+(,121/,1(

Citation: 75 Fed. Reg. 27944 2010 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Tue May 25 14:23:15 2010

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- 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 Air Quality Planning

Purposes; State of California; PM-10;

Determination of Attainment for the

Coso Junction Nonattainment Area;

Determination Regarding Applicability

of Certain Clean Air Act Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing its

determination that the Coso Junction

nonattainment area (CJNA) has attained

the 24-hour National Ambient Air

Quality Standard (NAAQS) for

particulate matter with an aerodynamic

diameter less than or equal to a nominal

10 micrometers (PM-10). This

determination is based upon qualityassured and certified air quality

monitoring data for the PM-10 NAAQS

from 2006-2008. In addition, reported

data in EPA's Air Quality System (AQS)

show that the CJNA continued to attain

the PM-10 NAAQS through 2009 and

preliminary data available to date for

2010 show that the CJNA continues to

attain. Also, EPA is finalizing its

determination that, because the CJNA

has attained the PM-10 NAAQS, the

State's obligation to make submissions

to meet certain Clean Air Act (CAA or

the Act) requirements is not applicable

for as long as the CJNA continues to

attain the PM-10 NAAQS.

DATES: Effective Date: This rule is

effective on June 18, 2010.

ADDRESSES: You may inspect the

supporting information for this action,

identified by docket number EPA-R09-

OAR-2010-0172, by one of the

following methods:

* Federal eRulemaking portal, http://

www.regulations.gov, please follow the

on-line instructions; or,

* Visit our regional office at, U.S.

Environmental Protection Agency

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105-3901.

Docket: The index to the docket for

this action is available electronically at

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

copy at EPA Region IX, 75 Hawthorne

Street, San Francisco, California. While

all documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

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

some may not be publicly available in

either location (e.g., Confidential

Business Information). To inspect the

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed directly

below.

FOR FURTHER INFORMATION CONTACT: Jerry

Wamsley, EPA Region IX, (415) 947-

4111, Wamsley.Jerry@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever "we," "us," or "our" are used, we mean

EPA.

Table of Contents

I. Summary of Proposed Actions

II. Public Comments and EPA Responses

III. Additional Preliminary Air Quality Data

Since Proposed Rule

IV. EPA's Final Action

V. Statutory and Executive Order Reviews

I. Summary of Proposed Actions

On March 23, 2010, EPA proposed to

determine that the CJNA has attained

the 24-hour NAAQS for PM-10 (75 FR

13710). Our proposed determination

was based on complete, quality-assured

and certified data gathered at

established state and local air

monitoring stations (SLAMS) in the

nonattainment area and entered into the

EPA AQS database for the period 2006-

2008. In addition, EPA found that

quality-assured AQS data showed that

the CJNA continued to attain through

2009 and that preliminary data then

available for 2010 showed no

exceedances of the 24-hour PM-10

NAAQS. Id.

EPA also proposed, under its Clean

Data Policy, to determine that the

obligation to submit certain CAA

requirements was not applicable for as

long as the CJNA continued to attain the

PM-10 NAAQS. Specifically, we

proposed that the State's obligation to

submit the following CAA requirements

would be suspended if EPA finalized its

rulemaking: The part D, subpart 4

obligations to provide an attainment

demonstration pursuant to section

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

control measure (RACM) provisions of

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

progress (RFP) provisions established by

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

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act.

For a more detailed discussion of our

proposed action, including background

topics, such as development of the 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 refer to our proposed rule.

II. Public Comments and EPA

Responses

EPA provided for a 30-day public

comment period on our proposed

action. This period ended on April 22,

2010. We received no comments.

III. Additional Preliminary Air Quality

Data Since Proposed Rule

Subsequent to our proposal, and after

the close of the comment period, the

Great Basin Unified Air Pollution

Control District (GBUAPCD) informed

EPA that preliminary data showed two

exceedances of the 24-hour PM-10

standard were recorded at the CJNA

monitor in March 2010, one on March

9, 2010 (222 micrograms per cubic

meter (pg/ms)) and another on March

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

e-mail from Duane Ono, Deputy Air

Pollution Control Officer, GBUAPCD, to

Doris Lo, Environmental Protection

Specialist, EPA, with

CosoJunction2010 MetAndTEOM.xlsx

attachment. The preliminary air quality

data for the first quarter of 2010 (January

through March), which contain these

exceedances, have not been verified

through the GBUAPCD's data validation

process, nor have they been entered into

EPA's AQS database. The GBUAPCD is

still in the process of reviewing the first

quarter data which does not have to be

submitted into the AQS database until

June 30, 2010. See 52 FR 24634 and 40

CFR 58.16(b).

The preliminary 24-hour

concentrations for March 9 and 18, if

confirmed after quality assurance and

control procedures are completed,

would exceed the 24-hour PM-10

standard of 154 pg/m 3. 40 CFR 50.6.1

The District has also indicated that it

may flag the March 9, 2010 exceedance

for possible exclusion from

consideration in a determination of

attainment.

