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Citation: 69 Fed. Reg. 48827 2004

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 69, No. 154/Wednesday, August 11, 2004/Proposed Rules

PART 71-[AMENDED]

1.The authority citation for 14 CFR Part 71 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854; 24FR 9565, 3 CFR, 1959- 1963 Comp., p. 389.
§71.1 [Amended]

2.The incorporation byreference in 14 CFR 71.1 ofFederal Aviation Administration Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, is proposed tobe amended as follows:
Paragraph 6005 ClassEairspaceareas extendingupward from 700feetormore abovethe surfaceofthe earth.

AEA VA E5 Jonesville, VA (NEW)
Lee County Airport, Jonesville, VA

(Lat. 36°39'15" N., long. 83°13'04" W.) That airspace extending upward from 700 feet above the surface within a 8-mileradius ofLee County Airport.

Issued in Jamaica, New York, onAugust 3, 2004. John G.McCartney, Staff Manager of

EasternTerminalArea Operations. [FRDoc. 04-18401 Filed 8-10-04; 8:45 am]

BILLING CODE 4910-13-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80 [OAR-2003-0217; FRL-7800-3]
RIN 2060-AK04
Regulation of Fuel and Fuel Additives: Extension of California Enforcement Exemptions for Reformulated Gasoline to California Phase 3 Gasoline
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice ofproposed rulemaking.

SUMMARY: We are proposing to exempt refiners, importers, andblenders of gasoline subject to the State of California's Phase 3reformulated gasoline (CaRFG3) regulations from certain enforcement provisions in the Federal reformulated gasoline (RFG) regulations. We are proposing this action because we believe that gasoline complying with the CaRFG3 regulations will provide emissions benefits equivalent to Federal Phase II RFG and because California's compliance and enforcement program will in practice be sufficiently rigorous to assure that the standards are met. Since the Federal RFG program began in 1995, California refiners, importers andblenders have been continuously exempted from certain enforcement-related requirements such asrecordkeeping and reporting, and certain sampling and testing requirements. This proposal would extend those exemptions, which

are applicable to California Phase 2 gasoline, to CaRFG3. This proposal also
restores the definition of "California gasoline" which was erroneously deleted. DATES: Comments or a request for a public hearing must be received by October 12, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003- 0217, by one ofthe following methods:

* Federal eRulemaking Portal: http:// www.regulations.gov. Follow the on-line instructions for submitting comments. * Agency Web site: htlp:// www.epa.gov/edocket. EDOCKET, EPA's electronic public docket and comment system, isEPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments. * E-mail: a-and-r-Docket@epa.gov. * Fax: (202) 566-1741. * Mail: OAR-2003-0217, Environmental Protection Agency, Mailcode:6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. * Hand Delivery: EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. Such deliveries

are only accepted duringthe Docket's normal hours ofoperation, and special arrangements shouldbe made for deliveries ofboxedinformation.

Instmuctions:Direct your comments to Docket ID No. OAR-2003-0217. EPA's policy isthat all comments received will be included in the public docket without change and may be made available online at http://www.epa.govl edocket,including any personal information provided, unless the
comment includes information claimed
to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do
not submitinformation that you consider to be CBIor otherwise protected through EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal regulations.gov Web sites are "anonymous access" systems, which

means EPA will not know your identity

or contact information unless you provide it inthe body ofyour comment. Ifyou send an e-mail comment directly
to EPA without going through EDOCKET or regulations.gov, your email address willbe automatically captured andincluded as part ofthe
comment that is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPArecommends that you include your name and other contact information in the body ofyour comment and with any disk orCD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPAmay not be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free of any defects

orviruses. For additional information about EPA's public docket visit EDOCKET on-line or see the Federal Register ofMay 31, 2002 (67 FR 38102).

Docket:All documents in the docket

are listed in the EDOCKET index at http://www.epa.gov/edocket.Although listed in the index, some information is
notpublicly available, i.e., CBIor other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet andwill be publicly available only in hard copy form. Publicly available docket materials are available either electronically inEDOCKET or in hard copy at the AirDocket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docketis (202) 566- 1742.

FOR FURTHER INFORMATION CONTACT: Anne Pastorkovich, Attorney/Advisor, Transportation and Regional Programs Division, Office ofTransportation and Air Quality (6406J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9623; fax number: (202) 343-2801; e-mail address: pastorkovich.anne-marie@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does ThisAction Apply toMe?

Regulated categories and entities potentially affected bythis proposed action include: 

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Category NAICSs SiC Examples of potentially regulated parties codes a codesb

Industry

...................................................................................................... 324110 2911 Petroleum refiners. Industry

...................................................................................................... 422710 5171 Gasoline M arketers and Distributors. 422720 5172

aNorth American Industry Classification System (NAICS). bStandard Industrial Classification (SIC) system code.

This table isnot intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed action. This table lists the types ofentities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether an entity is regulated by this proposed action, one should carefully examine the RFGprovisions at 40 CFR part 80, particularly §80.81 dealing specifically with California gasoline. Ifyou have questions regarding the applicability of this proposed action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. WhatShouldI ConsiderasIPrepare My Comments forEPA?

1. SubmittingCB. Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all ofthe information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, markthe outside ofthe disk orCD-ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version ofthe comment that includes information claimed as CBI, a copy ofthe comment that does not contain the information claimed as CBI
must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips forPreparingYour Comments. When submitting comments, remember
to:i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions-The agency may askyou to respond to specific questions ororganize comments by referencing aCode ofFederal Regulations (CFR)part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/

or datathat you used.

v. Ifyou estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for itto be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain yourviews as clearly as possible, avoiding the use ofprofanity

orpersonal threats.

viii. Make sureto submityour comments by the comment period deadline identified.

