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Citation: 75 Fed. Reg. 27944 2010

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 75, No. 96/Wednesday, May 19, 2010/Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 52 and 81 [EPA-R09-OAR-2010-0172; FRL-9153-3]
Approval and Promulgation of Implementation Plans; Designation of Areas for AirQuality Planning Purposes; State of California; PM-10; Determination ofAttainment for the Coso Junction Nonattainment Area; Determination Regarding Applicability of Certain Clean AirAct Requirements

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPAis finalizing its determination that the Coso Junction nonattainment area (CJNA) has attained the 24-hour National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to anominal 10 micrometers (PM-10). This determination isbased upon qualityassured and certified air quality monitoring data for the PM-10 NAAQS from 2006-2008. In addition, reported data in EPA's Air Quality System (AQS) show thatthe CJNA continued to attain the PM-10 NAAQS through 2009 and preliminary data available to date for 2010 show that the CJNA continues to attain. Also, EPAisfinalizing its determination that,because the CJNA has attained the PM-10 NAAQS, the State's obligation tomake submissions
to meet certain Clean Air Act (CAA or the Act)requirements isnot applicable for aslong as the CJNA continues to attain the PM-10 NAAQS.
DATES: EffectiveDate:This rule is effective on June 18, 2010. ADDRESSES: Youmay inspectthe supporting information for this action, identified by docket number EPA-R09- OAR-2010-0172, by one ofthe following methods:

* Federal eRulemaking portal, http:// www.regulations.gov, please follow the on-line instructions; or,

* Visit our regional office at, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Docket:The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only at the hard copy location (e.g., copyrighted material), and

some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normalbusiness hours with the contact listed directly below.

FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, EPA Region IX, (415) 947- 4111, Wamsley.Jerry@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, wherever "we," "us," or "our" are used,we mean EPA.

Table of Contents

I. Summary ofProposed Actions II.Public Comments and EPAResponses III. Additional Preliminary AirQualityData Since Proposed Rule IV. EPA'sFinal Action V. Statutoryand Executive OrderReviews

I. Summary ofProposed Actions

On March 23, 2010, EPA proposed to determine thatthe CJNA has attained the 24-hour NAAQS for PM-10 (75 FR 13710). Our proposed determination

wasbased on complete, quality-assured and certified data gathered at established state and local air monitoring stations (SLAMS) in the nonattainment area and entered into the EPA AQS database for the period 2006- 2008. In addition, EPA found that quality-assured AQS data showed that the CJNA continued to attain through 2009 and thatpreliminary data then available for 2010 showed no exceedances ofthe 24-hour PM-10 NAAQS. Id.

EPA also proposed, under its Clean Data Policy, to determine that the obligation to submit certain CAA requirements was not applicable for as long as the CJNA continued to attainthe PM-10 NAAQS. Specifically, we proposed that the State's obligation to submit the following CAA requirements would be suspended ifEPA finalized its rulemaking: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the reasonably available control measure (RACM)provisions of 189(a)(1)(C), the reasonable further
progress (RFP) provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions ofpart D, subpart 1contained in section 172 of the Act.

For a more detailed discussion ofour proposed action, including background topics, such as development ofthe PM10 NAAQS, the designation, classification and air quality planning history for the CJNA; our Clean Data Policy; and our general requirements for making attainment determinations, please referto ourproposed rule.

II. Public Comments andEPA Responses

EPA provided for a 30-day public
comment period on ourproposed action. This period ended on April 22, 2010. We received no comments.
III. AdditionalPreliminary AirQuality Data Since Proposed Rule

Subsequent toour proposal, and after the close ofthe comment period, the Great Basin Unified Air Pollution Control District (GBUAPCD) informed EPA thatpreliminary data showed two exceedances ofthe 24-hour PM-10 standard were recorded at the CJNA monitor in March 2010, one on March 9, 2010 (222 micrograms per cubic
meter (pg/ms)) and another on March 18, 2010 (157 

### pg/m3). SeeMay 4, 2010 e-mail from Duane Ono, Deputy Air Pollution Control Officer, GBUAPCD, to Doris Lo, Environmental Protection Specialist, EPA, with CosoJunction2010 MetAndTEOM.xlsx attachment. The preliminary air quality datafor the first quarter of2010 (January through March), which contain these exceedances, have notbeen verified through the GBUAPCD's data validation
process, nor have theybeen entered into EPA's AQS database. The GBUAPCD is still in the process ofreviewing the first quarter datawhich does not have tobe submitted into the AQS database until June 30, 2010. See 52 FR 24634 and 40 CFR 58.16(b).

The preliminary 24-hour concentrations for March 9 and 18, if confirmed after quality assurance and control procedures are completed, would exceed the 24-hour PM-10 standard of 154pg/m 3

. 40 CFR 50.6.1 The District has also indicated thatit may flag theMarch 9, 2010 exceedance for possible exclusion from consideration in a determination of attainment.

