64280 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

involved in extensive research using

materials from the Library’s collections.

List of Subjects in 36 CFR Part 701

Libraries, Seals and insignias.

Regulation

In consideration of the foregoing the

Library of Congress amends 36 CFR part

701 to read as follows:

PART 701—PROCEDURES AND

SERVICES

1. The authority citation for part 701

will continue to read as follows:

Authority: 2 U.S.C. 136.

2. Section 701.8 is revised to read as

follows:

§ 701.8 Assignment of Special Research

Facilities.

(a) Study Shelves. Individuallyassigned reserve shelves are available

adjacent to several reading rooms for the

use of researchers whose work requires

access to the same materials over an

extended period of time. Shelves are

assigned to applicants for a specific

period through the Research Facilities

Office, Humanities and Social Sciences

Division. Shelves must be renewed at

designated intervals.

(b) Study desks. A limited number of

study desks are available for the use of

researchers engaged in full-time

research projects involving extensive

use of materials requiring larger

amounts of material drawn from the

Library’s collections, more work space,

greater physical security, and/or a more

private environment than might be

possible in a reading room. Study desk

areas shall not be used as a primary

office from which the project

undertaken is operated, nor as a

business location. Study desks are

initially assigned for a period not to

exceed one year, with the assignment

and termination dates determined by

the Head of the Main Reading Room

Section, Humanities and Social

Sciences Division. The assignment of a

study desk beyond the first year may be

made by the Chief of the Humanities

and Social Sciences Division for a

maximum of two years from the first

assignment when there is a

demonstrated need for the continuation

of the assignment. Assignments beyond

two years require an exception to this

part and shall be specifically authorized

by the Associate Librarian for Library

Services. Any researcher who

demonstrates a continuing need for a

facility beyond an expiration date may

reapply, but priority will be given to

applicants on the waiting list who meet

the specific criteria.

(c) Congressional use of study rooms.

Rooms 225A–225E in the James

Madison Building are available for the

exclusive use of Members of Congress

and Committees for official research that

requires use of the Library’s collections

or files in the Congressional Research

Service. Assignment of study rooms

shall be made in accordance with the

Resolution of the Joint Committee on

the Library of September 12, 1959,

which states: ‘‘* * * occupancy of

study rooms assigned to Members

should not be delegated to others than

members of their own office staff who

are paid no less than 20 hours per week

from U.S. Government funds and at a

rate of not less than the minimum salary

of a GS–3 clerk-typist * * *, and that

Members should not request

assignments of rooms for themselves

merely for the purpose of sponsoring the

work of private individuals and nonGovernment groups. * * *’’ Rooms are

assigned for one year or the life of the

project, whichever is less, with the

assignment and termination dates

determined by the Director of the

Congressional Relations Office.

Dated: November 20, 1997.

James H. Billington,

The Librarian of Congress.

[FR Doc. 97–31752 Filed 12–4–97; 8:45 am]

BILLING CODE 1410–04–P

POSTAL SERVICE

39 CFR Parts 262 and 265

Records and Information Management

Definitions and Release of Information

AGENCY: Postal Service.

ACTION: Interim rule.

SUMMARY: The Postal Service is

amending its regulations relating to the

availability of records to the public.

This rule is made necessary by

amendments to the Freedom of

Information Act, made by Public Law

104–231, the ‘‘Electronic Freedom of

Information Act Amendments of 1996.’’

The amendments address the

availability of electronic records, the

creation of a new electronic reading

room, and procedural aspects, such as

time limits, expedited processing,

denial specifications, and reporting

requirements.

DATES: The interim regulations take

effect on December 5, 1997. Comments

must be received on or before January 5,

1998.

ADDRESSES: Written comments may be

mailed or delivered to Freedom of

Information/Privacy Acts Officer,

United States Postal Service, 475

L’Enfant Plaza, SW, Room 8800,

Washington, DC 20260–5243.

FOR FURTHER INFORMATION CONTACT:

Betty Sheriff, (202) 268–2608.

SUPPLEMENTARY INFORMATION: The

Freedom of Information Act (5 U.S.C.

