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Citation: 75 Fed. Reg. 6570 2010

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

has been named in the information request provided tothe institutionby FinCEN with any questions relating to the scope or terms ofthe request. Except

as otherwise provided in the information request, a financial institution shall onlybe required to search its records for:

(iv) * * * (B)(1) Afinancial institution shall not disclose to any person, other than FinCEN or the requesting Treasury component, the law enforcement agency
onwhose behalfFinCEN is requesting information, or U.S. law enforcement attach6 in the case ofa requestby a foreign law enforcement agency, which hasbeen named in the information request, the factthat FinCEN has requested or has obtained information under this section, except to the extent necessary to comply with such an information request. (2)Notwithstanding paragraph (b)(3)(iv)(B)(1) ofthis section, afinancial institution authorized to share information under §103.110 may share information concerning an individual, entity, or organization named in a request from FinCEN in accordance with the requirements of such section. However, such sharing shall not disclose the factthatFinCEN has requested information concerning such individual, entity, or organization. (C) Each financial institution shall maintain adequate procedures toprotect the security and confidentiality of requests from FinCEN for information under this section. The requirements of this paragraph (b)(3)(iv)(C) shall be deemed satisfied to the extent that a financial institution applies to such information procedures that the institution has established to satisfy the requirements of section 501 ofthe Gramm-Leach-Bliley Act (15 U.S.C. 6801), and applicable regulations issued thereunder, withregard to the protection ofits customers' nonpublic personal information.

(4)Relationto theRight toFinancial Privacy Act andthe Gramm-LeachBlileyAct.The information that a financial institution is required to report pursuant to paragraph (b)(3)(ii)ofthis section is information required to be reported in accordance with a federal
statute or rule promulgated thereunder, for purposes of subsection 3413(d) of the Right to Financial Privacy Act (12 U.S.C. 3413(d)) and subsection 502(e)(8) ofthe Gramm-Leach-Bliley Act (15 U.S.C. 6802(e)(8)). (5)Noeffect onlawenforcementor regulatoryinvestigations. Nothing in this subpart affects the authority ofa Federal, State or local law enforcement agency or officer, orFinCEN or another component ofthe Department ofthe Treasury, to obtain information directly from afinancial institution.

Dated: February 4, 2010. James H.Freis,Jr., Director, Financial CrimesEnforcement Network.

[FRDoe. 2010-2928 Filed 2-9-10; 8:45 am]

BILLING CODE 4810-02-P

POSTAL SERVICE

39 CFR Part 965

Rules of Practice in Proceedings Relative to Mail Disputes

AGENCY: Postal Service.

ACTION: Final rule.

SUMMARY: This document revises the rules ofpractice ofthe Postal Service's Office ofthe Judicial Officer to allow qualified persons licensed to practice law to be designated by the Judicial Officer as presiding officers in proceedings relating to mail disputes.

DATES: EffectiveDate:March 1, 2010.
ADDRESSES: Judicial Officer Department, United States Postal Service, 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.

FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro, (703)812-1910.
SUPPLEMENTARY INFORMATION:
A. Executive Summary

39 CFR Part 965 contains the rules governing proceedings involving Mail Disputes. Only one change ismade. Paragraph (a) of section 965.4 ofthe rules has defined the "presiding officer"

as an Administrative LawJudge or an Administrative Judge qualified in accordance with law. The revised rule expands the definition ofpresiding officer to include any other qualified person licensed to practice law designated by the Judicial Officerto preside over a proceeding conducted pursuant tothis part.

B. Summary ofChange

Expanding the definition ofpresiding officer in Part 965 isintended to permit qualified staffcounsel employed in the Office ofthe Judicial Officer to be designated asthe initial presiding official authorized to conduct proceedings and issue Initial Decisions in the resolution ofmail disputes. Administrative Law Judges and Administrative Judges qualified in accordance with lawwill continue to be designated as presiding officers in such
matters. The appellate procedure is unchanged.
C. Effective Dates andApplicability

These revised rules will govern proceedings under Part 965 docketed on

or after March 1, 2010.