The determination of whether an area

has attained the PM-10 standard is

based on the most recent three

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

our proposed rule, the CJNA has

attained the PM-10 standard based on

complete, quality-assured and certified

data for the three-year period 2006-2008

1 An exceedance is defined as a daily value that

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

m 3

) after rounding to the nearest 10 pg/m 3 (i.e.,

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

Thus, a recorded value of 154 pg/m 3 would not be

an exceedance since it would be rounded down to

150 pg/m 3 whereas a recorded value of 155 pg/m 3

would be an exceedance since it would be rounded

up to 160 pg/m 3. See 40 CFR part 50, appendix K,

section 1.0.

27944

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

and data in AQS for the period 2007-

2009. 75 FR 13710, 13712. These

quality-assured data show that the CJNA

monitor has an expected number of

exceedances of less than or equal to one

per year, averaged over the three-year

period.

Because 2010 has not ended, EPA

cannot determine whether the area has

attained the standard based on the

three-year period from 2008 through

2010. We can, however, determine with

less than three years of data whether the

CJNA has failed to attain in the period

from 2008 to date. See 40 CFR part 50,

appendix K, section 2.3(C).2

In 2008 there were no exceedances of

the PM-10 NAAQS and in 2009 there

was one exceedance on December 22,

2009. 75 FR 13710. If we include the

preliminary data showing two

additional exceedances in March 2010,

the expected number of exceedances at

the CJNA monitor during the period

from 2008 through 2010 would be three.

Thus, even with two additional

exceedances in March 2010, the CJNA

continues to attain the PM-10 NAAQS

to date because the CJNA monitor has

an expected number of exceedances of

less than or equal to one per year,

averaged over the three-year period from

2008 through 2010. 3

While to date the CJNA continues to

attain, EPA will continue to assess the

attainment status of the CJNA as

additional data are received, reviewed,

and entered into the AQS database.

IV. EPA's Final Action

Based on a three-year period (2006-

2008) of complete, quality-assured and

certified data meeting the requirements

of 40 CFR part 50, appendix K, EPA is

finalizing its determination that the

CJNA has attained the 24-hour PM-10

NAAQS. In addition, EPA's

determination is based on reported data

in EPA's AQS database for 2009

showing that the CJNA continued to

attain the PM-10 NAAQS for the period

2007-2009, and available preliminary

data to date for 2010 that are consistent

with continued attainment.

2

While it is necessary to have three years of

representative monitoring data to demonstrate that

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

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

stringent data requirements for showing that a

monitor has failed to attain. Since the 24-hour PM10 standard is violated once a monitor averages

more than one expected exceedance per year

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

more observed or expected exceedances has

violated the 24-hour NAAQS even if there are fewer

than three years of data (four exceedances divided

by three years is greater than one per year).

3 The status of the preliminary exceedances may

change after the data validation process is

concluded and after any flagging issues are

addressed.

This determination of attainment of

the PM-10 NAAQS for the CJNA does

not constitute a redesignation to

attainment under CAA section 107(d)(3)

because we have neither approved a

maintenance plan as required under

section 175(A) of the CAA, nor

determined that the area has met the

other CAA requirements for

redesignation. The classification and

designation status in 40 CFR part 81

remains moderate nonattainment for the

CJNA until such time as California

meets the CAA requirements for

redesignation of the CJNA to attainment.

EPA is also finalizing its

determination that, because the CJNA is

attaining the NAAQS, the obligation to

submit the following CAA requirements

is not applicable for so long as the area

continues to attain the PM-10 standard:

The part D, subpart 4 obligations to

provide an attainment demonstration

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

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

RFP provisions established by section

189(c)(1), and the attainment

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act. Subsequently, if we determine

after notice and comment rulemaking in

the Federal Register that the CJNA has

violated the standard (prior to a

redesignation to attainment), these

requirements would once again become

applicable.

V. Statutory and Executive Order

Reviews

This final action makes a

determination of attainment based on

air quality and results in the suspension

of certain Federal requirements, and

does not impose additional

requirements beyond those imposed by

state law. For that reason, this action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.);

* Does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4);

* Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

* Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

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

application of those requirements would

be inconsistent with the Clean Air Act;

and

* Does not provide EPA with the

discretionary authority to address, as

appropriate, disproportionate human

health or environmental effects, using

practicable and legally permissible

methods, under Executive Order 12898

(59 FR 7629, February 16, 1994).

In addition, this rule does not have

tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9, 2000), because the final

action does not apply in Indian country

located in the State, and EPA notes that

it will not impose substantial direct

costs on tribal governments or preempt

tribal law.

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by July 19, 2010. Filing a petition

for reconsideration by the Administrator

of this final rule does not affect the

finality of this action for the purposes of

judicial review nor does it extend the

time within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

27945

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

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Particulate matter, Reporting

and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: May 13, 2010.

Jared Blumenfeld,

Regional Administrator, Region 9.

[FR Doe. 2010-12093 Filed 5-18-10; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations

System

48 CFR Parts 212, 222, and 252

RIN 0750-AG70

Defense Federal Acquisition

Regulation Supplement; Restrictions

on the Use of Mandatory Arbitration

Agreements (DFARS Case 2010-D004)

AGENCY: Defense Acquisition

Regulations System, Department of

Defense (DoD).

