[Federal Register Volume 66, Number 221 (Thursday, November 15, 2001)]
[Rules and Regulations]
[Pages 57387-57389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28341]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 249-0307; FRL-7102-4]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Interim Final Determination That 
State Has Corrected the Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: On September 12, 2001 in the Federal Register, EPA published a 
direct final rulemaking fully approving revisions to the California 
State Implementation Plan. The revisions concern Bay Area Air Quality 
Management District (BAAQMD) Rule 8-51, Adhesive and Sealant Products. 
On that date, EPA also published a proposed rulemaking to provide the 
public with an opportunity to comment on EPA's action. Based on the 
proposed full approval, EPA is making an interim final determination by 
this action that the State has corrected the deficiencies for which a 
sanctions clock began on December 6, 1999. This action will stay the 
application of the offset sanction and defer the application of the 
highway sanction. Although this action is effective upon publication, 
EPA will take comment. If comments are received on this interim final 
action, EPA will publish a final action taking into consideration any 
comments received.

DATES: This interim final determination is effective November 15, 2001. 
Comments must be received by December 17, 2001.

ADDRESSES: Comments should be sent to: Andrew Steckel, Rulemaking 
Section (AIR-4), Air Division, U.S. Environmental Protection Agency, 
Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
    The state submittal and EPA's analysis for that submittal, which 
are

[[Page 57388]]

the basis for this action, are available for public review at the above 
address and at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
SW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Section (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1199.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 23, 1998, the State submitted BAAQMD Rule 8-51, for which 
EPA published a limited disapproval in the Federal Register on November 
4, 1999. 64 FR 60109. EPA's disapproval action started an 18-month 
clock for the application of one sanction (followed by a second 
sanction 6 months later) under section 179 of the Clean Air Act (Act) 
and a 24-month clock for promulgation of a Federal Implementation Plan 
(FIP) under section 110(c) of the Act. The State subsequently submitted 
a revised rule on May 31, 2001. In the Proposed Rules section of the 
Federal Register dated September 12, 2001, EPA proposed full approval 
of the State's submittal.
    Based on the proposed approval, EPA believes that it is more likely 
than not that the State has corrected the original disapproval 
deficiencies. Therefore, EPA is taking this final rulemaking action, 
effective on publication, finding that the State has corrected the 
deficiencies. However, EPA is also providing the public with an 
opportunity to comment on this final action. If, based on any comments 
on this action and any comments on EPA's proposed full approval of the 
State's submittal, EPA determines that the State's submittal is not 
fully approvable and this final action was inappropriate, EPA will 
either propose or take final action finding that the State has not 
corrected the original disapproval deficiencies. As appropriate, EPA 
will also issue an interim final determination or a final determination 
that the deficiency has not been corrected. Until EPA takes such an 
action, the application of sanctions will continue to be deferred and 
or stayed.
    This action does not stop the sanctions clock that started for this 
area on November 4, 1999. However, this action will stay the 
application of the offsets sanction and will defer the application of 
the highway sanction. See 59 FR 39832 (Aug. 4, 1994). If EPA 
subsequently determines that the State, in fact, did not correct the 
disapproval deficiencies, EPA will also determine that the sanctions 
consequences described in the sanctions rule will apply. See 40 CFR 
52.31.

II. EPA Action

    EPA is taking interim final action finding that the State has 
corrected the disapproval deficiencies that started the sanctions 
clock. Based on this action, application of the offset sanction will be 
stayed and application of the highway sanction will be deferred until 
EPA takes action proposing or finally disapproving in whole or part the 
State submittal.
    Because EPA has preliminarily determined that the State has an 
approvable plan, relief from sanctions should be provided as quickly as 
possible. Therefore, EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect.\1\ 5 U.S.C. 553(b)(B). EPA 
believes that notice-and-comment rulemaking before the effective date 
of this action is impracticable and contrary to the public interest. 
EPA has reviewed the State's submittal and, through its proposed action 
is indicating that it is more likely than not that the State has 
corrected the deficiencies that started the sanctions clock. Therefore, 
it is not in the public interest to initially impose sanctions or to 
keep applied sanctions in place when the State has most likely done all 
that it can to correct the deficiencies that triggered the sanctions 
clock. Moreover, it would be impracticable to go through notice-and-
comment rulemaking on a finding that the State has corrected the 
deficiencies prior to the rulemaking approving the State's submittal. 
Therefore, EPA believes that it is appropriate to use the interim final 
rulemaking process to temporarily stay or defer sanctions while EPA 
completes its rulemaking process on the approvability of the State's 
submittal. Moreover, with respect to the effective date of this action, 
EPA is invoking the good cause exception to the 30-day notice 
requirement of the APA because the purpose of this notice is to relieve 
a restriction. See 5 U.S.C. 553(d)(1).
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    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
is associated with approving state law as meeting federal requirements 
and imposes no additional requirements beyond those imposed by state 
law. Accordingly, the Administrator certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule approves pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action is associated with approving a 
state rule implementing a Federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement

[[Page 57389]]

for the State to use voluntary consensus standards (VCS), EPA has no 
authority to disapprove a SIP submission for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 14, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Hydrocarbons, 
incorporation by reference, Intergovernmental regulations, Reporting 
and recordkeeping requirements, Ozone, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: November 1, 2001.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 01-28341 Filed 11-14-01; 8:45 am]
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