[Federal Register Volume 68, Number 55 (Friday, March 21, 2003)]
[Rules and Regulations]
[Pages 13840-13843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6708]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 088-FON; FRL-7470-6]


Finding of Failure To Submit State Implementation Plan Revisions 
for Particulate Matter, California--San Joaquin Valley

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to find that California failed to 
make a Clean Air Act (CAA or Act) state implementation plan (SIP) 
submittal for particulate matter of ten microns or less (PM-10) 
required for the San Joaquin Valley PM-10 nonattainment area (the San 
Joaquin Valley or the Valley). Under the Act, for serious areas failing 
to attain the PM-10 National Ambient Air Quality Standards (NAAQS) by 
the required attainment date, states are required to submit within 12 
months after the applicable attainment date, plan revisions which 
provide for attainment of the PM-10 NAAQS, and from the date of such 
submission until attainment, for an annual reduction of PM-10 or PM-10 
precursor emissions within the area of not less than 5 percent of the 
amount of such emissions as reported in the most recent inventory 
prepared for the area (5% attainment plan). The San Joaquin Valley is a 
serious PM-10 nonattainment area that failed to meet its attainment 
date of December 31, 2001. Thus, the 5% PM-10 attainment plan was due 
on December 31, 2002 but has not yet been submitted.
    This action triggers the 18-month clock for mandatory application 
of sanctions and the 2-year clock for a federal implementation plan 
(FIP) under the Act. This action is consistent with the CAA mechanism 
for assuring SIP submissions.

EFFECTIVE DATE: This action is effective as of March 7, 2003.

FOR FURTHER INFORMATION CONTACT: Doris Lo, U. S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901, Telephone: (415) 972-3959; 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 13841]]

I. CAA PM-10 Planning Requirements for the San Joaquin Valley

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the PM-10 NAAQS.\1\ Public Law 549, 
104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). On the date of 
enactment of the 1990 Clean Air Act Amendments, PM-10 areas including 
the San Joaquin Valley planning area, meeting the qualifications of 
section 107(d)(4)(B) of the amended Act, were designated nonattainment 
by operation of law. See 56 FR 11101 (March 15, 1991). EPA codified the 
boundaries of the San Joaquin Valley PM-10 nonattainment area at 40 CFR 
81.305.\2\
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    \1\ EPA revised the NAAQS for PM-10 on July 1, 1987 (52 FR 
24672), replacing standards for total suspended particulates with 
new standards applying only to particulate matter up to 10 microns 
in diameter (PM-10). At that time, EPA established two PM-10 
standards. The annual PM-10 standard is attained when the expected 
annual arithmetic average of the 24-hour samples, averaged over a 
three year period, is equal to or less than 50 micrograms per cubic 
meter (ug/m3). The 24-hour PM-10 standard of 150 ug/m3 is attained 
if samples taken for 24-hour periods have no more than one expected 
exceedance per year, averaged over 3 years. See 40 CFR 50.6 and 40 
CFR part 50, appendix K.
    \2\ The San Joaquin Valley PM-10 planning area includes the 
following counties in California's central valley: Fresno, Kern, 
Kings, Tulare, San Joaquin, Stanislaus, Madera and Merced.
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    Once an area is designated nonattainment for PM-10, section 188 of 
the CAA outlines the process for classifying the area and establishes 
the area's attainment deadline. In accordance with section 188(a), at 
the time of designation, all PM-10 nonattainment areas, including San 
Joaquin Valley, were initially classified as moderate.
    Section 188(b)(1) of the Act provides that moderate areas can 
subsequently be reclassified as serious before the applicable moderate 
area attainment date if at any time EPA determines that the area cannot 
``practicably'' attain the PM-10 NAAQS by the moderate area attainment 
deadline, December 31, 1994. On January 8, 1993 (58 FR 3337), EPA made 
such a determination and reclassified the San Joaquin Valley planning 
area as serious.
    The attainment deadline for the San Joaquin Valley is December 31, 
2001. Section 189(b)(2) of the Act required the submission of SIP 
revisions addressing CAA sections 189(b) and (c) by August 8, 1994 and 
February 8, 1997. California made these required serious area 
submittals for the San Joaquin Valley and withdrew them on February 26, 
2002. EPA then made a finding of failure to submit (67 FR 11925).
    On July 23, 2002, EPA finalized a finding of failure to attain the 
annual and 24-hour PM-10 standards for the Valley by December 31, 2001 
(67 FR 48039). For serious areas failing to meet their applicable 
attainment deadlines, section 189(d) of the CAA requires states to 
``submit within 12 months after the applicable attainment date, plan 
revisions which provide for attainment of the PM-10 air quality 
standards and, from the date of such submission until attainment, for 
an annual reduction of PM-10 or PM-10 precursor emissions within the 
area of not less than 5 percent of the amount of such emissions as 
reported in the most recent inventory prepared for the area.'' The 5% 
PM-10 attainment plan for the San Joaquin Valley was due on December 
31, 2002. EPA has not yet received such a submittal from the State.

