+(,121/,1(

Citation: 75 Fed. Reg. 6570 2010 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Wed Apr 18 10:43:38 2012

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

has been named in the information

request provided to the institution by

FinCEN with any questions relating to

the scope or terms of the request. Except

as otherwise provided in the

information request, a financial

institution shall only be required to

search its records for:

(iv) * * *

(B)(1) A financial institution shall not

disclose to any person, other than

FinCEN or the requesting Treasury

component, the law enforcement agency

on whose behalf FinCEN is requesting

information, or U.S. law enforcement

attach6 in the case of a request by a

foreign law enforcement agency, which

has been named in the information

request, the fact that 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) of this section, a financial

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 fact that FinCEN has

requested information concerning such

individual, entity, or organization.

(C) Each financial institution shall

maintain adequate procedures to protect

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 of the

Gramm-Leach-Bliley Act (15 U.S.C.

6801), and applicable regulations issued

thereunder, with regard to the

protection of its customers' nonpublic

personal information.

(4) Relation to the Right to Financial

Privacy Act and the Gramm-LeachBliley Act. The information that a

financial institution is required to report

pursuant to paragraph (b)(3)(ii) of this

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)

of the Gramm-Leach-Bliley Act (15

U.S.C. 6802(e)(8)).

(5) No effect on law enforcement or

regulatory investigations. Nothing in

this subpart affects the authority of a

Federal, State or local law enforcement

agency or officer, or FinCEN or another

component of the Department of the

Treasury, to obtain information directly

from a financial institution.

Dated: February 4, 2010.

James H. Freis, Jr.,

Director, Financial Crimes Enforcement

Network.

[FR Doe. 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 of practice of the Postal Service's

Office of the 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: Effective Date: 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 is made.

Paragraph (a) of section 965.4 of the

rules has defined the "presiding officer"

as an Administrative Law Judge or an

Administrative Judge qualified in

accordance with law. The revised rule

expands the definition of presiding

officer to include any other qualified

person licensed to practice law

designated by the Judicial Officer to

preside over a proceeding conducted

pursuant to this part.

B. Summary of Change

Expanding the definition of presiding

officer in Part 965 is intended to permit

qualified staff counsel employed in the

Office of the Judicial Officer to be

designated as the initial presiding

official authorized to conduct

proceedings and issue Initial Decisions

in the resolution of mail disputes.

Administrative Law Judges and

Administrative Judges qualified in

accordance with law will continue to be

designated as presiding officers in such

matters. The appellate procedure is

unchanged.

C. Effective Dates and Applicability

These revised rules will govern

proceedings under Part 965 docketed on

or after March 1, 2010.

List of Subjects in 39 CFR Part 965

Administrative practice and

procedure, Mail disputes, Postal

Service.

* For the reasons stated in the preamble,

the Postal Service amends 39 CFR Part

965 as set forth below:

m 1. The authority citation for part 965

continues to read as follows:

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

* 2. In § 965.4, paragraph (a) is revised

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 of evidence.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doe. 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 of Air

Quality Implementation Plans;

Louisiana; Baton Rouge 1-Hour Ozone

Nonattainment Area; Determination of

Attainment of the 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

HeinOnline -- 75 Fed. Reg. 6570 2010
Federal Register/Vol. 75, No. 27 / Wednesday, February 10, 2010/Rules and Regulations

determination is based upon three years

of complete, quality-assured and

certified ambient air monitoring data

that show the area has monitored

attainment of the 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

submit an attainment demonstration, a

reasonable further progress plan,

contingency measures, and other

planning State Implementation Plan

(SIP) requirements related to attainment

of the 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: EPA has established a

docket for 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.gov or

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 the hours of 8:30

a.m. and 4:30 p.m. weekdays except for

legal holidays.

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below to make an

appointment. If possible, please make

the appointment at least two working

days in advance of your visit. There will

be a fee of 15 cents per page for making

photocopies of documents. On the day

of the 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. san dra@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, "we," "us,"

and "our" means EPA. This

supplementary information section is

arranged as follows:

I. What Action Is EPA Taking?

II. What Is the Effect of This 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 of the 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 of the 1-hour

standard at any monitor for this time

period. Based on this determination,

EPA is also determining that the

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 of the 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 of Proposed

Rulemaking (NPR) published on March

26, 2009 (74 FR 13166) and elaborated

upon below in today's rulemaking. We

received comments on the proposal

which are addressed in this action.