Listof Subjects in 39 CFRPart965

Administrative practice and procedure, Mail disputes, Postal Service. * Forthereasons statedinthepreamble, the Postal Service amends 39 CFRPart 965 as set forth below:

m 1. The authority citationfor part965 continues to read as follows:

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

### * 2.In §965.4, paragraph (a)isrevised
to read as follows: §965.4 Presiding officers. (a)The presiding officer shall be an Administrative Law Judge, an Administrative Judge qualified in accordance with law, or any other qualified person licensed to practice law designated by the Judicial Officer to preside over a proceeding conducted pursuant to this part. The Judicial Officer assigns cases under this part. Judicial Officer includes Associate Judicial Officer upon delegation thereto. The Judicial Officer may, on his or her

own initiative or for good cause found, preside at the reception ofevidence.

StanleyF. Mires, Chief Counsel,Legislative.
[FRDoe. 2010-2844 Filed 2-9-10; 8:45 am]

BILLING CODE P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R06-OAR-2009-0014; FRL-9113-5]
Approval and Promulgation ofAir Quality Implementation Plans; Louisiana; Baton Rouge 1-Hour Ozone Nonattainment Area; Determination of Attainment ofthe 1-Hour Ozone Standard

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

SUMMARY: The EPA has determined that the Baton Rouge (BR) 1-hour ozone nonattainment area has attained the 1- hour ozone National Ambient Air Quality Standard (NAAQS). This

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determination isbased upon three years ofcomplete, quality-assured and certified ambient air monitoring data that show the area has monitored attainment ofthe 1-hour ozone NAAQS for the 2006-2008 monitoring period. Preliminary data for 2009 also indicate the area continues to attain the 1-hour

ozone NAAQS.

The requirements for this area to submitan attainment demonstration, a reasonable further progress plan, contingency measures, and other planning State Implementation Plan (SIP) requirements related to attainment ofthe 1-hour ozone NAAQS, are suspended for so long as the area continues to attain the 1-hour ozone NAAQS. DATES: This final rule is effective March 12, 2010. ADDRESSES: EPAhas established a docketfor this action under Docket Identification No. EPA-R06-OAR2009-0014. All documents in the docket

are listed in the http:// www.regulations.gov index. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy.Publicly available docket materials are available either electronically in www.regulations.govor in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between thehours of 8:30

a.m. and4:30 p.m. weekdays except for legal holidays.

Contact the person listed inthe FOR FURTHER INFORMATION CONTACT paragraph below tomake an appointment. Ifpossible,please make the appointment at least two working days in advance ofyour visit. There will be a fee of 15 cents perpage for making photocopies ofdocuments. On the day ofthe visit,please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202- 2733. FOR FURTHER INFORMATION CONTACT: Ms. Sandra Rennie, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367, fax (214) 665-7263, e-mail address rennie. sandra@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us," and "our"means EPA. This supplementary information section is arranged as follows:
I.What ActionIsEPA Taking? II.What Isthe Effect ofThis Action? I1. Responses to Comments IV. Final Action V. Statutory and Executive Order Reviews

I.What Action Is EPA Taking?

We are determining that the BR 1- hour ozone nonattainment area is currently attaining the 1-hour ozone National Ambient Air Quality Standard (NAAQS). This determination is based upon complete, quality-assured and certified ambient air monitoring data that show the area has monitored attainment ofthe 1-hour ozone NAAQS for the 2006-2008 monitoring period. Preliminary data for 2009 also indicate that the area continues to attain the 1- hour ozone NAAQS and there were no monitored exceedances ofthe 1-hour standard at any monitor forthis time period. Based on this determination, EPA is also determining thatthe requirements for this area to submit a
severe attainment demonstration, a
severe reasonable further progress plan (RFP), applicable contingency measures plans, and other planning State Implementation Plan (SIP) requirements related to attainment ofthe 1-hour

ozone NAAQS, are suspended for so long as the area continues to attain the 1-hour ozone NAAQS.

The rationale for our action is explained in the Notice ofProposed Rulemaking (NPR)published on March 26, 2009 (74 FR 13166) and elaborated upon below in today's rulemaking. We received comments on theproposal which are addressed in this action.

II.WhatIs the Effect ofThis Action?

Pursuant to our determination of attainment andin accordance with the interpretation ofthe Clean AirAct (CAA) set forth in our Clean Data Policy,' the effect ofthe determination is thatthe following requirements to submit SIP measures underthe 1-hour anti-backsliding provisions, addressed in 40 CFR 51.905 and inthe Court's ruling in the South Coastcase (See South Coast Air Quality Management Districtv.EPA, 472 F.3d 882 (DCCir. 2006), are suspended for so long as the

area continues to attain the 1-hour standard: asevere area attainment demonstration with itsRACM

1Our Clean Data Policy is set forth in a May 10, 1995 EPA memorandum fromJohn S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements forOzone Nonattainment Areas Meeting the Ozone Ambient AirQuality Standard." demonstration and other associated elements; the severe RFP plan requirements; and serious and severe
area contingency measures under sections 172(c)(9) and 182(c)(9).

IfEPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, thatthe BRarea has violated the 1-hour ozone NAAQS, the basis for the suspension ofthe requirements would no longer exist, and EPA would take action to withdraw the determination and direct the area to address the suspended requirements.

This action is limited to a determination that the BR area has attained the 1-hour ozone NAAQS, and the effect ofsuch a determination on the obligation to submit specified 1-hour anti-backsliding requirements. Itdoes
not formally determine whether the area has attained the 8-hour ozone NAAQS. Nor does itaddress the 1-hour ozone anti-backsliding requirement for section 185 penalty fees or severe nonattainment new source (NNSR) review. In our proposal, we stated that EPA would address separately the status of 1-hour ozone anti-backsliding requirements for section 185 penalty fees, based on the outcome ofa future rulemaking in response to the South Coastdecision. EPAhas issuedfinal guidance on 185 fees entitled "Guidance

on Developing Fee Programs Required by Clean Air Act Section 185 forthe 1- hour Ozone NAAQS" (January 5, 2010). However, in today's rulemaking proceedings, EPA has not proposed and is not finalizing any action regarding the status of 1-hour section 185 fees requirements. As appropriate, EPA will undertake aseparate action to address the status of 1-hour anti-backsliding requirements for section 185 fees program in the BRarea. Regarding

severe nonattainment new source review, the requirement may change after the area is redesignated andhas an approved maintenance plan. Please note that theLouisiana PSD (Prevention of Significant Deterioration) SIP requirements would apply in the BR

ozone area only upon the effective date ofan EPA action approving the removal ofthe NNSR SIP program fromthe BR

ozone SIP.
III.Responses to Comments

EPA received five comment letters in response to theproposed rulemaking. The comment letters are available for review in the docket for this rulemaking. These comment letters were submitted by Tulane University's Environmental Law Clinic onbehalf of the Louisiana Environmental Action Network (LEAN) (hereinafter LEAN), Louisiana Chemical Association (LCA), 

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BASF the Chemical Company (BASF), ShellChemical Company (Shell), and the Baton Rouge Area Chamber (BRAC). LCA, Shell, BRAC and BASF expressed support for EPA's proposal to find BR is attaining the 1-hour standard and for EPA's proposal to suspend certain SIP requirements under EPA's Clean Data Policy. EPA summarizes and responds below to some additional comments submitted by LCA, and to adverse
comments received from LEAN.

LCA submitted the following additional comments:

Comment:LCA asserted thatthe BR

area also attained the 1-hour standard during the 2004-2006 time period, and EPA did not take action onthe State's request thatEPA make a clean data determination. LCA statedin its
comments that itreserves the right to request a determination thatthe area actually attained the standard at an earlier time, contending thatthis would have potential consequences with respect to anti-backsliding measures that may be required.

Response:The scope ofthis action is limited to a finding ofattainment for the 1-hour ozone standard based on LDEQ's request for such afinding for the time period between 2006-2008, and continuing until the present. A determination ofattainment for purposes ofthe clean data policy is based onthe mostrecent three years of complete, quality-assured monitoring data, and its duration is conditioned on the area remaining in attainment. Any findings related to other historical periods are not relevant to today's rulemaking. Comment:LCA stated in its comments that italso reserves the rightto request

a determination that theBR area actually attained the 1-hour ozone standard bythe November 15, 2005 deadline.

Response:The scope ofthis rulemaking is limited to a determination ofattainment for the 1-hour ozone standard based on LDEQ's request for such a determination for the time period between 2006-2008, and continuing until the present. In this rulemaking, EPA is not addressing the BRarea's attainment status withrespect to any other historical time period, orits status

as ofits 2005 attainment date.

Comment:LCA contended that EPA

canrely on a level of90 ppb averaged

on an 8-hourbasis for ozone asbeing an equivalent level ofprotection to the 1- hour standard in the absence ofany effective 1-hour standard. LCA argues that, because the 1-hour standard was legally revoked during the time period atissue (as ofNovember 2005) EPA rationally could lookto the 8-hour data for the BRarea and conclude that a design value of90 ppb was equivalent
to the revoked 1-hour standard.