II. CurrentStatusandBasis for California Enforcement Exemptions

Section 211(k) ofthe Federal Clean Air Act (the Act) directs the EPA to establish requirements for reformulated gasoline (RFG) to be used in specified

ozone nonattainment areas, aswell as "anti-dumping" requirements for conventional gasoline used in the rest of the country. The areas covered bythe Federal RFGprogram in California are SanJoaquin Valley, Los Angeles, San Diego, and Sacramento.' The RFG provisions ofthe Act require EPA to promulgate regulations to reduce the emissions of ozone forming volatile organic compounds (VOCs) andtoxic air pollutants from gasoline-fueled motor vehicles. Such regulations must also require that there be no increase in the emission of oxides ofnitrogen (NOx)

over baseline levels. Finally, gasoline subject to the RFGrequirements must meet certain content standards for oxygen, benzene and heavy metals.

The RFGprogram was designed to be implemented in two phases. The Phase I program was in effect from January 1, 1995, through December 31, 1999. The Phase II program, which began on January 1, 2000, andis currently in effect, is similar to the Phase I program, but requires evengreater reductions in emissions ofVOC, toxics and NOx. The regulations for RFG and conventional gasoline may be found at 40 CFR part 80, subparts D, E, and F.

1Seehttp://www.epa.gov/otaq/rfgmap.jpgfor a map and listing ofRFG covered areas and 40 CFR 80.70 for a listing ofcovered areas by state.A copy of the maphas been placed inthe docket for this rulemaking. On September 18, 1992, the California AirResources Board (CARB) adopted regulations establishing California's
state Phase 2reformulated gasoline program ("California Phase 2RFG"), which became effective March 1, 1996. These regulations established a comprehensive set of gasoline specifications designed to achieve reductions in emissions ofVOCs, NOx, carbon monoxide (CO), sulfur dioxide, and toxic airpollutants from gasolinefueled motor vehicles.2 The California Phase 2RFG regulations set standards for eight gasoline parameters-sulfur, benzene, olefins, aromatic hydrocarbons, oxygen, Reid vapor pressure (RVP), and distillation temperatures for the 50 percent and90 percent evaporation points (T-50 and T-90, respectively). These regulations also provide for the production and sale ofalternative gasoline formulations, with certification underthe CARB program based on apredictive model or

onvehicle emission testing.

EPA previously adopted enforcement exemptions for California Phase 2 gasoline under the Federal Phase IRFG program. 3 In doing so, we concluded: (1)That the emission reductions resulting from the California Phase 2 standards would be equal to orgreater thanthe Federal Phase IRFG standards (i.e.,the standards that were applicable fromJanuary 1, 1995, through December 31, 1999),

(2)That the content standard for benzene under California Phase 2would be equivalent in practice to the Federal Phase I content standard and that the oxygen content standard of 2.0 weight percent would be achieved inFederal RFG areas, and

(3)That the CARB's compliance and enforcement program was designed to be sufficiently rigorous to ensure that Federal Phase Irequirements would be
met inpractice.

Consequently, while the Federal Phase I RFG standards continued to apply in California, EPA exempted

2California's reformulated gasoline regulations, including California Phase 2 and Phase 3, are at Title 13, California Code of Regulations (CCR), section 2250 et seq. (May 1, 2003). A copy ofthese regulations have been placed in the docket.

3See 59 FR 7758 (February 16, 1994) and 63 FR
34818 (June 26, 1998). 

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refiners, importers, andblenders of the enforcement-related provisions of and included the following provisions gasoline sold in California from many of the Federal Phase IRFG regulations. in 40 CFR part 80: The exemptions applied to the gasoline they soldfor use in California

Citation at Requirement exempted 40 CFR 80.xx

Compliance Surveys 4

............................................................................................................................................................... 

### 80.68
In

dependent Sampling &Testing .............................................................................................................................................. 80.65(f) D

esignation ofGas oline ............................................................................................................................................................ 80.65(d) M

arking of Conventional Gasoline

............................................................................................................................................ 80.65(g) and 80.82 D

ownstream Oxygenate Blending

............................................................................................................................................. 80.69 Recordk eepin g ........................................................................................................................................................................... 80.74 and 80.104 Reporting ................................................................................................................................................................................... 80.75 and 80.105 Product Transfer D ocuments

.................................................................................................................................................... 80.77 ParameterValue Reconciliation Requirements

........................................................................................................................ 80.65(e)(2) Reformulated Gasoline and Reformulated Gasoline Blendstock for Oygenate Blending (RBOB) Compliance Requirements 80.65(c) Annual Compliance Audit Requirements

.................................................................................................................................. 80.65(h) Compliance Attest Engagement Requirements

........................................................................................................................ Subpart F

440 CFR 80.81(e)(2) was amended to include a limited oxygen survey provision to ensure that the 2.0 weight percent standard would be achieved in Federal RFG areas. This is because some California Phase 2 gasoline sold outside of Federal RFG areas might not contain the 2.0 weight percent oxygen content. See 63 FR 34818, 34820-34822 (June 26, 1998). Under this NPRM, the oxygen survey provisions would remain appropriately applied to CaRFG3.

California refiners, importers, and blenders were not granted exemption from these Federal enforcement requirements with regard to gasoline delivered for use outside California, because the California Phase 2 standards and the CARB enforcement program do
not apply to gasoline exported from California.