II. What Is the Effect of This Action?

Pursuant to our determination of

attainment and in accordance with the

interpretation of the Clean Air Act

(CAA) set forth in our Clean Data

Policy,' the effect of the determination

is that the following requirements to

submit SIP measures under the 1-hour

anti-backsliding provisions, addressed

in 40 CFR 51.905 and in the Court's

ruling in the South Coast case (See

South Coast Air Quality Management

Districtv. EPA, 472 F.3d 882 (DC Cir.

2006), are suspended for so long as the

area continues to attain the 1-hour

standard: a severe area attainment

demonstration with its RACM

1 Our Clean Data Policy is set forth in a May 10,

1995 EPA memorandum from John S. Seitz,

Director, Office of Air Quality Planning and

Standards, entitled "Reasonable Further Progress,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment Areas

Meeting the Ozone Ambient Air Quality 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).

If EPA subsequently determines, after

notice-and-comment rulemaking in the

Federal Register, that the BR area has

violated the 1-hour ozone NAAQS, the

basis for the suspension of the

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 of such a determination on the

obligation to submit specified 1-hour

anti-backsliding requirements. It does

not formally determine whether the area

has attained the 8-hour ozone NAAQS.

Nor does it address 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 of a future

rulemaking in response to the South

Coast decision. EPA has issued final

guidance on 185 fees entitled "Guidance

on Developing Fee Programs Required

by Clean Air Act Section 185 for the 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 a separate action to address

the status of 1-hour anti-backsliding

requirements for section 185 fees

program in the BR area. Regarding

severe nonattainment new source

review, the requirement may change

after the area is redesignated and has an

approved maintenance plan. Please note

that the Louisiana PSD (Prevention of

Significant Deterioration) SIP

requirements would apply in the BR

ozone area only upon the effective date

of an EPA action approving the removal

of the NNSR SIP program from the BR

ozone SIP.

III. Responses to Comments

EPA received five comment letters in

response to the proposed 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 on behalf of

the Louisiana Environmental Action

Network (LEAN) (hereinafter LEAN),

Louisiana Chemical Association (LCA),

6571

HeinOnline -- 75 Fed. Reg. 6571 2010
6572 Federal Register/Vol. 75, No. 27/Wednesday, February 10, 2010/Rules and Regulations

BASF the Chemical Company (BASF),

Shell Chemical 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 that the BR

area also attained the 1-hour standard

during the 2004-2006 time period, and

EPA did not take action on the State's

request that EPA make a clean data

determination. LCA stated in its

comments that it reserves the right to

request a determination that the area

actually attained the standard at an

earlier time, contending that this would

have potential consequences with

respect to anti-backsliding measures

that may be required.

Response: The scope of this action is

limited to a finding of attainment for the

1-hour ozone standard based on LDEQ's

request for such a finding for the time

period between 2006-2008, and

continuing until the present. A

determination of attainment for

purposes of the clean data policy is

based on the most recent 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 it also reserves the right to request

a determination that the BR area

actually attained the 1-hour ozone

standard by the November 15, 2005

deadline.

Response: The scope of this

rulemaking is limited to a determination

of attainment 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 BR area's

attainment status with respect to any

other historical time period, or its status

as of its 2005 attainment date.

Comment: LCA contended that EPA

can rely on a level of 90 ppb averaged

on an 8-hour basis for ozone as being an

equivalent level of protection to the 1-

hour standard in the absence of any

effective 1-hour standard. LCA argues

that, because the 1-hour standard was

legally revoked during the time period

at issue (as of November 2005) EPA

rationally could look to the 8-hour data

for the BR area and conclude that a

design value of 90 ppb was equivalent

to the revoked 1-hour standard.