552) was amended on October 2, 1996,

by Public Law 104–231, the ‘‘Electronic

Freedom of Information Act

Amendments of 1996.’’ Consistent with

the amended law, the interim

regulations:

a. Add a new category of reading

room records consisting of any records

processed and disclosed in response to

a FOIA request that the Postal Service

determines have become or are likely to

become the subject of subsequent

requests for substantially the same

records. These and other reading room

records created on or after November 1,

1996 also will be made available

through the Postal Service’s world wide

web home page after November 1, 1997.

b. Define the term ‘‘record’’ to include

electronic records; provide that the

requester may choose the form or format

in which to receive records; and state

that the Postal Service will make

reasonable efforts to search for records

in electronic form or format unless such

efforts would significantly interfere with

the operation of its computer systems.

c. Extend the period for response from

10 to 20 working days as of October 2,

1997; provide for notification of the

requester when that period cannot be

met to arrange for an alternative time

frame or a modified request; and

establish a new procedure for handling

requests for expedited processing.

d. Require the custodian to indicate

on the released portion of a record the

amount of information deleted and to

include in a written response an

estimate of the volume of any records

withheld in full.

e. Change the annual reporting period

from a calendar year to the fiscal year

that, for most of the Executive branch,

begins on October 1, and provide that

those reports will be made available to

the Attorney General and on the Postal

Service’s world wide web page.

Other interim changes update

organizational titles and the schedule of

fees for searching for records by

computer.

The Postal Service has determined to

place the amendments immediately into

effect on an interim basis, because many

of the key provisions implement

statutory changes that take effect by

force of law on October 2, 1997.

Nonetheless, the Postal Service invites

interested persons to submit written

comments concerning the interim rule.
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64281

These comments will be considered

before a final rule is adopted.

List of Subjects

39 CFR Part 262

Archives and records, Records and

information management definitions.

39 CFR Part 265

Administrative practice and

procedure, Courts, Freedom of

information, Government employees,

Release of information.

For the reasons set out in the

preamble, 39 CFR parts 262 and 265 are

amended as set forth below.

PART 262—RECORDS AND

INFORMATION MANAGEMENT

DEFINITIONS

1. The authority citation for part 262

is revised to read as follows:

Authority: 5 U.S.C. 552, 552a; 39 U.S.C.

401.

2. Section 262.2(a) is revised to read

as follows:

§ 262.2 Officials.

(a) Records Custodian. The

postmaster or other head of a facility

such as an area vice president, district

manager, or head of a postal installation

or department who maintains Postal

Service records. Vice presidents are the

custodians of records maintained at

Headquarters. Senior medical personnel

are the custodians of restricted medical

records maintained within postal

facilities.

* * * * *

3. Section 262.4 introductory text is

revised to read as follows:

§ 262.4. Records.

Recorded information, regardless of

media, format, or physical

characteristics, including electronic

data, developed or received by the

Postal Service in connection with the

transaction of its business and retained

in its custody; for machine-readable

records, a collection of logically related

data treated as a unit.

* * * * *

PART 265—RELEASE OF

INFORMATION

4. The authority citation for part 265

continues to read as follows:

Authority: 5 U.S.C. 552; 5 U.S.C. App. 3;

39 U.S.C. 401, 403, 410, 1001, 2601.

5. Section 265.3(a) is revised to read

as follows:

§ 265.3 Responsibility.

(a) Custodian. Official records are in

the custody of the postmaster or other

head of a facility or department at

which they are maintained, as defined

at § 262.2(a). These custodians are

responsible for responding in the first

instance to requests from members of

the public for Postal Service records.

* * * * *

6. Section 265.5 is revised to read as

follows:

§ 265.5 Public reading rooms.

The Library of the Postal Service

Headquarters, 475 L’Enfant Plaza SW.,

Washington, DC 20260–1641, serves as

public reading room for the materials

which are listed in paragraphs (a) (2),

(3), (4) and (5) of § 265.6 as available for

public inspection and copying. Any

such material created by the Postal

Service on or after November 1, 1996,

also will be available, as of November 1,

1997, in electronic format at the Postal

Service’s world wide web site at http:/

/www.usps.gov.