The original California enforcement exemptions expired on December 31, 1999 when the Federal Phase II RFG started. The exemptions expired because they were based on a comparison of California Phase 2 gasoline and Federal Phase IRFG. An appropriate equivalency determination comparing California Phase 2 and Federal Phase II gasolines would have been premature in 1994, when the final RFG regulations were issued. However,

on September 15, 1999, we published a direct final rule continuing the California enforcement exemptions beyond December 31, 1999. 5 We took this action after comparing California Phase 2gasoline and Federal Phase II RFG. In brief,we concluded: (1)That the emissions reductions resulting from the California Phase 2 RFG standards would be equal to or greater than the reductions from the Federal Phase II RFG standards; (2)That the content standards for benzene under California Phase 2would be equivalent in practice to the Federal Phase II content standard and that the oxygen content standard of2.0 weight percent would be achieved in Federal RFG areas, and (3)That the CARB's compliance and enforcement program was designed to be sufficiently rigorous to ensure that

5 64 FR 49992 (September 15, 1999). Federal Phase II requirements would be
met in practice.

III. Description ofToday's Proposed Action

A. California's Phase3 Gasoline RulemakingActivities
OnAugust 3, 2000, California first promulgated the new California Phase 3 RFG ("CaRFG3") regulations, which included a prohibition on the use of methyl tertiary-butyl ether (MTBE) by December 31, 2002. On March 21, 2001,

we received awritten request from the California Air Resources Board (CARB) requesting extension ofthe California enforcement exemptions of40 CFR 80.81 to CaRFG3. In that letter, CARB explains that its CaRFG3 regulations

were adopted in response to Governor Gray Davis's issuance ofExecutive Order D-5-99, directing the phase-out ofmethyl tertiary-butyl ether (MTBE) as

an additive in California gasoline by December 31, 2002. Since March 21, 2001, CARB has completed a series ofrulemakings that amended their CaRFG3 regulations. Many ofthese amendments were made necessary by apostponement ofthe MTBE phase-out and to accommodate the use ofethanol. The MTBE phase-out

was delayed until December 31, 2003 by Governor GrayDavis's issuance ofa second Executive Order D-52-02.6 The CaRFG3 regulations and all standards discussed in this notice represent the May 1, 2003, version ofthe California Reformulated Gasoline Regulations, title 13, California Code ofRegulations, section 2250 et seq.

6A copy of theExecutive Order hasbeen placed
in the docket. B.EPA'sAnalysis andConclusions RegardingCalifornia's Phase3 Gasoline Regulations

In order to determine whether to apply the Federal enforcement exemptions of40 CFR 80.81 should be applied to CaRFG3, we considered:

(1)Whether the emissions reductions resulting from CaRFG3 wouldbe equal
to or greater than the reductions from Federal Phase II RFG standards;

(2)Whether the content standard for benzene under CaRFG3 would be equivalent in practice to the Federal Phase II content standard andwhether the oxygen content standard of 2.0 weight percent would be met in Federal RFG areas; and

(3)Whether CARB's compliance and enforcement program is designed to be sufficiently rigorous to ensure that the Federal Phase II requirements would be
met inpractice.

Considering these factors is appropriate and consistent with the analyses we used when we previously granted enforcement exemptions to refiners, importers, and blenders of California Phase 2gasoline under both the Federal Phase I andPhase II RFG programs. 7

To determine whether CaRFG3 emissions reductions that are equivalent
to or greater than Federal Phase II RFG,

we have evaluated the CaRFG3 standards and the Federal Phase II complex model standards and considered whether possible CaRFG3 formulations to the Federal Phase II RFG

7See 59 FR 7813 (February 16, 1994) as amended

at 59 FR 36965 (July 20, 1994), 59 FR 39289 (August 2, 1994), 59 FR 60715 (November 28, 1994), 63 FR 34825 (June 26, 1998), 64 FR 49997 (September 15, 1999), and 66 FR 17263 (March 29, 2001). 

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emissions reduction standards. Compliance with performance standards under the Federal RFG program is determined by using the Phase II Complex Model. The Complex Model predicts VOC, toxics and NOx emissions reductions in gasoline relative to the emissions of 1990baseline gasoline.8 These reduction percentages are compared to RFG performance standards. The Federal performance standards applicable to VOC-controlled RFG designated for VOC control region 1apply to California areas covered by the Federal RFG program. 9

California's Phase 2RFG regulations established specifications for eight gasoline parameters: sulfur, benzene, olefins, aromatic hydrocarbons, oxygen, RVP, T50 and T90. These parameters are expressed as flat limits and, for some parameters, as averaging limits and
caps. The CaRFG3 regulations revised certain ofthese specifications and incorporated an updated version ofthe California predictive model. 10Refiners
may produce complying California gasoline using a "recipe" that meets these parameter specifications. Alternative specifications for complying gasoline can be established by using the California predictive model to demonstrate that emissions are equivalent to those ofa gasoline meeting the established specifications. Six ofthe parameters are also input parameters for the EPA Complex Model. The remaining two, T50 andT90, are closely related to E200 and E300, the remaining two Complex Model inputs." 1

IfCaRFG3 provides emission benefits equivalent to Federal Phase II RFG, then

a gasoline formulation meeting the CaRFG3 flatlimit specifications should provide emission reductions, as calculated by the complex model, which
meet Federal Phase II performance standards. The following table compares the emissions performance ofthe CaRFG3 "recipe," evaluated using the Federal Complex Model, to the Federal Phase II RFG performance standards:12

TABLE 1.-COMPARISON OF 

### CARFG3 FLAT LIMIT RECIPE COMPLEX MODEL PERFORMANCE WITH FEDERAL PHASE 

### IIRFG

STANDARDS

VOC Toxics NOx (% reduction) (% reduction) (% reduction)