Response:LCA's comment addresses issues that are beyond the scope ofthis rulemaking. EPA has not made a finding that 90 ppb averaged on an 8 hour basis is equivalent to 120 ppb averaged on a 1-hourbasis. This action considers only whether the area has attained the 1-hour

ozone standard of 120 ppb (or 124 ppb when rounding is considered), based on monitoring data for that standard. Comment:LCA states thatitreserves the right to request thatthe requirement for LDEQto adopt additional antibacksliding requirements in the SIP, including but not limited to 185 fees, be suspended by the Clean Data Policy attainment determination. LCA asserts that itunderstands thatEPA is in the
process ofdeveloping a rulemaking and/

or guidance concerning whether achieving 1-hour standard attainment (and/orachieving 8-hour standard attainment) suspends the obligation to impose section 185 fees where such have not yetbeen required by a state for

a severe nonattainment area.

Response:The scope oftoday's action is limited to an attainment determination for the 1-hour ozone standard that suspends the requirements
to submit an attainment demonstration,

a severe reasonable further progress plan, and applicable contingency

measures plans for that standard for so long as the area remains in attainment ofthe standard in the future. As we stated in the proposal, and inthe section above on the effect oftoday's rulemaking, EPA will address the section 185 fees anti-backsliding requirements for the 1-hour ozone standard in a separate proceeding or rulemaking. Comment:LCA states thatitbelieves it isfully consistent with the CAA to suspend the requirement to submit the 185 fees program or an equivalent program when an area isdetermined to be attaining the 1-hour standard.

Response:As stated above and in the previous response to comment, the scope ofthis action is limited to suspending the requirements to submit

an attainment demonstration, a severe reasonable further progress plan, and applicable contingency measures plans for the 1-hour ozone standard for so long as the area remains in attainment ofthe standard in the future. EPA will address BR's 1-hour anti-backsliding requirements for CAA section 185 fees in aseparate rulemaking action.

LEAN made the following comments: Comment:LEAN asserts generally that EPA cannot suspend certain 1-hour ozone requirements under EPA's Clean Data Policy.

Response:As set forthin detail below, EPA's longstanding interpretation ofthe CAA under the Clean Data Policy is valid and reasonable, and hasbeen upheld by every courtin which ithas been challenged. We respond to LEAN's specific comments below.

Comment:LEAN asserts thatthe 1- hour standard isno longer relevant for determining whether an area's air quality isrequisite toprotect public health.

Response:While EPA agrees thatit has issued an 8-hour ozone standard that ismore protective than the 1-hour standard, certain 1-hour antibacksliding requirements remain applicable to the BRarea. Thus the issue ofwhether an area meets the 1-hour anti-backsliding requirements is still relevant. EPA's Clean Data Policy was originally directed at requirements under the 1-hour standard, and that interpretation has nowbeen incorporated in the form ofa regulation for implementation ofthe 8-hour ozone requirements. Under the CleanData Policy, an attainment determination for the 1-hour standard has consequences for an area's obligation to submit certain regulatory requirements for that standard. For the reasons set forth in the proposal and in EPA's responses to comments here, a determination thatthe BR area has attained the 1-hour ozone standard suspends therequirement to submit 1-hour attainment demonstration, 1-hourreasonable further progress and 1-hour contingency

measures for so long as the area continues to meetthe 1-hour standard. This determination has nobearing on the requirements for the 8-hour ozone standard.

Comment:LEAN asserts thatBR has
not attained the revised 1997 8-hour

ozone standard, which is 75ppb (the 2008 8-hour standard). See 73 FR 16435-16514 (March 27, 2008) 2

Response:As set forthin responses to comments above, our action here is limited to a determination thatthe BR

area has attained the 1-hour ozone standard based on complete, qualityassured monitoring data for 2006-2008, andpreliminary data for 2009. The preliminary 2009 data show the 1-hour

20n September 16, 2009 we announced that we

are reconsidering our 2008 decision setting national standards for ground-level ozone. The reconsidered standard was announced on January 6and proposed on January 19, 2010 (75 FR 2938). We expect by August 2010 to have completed our reconsideration ofthe standard and designations to proceed thereafter. When and ifEPA designates BR

as nonattainment ofthe reconsidered standard, LDEQwill berequired to prepare a new ozone plan that addresses that standard.

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ozone design value continues to be 114 ppb. There were no monitored exceedances for this time period.