The determination ofwhether an area has attained the PM-10 standard is based onthe mostrecent three consecutive calendar years ofqualityassured data. As discussed above and in

our proposed rule, the CJNA has attained the PM-10 standard based on complete, quality-assured and certified datafor the three-yearperiod 2006-2008

1 An exceedance is defined as a daily value that is abovethe level ofthe 24-hour standard (150 gg/

m 3) after rounding to the nearest 10pg/m 3 (i.e., values ending in 5 or greaterare to berounded up). Thus, arecorded value of154pg/m 3 wouldnotbe

an exceedance since itwouldbe rounded down to 150 pg/m 3whereas arecorded value of155 pg/m 3

wouldbe an exceedance sinceit wouldberounded

up to 160 pg/m 3

. See 40 CFR part 50, appendix K, section 1.0. 

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anddata in AQS for the period 2007- 2009. 75 FR 13710, 13712. These quality-assured data show thatthe CJNA monitor has an expected number of exceedances ofless than or equal to one per year, averaged over the three-year period.

Because 2010 hasnot ended, EPA
cannot determine whether the area has attained the standard based on the three-year period from 2008 through 2010. We can, however, determine with less than three years ofdata whether the CJNA has failed to attain in the period from 2008 to date. See 40 CFR part 50, appendix K, section 2.3(C).2

In 2008 there were no exceedances of the PM-10 NAAQS and in 2009 there

was one exceedance on December 22, 2009. 75 FR 13710. Ifwe include the preliminary data showing two additional exceedances in March 2010, the expected number ofexceedances at the CJNA monitor during the period from 2008 through 2010 would be three. Thus, evenwith two additional exceedances in March 2010, the CJNA continues to attain thePM-10 NAAQS
to datebecause the CJNA monitor has

an expected number ofexceedances of less than or equal to one per year, averaged over thethree-year period from 2008 through 2010. 3

While todate the CJNA continues to attain, EPA will continue to assess the attainment status ofthe CJNA as additional data are received, reviewed, andentered into the AQS database.

IV. EPA's Final Action

Based on a three-year period (2006- 2008) ofcomplete, quality-assured and certified data meeting therequirements of40 CFR part 50, appendix K, EPAis finalizing its determination thatthe CJNA has attained the 24-hour PM-10 NAAQS. In addition, EPA's determination isbased on reported data in EPA's AQS database for 2009 showing thatthe CJNA continued to attain the PM-10 NAAQS for the period 2007-2009, and available preliminary datato date for 2010 that are consistent with continued attainment.

2While itis necessary to have three years of representative monitoring data to demonstrate that

a monitoris attaining the standard, 40CFR part 50, appendix K,section 2.3(c) states that there areless stringent data requirements for showing that a monitor has failed to attain. Since the 24-hour PM10 standard is violated once a monitor averages

more than oneexpected exceedance peryear (averaged over three years), a monitor with four or

more observed or expected exceedances has violated the 24-hour NAAQS even ifthere are fewer thanthree years of data (four exceedances divided bythree years is greater than one peryear).

3The status of the preliminary exceedances may change after the data validation process is concluded and after any flagging issues are addressed. This determination ofattainment of the PM-10 NAAQS for the CJNA does
not constitute a redesignation to attainment under CAA section 107(d)(3) because we have neither approved a maintenance plan as required under section 175(A) ofthe CAA, nor determined that the area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFRpart 81 remains moderate nonattainment for the CJNA until such time as California
meets the CAA requirements for redesignation ofthe CJNA to attainment.

EPA is also finalizing its determination that, because the CJNA is attaining the NAAQS, the obligationto submit the following CAA requirements is not applicable for so long as the area continues to attain the PM-10 standard: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions ofpart D, subpart 1contained in section 172 of the Act. Subsequently, ifwe determine after notice and comment rulemaking in the Federal Register thatthe CJNA has violated the standard (priorto a redesignation to attainment), these requirements would once again become applicable.

V. Statutoryand Executive Order Reviews

This final action makes a determination ofattainment based on air quality and results in the suspension ofcertain Federal requirements, and does not impose additional requirements beyond those imposedby
state law. Forthat reason,this action: * Is not a "significant regulatory action" subject to reviewby the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); * Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.); * 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 etseq.); * 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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

* Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition,this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the final action does not apply in Indian country located in the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United Statesprior to publication ofthe rule in the Federal Register. A majorrule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis actionmust be filed inthe United States Court ofAppeals for the appropriate circuitby July 19, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does not affectthe finality ofthis action for the purposes of judicial review nordoes itextend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule

oraction. This action may notbe challenged later in proceedings to enforce its requirements (see section 307(b)(2)). 

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List of Subjects

40CFRPart 52
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting andrecordkeeping requirements.