CaRFG3 Flat Limits with ethanol

.......................................................................................... 27.7 30.0 14.5 CaRFG3 Flat Limits with MTBE

............................................................................................ 27.7 32.2 14.5 Federal per gallon standards

................................................................................................. >27.5 >20.0 >5.5 Federal averaged standards

.................................................................................................. >29.0 >21.5 >6.8

Table 1shows two sets ofresults; one where the oxygenate was assumed tobe MTBE and the other where the oxygenate was assumed tobe ethanol. The specific oxygenate affects the toxics performance estimate. Two sets of Federal standards are shown, the per gallon standards and the averaged standards. (Thesenumerically more stringent averaged standards are applicable ifa refiner chooses to comply

on average, rather than on aper gallon basis.) The emissions performance of the flat limitrecipe gasoline is better than the Federal RFG per gallon standards for VOC, toxics and NOx reductions, andbetter than the Federal RFG averaged standards for toxics and NOx reduction. Thus, gasoline produced in compliance with the CaRFG3 flat limits (which are somewhat analogous to Federal per-gallon standards) would achieve performance limits at least as stringent as the Federal Phase II RFG per-gallon standards for VOCs and atleast as stringent as the averaged standards for toxics and NOx.

8 "Baseline gasoline" refers to a general set of properties representative of a refiner's fuel in 1990. The purpose ofestablishing a baseline is to prevent
any degradation in the quality ofgasoline in areas in which reformulated gasoline is not required. For

a discussion ofbaselines, please refer to the RFG and anti-dumping final rule, 59FR 7798 (February 16, 1994).

9See 40CFR 80.41 and 80.71. Thus, CaRFG3 would meet Federal standards ifevery gallon were produced according to this recipe.

However, we anticipate that most refiners will use the CaRFG3 predictive model to certify alternative specifications with emissions equivalent
to or better than the flat limit recipe. While there are similarities between the California Phase 3predictive model and the Federal Phase II Complex Model, there are also substantial differences. Consequently, two recipes found to have equal emissions with the California predictive model may not have equal emissions when evaluated by the Federal Complex Model. In other words, a finding that the Complex Model emissions performance ofthe flat limit recipe is equal to or better than the Federal standards does not guarantee that the Complex Model emissions performance of allgasoline blends that may be produced in compliance with CaRFG3 will meet or surpass the Federal standards.

10The California predictive model, like the Complex Model, is used to predict emissions performance ofgasoline.

"There is a strong correlation between T50 (the
50% distillation temperature) andE200 (thepercent distilled at 200F). Likewise, there is a strong correlation between T90 (the 90% distillation temperature) andE300 (thepercent distilled at 300F). For the analysis in table 1, E200 and E300

were estimated from the flat limit T50 and T90 specifications using conversions found in EPA's complex model spreadsheet. For purposes of determining whether

or notCaRFG3 produced and certified underthe predictive model would be equivalent to Federal Phase II RFG, we considered several reasonably likely "real world" CaRFG3 formulations. These formulations were developed in connection with California's recent request for a waiver from the Federal oxygen content requirement for reformulated gasoline. 13 The CaRFG3 formulations depicted in Tables 2 and 3 do notrepresent each and every possible gasoline formulation under the California's regulations, but we believe that they provide a representative sample ofthat universe ofgasoline formulations that are likely to be produced underthe CaRFG3 program. This analysis is discussed in more detail in the following paragraphs.

In April of 1999, California applied for awaiver ofthe Federal oxygen content requirement for reformulated gasoline. In order to complete an evaluation ofthe technical basis for this waiver request, we determined that

12Oxygen was assumed tobe 2.0 wt%, the midpoint ofthe 1.8-2.2 wt% specification and RVP

was 6.90, the RVPused with the evaporative compliance option inthe predictive model.

13The California waiver analysis considered the effect ofchanges ingasoline composition on the entire on-road and off-road gasoline-power fleet. The analysis for this proposedrule considers only Complex Model performance, which considers a portion ofthe on-road gasoline-powered fleet. 48830

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additional refinery modeling was needed to forecast the likely composition ofCaRFG3, after California's phase-out ofmethyltertiary-butyl-ether (MTBE), with and without an oxygen waiver. 14 Consequently, EPA commissioned MathPro to conduct this modeling, which estimated the composition of ethanol-oxygenated and non-oxygenated CaRFG3 under various scenarios.15 These scenarios varied in terms ofthe continued or reduced use ofMTBE outside of California, whether or not refiners avoid the patent heldby Unocal

on certain reformulated blends, and whether ethanol is used at 2.0 or 2.7 weight percent oxygen. Although these modeling results were intended for use in the waiver evaluation, they are also helpful when considering the appropriateness ofextending the existing enforcement exemptions to CaRFG3. EPAbelieves that these modeling results are likely tobe the
most accurate and comprehensive forecasts ofthe likely properties ofthe CaRFG3 that will be sold in Federal RFG

areas in California. Forthe purpose of this proposal, we have considered both oxygenated and non-oxygenated CaRFG3 blends.