7. Section 265.6(a) is revised to read

as follows:

§ 265.6 Availability of records.

(a) Records available to the public on

request—(1) General. Postal Service

records are available for inspection or

copying at the request of any person, in

accordance with the provisions of this

part, except as otherwise provided by

law or regulations, including but not

limited to paragraphs (b) through (g) of

this section. Certain categories of

records of particular interest are

available on a continuing basis as

provided in paragraphs (a) (2), (3), and

(4) of this section and are listed in a

public index as provided in paragraphs

(a) (4) and (5) of this section. Access to

other records may be requested on an

individual basis in accordance with the

procedures provided in § 265.7. Official

records which are maintained on an

electronic storage medium will

normally be made available, in

accordance with this part, as an exact

duplicate of the requested original in a

form readable by the human eye, such

as a computer print-out. On request,

records will be provided in a different

form or format if they are maintained in

the requested form or format or if they

can be readily reproduced in the

requested form or format.

(2) Opinions. All final opinions and

orders made in the adjudication of cases

by the Judicial Officer, Administrative

Law Judges, and Board of Contract

Appeals, all final determinations

pursuant to section 404(b) of title 39,

United States Code, to close or

consolidate a post office, or to

disapprove a proposed closing or

consolidation, and all advisory opinions

concerning the private express statutes

issued pursuant to 39 CFR 310.6, and all

bid protest decisions are on file and

available for inspection and copying at

the Headquarters Library and at the

Postal Service’s world wide web site

identified at § 265.5.

(3) Administrative manuals and

instructions to staff. The manuals,

instructions, and other publications of

the Postal Service that affect members of

the public are available through the

Headquarters Library and at many post

offices and other postal facilities. Those

which are available to the public but are

not listed for sale may be inspected in

the Headquarters Library, at any postal

facility which maintains a copy, or

through the world wide web site

identified at § 265.5. Copies of

publications which are not listed as for

sale or as available free of charge may

be obtained by paying a fee in

accordance with § 265.9.

(4) Previously released records.

Records processed and disclosed after

March 31, 1997, in response to a

Freedom of Information Act request,

which the Postal Service determines

have become or are likely to become the

subject of subsequent requests for

substantially the same records, are

available for inspection and copying at

the Headquarters Library. Beginning

November 1, 1997, any such records

created by the Postal Service on or after

November 1, 1996, also will be available

at the Postal Service’s world wide web

site identified at § 265.5. Records

described in this paragraph that were

not created by, or on behalf of, the

Postal Service generally will not be

available at the world wide web site.

Records will be available in the form in

which they were originally disclosed,

except to the extent that they contain

information that is not appropriate for

public disclosure and may be withheld

pursuant to this section. Any deleted

material will be marked and the

applicable exemption(s) indicated in

accordance with 265.7(d)(3). A general

index of the records described in this

paragraph is available for inspection

and copying at the Headquarters

Library. [Beginning on or before

December 31, 1999, the index also will

be available at the Postal Service’s

world wide web site.]

(5) Public index. (i) A public index is

maintained in the Headquarters Library

and at the world wide web site of all

final opinions and orders made by the

Postal Service in the adjudication of

cases, Postal Service policy statements

which may be relied on as precedents in

the disposition of cases, administrative

staff manuals and instructions that

affect the public, and other materials

which the Postal Service elects to index
64282 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

and make available to the public on

request in the manner set forth in

paragraph (a) of this section.

(ii) The index contains references to

matters issued after July 4, 1967, and

may reference matters issued prior to

that date.

(iii) Any person may arrange for the

inspection of any matter in the public

index in accordance with the

procedures of § 265.7.

(iv) Copies of the public index and of

matters listed in the public index may

be purchased through the Headquarters

Library with payment of fees as listed in

the index or as provided in § 265.9.

(v) Materials listed in the public index

that were created on or after November

1, 1996, will also be available beginning

November 1, 1997, in electronic format

at the Postal Service’s world wide web

site at http://www.usps.gov.

