3442 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 

1There are several tribal areas in the SJV. Because 

California has not been approved to administer any 

CAA programs in Indian country, the requirement 

to submit a revised SIP did not include these tribal 

areas. 

2The CAA specifically excludes certain serious 

area requirements from the extreme area 

requirements, e.g., the section 182(c)(6), (7) and (8) 

provisions for new source review. 

3On October 16, 2008 we proposed to approve 

the balance of the 2004 SIP as well as additional 

documents comprising the State’s 1-hour ozone 

plan for the SJV. See 73 FR 61381. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2008–0862; FRL–8763–5] 

Finding of Failure To Submit a 

Required State Implementation Plan 

Revision for 1-Hour Ozone Standard, 

California—San Joaquin Valley— 

Reasonably Available Control 

Technology 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finding that California 

has failed to submit, for the San Joaquin 

Valley extreme 1-hour ozone 

nonattainment area, a State 

Implementation Plan (SIP) revision 

required by Clean Air Act (CAA) 

sections 172(c)(1), 182(b)(2) and 182(f). 

These CAA sections require that SIPs 

provide for the implementation of 

reasonably available control technology 

on major stationary sources of volatile 

organic compounds (VOC) and oxides of 

nitrogen (NOX) as well as certain other 

sources. Under the CAA, this finding 

triggers the 18-month time clock for 

mandatory application of sanctions and 

2-year time clock for a federal 

implementation plan. 

DATES: Effective Date: This rule is 

effective on January 21, 2009. 

ADDRESSES: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region 9, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the Regional 

Office location (e.g., copyrighted 

material). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Steckel, EPA Region IX, (415) 

947–4115, steckel.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

I. Background 

A. The San Joaquin Valley’s 1-Hour 

Ozone Classification and Planning 

Requirements 

The San Joaquin Valley 1-hour ozone 

nonattainment area (SJV) includes the 

following counties in California’s 

central valley: San Joaquin, Stanislaus, 

Merced, Madera, Fresno, Kings, Tulare, 

and part of Kern. 40 CFR 81.305. When 

the CAA was amended in 1990, each 

area of the country that was designated 

nonattainment for the 1-hour ozone 

national ambient air quality standard 

(NAAQS), including the SJV, was 

classified by operation of law as 

‘‘marginal,’’ ‘‘moderate,’’ ‘‘serious,’’ 

‘‘severe’’ or ‘‘extreme’’ depending on the 

severity of the area’s air quality 

problem. CAA sections 107(d)(1)(C) and 

181(a). Each successive classification 

carries with it increasingly stringent 

requirements that build on the previous 

classification’s requirements. 

Based on its air quality during the 

1987–1989 period, the SJV was initially 

classified as serious with an attainment 

date of no later than November 15, 1999. 

See 56 FR 56694 (November 6, 1991) 

and CAA section 181(a)(1). On 

November 8, 2001, the SJV was 

reclassified as severe (effective 

December 10, 2001) for failure to attain 

the 1-hour ozone standard by the 

serious area attainment date. 66 FR 

56476. CAA section 181(a) and (b)(2). 

On January 9, 2004, California 

requested that EPA reclassify the SJV 

from severe to extreme for the 1-hour 

ozone standard under the Act’s 

voluntary reclassification provisions in 

section 181(b)(3). See letter from 

Catherine Witherspoon, ARB, to Wayne 

Nastri, EPA, January 9, 2004. On April 

16, 2004, we granted the State’s request. 

69 FR 20550. In that action, we required 

the State to submit by November 15, 

2004 an extreme area plan for the SJV 1

that provides for the attainment of the 

1-hour ozone standard as expeditiously 

as practicable, but no later than 

November 15, 2010. We also stated that 

the plan must meet the specific 

provisions of CAA section 182(e). Under 

section 182(e), extreme area plans are 

required to meet the requirements for 

severe area plans and the additional 

requirements for extreme areas.2

Among these requirements are the 

provisions for the implementation of 

reasonably available control technology 

(RACT) in sections 172(c)(1) and 

182(b)(2). At a minimum, the CAA 

requires RACT for major VOC sources 

and for VOC source categories for which 

EPA has issued Control Techniques 

Guideline (CTG) documents. For 

extreme areas, such as the SJV, CAA 

section 182(e) defines a major source as 

a stationary source that emits or has the 

potential to emit 10 tons per year of 

VOC. CAA section 182(f) requires that 

RACT also apply to major stationary 

sources of NOX. 