Table 2, below, shows that oxygenated CaRFG3 produced under each ofthe scenarios that EPA evaluated
meets Federal RFG performance standards. All ofthese fuels had better performance than the Federal RFGper gallon standards. With one exception (underlined in Table 2), these fuels also
met or surpassed the Federal RFG averaged standards. The one exception is a fuel that was estimated toprovide

aVOC reduction of 28.9%. Since the Federal per gallon standard is >27.5% and the averaged standard is >29.0%, this fuel would meet the Federal per gallon but not the averaged standard. However, we believe for purposes of today's analysis, thatthe Federal per gallon standard is amore appropriate reference point. MathPro's modeling assumed that essentially all CaRFG3 is certified with the flat limitvariant ofthe Predictive Model. Therefore, the formulations which they forecast have California predictive model emissions performance equivalent to, or better than, the flat limitrecipe, but donot necessarily meet California predictive model averaged limit requirements. As previously noted, California's flatlimit option requires refiners to meet parameter standards on an every-gallon, rather than averaged basis. The California flat limits are analogous to the Federal RFGper-gallon standards. In both cases, refiners elect to meet less stringent standards on an every-gallon basis, rather than more stringent standards, on average. Consequently, it is appropriate to expect the complex model performance ofthese CaRFG3 formulations to meet the Federal Phase II per-gallon performance standards, but
notnecessarily to meet the Federal Phase II averaged standards.

TABLE 2.-COMPLEX MODEL PERFORMANCE OF OXYGENATED 

### CARFG3 USING MATHPRO GASOLINE PROPERTY ESTIMATES

Ethanol Sulfur RVP E200 E300 Aromatics Olefins Benzene VOC Toxics NOx (wt%)
oxygen (ppm) (psi) (%) (%) (vol%) (vol%) (vol%) (%) (%) (%)

2.0 15 6.66 47.20 87.60 24.10 4.40 0.64 30.2 32.9 14.8 2.0 10 6.74 46.40 88.70 23.30 3.90 0.57 29.6 34.1 15.4 2.7 10 6.85 46.90 88.10 23.20 3.80 0.70 29.0 32.8 15.4 2.7 9 6.84 46.60 88.00 23.30 3.80 0.68 29.0 32.9 15.4 2.0 17 6.60 46.80 88.30 26.50 3.40 0.62 30.1 32.0 14.3 2.0 17 6.60 45.20 90.60 19.10 4.60 0.77 30.8 33.8 16.4 2.0 13 6.62 46.20 87.70 24.30 3.70 0.60 30.1 33.2 15.0 2.0 12 6.60 46.10 88.20 28.60 2.90 0.51 29.6 32.1 14.2 2.7 10 6.76 46.20 88.60 25.70 2.80 0.66 29.1 32.1 14.9 2.7 12 6.60 44.90 87.70 22.40 2.80 0.71 30.2 32.9 15.7 2.7 8 6.73 45.40 89.00 26.30 1.90 0.63 28.9 32.1 15.0 2.7 10 6.69 45.40 88.30 25.30 2.80 0.65 29.4 32.3 15.1

Table 3below, shows that nonoxygenated CaRFG3 produced under each ofthe scenarios that EPA evaluated meets Federal RFG performance standards. These fuels are not currently permissible, because they do not contain the equivalent of2.0 weight % oxygen. All ofthe fuels shown in Table 3,which EPAbelieves to be reasonably representative ofthe fuel formulations thatrefiners would produce in California without an oxygen content requirement are predicted to perform better thanthe Federal RFG per gallon and averaged standards.

TABLE 3.-COMPLEX MODEL PERFORMANCE OF NON-OXYGENATED CARFG3 USING MATHPRO GASOLINE PROPERTY ESTIMATES

Ethanol Sulfur RVP E200 E300 Aromatics Olefins Benzene VOC Toxics NOx

oxygen (ppm) (psi) (%) (%) (Vol%) (vol%) (vol%) (%) (%) (%)

14One ofthe reasons for this determination was that earlier modeling was donebefore the CaRFG3 predictive model was finalized. This mayhave affected the estimates of CaRFG3 properties developed from theseearlier studies. EPA's Technical Support Document for the waiver decision "Analysis of California's Reformulated Gasoline Oxygen Content Requirement for California Covered Areas" discusses this in greater depth. A copy ofthis document has been placed in the docket. 15 See "Analysis ofthe Production ofCalifornia Phase 3 Reformulated GasolineWith and Without

an Oxygen Waiver", MathPro, Inc. (January 19, 2001). A copy ofthis document hasbeen placed in the docket. 48831

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TABLE 3.-COMPLEX MODEL PERFORMANCE OF NON-OXYGENATED CARFG3 USING MATHPRO GASOLINE PROPERTY ESTIMATES-Continued

Ethanol Sulfur RVP E200 E300 Aromatics Olefins Benzene VOC Toxics NOx
(ppm) (psi) (%) (%) (vol%) (vol%) (vol%) (%) (%) (%)

0.0 12 6.60 49.0 85.8 24.8 6.0 0.52 30.5 32.2 14.3 0.0 10 6.60 49.2 87.4 28.6 4.1 0.53 30.0 30.2 13.8 0.0 12 6.60 47.6 86.8 21.2 6.3 0.52 31.0 33.8 15.3 0.0 9 6.60 47.9 87.6 25.7 3.9 0.49 30.1 32.2 14.5

Based upon a comparison ofthe CaRFG3 flatlimit "recipe" and Federal Phase II Complex model standards, as well as a consideration ofpossible California fuel formulations certified using the California Phase 3predictive model, we have concluded that the NOx, VOC and toxics emissions reductions resulting from the CaRFG3 standards wouldbe equal to or greater than the Federal Phase II RFG standards.

The content standard forbenzene for CaRFG3 is equivalent to the Federal Phase II standards. The California flat limitbenzene standard is 0.80 volume percent and the averaged standard is 0.70 volume percent with a 1.10 volume percent cap. By comparison, the Federal per gallon benzene standard is 1.00 volume percent and the averaged standard is 0.95 volume percent with a 1.30 volume percent cap.