(6) Listings of employees’ names. With

written request, the Postal Service will,

to the extent required by law, provide a

listing of postal employees working at a

particular postal facility.

* * * * *

8. Section 265.6(e)(1) is amended by

revising the citation ‘‘paragraph (a)(5)’’

to read ‘‘paragraph (a)(6)’’.

9. Section 265.7(a)(2) is amended by

revising the citation ‘‘§ 265.6(a)(5)’’ to

read ‘‘§ 265.6(a)(6)’’.

10. Sections 265.7 (b) and (c), (d)(1),

(e)(1) and (f) (1) and (2) are revised and

sections 265.7 (d)(3) and (g) are added

to read as follows:

§ 265.7 Procedure for inspection and

copying of records.

* * * * *

(b) Responsibilities of the custodian.

(1) The custodian of the requested

record is the person responsible for

determining whether to comply with or

to deny the request. A custodian who is

not an Officer as defined in § 221.8 of

this chapter, however, should not deny

a request until he has obtained the

advice of Chief Field Counsel. If denial

of a request appears necessary, the

custodian should seek advice as soon as

possible after receipt of the request so as

to provide adequate time for legal

review. Denial must be made in

accordance with paragraph (d) of this

section.

(2) The custodian shall make the

determination whether to release or

deny the record(s) within 20 working

days (i.e., exclusive of Saturdays,

Sundays, and holidays) of receiving the

request, and more rapidly if feasible.

The custodian and the requester may, by

mutual agreement, preferably in writing,

establish a different response period.

(3) If a requested record cannot be

located from the information supplied,

the requester should be given an

opportunity to supply additional

information and, if feasible, to confer

with the custodian or his/her

representative, in an attempt to provide

a reasonable description of the records

sought. If additional information is

furnished, the request will be deemed to

have been received by the custodian

when sufficient additional information

to identify and locate the record with a

reasonable amount of effort has been

received.

(4) The custodian shall make

reasonable efforts to search for the

records in electronic form or format,

except when such efforts would

significantly interfere with the operation

of the automated information system.

(5) The 20 working day response

period allowed in paragraph (b)(2) of

this section may be extended by the

custodian, after consultation with the

Chief Field Counsel or with the General

Counsel if the custodian is at

Headquarters, for a period not to exceed

an additional 10 working days, except

as provided in paragraph (b)(7) of this

section, when, and to the extent,

reasonably necessary to permit the

proper processing of a particular

request, under one or more of the

following unusual circumstances:

(i) The request requires a search for

and collection of records from a facility

other than that processing the request.

(ii) The request requires the search

for, and collection and appropriate

examination of, a voluminous amount of

separate and distinct records.

(iii) The request requires consultation:

(A) With another agency having a

substantial interest in the determination

of whether to comply with the request

or

(B) Among two or more components

of the Postal Service having substantial

subject matter interest in the

determination of whether to comply

with the request.

(6) When the custodian finds that the

additional time is required, he shall

acknowledge the request in writing

within the initial 20-day response

period, state the reason for the delay,

and indicate the date on which a

decision as to disclosure is expected.

(7) If a request cannot be processed

within the additional time provided by

paragraph (b)(5) of this section, in spite

of the exercise of due diligence, the

custodian shall notify the requester of

the exceptional circumstances

preventing timely compliance and of the

date by which it is expected that the

determination will be made. The

custodian also shall provide the

requester an opportunity to limit the

scope of the request so that it may be

processed within the extended time

limit, or an opportunity to arrange with

the custodian an alternative time frame

for processing the request or a modified

request. The custodian shall nonetheless

make a determination on the request as

promptly as possible.

(8) If a requested record is known to

have been destroyed, disposed of, or

otherwise not to exist, the requester

shall be so notified.

(c) Compliance with request upon

affirmative determination by custodian.

(1) When a requested record has been

identified and is to be disclosed in

whole or in part, the custodian shall

ensure that the record is made available

promptly and shall immediately notify

the requester where and when and

under what reasonable conditions, if

any, including the payment of fees, the

record will be available for inspection or

copies will be available. Postal Service

records will normally be available for

inspection and copying during regular

business hours at the postal facilities at

which they are maintained. The

custodian may, however, designate

other reasonable locations and times for

inspection and copying of some or all of

the records within his custody.

