (57 FR at 13564). 

Other SIP submission requirements 

are linked with these attainment 

demonstration and RFP requirements, 

and similar reasoning applies to them. 

These requirements include the 

contingency measure requirements of 

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

have interpreted the contingency 

measure requirements of sections 

172(c)(9) and 182(c)(9) as no longer 

applying when an area has attained the 

standard because those ‘‘contingency 

measures are directed at ensuring RFP 

and attainment by the applicable date.’’ 

(57 FR at 13564); Seitz memo, pp. 5–6. 

Both sections 172(c)(1) and 

189(a)(1)(C) require ‘‘provisions to 

assure that reasonably available control 

measures’’ (i.e., RACM) are implemented 

in a nonattainment area. The General 

Preamble, 57 FR at 13560 (April 16, 

1992), states that EPA interprets section 

172(c)(1) so that RACM requirements 

are a ‘‘component’’ of an area’s 

attainment demonstration. Thus, for the 

same reason the attainment 

demonstration no longer applies by its 

own terms, the requirement for RACM 

no longer applies. EPA has consistently 

interpreted this provision to require 

only implementation of potential RACM 

measures that could contribute to 

reasonable further progress or to 

attainment. General Preamble, 57 FR at 

13498. Thus, where an area is already 

attaining the standard, no additional 

RACM measures are required.6 EPA is 

interpreting section 189(a)(1)(C) 

consistent with its interpretation of 

section 172(c)(1). 

Here, as in both our Phase 2 Final 

Rule and ozone and PM–2.5 clean data 

memoranda, we emphasize that the 

suspension of a requirement to submit 

SIP revisions concerning these RFP, 

attainment demonstration, RACM, and 

other related requirements exists only 

for as long as a nonattainment area 

continues to monitor attainment of the 

standard. If such an area experiences a 

violation of the NAAQS, the basis for 

the requirements being suspended 

would no longer exist. Therefore, the 

area would again be subject to a 

requirement to submit the pertinent SIP 

revision or revisions and would need to 

address those requirements. Thus, a 

determination that an area need not 

submit one of the SIP submittals 

amounts to no more than a suspension 

of the requirements for so long as the 

area continues to attain the standard. 

However, once EPA ultimately 

redesignates the area to attainment, the 

area will be entirely relieved of these 

requirements to the extent the 

maintenance plan for the area does not 

rely on them. 

Should EPA at some future time 

determine that an area that has attained 

the standard, but which has not yet been 

redesignated as attainment for a 

NAAQS, has violated the relevant 

standard, the area would again be 

required to submit the pertinent SIP 

requirements for the area. Attainment 

determinations under the policy do not 

shield an area from other required 

actions, such as provisions to address 

pollution transport. 

As set forth above, EPA finds that 

because the CJNA is attaining the 

PM–10 NAAQS, the requirements to 

submit an attainment demonstration, 

reasonable further progress, reasonably 

available control measures and 

contingency measures no longer apply 

for so long as the area continues to 

monitor attainment of the PM–10 

NAAQS.7 If in the future EPA 

determines, after notice and comment 

rulemaking, that the CJNA violates the 

PM–10 NAAQS, the basis for the 

attainment demonstration, RFP, RACM 

and contingency measure requirements 

being suspended would no longer exist. 

In that event, we would notify the State 

that we have determined that the area is 

no longer attaining the PM–10 standard 

and provide notice to the public in the 

Federal Register. 

IV. EPA’s Proposed Action 

Based on the most recent three years 

of complete, quality-assured data 

meeting the requirements of 40 CFR part 

50, appendix K, we propose to 

determine that the CJNA has attained 

the 24-hour PM–10 NAAQS. 

Preliminary data indicate that the area 

continues to attain the standard. This 

proposed action, if finalized, would not 

constitute a redesignation to attainment 

under CAA section 107(d)(3) because 

we would not yet have approved a 

maintenance plan as required under 

section 175(A) of the CAA or 

determined that the area has met the 

other CAA requirements for 

redesignation. The classification and 

designation status in 40 CFR part 81 

would remain moderate nonattainment 

for this area until such time as 

California meets the CAA requirements 

for redesignation of the CJNA to 

attainment. 