The enforcement exemptions do not

excuse California refiners from meeting the 2.0 weight %oxygen requirement or any other Federal standard in RFG covered areas. The limited oxygen compliance surveys in §80.81 would continue to apply to CaRFG3, since they

are designed to ensure that gasoline in Federal RFG areas meets the Federal oxygen content standards. EPAretains its authority to sample and test California gasoline to make sure that it meets all applicable Federal standards, including the oxygen content standard.

We have also considered the design and implementation ofCARB's enforcement program, which includes enforcement atrefineries, import facilities, terminals, and service stations. CARB's enforcement program is generally outlined in its regulations and includes requirements that refiners submit annual compliance plans,16 which outline how they will meet CaRFG3 requirements, and thatrefiners and importers conduct testing and maintain records oftesting performed

onbatches ofgasoline. 1 7 CARB staff summarized information on its actual enforcement activities in fiscal years 1999-2000 and 2000-2001, indicating

16

Title 13, CCR section 2269.

17Title 13, CCR section 2270. that 6.6% and 6.5% ofgasoline sold in California was inspected, during each respective period. In 1999-2000, the violation rate was 1.9% (based on volumes sampled) and 0.5% (based on the number ofsamples). In 2000-2001, the violation rate was 0.16% (based on volumes sampled) and 1.06% (based on the number ofsamples). We believe that, considering the presence of adequate enforcement provisions in its regulations and CARB's actual enforcement activities, that the CARB enforcement program is sufficiently stringent to ensure that the California standards will be met. For all these
reasons, we believe itis appropriate to apply the enforcement exemptions at40 CFR 80.81 to refiners, importers, and blenders ofCaRFG3.

C.DefinitionofCaliforniaGasoline

This proposed rule also restores the definition of "California gasoline," which was previously included in §80.81, but which was erroneously removed from the Code ofFederal Regulations. Today's proposed rule would restore this definition, which describes the gasoline to which the enforcement exemptions may apply.

IV. Administrative Requirements

A. Executive Order12866:Regulatory PlanningandReview

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the Agency must determine whether the regulatory action is "significant" and therefore subject to OMB review and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in a rule thatmay: (1)Have an annual effect on the economy of$100 million ormore or adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2)Create a serious inconsistency or otherwise interfere with an action taken

orplanned byanother agency; (3)Materially alter the budgetary impact ofentitlements, grants, userfees,

or loan programs or the rights and obligations ofrecipients thereof; or

(4) Raise novel legal or policy issues arising out oflegal mandates, the President's priorities, or the principles
set forth in the Executive Order.

It has been determined that this rule is not a "significant regulatory action" underthe terms ofExecutive Order 12866 and is therefore not subject to OMB review.

B.Paperwork ReductionAct
This proposed rule does not impose any new information collection burden. Today's proposed rule would extend enforcement exemptions to refiners of CaRFG3 and wouldreduce burdens associated with overlapping Federal and State requirements, including recordkeeping and reporting requirements. However, the Office of Management and Budget (OMB), under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq., has previously approved the information collection requirements contained in the final reformulated gasoline (RFG) and anti-dumping rulemaking and gasoline sulfur control rulemaking, andhas assigned OMB control number 2060-0277, EPA ICR number 1591.14. Acopy ofthe OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division,U.S. Environmental Protection Agency (2822T), 1200Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.

Burden means the total time, effort, or financial resources expended bypersons to generate, maintain, retain, or disclose

or provide information to or for a Federal agency. Thisincludes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, andverifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and 48832

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requirements; train personnel tobe able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit orotherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection ofinformation unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C.RegulatoryFlexibility Act
The RFA generally requires an agency to prepare a regulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act

orany other statute unless the agency certifies thatthe rule will nothave a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts oftoday's proposed rule on small entities, small entity is defined as: (1)A small business that has not more than 1,500 employees (13 CFR 121.201); (2)

a small governmental jurisdiction that is

agovernment ofa city, county, town, school district or special district with a population ofless than 50,000; and (3)

a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts oftoday's proposed rule on small entities, Icertify that this action would not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact ofconcern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives "which minimize any significant economic impact ofthe proposed rule on small entities." 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect

on all ofthe small entities subject to the rule.

We have therefore concluded that today's proposed rule will relieve regulatory burden for all small entities. Today's proposed rule would extend enforcement exemptions torefiners of CaRFG3 and would reduce burdens associated with overlapping Federal and State requirements, including recordkeeping and reporting requirements. We continue to be interested in the potential impacts ofthe proposed rule on small entities and welcome comments on issues related to such impacts.

D. UnfundedMandatesReform Act

Title II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments andthe private
sector. Under section 202 ofthe UMRA, EPA generally must prepare awritten statement, including a cost-benefit analysis, for proposed and final rules with "Federal mandates" that may result in expenditures to State, local, and tribal governments, in the aggregate,

orto the private sector, of$100 million

ormore in any one year. Before promulgating an EPArule for which a written statement is needed, section 205 ofthe UMRA generally requires EPA to identify and consider areasonable number ofregulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives ofthe rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective

orleast burdensome alternative ifthe Administrator publishes with the final rule an explanation why that alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including tribal governments, it must have developed under section 203 ofthe UMRA a small government agency plan.The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful andtimely input in the development ofEPAregulatory proposals with significantFederal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's proposed rule contains no Federal mandates (under the regulatory provisions oftitle II ofthe UMRA) for State, local ortribal governments or the private sector. The proposed rule would impose no enforceable duty on any State, local ortribal governments or the private sector. E.Executive Order 13132:Federalism

Executive Order 13132, entitled "Federalism" (64 FR43255, August 10, 1999), 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 thathave federalism implications" are 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 ofgovernment."