(2) Any fees authorized or required to

be paid in advance by § 265.9(f)(3) shall

be paid by the requester before the

record is made available or a copy is

furnished unless payment is waived or

deferred pursuant to § 265.9(g).

(3) A custodian complying with a

request may designate a representative

to monitor any inspection or copying.

(d) Denial of request. (1) A reply

denying a request in whole or in part

shall be in writing, signed by the

custodian or his designee, and shall

include:

(i) A statement of the reason for, or

justification of, the denial (e.g., records

personal in nature), including, if

applicable, a reference to the provision

or provisions of 265.6 authorizing the

withholding of the record and a brief

explanation of how each provision

applies to the records requested.

(ii) If entire records or pages are

withheld, a reasonable estimate of the

number of records or pages, unless

providing such estimate would harm an

interest protected by the exemption

relied upon.

(iii) The name and title or position of

the person responsible for the denial of

the request (see paragraph (d)(2) of this

section).

(iv) A statement of the right to appeal

and of the appeal procedure within the

Postal Service (described in paragraph

(e) of this section).

* * * * *
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64283

(3) When information is deleted from

a record that is disclosed in part, the

custodian shall indicate, on the released

portion of the record, the amount of

information deleted, unless including

that indication would harm an interest

protected by the exemption relied on.

The indication must appear, if

technically feasible, at the place in the

record where such deletion is made.

(e) Appeal procedure. (1) If a request

to inspect or to copy a record, or a

request for expedited processing of the

request, is denied, in whole or in part,

if no determination is made within the

period prescribed by this section, or if

a request for waiver of fees is not

granted, the requester may appeal to the

General Counsel, U.S. Postal Service,

Washington, DC 20260–1100.

* * * * *

(f) Action on appeals. (1) The decision

of the General Counsel or his designee

constitutes the final decision of the

Postal Service on the right of the

requester to inspect or copy a record, or

to expedited processing of the request,

as appropriate. The General Counsel

will give prompt consideration to an

appeal for expedited processing of a

request. All other decisions normally

will be made within 20 working days

from the time of the receipt by the

General Counsel. The-20 day response

period may be extended by the General

Counsel or his designee for a period not

to exceed an additional 10 working days

when reasonably necessary to permit

the proper consideration of an appeal,

under one or more of the unusual

circumstances set forth in paragraph

(b)(5) of this section. The aggregate

number of additional working days

utilized pursuant to this paragraph (f)(1)

and paragraph (b) of this section,

however, may not exceed 10.

(2) The decision on the appeal shall

be in writing. If the decision sustains a

denial of a record, in whole or in part,

or if it denies expedited processing, it

shall state the justification therefor and

shall inform the requester of his right to

judicial review. In the case of records

withheld, the decision also shall specify

any exemption or exemptions relied on

and the manner in which they apply to

the record, or portion thereof, withheld.

* * * * *

(g) Expedited processing—(1) Criteria.

A request for expedited processing of a

request for records shall be granted

when the requester demonstrates

compelling need. For purposes of this

paragraph, ‘‘compelling need’’ exists if:

(i) Failure of the requester to obtain

the records on an expedited basis could

reasonably be expected to pose an

imminent threat to the life or physical

safety of an individual or;

(ii) In the case of a request made by

a person primarily engaged in

disseminating information, there is an

urgency to inform the public concerning

actual or alleged federal government

activity.

(2) Request. A request for expedited

processing shall be directed in writing

to the records custodian. The requester

must provide information in sufficient

detail to demonstrate compelling need

for the records and certify this statement

to be true and correct to the best of the

requester’s knowledge and belief.

(3) Determination. The records

custodian shall make a determination of

whether to provide expedited

processing and notify the requester

within ten days after the date of the

request for expedited processing. If the

request is granted, the records custodian

shall process the request for records as

soon as practicable. If the request for

expedited processing is denied, the

written response will include the

procedures at paragraph (d) of this

section for appealing the denial.