B. The San Joaquin Valley’s 1-Hour 

Ozone RACT Provisions 

The SJV Air Pollution Control District 

(SJVAPCD or the District) adopted the 

‘‘Extreme Ozone Attainment 

Demonstration Plan’’ on October 8, 2004 

and amended it on October 20, 2005 to, 

among other things, substitute for the 

original chapter a new ‘‘Chapter 4: 

Control Strategy’’ which includes the 1- 

hour ozone RACT provisions. The State 

submitted the plan and amendment on 

November 15, 2004 and March 6, 2006, 

respectively. See letters from Catherine 

Witherspoon, ARB, to Wayne Nastri, 

EPA, November 15, 2004 and March 6, 

2006. The plan and amendment, 

collectively, will be referred to as the 

‘‘2004 SIP’’ in this rule. 

Section 4.2.5 of the 2004 SIP 

identified four specific source categories 

where further analysis and new or 

modified rules might be needed to meet 

the RACT requirements for sources 

down to the 10 tpy emissions level. The 

District concluded that only these 

categories would need additional work 

because its existing rules were already 

sufficiently stringent. As discussed 

below, the State withdrew the RACT 

provisions of the 2004 SIP in 

September, 2008.3

C. The San Joaquin Valley’s 8-Hour 

Ozone Classification and AntiBacksliding Requirements 

In an April 30, 2004 final rule, EPA 

designated and classified areas of the 

country under the more protective 8- 

hour ozone standard codified in 40 CFR 

50.10. The SJV was designated 

nonattainment and classified under title 

1, part D, subpart 2 of the CAA as 

serious for the 8-hour standard. 69 FR 

23858. On the same date, EPA also 

issued a final rule entitled ‘‘Final Rule 

To Implement the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 1’’ (Phase 1 Rule). 69 

FR 23951. Among other matters, this 

rule revoked the 1-hour ozone standard 

in the SJV (as well as in most other areas 

of the country), effective June 15, 2005. 

See 40 CFR 50.9(b); 69 FR 23951, 23996 

and 70 FR 44470 (August 3, 2005). The 

Phase 1 Rule also set forth antibacksliding principles to ensure 

continued progress toward attainment of 

the 8-hour ozone standard by 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 3443 

4These provisions were not affected by the 

decision of the U.S. Court of Appeals for the District 

of Columbia Circuit vacating portions of EPA’s 

Phase 1 Rule. See South Coast Air Quality 

Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 

2006) as clarified in South Coast Air Quality 

Management Dist. v. EPA, 489 F.3d 1295 (D.C. Cir. 

2007). 

5Under CAA section 181(b)(3), we must grant a 

state’s voluntary request to ‘‘bump up’’ an ozone 

nonattainment area in that state to a higher 

classification. The bump-up is effective only after 

EPA publishes a rule in the Federal Register 

formally granting the request. We are in the process 

of preparing that rule. 

6 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.’’ 

identifying which 1-hour ozone 

requirements remain applicable after 

revocation of that standard. One of the 

requirements retained, and thus 

continues to apply to the SJV, is the 

requirement to implement RACT. See 40 

CFR 51.905(a)(1)(i) and 51.900(f)(1).4

On November 29, 2005, EPA issued 

the ‘‘Final Rule to Implement the 8- 

Hour Ozone National Ambient Air 

Quality Standard—Phase 2’’ (Phase 2 

Rule). 70 FR 71612. For areas classified 

under subpart 2, such as the SJV, the 

Phase 2 rule required submittal of a 

RACT SIP for the 8-hour standard by 

September 15, 2006. See 40 CFR 

51.912(a). It also required submittal for 

subpart 2 areas of full attainment and 

rate of progress plans by June 15, 2007. 

See 40 CFR 51.908(a) and 51.910(a). 