This proposed rule does not have federalism implications. Itwould not have substantial direct effects onthe States, on the relationship between the national government andthe States, or

on the distribution ofpower and responsibilities among the various levels of government, as specified in Executive Order 13132. Today's proposed rule would extend enforcement exemptions to refiners of CaRFG3 and wouldreduce burdens associated with overlapping Federal and State requirements, including recordkeeping and reporting requirements. Thus, Executive Order 13132 does not apply to this proposed rule.

F. Executive Order 13175: Consultation andCoordinationWith IndianTribal Governments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65FR 67249, November 6, 2000), requires EPA to develop an accountable process to

ensure "meaningful and timely input by tribal officials inthe development of regulatory policies that have tribal implications." "Policies thathave tribal implications" are defined in the Executive Order to include regulations thathave "substantial direct effects on
one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution ofpower and responsibilities between the Federal government and Indian tribes."

This proposed rule does not have tribal implications. It will nothave 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. Thisproposed rulewould apply to refiners, importers andblenders of 48833

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CaRFG3 and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply
to this rule.
G. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth & SafetyRisks

Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1)Is determined tobe economically significant as defined under Executive Order 12866, and (2)concerns an environmental health or safety risk that EPA has reason tobelieve 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 andreasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045

as applying onlyto those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 ofthe Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045, entitled "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children.

H. Executive Order13211:ActionsThat Significantly Affect EnergySupply, Distribution,or Use

This proposed rule is not an economically "significant energy action" as defined in Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355 (May 22, 2001)) because it does not have a significant adverse effect on the supply, distribution, oruse ofenergy.
L NationalTechnologyTransferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPAto provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. Today's rule does not affect technical standards andraises no issues under the NTTAA.

J.StatutoryProvisionsandLegal Authority Statutory authority for today's proposed rule comes from sections 211(c), 211(i) and 211(k) ofthe CAA (42 U.S.C. 7545(c) and (k)). Section 211(c) and 211(i) allows EPA toregulate fuels that contribute to air pollution which endangers public health or welfare, or which impairs emission control equipment. Section 211(k)prescribes requirements for RFG and conventional gasoline and requires EPA to promulgate regulations establishing these requirements. Additional support for the fuels controls in today's proposed rule comes from sections 114(a) and 301(a) ofthe CAA.
List ofSubjects in 40 CFRPart80

Environmental protection, Air pollution control, Fuel additives, Gasoline, Imports, Motor vehicle pollution, Reporting and recordkeeping requirements.

Dated: August 5,2004. Michael 0.Leavitt, Administrator.

For the reasons set forth in the preamble, part 80 oftitle 40 chapter Iof the Code ofFederal Regulations is proposed to be amended asfollows:

PART 80-REGULATION OF FUELS AND FUEL ADDITIVES

1.The authority citation for part 80 continues to read asfollows:

Authority: 42 U.S.C. 7414, 7545 and 7601(a).

2. Section 80.81 is amended as follows:

a. Revising paragraph (a). b. Revising paragraph (c) introductory
text.

c. Revising paragraph (e)(2) introductory text. d. Revising paragraphs (h)(1) introductory text, (h)(1)(ii)(C) and (h)(2)(i).
§80.81 Enforcement exemptions for California gasoline.

(a)(1) The requirements of subparts D, E, F, andJofthis part are modified in accordance with the provisions contained in this section in the case of California gasoline. (2)Forpurposes ofthis section, "California gasoline" means any gasoline that is sold, intended for sale,

or made available for sale as amotor vehicle fuel in the State ofCalifornia and that:

(i) Is manufactured within the State of California;

(ii)Is imported in the State of California from outside the United States; or

(iii)Is imported into the State of California from inside the United States and that is manufactured at arefinery that does not produce reformulated gasoline for sale in any covered area outside the State ofCalifornia.

(c) Any refiner, importer, or oxygenate blender ofCalifornia gasoline that is manufactured or imported subsequent
to March 1, 1996 andthat meets the requirements ofthe California Phase 2

or Phase 3reformulated gasoline regulations, as setforth in Title 13, California Code ofRegulations, section 2250 et seq. (May 1, 2003), is with regard to such gasoline, exempt fromthe following requirements (in addition to the requirements specified in paragraph (b) ofthis section:

* * * * *

(e) * * * (2) Such exemption provisions shall
not apply to any refiner, importer, or oxygenate blender ofCalifornia gasoline with regard to any gasoline formulation that itproduces or imports andthat is certified underTitle 13, California Code ofRegulations, section 2250 etseq. (May 1, 2003), unless:

* * * * *

(h)(1) For the purposes ofthe batch sampling and analysis requirements contained in §80.65(e)(1) and §80.101(i)(1)(i)(A), any refiner, importer, or oxygenate blender of California gasoline mayuse a sampling and/or analysis methodology prescribed in Title 13, California Code of Regulations, section 2250 et seq.(May 1, 2003), in lieu of any applicable methodology specified in §80.46, with regard to:

* * * * *

(ii) (C) The refiner orimporter must correlate the results from the applicable sampling and/or analysis methodology prescribed in Title 13, California Code ofRegulations, section 2250 etseq. (May 1, 2003) with the method specified in §80.46, and such correlation must be adequately demonstrated to EPA upon request.