While EPA agrees that compliance with the 1-hour standard is not equivalent to attainment ofthe more protective 1997 or 2008 8-hour standards, certain 1-hourrequirements remain applicable to BRfor antibacksliding purposes. Under the Clean Data Policy, a determination of attainment for the 1-hour standard suspends the obligation to submit certain SIP measures, including the 1- hour attainment demonstration, 1-hour reasonable further progress and 1-hour contingency measures for so long as the

area continues to meet the 1-hour standard. EPA's longstanding interpretation, which Courts have upheld, isthat for an area meeting the 1-hour standard, submissions for the reasonable further progress requirements are not necessary or meaningful, because the goal ofthe rate ofprogress reductions-attainment-has been met. Similarly, EPAbelieves-and Courts have agreed-that a plan to attain the 1-hour standard isunnecessary for

an area that ismeeting the standard. Moreover, contingency measures, which

are tied to rate ofprogress and attainment plan requirements, are no longer needed where an area is meeting the standard. EPA's rationale forits interpretation ismore fully explained in

our Clean Data Policy, inEPA's 8-hour

ozone implementation rulemaking and the 1-hour ozone rulemakings cited therein. See 70 FR 71612 (November 29, 2005) and in the cases thathave upheld EPA's Clean Data Policy. As discussed in more detail below, the Clean Data Policy hasbeen upheld in a number of
courtcases, including the DC, 7th, 9th and 10th Circuits. SeeNRDCv. EPA, 571 F.3d 1245 (DCCir. 2009); Sierra Clubv.EPA, 99 F. 3d 1551 (10th Cir. 1996); SierraClubv. EPA, 375 F.3d 537 (7th Cir. 2004) and OurChildren's Earth Foundationv. EPA,No. 04-73032 (9th Cir.June 28, 2005) (memorandum opinion). The Courts have made clear that a determination ofattainment, for either the 1-hour or 8-hour standard, is

a valid, reasonable, and legitimate alternative way of satisfying the requirements to submit attainment demonstrations, reasonable further progress requirements, and contingency
measures, for that standard. Upon EPA's final determination thatthe BRarea is attaining the 1-hour standard, the submission ofthose measures is no longer legally required for as long as the

area remains in attainment. Thus the commenter is incorrect in asserting that EPA isremoving mandatory controls from the SIP. The Commenter's claim that the severe 1-hour measures are necessary isbelied by the fact thatthe sole purpose ofthese measures isto bring about attainment ofthe 1-hour standard. EPA is determining that this attainment has already occurred and it continues, and that submission of

measures designed to create attainment is not necessary for so long as the area continues to attain. Contrary to Commenter's assertion, no further reductions to bring about attainment of the 1-hour standard are necessary or required. The application ofthe Clean Data Policy for the 1-hour standard does
not in any way hinder or interfere with attainment ofthe 8-hour standard. Requirements for the 1997 8-hour ozone standard remain in place to address the 8-hour standard for which the area is currently designated nonattainment, and those requirements are not affected by this rulemaking. As discussed further below, the DC Circuit Court has upheld the regulation embodying the Clean Data Policy for the 8-hour ozone standard that suspends 8-hour requirements for attainment demonstrations, RFP, and contingency

measures upon a determination of attainment for that standard. 40 CFR 51.918. The regulation upheld was based on EPA's interpretation ofthe Clean Data Policy underthe 1-hour

ozone standard. Moreover, since itis incontrovertible that a determination of attainment for the 8-hour ozone standard legally suspends certain 8-hour submission requirements, it wouldbe inconsistent andnonsensical to adopt a contradictory interpretation for the identical requirements under the 1-hour standard. Comment:LEAN argues that Louisiana's five-parish BRarea has

nevermet minimum federal healthprotection standards for ozone air pollution.

Response:As set forth in the responses to comment above, EPA's rulemaking action today is limited to a determination that the BR area has attained the 1-hour ozone standard based on complete, quality-assured 2006-2008 air monitoring data, and preliminary data for 2009 that show the

area continues in attainment ofthe 1- hour ozone standard. An area violates the 1-hour ozone standard if,over a consecutive 3-year period, more than 3 days ofexpected number ofexceedances

occur at the same monitor. See CAA, section 107(d)(4); 40 CFR Part 50, App. H. The data show that during thisthreeyear period, no single monitor recorded

more than three expected number of exceedances. EPA did not receive any comments that challenge EPA's determination that the area has monitored attainment ofthe 1-hour

ozone standard for 2006-2008, the most recent three-year period for which complete, quality-assured data are available. Nor is there any challenge to EPA's conclusion that preliminary data for 2009 also indicate thatthe area continues tobe in attainment for the 1- hour ozone standard. While this rulemaking does not address any ozone standard other than the 1-hour standard, EPA notes that recent monitoring data suggest thatthe BRarea is also currently attaining the 1997 8-hour ozone standard.