II. Final Action

A. Finding of Failure To Submit Required SIP Revisions

    If California does not submit the required plan revisions within 18 
months of the effective date of today's rulemaking, pursuant to CAA 
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA 
section 179(b) will be applied in the affected area. If the State has 
still not made a complete submittal 6 months after the offset sanction 
is imposed, then the highway funding sanction will apply in the 
affected area, in accordance with 40 CFR 52.31.\3\ The 18-month clock 
will stop and the sanctions will not take effect if, within 18 months 
after the date of the finding, EPA finds that the State has made a 
complete submittal addressing the 5% attainment requirements for the 
San Joaquin Valley. In addition, CAA section 110(c)(1) provides that 
EPA must promulgate a federal implementation plan (FIP) no later than 2 
years after a finding under section 179(a) unless EPA takes final 
action to approve the submittal within 2 years of EPA's finding.
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    \3\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: the offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 
52.31, ``Selection of sequence of mandatory sanctions for findings 
made pursuant to section 179 of the Clean Air Act.''
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B. Effective Date Under the Administrative Procedures Act

    This final action is effective on March 7, 2003. Under the 
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), an agency 
rulemaking may take effect before 30 days after the date of publication 
in the Federal Register if an agency has good cause to mandate an 
earlier effective date. Today's action concerns SIP revisions that are 
already overdue and the State has been aware of applicable provisions 
of the CAA relating to overdue SIPs. In addition, today's action simply 
starts a ``clock'' that will not result in sanctions for 18 months, and 
that the State may ``turn off'' through the submission of a complete 
SIP submittal. These reasons support an effective date prior to 30 days 
after the date of publication.

C. Notice-and-Comment Under the Administrative Procedures Act

    This final agency action is not subject to the notice-and-comment 
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of 
the limited time provided to make findings of failure to submit 
regarding SIP submissions, Congress did not intend such findings to be 
subject to notice-and-comment rulemaking. However, to the extent such 
findings are subject to notice-and-comment rulemaking, EPA invokes the 
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice 
and comment are unnecessary because no EPA judgment is involved in 
making a nonsubstantive finding of failure to submit SIPs required by 
the CAA. Furthermore, providing notice and comment would be 
impracticable because of the limited time provided under the statute 
for making such determinations. Finally, notice and comment would be 
contrary to the public interest because it would divert Agency 
resources from the critical substantive review of submitted SIPs. See 
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853 
(August 4, 1994).

III. Statutory and Executive Officer Reviews

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled Regulatory Planning and 
Review.''

B. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from

[[Page 13842]]

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency. This 
rule is not subject to Executive Order 13045 because it does not 
involve decisions intended to mitigate environmental health or safety 
risks.

D. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because findings of failure to submit required 
SIP revisions do not by themselves create any new requirements. 
Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that today's action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. The CAA provision discussed in this notice requires 
states to submit SIPs. This notice merely provides a finding that 
California has not met that requirement. Accordingly, no additional 
costs to State, local, or tribal governments, or to the private sector, 
result from this action.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. EPA believes that VCS are inapplicable to today's action 
because it does not require the public to perform activities conducive 
to the use of VCS.

I. Submission to Congress and the Comptroller General

    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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

[[Page 13843]]

J. Petitions for Judicial Review

    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 May 20, 2003. 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).)

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

    Dated: March 7, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 03-6708 Filed 3-20-03; 8:45 am]
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