Response: LCA's comment addresses

issues that are beyond the scope of this

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-hour basis. 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 that it reserves

the right to request that the requirement

for LDEQ to 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 it understands that EPA is in the

process of developing a rulemaking and/

or guidance concerning whether

achieving 1-hour standard attainment

(and/or achieving 8-hour standard

attainment) suspends the obligation to

impose section 185 fees where such

have not yet been required by a state for

a severe nonattainment area.

Response: The scope of today'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

of the standard in the future. As we

stated in the proposal, and in the

section above on the effect of today'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 that it believes

it is fully consistent with the CAA to

suspend the requirement to submit the

185 fees program or an equivalent

program when an area is determined to

be attaining the 1-hour standard.

Response: As stated above and in the

previous response to comment, the

scope of this 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

of the standard in the future. EPA will

address BR's 1-hour anti-backsliding

requirements for CAA section 185 fees

in a separate 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 forth in detail below,

EPA's longstanding interpretation of the

CAA under the Clean Data Policy is

valid and reasonable, and has been

upheld by every court in which it has

been challenged. We respond to LEAN's

specific comments below.

Comment: LEAN asserts that the 1-

hour standard is no longer relevant for

determining whether an area's air

quality is requisite to protect public

health.

Response: While EPA agrees that it

has issued an 8-hour ozone standard

that is more protective than the 1-hour

standard, certain 1-hour antibacksliding requirements remain

applicable to the BR area. Thus the issue

of whether 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 now been

incorporated in the form of a regulation

for implementation of the 8-hour ozone

requirements. Under the Clean Data

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 that the

BR area has attained the 1-hour ozone

standard suspends the requirement to

submit 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.

This determination has no bearing on

the requirements for the 8-hour ozone

standard.

Comment: LEAN asserts that BR has

not attained the revised 1997 8-hour

ozone standard, which is 75 ppb (the

2008 8-hour standard). See 73 FR

16435-16514 (March 27, 2008) 2

Response: As set forth in responses to

comments above, our action here is

limited to a determination that the BR

area has attained the 1-hour ozone

standard based on complete, qualityassured monitoring data for 2006-2008,

and preliminary 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 6 and

proposed on January 19, 2010 (75 FR 2938). We

expect by August 2010 to have completed our

reconsideration of the standard and designations to

proceed thereafter. When and if EPA designates BR

as nonattainment of the reconsidered standard,

LDEQ will be required to prepare a new ozone plan

that addresses that standard.

HeinOnline -- 75 Fed. Reg. 6572 2010
Federal Register/Vol. 75, No. 27 / Wednesday, February 10, 2010/Rules and Regulations

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 of the more

protective 1997 or 2008 8-hour

standards, certain 1-hour requirements

remain applicable to BR for 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, is that for an area meeting the

1-hour standard, submissions for the

reasonable further progress

requirements are not necessary or

meaningful, because the goal of the rate

of progress reductions-attainment-has

been met. Similarly, EPA believes-and

Courts have agreed-that a plan to attain

the 1-hour standard is unnecessary for

an area that is meeting the standard.

Moreover, contingency measures, which

are tied to rate of progress and

attainment plan requirements, are no

longer needed where an area is meeting

the standard. EPA's rationale for its

interpretation is more fully explained in

our Clean Data Policy, in EPA'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 that have upheld

EPA's Clean Data Policy. As discussed

in more detail below, the Clean Data

Policy has been upheld in a number of

court cases, including the DC, 7th, 9th

and 10th Circuits. See NRDC v. EPA,

571 F.3d 1245 (DC Cir. 2009); Sierra

Club v. EPA, 99 F. 3d 1551 (10th Cir.

1996); Sierra Club v. EPA, 375 F.3d 537

(7th Cir. 2004) and Our Children's Earth

Foundation v. EPA, No. 04-73032 (9th

Cir. June 28, 2005) (memorandum

opinion). The Courts have made clear

that a determination of attainment, 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 that the BR area is

attaining the 1-hour standard, the

submission of those measures is no

longer legally required for as long as the

area remains in attainment. Thus the

commenter is incorrect in asserting that

EPA is removing mandatory controls

from the SIP. The Commenter's claim

that the severe 1-hour measures are

necessary is belied by the fact that the

sole purpose of these measures is to

bring about attainment of the 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 of the Clean

Data Policy for the 1-hour standard does

not in any way hinder or interfere with

attainment of the 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 of the

Clean Data Policy under the 1-hour

ozone standard. Moreover, since it is

incontrovertible that a determination of

attainment for the 8-hour ozone

standard legally suspends certain 8-hour

submission requirements, it would be

inconsistent and nonsensical to adopt a

contradictory interpretation for the

identical requirements under the 1-hour

standard.