Comment:LEAN argues thatthe Court's decision in South CoastAir Quality ManagementDistrictv. EPA, 472 F.3d 882 (DCCir. 2006), prohibits BR from removing controls until it has attained the standard EPA has determined is requisite to publichealth, which they assert is the 75ppb 2008 8- hour ozone standard. LEAN contends that the South Coastcase made it clear that EPA cannot release an area from applicable controls until ithas achieved "safe" air quality. They further assert that allowing BR to escape antibacksliding requirements because it attained the 1-hour standard would be ignoring Congress' intent when enacting the CAA that "air quality should be improved until safe and never allowed
to retreat thereafter."

Response:The suspension ofthe obligation to submit the attainment demonstration, RFP plan, and contingency measures for the 1-hour

ozone standard does not remove any controls that are in place, or any controls that are required when the area is attaining the 1-hour standard. Itis directed only at plan measures aimed specifically atattainment ofthe 1-hour standard, which are not necessary once the area has attained, and continues to attain that standard. The obligations for submissionsbeing suspended here do
not bear on any obligations linkedto the revised 2008 8-hour ozone standards. We will address any new 8-hour requirements in a separate proceeding

orrulemaking. Moreover, as set forth above, the DC Circuit upheld EPA's regulation embodying the Clean Data Policy in 40 CFR 51.918. Thatregulation provides that a determination ofthe 1997 8-hour standard will result in the suspension ofrequirements to submit requirements related to the 1997 8-hour standard. Thus, contrary to commenter's contention, the DC Circuit supports, and does not prohibit,EPA's application of the Clean Data Policyfor purposes of the 1-hour standard. EPA's defense of the Clean Data Policyfor the 1997 8- hour standard was identical to and

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based upon its interpretation and practice withrespect to the 1-hour

ozone standard. See Phase 2Rule, 70FR 71644-71646 (November 29, 2005) and NRDCv. EPA, 571 F.3d 1245 (DC Cir. 2009). Thus the DC Circuit hasrejected the arguments LEAN raises against the Clean Data Policy, and the Court has upheld EPA's interpretation as consistent with the Clean AirAct.

As noted in footnote two, EPA is currently reconsidering the 2008 8-hour

ozone standard of75 ppb. We expect by August 2010 tohave completed our reconsideration ofthe standard and designations toproceed thereafter. When and ifEPA designates BR as nonattainment ofthereconsidered standard, LDEQ will be required to prepare a new ozone plan that addresses that standard. Comment:LEAN argues thatEPA
cannot lawfully suspend controls from a SIP without going throughthe comprehensive redesignation procedures of42 U.S.C. 7407(d)(3).

Response:This action does not constitute a redesignation to attainment pursuant to section 107(d)(3). Consequently, the criteria of section 107(d)(3) do not apply to this action. See60 FR 36723. Nor does the existence ofthe separate statutory redesignation procedure prevent EPA from applying its interpretation ofCAA requirements under the Clean Data Policy.

Several Circuit Courts have upheld the use ofthe Clean Data Policy to suspend the requirement to submit certain SIP planning measures for the 1- hour ozone standard. The Tenth, Seventh and Ninth Circuits haveupheld EPA rulemakings applying the Clean Data Policy. SeeSierraClubv. EPA, 99 F. 3d 1551 (10th Cir. 1996); SierraClub

v. EPA, 375 F.3d 537 (7th Cir. 2004) and OurChildren's EarthFoundationv. EPA, No. 04-73032 (9thCir. June 28, 2005) memorandum opinion. See also the discussion and rulemakings cited in the Phase 2 8-Hour Ozone Implementation Rule, 70 FR 71644- 71646 (November 29, 2005).

