Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21715 

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 

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 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 

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, 

Particulate matter, Reporting and 

recordkeeping requirements. 

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

Dated: March 8, 2004. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

■ Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(260)(i)(C) and 

(321)(i)(B) to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(260) * * * 

(i) * * * 

(C) Kern County Air Pollution Control 

District. 

(1) Rule 208, originally adopted on 

April 18, 1972, amended on September 

17, 1998. 

* * * * * 

(321) * * * 

(i) * * * 

(B) Kern County Air Pollution Control 

District. 

(1) Rules 108 and 417, originally 

adopted on April 18, 1972, amended on 

July 24, 2003. 

* * * * * 

[FR Doc. 04–9038 Filed 4–21–04; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

21716 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

1The 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. 

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. 

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-andcomment 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-andcomment 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. 

§ 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 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 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] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA258–0442(A); FRL–7645–7] 

Determination of Attainment of the 1- 

Hour Ozone Standard; Determination 

Regarding Applicability of Certain 

Clean Air Act Requirements; Approval 

and Promulgation of Ozone Attainment 

Plan; San Francisco Bay Area, CA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is determining that the 

San Francisco Bay Area (Bay Area) 

ozone nonattainment area has attained 

the 1-hour ozone national ambient air 

quality standard (NAAQS) by the 

deadline required by the Clean Air Act 

(CAA), September 20, 2006. Based on 

this determination, we are also 

determining that the CAA’s 

requirements for reasonable further 

progress and attainment demonstrations 

and for contingency measures for the 1- 

hour ozone standard are not applicable 

to the area for so long as the Bay Area 

continues to attain the 1-hour ozone 

standard. 

In addition, EPA is approving the 

following elements of the 2001 ozone 

attainment plan for the Bay Area (2001 

Plan): Emissions inventory, reasonably 

available control measures (RACM); 

commitments to adopt and implement 

specific control measures; motor vehicle 

emissions budgets (MVEBs); and 

commitments for further study 

measures. 

In 2001, EPA disapproved certain 

components of the 1999 ozone 

attainment plan for the Bay Area: The 

RACM demonstration, the attainment 

demonstration, and the MVEBs. Because 

of this disapproval the 2 to 1 offset 

sanction under CAA section 179(b)(2) 

was imposed in the Bay Area on April 

22, 2003. Based on the proposed 

approval of these elements of the 2001 

Plan, EPA made an interim final 

determination that resulted in a stay of 

the offset sanction and deferral of the 

highway sanction. EPA’s approval of 

RACM and the MVEBs in the 2001 Plan 

terminates the sanctions clock for those 

plan elements. 

Based on the attainment 

determination for the Bay Area, 

elsewhere in this Federal Register EPA 

is taking interim final action to stay the 

offset sanction and defer the highway 

sanction triggered by the attainment 

demonstration disapproval for as long as 

the area continues to attain the 1-hour 

ozone standard because that plan 

requirement has been suspended. 

DATES: Effective Date: This rule is 

effective on May 24, 2004. 

ADDRESSES: You can inspect copies of 

the administrative record (docket 

number CA258–0442(A)) for this action 

at EPA’s Region 9 office during normal 

business hours by appointment. The 

address is U.S. EPA Region IX—Air 

Division, 75 Hawthorne Street, San 

Francisco, CA. 

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. 

Table of Contents 

I. Background 

II. Attainment Finding for the Bay Area 

A. Attainment Finding 

B. EPA’s Responses to Comments on the 

Proposed Finding of Attainment 

1. Comments Regarding Timing of the 

Finding of Attainment 

2. Comments Regarding the Data on Which 

the Attainment Finding Is Based 

3. Comments Regarding the Impact of an 

Attainment Finding on the 2001 Plan 

and on Air Quality in the Bay Area 

C. Applicability of Clean Air Act Planning 

Requirements in Areas Attaining the 1- 

Hour Ozone Standard 

D. EPA Responses to Comments on 

Applicability of Clean Air Act 

Requirements 

1. Comments Regarding EPA’s Clean Data 

Policy 

2. Comments Regarding the Applicability 

of EPA Policies to the Bay Area 

E. Effects of the Attainment Finding on the 

Bay Area and of a Future Violation of the 

1-Hour Ozone NAAQS 

III. Approval of Bay Area 2001 Plan 

A. Approval of Bay Area 2001 Plan 

B. EPA’s Responses to Comments on the 

Proposed Approval of the 2001 Plan 

1. Comments on the Proposed Approval of 

the Emissions Inventory 

2. Comments on the Proposed Approval of 

RACM 

3. Comments on the Proposed Approval of 

the Control Measure Commitments 

4. Comments on the Downwind Transport 

of Air Pollution 

5. Comments on Additional Plan Elements 

6. Comments on the Impact of the State 

Law and Court Orders 

7. Comments on the Interim Final 

Determination 

IV. Effect of the Attainment Determination 

and 2001 Plan Action on Transportation 

Conformity 

V. Statutory and Executive Order Reviews 

I. Background 

Upon enactment of the Clean Air Act 

Amendments of 1990, the Bay Area was 

classified as a moderate nonattainment 

area for the 1-hour ozone NAAQS. 56 

FR 56694 (November 6, 1991). EPA 

redesignated the Bay Area to attainment 

in 1995, based on then current air 

quality data (60 FR 27029, May 22, 

1995), and subsequently redesignated 

the area back to nonattainment without 

classification on July 10, 1998 (63 FR 

37258), following renewed violations of 

the 1-hour ozone standard. Upon the 

Bay Area’s redesignation to 

nonattainment, we required the State to 

submit a state implementation plan 

(SIP) addressing applicable CAA 

provisions, including a demonstration 

of attainment as expeditiously as 

practicable but no later than November 

15, 2000. 

The Bay Area Air Quality 

Management District (District or 

BAAQMD), along with its co-lead 

agencies—the Metropolitan 

Transportation Commission and the