11. Section 265.10 is revised to read

as follows:

§ 265.10 Annual report.

A report concerning the

administration of the Freedom of

Information Act and this part will be

submitted to the Attorney General of the

United States on or before February 1 of

each year, with the first such report, for

fiscal year 1998, due on or before

February 1, 1999. Data for the report

will be collected on the basis of a fiscal

year that begins on October 1 of each

year. The Attorney General, in

consultation with the Director, Office of

Management and Budget, will prescribe

the form and content of the report. The

report will be made available to the

public at the Headquarters Library and

on the Postal Service’s world wide web

site at http://www.usps.gov.

12. Appendix A to Part 265—

Information Services Price List is

revised to read as follows:

Appendix A to Part 265—Information

Services Price List

When information is requested that

must be retrieved by computer, the

requester is charged for the resources

required to furnish the information.

Estimates are provided to the requester

in advance and are based on the

following price list.

Service description Price Unit

Servers

A. OS390 Servers:

Batch or On-line Services .................................................................................................................................... $1,350.00 Hour.

Media Charge (Tape Produced) .......................................................................................................................... 25.00 Volume.

Print ...................................................................................................................................................................... .10 Page.

B. Production Servers:

(Running UNIX or NT OS) On-line Services ....................................................................................................... 155.00 Hour.

Print ...................................................................................................................................................................... .13 Page.

C. Personal Computers:

On-line search ...................................................................................................................................................... 6.25 15 minutes.

Print ...................................................................................................................................................................... .13 Page.

D. Personnel Charges:

Software Systems Services ................................................................................................................................. 81.00 Hour.

Programming Services ......................................................................................................................................... 70.00 Hour.

Manual Unit Services ........................................................................................................................................... 48.00 Hour.
64284 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 97–31598 Filed 12–4–97; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[LA–41–1–7355, FRL–5899–8]

Designation of Areas for Air Quality

Planning Purposes; State of Louisiana;

Correction of the Designation for

Lafourche Parish

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; correction.

SUMMARY: On July 17, 1997, EPA

published a proposed rulemaking to

correct the designation of Lafourche

Parish, Louisiana, to nonattainment for

ozone (62 FR 38237). One adverse

comment letter was received during the

30-day comment period, and the issues

raised in that letter are addressed in this

document. Pursuant to the Clean Air

Act (the Act), which allows EPA to

correct its actions, EPA is today

correcting the designation of Lafourche

Parish to nonattainment for ozone.

DATES: This action is effective on

January 5, 1998.

ADDRESSES: Copies of the information

relevant to this action are available for

inspection during normal hours at the

following location: Environmental

Protection Agency, Region 6, Air

Planning Section (6PD–L), 1445 Ross

Avenue, Suite 700, Dallas, Texas 75202–

2733.

Anyone wishing to review this

document at the Region 6 EPA office is

asked to contact the person below to

schedule an appointment 24 hours in

advance.

FOR FURTHER INFORMATION CONTACT:

Lt. Mick Cote, Air Planning Section

(6PD–L), Environmental Protection

Agency, Region VI, 1445 Ross Avenue,

Dallas, Texas 75202–2733, telephone

(214) 665–7219.

SUPPLEMENTARY INFORMATION:

I. Background

The specific rationale EPA used to

correct the ozone designation of

Lafourche Parish was explained in the

proposed correction document (62 FR

38237, July 17, 1997) and will not be

restated here. This document announces

EPA’s final action regarding the

correction of Lafourche Parish to

nonattainment for ozone.

II. Response to Comments

The EPA received an adverse

comment letter dated August 15, 1997,

from the Louisiana Mid-Continent Oil

and Gas Association. The commentors

believed that EPA either failed to

consider or purposefully disregarded

several factors. The EPA’s responses to

these comments are detailed below.

Comment: EPA failed to consider the

odd shape of the parish and the location

of the monitor with respect to sources

in the parish.