(2) * * * (i) The samples are properly collected underthe terms ofa current andvalid 48834

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protocol agreement between the refiner and the California Air Resources Board with regard to sampling at the offsite tankage and consistent with the requirements prescribed in Title 13, California Code ofRegulations, section 2250 etseq. (May 1,2003); and

[FR Doc. 04-18380 Filed 8-10-04; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 81 [CA119-FFA; FRL-7800-4]
Finding of Failure To Attain; Imperial Valley Planning Area; California; Particulate Matter of 10 Microns or Less

AGENCY: Environmental Protection Agency. ACTION: Proposed rule.

SUMMARY: EPA is today proposing to find under the Clean Air Act (CAA) that the Imperial Valley Planning Area (Imperial Valley) failed to attain the National Ambient Air Quality Standards (NAAQS) for particulate matter of 10 microns orless (PM-10)by the serious

area statutory deadline ofDecember 31, 2001.

Separately in today's Federal Register, EPA ispublishing its final action in response to a recent Ninth Circuit Court order compelling EPA to reclassify the Imperial Valley PM-10 nonattainment area from moderate to serious because the area failed to meet the moderate area attainment date of December 31, 1994.

The proposed finding offailure to attain the serious area attainment date of December 31, 2001, isbased on monitored air quality data for the PM10 NAAQS fromJanuary 1999 through December 2001. IfEPA takes final action finding that Imperial Valley failed to attain, the State of California must submitwithin oneyear ofpublication of the final action, a plan thatprovides for attainment of the PM-10 NAAQS and that achieves at least 5percent annual reductions in PM-10 or PM-10 precursor emissions as required by CAA section 189(d). DATES: Comments on this proposed action must be received by September 10, 2004.
ADDRESSES: Send comments to David Wampler, Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to wampler.david@epa.gov, or submit
comments athttp:// www.regulations.gov.

You can inspect and copy the docket for this action at our Region IX office during normal business hours (see address below). Due to increased security, we suggest that you call at least 24 hours prior to visiting the Regional Office so that we can make arrangements to have someone meet you. The Federal Register notice is also available as an electronic file on EPA's Region 9 Web page athttp:// www.epa.gov/region09/air.

Planning Office (AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: David Wampler, U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105; (415) 972-3975; wampler.david@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, the words "we," "us," or "our" mean U.S. EPA.

I. Background

Imperial County is located in the southeastern corner ofCalifornia. Ithas borders with Mexico to the south, Arizona to the east, and San Diego County to the west. Most ofImperial County falls within the Imperial Valley Planning Area (Imperial Valley). 40 CFR part 81. The localjurisdiction that is responsible for airpollution control is the Imperial County Air Pollution Control District (ICAPCD).

Upon enactment ofthe Clean Air Act Amendments of1990, Imperial Valley

was classified as amoderate PM-10 nonattainment area. The CAA requires that moderate areas attain the PM-10 NAAQS by December 31, 1994. CAA section 188(c)(1). Moderate areas failing
to attain the NAAQS by the prescribed attainment date must be reclassified as serious under CAA section 188(b)(2). However, CAA section 179(B)(d) provides that any area that establishes to the satisfaction ofEPAthat itwould have attained the PM-10 NAAQS by the applicable attainment date but for emissions emanating from outside the United States, is not subject to the provisions ofCAA section 182(b)(2), i.e., reclassification to serious nonattainment.

In July 2001, ICAPCD and the California Air Resources Board (CARB) submitted evidence that the Imperial Valley would have attained the PM-10 NAAQS by the 1994 attainment date, but for transport from Mexico. On October 19, 2001, EPA made a final finding that Imperial Valley would have attained the PM-10 NAAQS by December 1994but for PM-10 emissions emanating from Mexico. 66 FR 53106.

The Sierra Club petitioned for review ofour October 2001 final action inthe U.S. Court ofAppeals for the Ninth Circuit. On October 9, 2003, the Court issued its opinion. SierraClubv. United StatesEnvironmentalProtection Agency, et al., 352 F.3d 1186. The Court rejected EPA's factual determination with respect to two days, January 19 and 25, 1993, onwhich PM-10 exceedances ofthe 24-Hour PM-10 NAAQS occurred, finding that "[b]ased on the data and the reports inthe record, there simply is no possibility that Mexican transport could have caused the observed PM-10 exceedances * * * " The effect ofthis conclusion is that Imperial Valley had exceedances ofthe PM-10 NAAQS that preclude afinding that the area would have attained the NAAQS by 1994. The Court, concluding that further administrative proceedings with respect to the 1994 exceedances would serve no useful purpose, instructed EPAto reclassify Imperial Valley as a serious PM-10 nonattainment area.

On December 18, 2003, the Ninth Circuit denied apetition forrehearing by ICAPCD, an intervener inthe case, slightly revised its October 9, 2003, opinion, and granted ICAPCD's motion
to stay the mandate until March 17, 2004, to permit ICAPCD to file a petition for awrit ofcertiorari in the U.S. Supreme Court. Imperial County did so

on March 17, 2004. OnJune 21, 2004, the Supreme Court declined to hear the

case. ImperialCountyAirPollution ControlDistrict v. SierraClub, etal., 72 U.S.L.W. 3757. Thereafter the stay was lifted and the mandate issued.

Accordingly, elsewhere in today's FederalRegister, EPAis publishing its final action in response to the Ninth Circuit's October 9, 2003, opinion, finding that Imperial Valley failed to attain the PM-10 NAAQS by the moderate area statutory deadline of December 31, 1994, and reclassifying the area from moderate to serious. All serious PM-10 nonattainment areas

were required to attain the standards by

no laterthan December 31, 2001, unless granted a one-time extension ofup to fiveyears. CAA section 188(c)(2) and (e). 48835

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