[Federal Register Volume 69, Number 78 (Thursday, April 22, 2004)]
[Rules and Regulations]
[Pages 21715-21717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9140]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA258-0442(B); FRL-7645-8]


Interim Final Action to Stay and Defer Sanctions Based on 
Attainment of the 1-hour Ozone Standard for the San Francisco Bay Area, 
California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: EPA is taking interim final action to stay and defer the 
imposition of, respectively, offset and highway sanctions under the 
Clean Air Act (CAA) based on a finding that the San Francisco Bay Area 
(Bay Area) has attained the 1-hour ozone national ambient air quality 
standard (NAAQS). The finding of attainment is published elsewhere in 
today's Federal Register.

DATES: This interim final rule is effective on April 22, 2004. However, 
comments will be accepted until May 24, 2004.

ADDRESSES: Send comments to Ginger Vagenas, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105 or e-mail to [email protected], or 
submit comments at http://www.regulations.gov.
    You can inspect copies of the public comments and the attainment 
finding docket (number C258-0442(B)) at our Region IX office during 
normal business hours by appointment. The Region IX office is located 
at the following address: Planning Office (AIR-2), Air Division, U.S. 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, (415) 
972-3964, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Background

    On September 20, 2001 (effective October 22, 2001, 66 FR 48340), we 
published a partial approval and partial disapproval of the San 
Francisco Bay Area 1999 ozone attainment plan (1999 Plan) as submitted 
by the State on August 13, 1999. The plan was adopted locally by the 
Bay Area Air Quality Management District on June 16, 1999, by the 
Metropolitan Transportation Commission on June 17, 1999, and by the 
Association of Bay Area Governments on June 23, 1999. These agencies 
are referred to collectively as the co-lead agencies. We based our 
disapproval action on deficiencies in the attainment assessment, the 
motor vehicle emissions budgets, and the reasonably available control 
measure (RACM) demonstration. The disapproval action started a 
sanctions clock for imposition of offset sanctions 18 months after 
October 22, 2001, and highway sanctions 6 months later, pursuant to 
section 179 of the Clean Air Act (CAA) and our regulations at 40 CFR 
52.31.
    On October 24, 2001, the co-lead agencies adopted the San Francisco 
Bay Area 2001 Ozone Attainment Plan (2001 Plan) that was intended in 
part to correct the deficiencies identified in our partial disapproval 
action. On November 30, 2001, the State submitted the 2001 Plan to EPA. 
On July 16, 2003, we proposed approval of this submittal because we 
believed it corrected the deficiencies identified in our September 20, 
2001, disapproval action. (68 FR 42174). Based on that proposed

[[Page 21716]]

approval, we took final rulemaking action to stay the imposition of the 
offset sanction and defer the imposition of the highway sanction that 
were triggered by our September 20, 2001, disapproval. 68 FR 42172, 
July 16, 2003. Elsewhere in today's Federal Register we are taking 
final action to approve the RACM demonstration and motor vehicle 
emissions budgets in the 2001 Plan. Therefore the sanctions clocks 
associated with our disapproval of those elements in the 1999 Plan are 
terminated.
    On October 31, 2003, we published a proposed finding that the Bay 
Area had attained the 1-hour ozone NAAQS. 68 FR 62041. In that notice 
we explained that, when an area has attained the standard, certain CAA 
planning requirements designed to bring the area into attainment 
(including the requirement for an attainment demonstration) are no 
longer applicable and that, as a result, the State would no longer be 
required to submit SIP revisions to meet them. We also explained that 
if we subsequently determine that the Bay Area has violated the 1-hour 
ozone standard (prior to a redesignation to attainment \1\), the basis 
for the determination that the area need not make these SIP revisions 
would no longer exist.
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    \1\ The redesignation of an area to attainment under CAA section 
107(d)(3) is a separate process from a finding of attainment. A 
finding that an area has attained the 1-hour ozone standard does not 
redesignate the area to attainment for the 1-hour standard, nor does 
it guarantee a future redesignation to attainment.
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II. EPA Action

    Based on today's final finding that the Bay Area has attained the 
1-hour ozone NAAQS, we are taking this final rulemaking action, 
effective on publication, to stay and defer imposition of CAA section 
179 sanctions that were triggered by our September 20, 2001, 
disapproval of the attainment assessment in the 1999 Plan. As noted 
above, the requirement for an attainment demonstration is not 
eliminated; rather, it is only suspended for so long as the area 
continues to attain the standard. Should the Bay Area violate the 1-
hour standard, EPA will revoke the finding of attainment and there will 
once again be an attainment demonstration requirement for the area. 
This stay and deferral of sanctions will therefore remain in effect 
only until such time as EPA revokes the finding of attainment and the 
subsequent planning process takes its course. Alternatively, if EPA 
redesignates the area to attainment status, the requirement for an 
attainment demonstration will be eliminated, and the sanctions 
associated with the earlier disapproval will be terminated.
    EPA believes that notice-and-comment rulemaking on the stay and 
deferral of sanctions before the effective date of this action is 
impracticable and contrary to the public interest. We have determined 
through notice-and-comment rulemaking that the Bay Area has attained 
the 1-hour ozone NAAQS and that the requirement to submit an attainment 
demonstration has been suspended. Given the State is no longer subject 
to the requirement to correct the deficiency that triggered the 
sanctions clocks in the first place, it is not in the public interest 
to reimpose the offset sanction or initially impose highway sanctions. 
Therefore, EPA believes that it is necessary to use the interim final 
rulemaking process to provide a continuous stay and deferral of 
sanctions during the time prior to redesignation, so long as the area 
continues to attain the standard. 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 (5 
U.S.C. 553(b)(3)). 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. If comments are submitted that change 
our assessment described in this final determination we intend to take 
subsequent final action to reimpose sanctions pursuant to 40 CFR 
51.31(d). If no comments are submitted that change our assessment, then 
all sanctions and sanction clocks will be permanently terminated on the 
effective date of a redesignation to attainment, should redesignation 
occur.
    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 
(5 U.S.C. 553(d)(1)).
    In summary, as a result of this action, the imposition of the 
offset sanction will continue to be stayed and the imposition of the 
highway sanction will continue to be deferred until we either 
redesignate the Bay Area to attainment or revoke our finding of 
attainment and the ensuing planning process takes its course.

III. Statutory and Executive Order Reviews

    This action stays and defers Federal sanctions and imposes no 
additional 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.
    This action 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.
    The administrator certifies that this action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. Sec.  601 et seq.).
    This rule 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 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 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 rule 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.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply to 
this rule because it imposes no standards.
    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 to Congress and the Comptroller 
General. However, section 808 provides that any rule for which the 
issuing agency for good cause finds that notice and public procedure 
thereon are impracticable, unnecessary, or contrary

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to the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). EPA has made such a 
good cause finding, including the reasons therefor, and established an 
effective date of April 22, 2004. 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 21, 2004. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purpose of judicial review nor does 
it extend the time within which 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, Intergovernmental 
regulations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: April 1, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 04-9140 Filed 4-21-04; 8:45 am]
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