40CFRPart81

Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: May 13, 2010. Jared Blumenfeld, RegionalAdministrator, Region9.
[FRDoe. 2010-12093 Filed 5-18-10; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 222, and 252
RIN0750-AG70

Defense Federal Acquisition Regulation Supplement; Restrictions

on the Use of Mandatory Arbitration Agreements (DFARS Case 2010-D004)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Interim rule with request for
comments.

SUMMARY: DoD is issuing an interim rule to implement section 8116 ofthe DoD Appropriations Act for Fiscal Year 2010. Section 8116 restricts theuse of mandatory arbitration agreements when using funds appropriated or otherwise made available by this DoD Appropriations Act to award contracts that exceed $1 million. Itallows the Secretary ofDefense towaive applicability to a particular contractor

or subcontractor, ifdetermined necessary to avoid harm to national security. DATES: Effective date:May 19, 2010.

Commentdate:Comments on this interim rule should be submitted in writing to the address shownbelow on

or before July 19, 2010, tobe considered in the formation ofthe final rule.

ADDRESSES: Youmay submit comments, identified by DFARS Case 2010-D004, using any ofthe following methods:

FederaleRulemakingPortal: http:// www.regulations.gov. Follow the instructions for submitting comments.

E-mail:dfars@osd.mil.Include DFARS Case 2010-D004 in the subject line ofthe message.

Fax: 703-602-0350. Mail:Defense Acquisition Regulations System, Attn: Mr.Julian E. Thrash, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally willbe posted without change to http:// www.regulations.gov,including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Julian E. Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION:
A. Background
Section 8116 oftheDoD Appropriations Act for Fiscal Year 2010 (FY 10) (Pub.L. 111-118) prohibits the

use offunds appropriated or otherwise made available by the FY 10 DoD Appropriations Act for any contract (includingtask or delivery orders and bilateral modifications adding new work) in excess of$1 million, ifthe
contractor restricts its employees to arbitration for claims under title VII of the CivilRights Act of 1964, or tort related to or arising out of sexual assault

or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment,

or negligent hiring, supervision, or retention, hereinafter the "covered areas."

This rule does not apply to the acquisition ofcommercial items, including commercially available offthe-shelf items. After June 17, 2010, section 8116(b) requires the contractor to certify compliance by subcontractors.

Additionally, enforcement ofthis rule does not affect the enforcement ofother aspects ofan agreement thatisnot related to the covered areas.

This rule allows the Secretary of Defense to waive applicability to a particular contract or subcontract, if determined necessary to avoid harm to national security.

The following examples are provided
to help determine applicability: * A new order that exceeds $1 million using funds appropriated or otherwise made available by the FY 10 DoD Appropriations Act,placed against

an indefinite-delivery/indefinitequantity contract for an applicable item

or service, is covered by this restriction, regardless ofwhether the basic indefinite-delivery/indefinite-quantity
contract was covered. * A funding modification adding

more than $1 million offunds appropriated or otherwise made available by the FY 10 DoD Appropriations Act to a contract that does not contain the clause at 252.222- 7006 or 252.222-7999 (Deviation), isnot covered. * A bilateral modification adding new work thatuses funds appropriated or otherwise made available by the FY 10 DoD Appropriations Act in excess of$1 million is covered.

* The award ofa new order using funds appropriated or otherwise made available by the FY 10 DoD Appropriations Act with avalue of $700,000 is not covered, since the value is under $1 million.

* A contractvalued at $1.5 million awarded today, and only $10,000 in funds appropriated or otherwise made available by the FY 10 DoD Appropriations Act will be obligated, with the remaining balance being FY 11 funding, isnot covered, because the total value offunds appropriated or otherwise made available by the FY 10 DoD Appropriations Act isless than $1 million.

* An entity or firm thatdoes not have

a contractin excess of $1 million appropriated orotherwise made available by the FY 10 DoD Appropriations Act is not affected by the clause. The term "contractor"is narrowly applied only to the entity that has the contract. Unless a parent or subsidiary corporation is a partyto the contract, itis not affected.

Contracting officers willmodify existing contracts, on abilateral basis,if using funds appropriated or otherwise made available by the FY 10 DoD Appropriations Act, when such funds will be used for bilateral modifications adding new work or orders that exceed $1 million and are issued after the effective date ofthis interim rule. Inthe
event that a contractor refuses to accept such a modification, the contractor will
not be eligible for receipt offunds appropriated orotherwise made available by the FY 10 DoD Appropriations Act on such modifications or orders.

This is a significant regulatory action and, therefore, was subject toreview under section (6)b ofExecutive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This isnot a major rule.

B. Regulatory Flexibility Act

DoD hasprepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. Acopy ofthe analysis may be obtained from the point ofcontact specified herein. The analysis is summarized as follows:

The objective ofthis rule isto implement section 8116 ofthe DoD Appropriations Act for Fiscal Year 2010 (Pub.L. 111-118). The clause at 252.222-7006, Restrictions on the Use ofMandatory Arbitration Agreements, prohibits the use offunds appropriated 

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