[Federal Register: April 22, 2004 (Volume 69, Number 78)]
[Rules and Regulations]
[Page 21715-21717]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap04-11]
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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 vagenas.ginger@epa.gov, 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, vagenas.ginger@epa.gov.
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
[[Page 21717]]
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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