EPA also finds that, because the CJNA 

is attaining the NAAQS, the obligation 

to submit the following CAA 

requirements is not applicable for so 

long as the CJNA 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. 

V. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination of attainment based on 

air quality, and would, if finalized; 

result in the suspension of certain 

Federal requirements, and would not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Proposed Rules 13715 

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 the requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects 

40 CFR Parts 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: March 15, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

[FR Doc. 2010–6338 Filed 3–22–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Parts 10, 11, 12, and 15 

[Docket No. USCG–2004–17914] 

RIN 1625–AA16 

Implementation of the 1995 

Amendments to the International 

Convention on Standards of Training, 

Certification and Watchkeeping for 

Seafarers, 1978 

AGENCY: Coast Guard, DHS. 

ACTION: Supplemental Notice of 

Proposed Rulemaking; next stage. 

SUMMARY: The Coast Guard announces 

that it is revisiting the approach 

proposed in the Notice of Proposed 

Rulemaking (NPRM) on the 

Implementation of the 1995 

Amendments to the International 

Convention on Standards of Training, 

Certification and Watchkeeping for 

Seafarers, 1978, as published in the 

Federal Register on November 17, 2009. 

DATES: The Coast Guard published its 

NPRM on the Implementation of the 

1995 Amendments to the International 

Convention on Standards of Training, 

Certification and Watchkeeping for 

Seafarers, 1978, in the Federal Register 

on November 17, 2009 (74 FR 59354). 

Comments on the NPRM were due by 

February 16, 2010. 

ADDRESSES: The docket for this 

rulemaking is available for inspection or 

copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may also find this docket on the 

Internet by going to http:// 

www.regulations.gov, inserting USCG– 

2004–17914 in the ‘‘Keyword’’ box, and 

then clicking ‘‘Search.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this document, 

call or e-mail Mayte Medina, U.S. Coast 

Guard; telephone 202–372–1406, e-mail 

Mayte.Medina2@uscg.mil. If you have 

questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

The United States ratified the 

International Convention on Standards 

of Training, Certification and 

Watchkeeping for Seafarers, 1978 

(STCW Convention), on June 10, 1991. 

On November 17, 2009, the Coast Guard 

published a NPRM on the 

Implementation of the 1995 

Amendments to the STCW Convention. 

The Coast Guard held five public 

meetings and received a large number of 

comments to the rulemaking docket in 

response to the NPRM. 

The International Maritime 

Organization (IMO) is currently 

developing amendments to the STCW 

Convention that are expected to be 

adopted at a diplomatic conference in 

June 2010. If adopted, these 

amendments will change the minimum 

training requirements for seafarers. They 

are expected to enter into force in 

accordance with Article XII of the 

Convention on January 1, 2012 for all 

countries that are party to the STCW 

Convention. 

In response to feedback we have 

received and to the expected adoption 

of the 2010 amendments to the 

Convention under development at the 

IMO, the Coast Guard is reviewing the 

approach outlined in the NPRM. As 

such, we are considering publishing a 

Supplemental NPRM (SNPRM) as a next 

step. The SNPRM would describe any 

proposed changes from the NPRM, and 

seek comments from the public on those 

proposed changes. 

This document is issued under 

authority of 5 U.S.C. 552(a). 

Dated: March 17, 2010. 

F.J. Sturm, 

Deputy Director, Office of Commercial 

Regulations and Standards, U.S. Coast Guard. 

[FR Doc. 2010–6297 Filed 3–22–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R1–ES–2009–0085; MO 

92210–0–0009] 

RIN 1018–AW88 

Endangered and Threatened Wildlife 

and Plants; Revised Designation of 

Critical Habitat for Bull Trout in the 

Coterminous United States 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on the 

proposed revision of critical habitat for 

the bull trout (Salvelinus confluentus) 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1