The D.C. Circuit has also upheld the Clean Data Policy, as it is embodied in 40 CFR 51.918, which was challenged in the context ofthe 8-hour ozone standard in the Phase 2Rule ozone litigation in SeeNRDCv. EPA,571 F.3d 1245 (DC Cir. 2009). The DC Circuit specifically rejected the arguments that the Clean Data Policy isinconsistent with the redesignation provisions ofthe CAA:

We think the statute unclearas to whether those sections apply to an area that is already attaining the NAAQS. For thereasons below,

wejoin the Tenth Circuit in holding the EPA's interpretation isreasonable. See Sierra Clubv.EPA, 99 F.3d 1551 (10th Cir.1996). * * * The EPA's reasoning disposes aswell of theNRDC's contentions that the Clean Data Policy unlawfully circumvents the redesignation requirements, CAA § 107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E), violates the mandate that allPart D requirements remain in force until an area has an approved maintenance plan in place, CAA § 175A(c), 42 U.S.C. 7505a(c), and disregards the Supreme Court's admonition that theEPA cannot "renderSubpart 2's carefully designed restrictions onEPA discretion utterly nugatory," Whitmanv. Am. Trucking Ass'ns, 531 U.S. 457, 484, 121 S.Ct. 903, 149 L.Ed.2d 1(2001). The Clean Data Policy does not effect aredesignation; an area must still complywith the statutory requirements before it canbe redesignated to attainment. Furthermore, Part D-including Subpart 2-remains in force insofar as it applies but, aswe have justseen, the EPA has reasonably concluded the provisions of the Act requiring percentage reductions do
not apply to an area that has attained the NAAQS.

See also LatinoIssuesForumv. EPA, No. 0675831 (9th Cir.) Memorandum Opinion, March 2, 2009, in which the 9th Circuit upheld EPA's Clean Data Policy in the context of the PM-10 standard. In rejecting petitioner's challenge to the Clean Data Policy, the Court stated:

As the EPA rationally explained, ifan area is in compliance with PM-10 standards, then further progress forthe purpose ofensuring attainment is not necessary. Thus, the Courts have considered and rejected the commenter's arguments that the Clean Data Policy is at odds with the redesignation process, and have ruled in favor ofEPA's interpretation ofthe Clean Data Policy, finding it consistent with the provisions of the CAA. Comment:LEAN contends that the Clean Data Policy is illegal and cannot be used to ignore the statutorilyrequired redesignation procedures of42 U.S.C. 7407(d)(3).

Response: See above response. As the Courts have recognized, EPA's interpretation under the Clean Data Policy does not circumvent or ignore the Act's redesignation provisions. Nor does the CAA indicate that Congress intended the redesignation provisions to preclude a determination of attainment from suspending requirements to submit that by their terms are inoperative if an

area is attaining the NAAQS. Even after application ofthe Clean DataPolicy, an

area remains in nonattainment status until EPA redesignates the area after making the other findings required under Section 107(d). See 107(d)(3)(E)(i)-(v) (redesignation requirements); see also, e.g., 60 FR 37366 (July 20, 1995) and 61 FR 31831 (June 21, 1996) (suspension of requirements was followed by separate redesignation rule). Applying the Clean Data Policy does not relax any control

measures already in place, nor does it affect any other applicable requirements under Part D or other parts ofthe
statute. See, e.g., 60 FR 36723, 36725 (July 18, 1995). In addition, until the

area isredesignated, itfaces the riskthat the suspended obligations willbe reimposed ifthe area lapsesback into nonattainment, and the further risk that the area will be reclassified ifthe lapse

causes itto miss its attainment deadline. Therefore, States in which areas attain the NAAQS have every incentive to

ensure that those areas remain in attainment and to develop the long-term maintenance plan under Section 175A that isrequired, in part,to obtain redesignation. SeeCAA section 107(d)(3)(E)(v), SierraClubv. EPA,99 F. 3d 1551, 1558 (10th Cir. 1996).

Comment:LEAN asserts thatEPA has

never identified a lawful contingency

measure for the BRarea orhas yet to approve a lawful contingency measures plan. The effect ofEPA's action isto reward delay tactics by canceling those pollution reductions ithasunlawfully delayed.

Response:While we agree with the Commenter thatBR does not have serious or severe area contingency

measures for the 1-hour standard in place, for the reasons set forth in the responses to comments above and in the proposal, the obligation to submit such

measures is suspended upon a finding ofattainment for the 1-hour standard per the Clean Data Policy. Since EPA is determining that the area is attaining the 1-hour standard, and for as long as the

area continues to attain, the requirement to submit contingency measures is suspended and no additional reductions

are necessary to attain that standard. EPA is not rewarding delay tactics, but rather is simply recognizing thatit is unnecessary and not required at this time to compel the State to submit

measures whose sole purpose is to bring about attainment thatis already occurring.