Comment: LEAN argues that

Louisiana's five-parish BR area has

never met 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 of the 1-

hour ozone standard. An area violates

the 1-hour ozone standard if, over a

consecutive 3-year period, more than 3

days of expected number of exceedances

occur at the same monitor. See CAA,

section 107(d)(4); 40 CFR Part 50, App.

H. The data show that during this threeyear 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 of the 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 that the area

continues to be 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 that the BR area is also currently

attaining the 1997 8-hour ozone

standard.

Comment: LEAN argues that the

Court's decision in South Coast Air

Quality Management District v. EPA,

472 F.3d 882 (DC Cir. 2006), prohibits

BR from removing controls until it has

attained the standard EPA has

determined is requisite to public health,

which they assert is the 75 ppb 2008 8-

hour ozone standard. LEAN contends

that the South Coast case made it clear

that EPA cannot release an area from

applicable controls until it has 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 of the

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. It is

directed only at plan measures aimed

specifically at attainment of the 1-hour

standard, which are not necessary once

the area has attained, and continues to

attain that standard. The obligations for

submissions being suspended here do

not bear on any obligations linked to the

revised 2008 8-hour ozone standards.

We will address any new 8-hour

requirements in a separate proceeding

or rulemaking. Moreover, as set forth

above, the DC Circuit upheld EPA's

regulation embodying the Clean Data

Policy in 40 CFR 51.918. That regulation

provides that a determination of the

1997 8-hour standard will result in the

suspension of requirements 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 Policy for purposes of

the 1-hour standard. EPA's defense of

the Clean Data Policy for the 1997 8-

hour standard was identical to and

6573

HeinOnline -- 75 Fed. Reg. 6573 2010
6574 Federal Register/Vol. 75, No. 27/Wednesday, February 10, 2010/Rules and Regulations

based upon its interpretation and

practice with respect to the 1-hour

ozone standard. See Phase 2 Rule, 70 FR

71644-71646 (November 29, 2005) and

NRDCv. EPA, 571 F.3d 1245 (DC Cir.

2009). Thus the DC Circuit has rejected

the arguments LEAN raises against the

Clean Data Policy, and the Court has

upheld EPA's interpretation as

consistent with the Clean Air Act.

As noted in footnote two, EPA is

currently reconsidering the 2008 8-hour

ozone standard of 75 ppb. We expect by

August 2010 to have completed our

reconsideration of the standard and

designations to proceed thereafter.

When and if EPA designates BR as

nonattainment of the reconsidered

standard, LDEQ will be required to

prepare a new ozone plan that addresses

that standard.

Comment: LEAN argues that EPA

cannot lawfully suspend controls from a

SIP without going through the

comprehensive redesignation

procedures of 42 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.

See 60 FR 36723. Nor does the existence

of the separate statutory redesignation

procedure prevent EPA from applying

its interpretation of CAA requirements

under the Clean Data Policy.

Several Circuit Courts have upheld

the use of the 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 have upheld

EPA rulemakings applying the Clean

Data Policy. See Sierra Club v. EPA, 99

F. 3d 1551 (10th Cir. 1996); Sierra Club

v. EPA, 375 F.3d 537 (7th Cir. 2004) and

Our Children's Earth Foundation v.

EPA, No. 04-73032 (9th Cir. 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 of the 8-hour ozone standard

in the Phase 2 Rule ozone litigation in

See NRDC v. EPA, 571 F.3d 1245 (DC

Cir. 2009). The DC Circuit specifically

rejected the arguments that the Clean

Data Policy is inconsistent with the

redesignation provisions of the CAA:

We think the statute unclear as to whether

those sections apply to an area that is already

attaining the NAAQS. For the reasons below,

we join the Tenth Circuit in holding the

EPA's interpretation is reasonable. See Sierra

Club v. EPA, 99 F.3d 1551 (10th Cir.1996).