D. The San Joaquin Valley’s 8-Hour 

Ozone RACT SIP 

The District adopted on August 17, 

2006 and the State submitted as a SIP 

revision on January 31, 2007, an 8-hour 

ozone RACT demonstration addressing 

sources down to the 25 tpy level. See 

letter from Catherine Witherspoon, 

ARB, to Deborah Jordan, EPA, January 

31, 2007. SJVAPCD also requested a 

voluntary reclassification to extreme for 

the 8-hour standard as allowed by CAA 

section 181(b)(3) and 40 CFR 51.903(b). 

On November 16, 2007, California 

submitted the District’s 2007 8-hour 

ozone plan. See letter from James 

Goldstene, ARB, to Wayne Nastri, EPA. 

The State also concurred with the 

District’s request for a voluntary 

reclassification to extreme. Once 

granted, the major source threshold 

under the 8-hour standard will drop to 

10 tpy of either VOC or NOX and thus 

be the same for both the 1-hour and 8- 

hour ozone standards.5

In September 2008, the District began 

a comprehensive reevaluation of its 

rules to determine their compliance 

with the RACT requirements. This 

reevaluation is in part to address issues 

that EPA has raised regarding the 

District’s 2006 8-hour ozone RACT SIP 

and in part to assure that the rules cover 

sources in the SJV down to the extreme 

area major source threshold of 10 tpy. 

See letter from Andrew Steckel, EPA, to 

George Heinen, SJVAPCD, May 6, 2008. 

The District’s intent is to take any 

needed rule revisions to its Board for 

adoption by Spring, 2009. See letter 

from Deborah Jordan, EPA, to Seyed 

Sadredin, SJVAPCD, September 9, 2008. 

E. Withdrawal of the 1-Hour Ozone 

RACT Provisions 

On September 5, 2008, the State 

formally withdrew the RACT portion of 

the 2004 SIP, specifically section 4.2.5, 

indicating that the District would satisfy 

its continuing RACT obligation for the 

1-hour ozone standard with a revised 8- 

hour ozone RACT SIP that it is currently 

developing. Letter from James N. 

Goldstene, ARB, to Wayne Nastri, EPA, 

with enclosures, September 5, 2008. As 

stated above, we have proposed 

approval of the balance of the SIP 

revisions submitted by the State to 

address the 1-hour ozone standard for 

the SJV. See 73 FR 61381. 

II. Final Action 

A. Finding of Failure To Submit 

Required SIP Revision 

As a result of the withdrawal of 

section 4.2.5 of the 2004 SIP, we are 

today making a finding that California 

has failed to submit a SIP revision 

providing for the implementation of 

RACT as required by CAA sections 

172(c)(1), 182(b)(2) and 182(f) in the San 

Joaquin Valley extreme 1-hour ozone 

nonattainment area. 

If California does not submit a 

complete plan revision, including all 

required RACT rules and a supporting 

RACT demonstration, to meet CAA 

sections 172(c)(1), 182(b)(2) and 182(f) 

within 18 months of the effective date 

of today’s finding, the offset sanction 

identified in CAA section 179(b) will be 

applied in the affected area. Section 

179(b) and 40 CFR 52.31. 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 52.31.6 The 

State can end these sanction clocks or 

lift any imposed sanctions by making a 

complete submittal addressing the 

RACT requirements for the San Joaquin 

Valley 1-hour ozone extreme area. 

In addition to the sanctions, CAA 

section 110(c)(1) provides that EPA 

must promulgate a federal 

implementation plan addressing the 1- 

hour ozone RACT requirements in the 

SJV no later than 2 years after today’s 

finding unless we approve the State’s 

RACT submittal within that time. 

B. Effective Date under the 

Administrative Procedures Act 

Today’s action will be effective on 

January 21, 2009. 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 

specify an earlier effective date. This 

action concerns a required CAA 

submittal that is already overdue. We 

have previously cautioned California 

that the SIP submittal was overdue and 

that we were considering taking this 

action. In addition, this action simply 

starts a ‘‘clock’’ that will not result in 

sanctions against the State for 18 

months, and that the State may ‘‘turn 

off’’ by making 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 is a final action that 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 by the CAA to 

make findings of failure to submit, 

Congress did not intend such findings to 

be subject to notice-and-comment 

rulemaking. However, to the extent such 

findings are subject to notice-andcomment rulemaking, we invoke the 

good cause exception pursuant to the 

APA, 5 U.S.C. 553(b)(3)(B). Notice and 

comment are unnecessary because no 

EPA judgment is involved in making a 

non-substantive finding of failure to 

submit SIPs required by the CAA. 