Comment:LEAN comments that, while EPA states in the proposed rule that the suspended requirements would be re-implemented ifBR falls out of attainment for the 1-hour standard, the proposed rule makes no mention ofhow quickly the suspended requirements to submitwould have to be putbackin place ifBR fell out ofattainment. LEAN speculates thatthe requirements could be re-imposed and then re-suspended in

an illegal manner.

Response:EPA will make a future determination in notice-and-comment rulemaking ifthe BRfalls out of attainment for the 1-hour standard. The

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Clean Data Policy lays out the process to implement a suspended measure: [i]fEPA subsequently determines that an area has violated the standard, the basis for the determinationthat the area need not make the pertinent SIP revisions would no longer exist. The EPA would notify the State ofthat determination and would also provide notice
to the public in the Federal Register. Such

a determination would mean that the area would thereafter have to address the pertinent SIP requirements within a reasonableamount oftime,which EPA would establish taking intoaccount the individual circumstances surrounding the particular SIP submission at issue.3

Thus EPAhas undertaken to act reasonably and responsibly in the future
to re-impose the obligation for the State
to submit the measures should EPA determine thatthe area has fallen out of attainment. The Commenter is thus wrong to assume that EPA's exercise of its discretion withregard to timing of reinstatement ofobligations would bring about absurd orillegal results. Any such

concerns are entirely speculative and without foundation in fact.

IV. Final Action

For the reasons set forth in the proposed rulemaking and in thisfinal rulemaking, and based on complete, quality-assured data for 2006-2008, and datafor 2009 thatare currently available, we are determining thatthe BR 1-hour ozone nonattainment area has attained and continues to attain the 1- hour ozone standard. Thus, the requirements for submitting the 1-hour

ozone severe nonattainment area attainment demonstration SIP with its RACM demonstration and other associated elements, the severe RFP requirements, and section 172(c)(9) and section 182(c)(9) serious and severe contingency measures are suspended for

so long as the area is attaining the 1- hour ozone standard.

V. Statutoryand Executive Order Reviews

This action merely makes a determination ofattainment based upon air quality that results in suspensions of certain Clean Air Act requirements, and does not impose additional requirements. Forthat reason, this action:

* Is not a "significantregulatory action" subject to review by the Office ofManagement and Budget under

3As referenced infootnote 1, seeMay 10, 1995 EPA memorandum from John S. Seitz, Director, Office ofAirQuality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality Standard." See also 70 FR 71644-71646 (November 29, 2005). 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 on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

*Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);

*Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note)because application ofthose requirements would be inconsistent with the Clean Air Act; and * Does not provide EPA withthe 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 nothave tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because there is no federally recognized Indian country located in the states, and EPA notes that it will not impose substantial direct
costs ontribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe 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 States prior to publication ofthe rules in the FederalRegister. A major rule cannot take effect until 60 days afterit is published in theFederal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of these actions must be filed in the United States Court ofAppeals for the appropriate circuit by April 12, 2010. Filing a petition for reconsideration by the Administrator ofthese final rules does not affect the finality ofthis action for the purposes ofjudicial review nor does itextend the time within which a petition forjudicial review maybe filed, and shall not postpone the effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Reporting andrecordkeeping requirements, Volatile organic compounds.

Dated: January 29, 2010. Al Armendariz,
Regional Administrator, Region6.
* 40 CFRpart 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority citationfor part52 continues to read as follows:

Authority:42 U.S.C. 7401 et seq. Subpart T-Louisiana

* 2.Section 52.977 is added to read as follows:
§52.977 Controlstrategyand regulations: Ozone.

Determination ofAttainment. Effective March 12, 2010 EPA has determined the Baton Rouge 1-hour

ozone nonattainment area has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS). Under the provisions ofEPA's Clean DataPolicy, this determination suspends the requirements for this area to submit a

severe attainment demonstration, a

severe reasonable further progress plan, applicable contingency measures plans, and other planning Louisiana State Implementation Plan (SIP) requirements related to attainment ofthe 1-hour

ozone NAAQS for so long as the area continues to attain the 1-hour ozone NAAQS.

[FRDoe. 2010-2961 Filed 2-9-10; 8:45 am]

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