ACTION: Interim rule with request for

comments.

SUMMARY: DoD is issuing an interim rule

to implement section 8116 of the DoD

Appropriations Act for Fiscal Year 2010.

Section 8116 restricts the use of

mandatory arbitration agreements when

using funds appropriated or otherwise

made available by this DoD

Appropriations Act to award contracts

that exceed $1 million. It allows the

Secretary of Defense to waive

applicability to a particular contractor

or subcontractor, if determined

necessary to avoid harm to national

security.

DATES: Effective date: May 19, 2010.

Comment date: Comments on this

interim rule should be submitted in

writing to the address shown below on

or before July 19, 2010, to be considered

in the formation of the final rule.

ADDRESSES: You may submit comments,

identified by DFARS Case 2010-D004,

using any of the following methods:

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

E-mail: dfars@osd.mil. Include

DFARS Case 2010-D004 in the subject

line of the message.

Fax: 703-602-0350.

Mail: Defense Acquisition Regulations

System, Attn: Mr. Julian E. Thrash,

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

3B855, 3060 Defense Pentagon,

Washington, DC 20301-3060.

Comments received generally will be

posted without change to http://

www.regulations.gov, including any

personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr.

Julian E. Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION:

A. Background

Section 8116 of the DoD

Appropriations Act for Fiscal Year 2010

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

use of funds appropriated or otherwise

made available by the FY 10 DoD

Appropriations Act for any contract

(including task or delivery orders and

bilateral modifications adding new

work) in excess of $1 million, if the

contractor restricts its employees to

arbitration for claims under title VII of

the Civil Rights Act of 1964, or tort

related to or arising out of sexual assault

or harassment, including assault and

battery, intentional infliction of

emotional distress, false imprisonment,

or negligent hiring, supervision, or

retention, hereinafter the "covered

areas."

This rule does not apply to the

acquisition of commercial items,

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

section 8116(b) requires the contractor

to certify compliance by subcontractors.

Additionally, enforcement of this rule

does not affect the enforcement of other

aspects of an agreement that is not

related to the covered areas.

This rule allows the Secretary of

Defense to waive applicability to a

particular contract or subcontract, if

determined necessary to avoid harm to

national security.

The following examples are provided

to help determine applicability:

* A new order that exceeds $1

million using funds appropriated or

otherwise made available by the FY 10

DoD Appropriations Act, placed against

an indefinite-delivery/indefinitequantity contract for an applicable item

or service, is covered by this restriction,

regardless of whether the basic

indefinite-delivery/indefinite-quantity

contract was covered.

* A funding modification adding

more than $1 million of funds

appropriated or otherwise made

available by the FY 10 DoD

Appropriations Act to a contract that

does not contain the clause at 252.222-

7006 or 252.222-7999 (Deviation), is not

covered.

* A bilateral modification adding new

work that uses funds appropriated or

otherwise made available by the FY 10

DoD Appropriations Act in excess of $1

million is covered.

* The award of a new order using

funds appropriated or otherwise made

available by the FY 10 DoD

Appropriations Act with a value of

$700,000 is not covered, since the value

is under $1 million.

* A contract valued at $1.5 million

awarded today, and only $10,000 in

funds appropriated or otherwise made

available by the FY 10 DoD

Appropriations Act will be obligated,

with the remaining balance being FY 11

funding, is not covered, because the

total value of funds appropriated or

otherwise made available by the FY 10

DoD Appropriations Act is less than $1

million.

* An entity or firm that does not have

a contract in excess of $1 million

appropriated or otherwise made

available by the FY 10 DoD

Appropriations Act is not affected by

the clause. The term "contractor" is

narrowly applied only to the entity that

has the contract. Unless a parent or

subsidiary corporation is a party to the

contract, it is not affected.

Contracting officers will modify

existing contracts, on a bilateral basis, if

using funds appropriated or otherwise

made available by the FY 10 DoD

Appropriations Act, when such funds

will be used for bilateral modifications

adding new work or orders that exceed

$1 million and are issued after the

effective date of this interim rule. In the

event that a contractor refuses to accept

such a modification, the contractor will

not be eligible for receipt of funds

appropriated or otherwise made

available by the FY 10 DoD

Appropriations Act on such

modifications or orders.

This is a significant regulatory action

and, therefore, was subject to review

under section (6)b of Executive Order

12866, Regulatory Planning and Review,

dated September 30, 1993. This is not a

major rule.

B. Regulatory Flexibility Act

DoD has prepared an initial regulatory

flexibility analysis consistent with 5

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

be obtained from the point of contact

specified herein. The analysis is

summarized as follows:

The objective of this rule is to

implement section 8116 of the DoD

Appropriations Act for Fiscal Year 2010

(Pub. L. 111-118). The clause at

252.222-7006, Restrictions on the Use

of Mandatory Arbitration Agreements,

prohibits the use of funds appropriated

27946

HeinOnline -- 75 Fed. Reg. 27946 2010