* * * The EPA's reasoning disposes as well

of the NRDC'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 all Part 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 the EPA cannot "render Subpart 2's

carefully designed restrictions on EPA

discretion utterly nugatory," Whitman v. 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 a redesignation; an area

must still comply with the statutory

requirements before it can be redesignated to

attainment. Furthermore, Part D-including

Subpart 2-remains in force insofar as it

applies but, as we have just seen, 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 Latino Issues Forum v. 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, if an area

is in compliance with PM-10 standards, then

further progress for the purpose of ensuring

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 of EPA's interpretation of the

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 of 42

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 of the Clean Data Policy, 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 of the

statute. See, e.g., 60 FR 36723, 36725

(July 18, 1995). In addition, until the

area is redesignated, it faces the risk that

the suspended obligations will be

reimposed if the area lapses back into

nonattainment, and the further risk that

the area will be reclassified if the lapse

causes it to 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 is required, in part, to obtain

redesignation. See CAA section

107(d)(3)(E)(v), Sierra Club v. EPA, 99 F.

3d 1551, 1558 (10th Cir. 1996).

Comment: LEAN asserts that EPA has

never identified a lawful contingency

measure for the BR area or has yet to

approve a lawful contingency measures

plan. The effect of EPA's action is to

reward delay tactics by canceling those

pollution reductions it has unlawfully

delayed.

Response: While we agree with the

Commenter that BR 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

of attainment 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 that it is

unnecessary and not required at this

time to compel the State to submit

measures whose sole purpose is to bring

about attainment that is already

occurring.

Comment: LEAN comments that,

while EPA states in the proposed rule

that the suspended requirements would

be re-implemented if BR falls out of

attainment for the 1-hour standard, the

proposed rule makes no mention of how

quickly the suspended requirements to

submit would have to be put back in

place if BR fell out of attainment. LEAN

speculates that the 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 if the BR falls out of

attainment for the 1-hour standard. The

HeinOnline -- 75 Fed. Reg. 6574 2010
Federal Register/Vol. 75, No. 27 / Wednesday, February 10, 2010/Rules and Regulations

Clean Data Policy lays out the process

to implement a suspended measure:

[i]f EPA subsequently determines that an area

has violated the standard, the basis for the

determination that the area need not make

the pertinent SIP revisions would no longer

exist. The EPA would notify the State of that

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

reasonable amount of time, which EPA

would establish taking into account the

individual circumstances surrounding the

particular SIP submission at issue. 3

Thus EPA has undertaken to act

reasonably and responsibly in the future

to re-impose the obligation for the State

to submit the measures should EPA

determine that the area has fallen out of

attainment. The Commenter is thus

wrong to assume that EPA's exercise of

its discretion with regard to timing of

reinstatement of obligations would bring

about absurd or illegal 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 this final

rulemaking, and based on complete,

quality-assured data for 2006-2008, and

data for 2009 that are currently

available, we are determining that the

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. Statutory and Executive Order

Reviews

This action merely makes a

determination of attainment based upon

air quality that results in suspensions of

certain Clean Air Act requirements, and

does not impose additional

requirements. For that reason, this

action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

3

As referenced in footnote 1, see May 10, 1995

EPA memorandum from John S. Seitz, Director,

Office of Air Quality 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

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 there is no

federally recognized Indian country

located in the states, 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 rules

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 Clean

Air Act, petitions for judicial review of

these actions must be filed in the United

States Court of Appeals for the

appropriate circuit by April 12, 2010.

Filing a petition for reconsideration by

the Administrator of these final rules

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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxides, Ozone, Reporting

and recordkeeping requirements,

Volatile organic compounds.

Dated: January 29, 2010.

Al Armendariz,

Regional Administrator, Region 6.

* 40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

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 Control strategy and regulations:

Ozone.

Determination of Attainment.

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 of EPA's Clean Data Policy,

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 of the 1-hour

ozone NAAQS for so long as the area

continues to attain the 1-hour ozone

NAAQS.

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

BILLING CODE 6560-50-P

6575

HeinOnline -- 75 Fed. Reg. 6575 2010