Furthermore, notice and comment 

would be contrary to the public interest 

because it would divert EPA resources 

from the critical substantive review of 

complete SIPs. See 58 FR 51270, 51272, 

note 17 (October 1, 1993); 59 FR 39832, 

39853 (August 4, 1994). 

V. Administrative Requirements 

A. Executive Orders 

This final action is not a ‘‘significant 

regulatory action’’ as defined in 

Executive Order 12866 ‘‘Regulatory 

Planning and Review’’ (58 FR 51735 


jlentini on PROD1PC65 with RULES
3444 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Rules and Regulations 

(October 4, 1993)) and therefore not 

subject to review under this Executive 

Order. 

This final action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355 (May 22, 2001)) because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

This final action 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 as defined in 

Executive Order 12866 and because we 

have no reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

This final action is not subject to 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255 (August 10, 1999)). It will 

not have substantial direct effects on the 

State, on the relationship between the 

national government and the State, or 

on the distribution of power and 

responsibilities among the various 

levels of government. The CAA 

established the scheme whereby states 

take the lead in developing plans to 

meet the NAAQS and the Federal 

Government acts as a backstop where 

states fail to take the required actions. 

This rule will not modify the 

relationship of the State and EPA for 

purposes of developing programs to 

implement the NAAQS. 

This final action is not subject to 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249 (November 

6, 2000)). 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. 

B. Federal Acts 

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. 

This final rule is not subject to the 

RFA because it was not subject to notice 

and comment rulemaking under the 

APA or any other statute. In addition we 

have invoked the ‘‘good cause’’ 

exception to notice and comment 

rulemaking under 5 U.S.C. 553(b) for 

this rule. 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995, we 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. 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 rule requires states to 

submit SIPs, and this rule 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. 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 (15 U.S.C. 272) directs 

EPA to use ‘‘voluntary consensus 

standards’’ (VCS) in its regulatory 

activities unless doing so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards that are developed 

or adopted by VCS bodies. This action 

does not involve technical standards; 

therefore, we did not consider the use 

of any VCS. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., 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) and will be 

effective January 21, 2009. 

C. Petitions for Judicial Review 

Under CAA section 307(b)(1), 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 23, 2009. 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 CAA 

section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovermental relations, 

Ozone, Volatile organic compounds. 

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

Dated: January 8, 2009. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. E9–1107 Filed 1–16–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[DA 08–2125] 

Amendment of the Commission’s 

Rules, Concerning Commission 

Organization, Practice and Procedure, 

Frequency Allocations and Radio 

Treaty Matters; General Rules and 

Regulations, Tariffs, Miscellaneous 

Rules Relating to Common Carriers, 

Radio Broadcast Services, and 

Stations in the Maritime Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Correcting amendments. 

SUMMARY: In this document, we correct 

an inadvertent error by adding the text 

of two previously removed rules 

concerning attachment of charges and 

payment of charges, and correcting the 

typographical errors previously 

published. 

DATES: Effective January 21, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Warren Firschein, Office of Managing 

Director at (202) 418–0844. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the FCC’s Erratum, DA 08– 

2125, released on September 19, 2008. 

On January 25, 2008, the Managing 

Director released an Order, DA 08–122, 

in the above-captioned proceeding and 

it was published in the Federal Register 

at 73 FR 9017, February 19, 2008. This 

Erratum corrects an inadvertent error by 

reinserting two rules that were 

eliminated and correcting typographical 

errors in the Appendix. Accordingly, 

this Erratum corrects the final 

regulations by revising these sections of 

the Order as indicated below. 

Note: All references to §§ 1.1110 through 

§§ 1.1119 in the Commission’s rules, which 

are now renumbered as §§ 1.1112 through 


jlentini on PROD1PC65 with RULES