Response: 40 CFR part 58, Ambient

Air Quality Surveillance, Appendices D

and E, describe EPA’s monitoring

network design and siting criteria for

State or Local Air Monitoring Stations

(SLAMS). The SLAMS make up the

ambient air quality monitoring network

which is required by 40 CFR 58.20 to be

provided for in the State

Implementation Plan (SIP). In general,

the SLAMS monitor in Thibodaux was

sited in accordance with 40 CFR part 58,

Appendices C and D, to measure the

maximum population exposure one

could reasonably expect to occur in the

Parish. The shape of Lafourche Parish

and the location of the major emission

points were taken into consideration by

the State and EPA to determine the

appropriate siting scales and monitoring

objectives for ozone in Lafourche Parish.

Comment: EPA failed to consider the

excellent compliance history of the

Parish.

Response: The EPA considered the

compliance history of Lafourche Parish,

prior to and during 1995, as part of our

evaluation and approval process for the

Parish’s ozone redesignation request.

But despite the prior compliance history

of Lafourche, the operative facts showed

a violation of the standard that

disqualified the area from redesignation

to attainment. The language of section

107 (d)(3)(E)(i) and (d)(1)(A) provides

that EPA may not redesignate an area

unless the Administrator determines

that the area has attained the standard.

This is reinforced by other sections of

the Act, including section 175A

maintenance plan requirements, and

section 172(c)(9) contingency measures.

The EPA has long interpreted this

language as requiring EPA to disapprove

redesignation requests for areas that

violate the standard while a

redesignation request is pending. See

Memorandum dated September 4, 1992,

entitled Procedures for Processing

Requests to Redesignate Areas to

Attainment, p. 5; Pittsburgh-Beaver

Valley nonattainment area (61 FR

19123, May 1, 1996); Richmond,

Virginia (59 FR 22757, May 3, 1994),

Birmingham, Alabama (62 FR 49154,

September 19, 1997), Northern

Kentucky portion of CincinnatiHamilton nonattainment area (61 FR

50718, September 27, 1996), and

Detroit-Ann Arbor, (60 FR 12459, March

7, 1995). See also the opinion of the

United States Court of Appeals for the

Third Circuit in Southwestern

Pennsylvania Growth Alliance v.

Browner, 121 F. 3rd. 106 (3rd Cir. 1997).

The Lafourche direct final approval

notice itself stated: ‘‘If the monitoring

data records a violation of the NAAQS

before the direct final action is effective,

the direct final approval of the

redesignation will be withdrawn and a

proposed disapproval substitute for the

direct final approval.’’ (60 FR 43021–

22). Although such a violation was

recorded during the comment period,

EPA failed to withdraw the approval

and substitute a disapproval, as it

acknowledged would have been the

appropriate course of action. The EPA’s

position is consistent with 40 CFR

section 50.9, which states that the

NAAQS for ozone is attained ‘‘when the

expected number of days per calendar

year with maximum hourly average

concentrations above 0.12 parts per

million[] is equal to or less than 1, as

determined by Appendix H.’’ Appendix

H explains the methodology for

determining ‘‘attainment’’ of the ozone

standard. If there are more than three

exceedances over a three-year period at

any of the monitoring sites, the area has

not attained the standard.

The United States Court of Appeals

for the Third Circuit, in evaluating

EPA’s disapproval of a redesignation

request for an area that violated the

standard while its request was pending,

stated: ‘‘we accept the view that the EPA

may not redesignate an area if the EPA

knows that the area is not meeting the

NAAQS. The EPA’s redesignation of the

Lafourche Parish redesignation was thus

not proper.’’ Southwestern Pennsylvania

Growth Alliance v. Browner, 121 F.3rd

at 114. The commenters also

complained that 1995 was an unusually

warm year. But even if this were the

case, this provides no grounds for

excluding quality-assured monitored

exceedances of the ozone standard. The

EPA’s applicable regulations governing

ozone attainment provide no basis for

excluding data due to exceptionally hot

weather. 40 CFR section 50.9 appendix

D and H and part 58. See Birmingham,

62 FR 49154, and the discussion

contained therein.

Comment: The EPA failed to consider

Lafourche Parish’s performance with

respect to the new 8-hour ozone

standard.

Response: Compliance with the new

8-hour ozone standard is irrelevant to