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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; 24 FR 9565, 3 CFR, 1959-

1963 Comp., p. 389.

§71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of Federal Aviation

Administration Order 7400.9L, dated

September 2, 2003, and effective

September 16, 2003, is proposed to be

amended as follows:

Paragraph 6005 Class E airspace areas extending upward from 700 feet or more

above the surface of the 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-mile radius

of Lee County Airport.

Issued in Jamaica, New York, on August 3,

2004.

John G. McCartney,

Staff Manager of Eastern Terminal Area

Operations.

[FR Doc. 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 of proposed rulemaking.

SUMMARY: We are proposing to exempt

refiners, importers, and blenders of

gasoline subject to the State of

California's Phase 3 reformulated

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 and blenders have

been continuously exempted from

certain enforcement-related

requirements such as recordkeeping 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 of the 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, is EPA'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 during the Docket's

normal hours of operation, and special

arrangements should be made for

deliveries of boxed information.

Instmuctions: Direct your comments to

Docket ID No. OAR-2003-0217. EPA's

policy is that 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 submit information that you

consider to be CBI or 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 in the body of your comment.

If you send an e-mail comment directly

to EPA without going through

EDOCKET or regulations.gov, your email address will be automatically

captured and included as part of the

comment that is placed in the public

docket and made available on the

Internet. If you submit an electronic

comment, EPA recommends that you

include your name and other contact

information in the body of your

comment and with any disk or CD-ROM

you submit. If EPA cannot read your

comment due to technical difficulties

and cannot contact you for clarification,

EPA may not be able to consider your

comment. Electronic files should avoid

the use of special characters, any form

of encryption, and be free of any defects

or viruses. For additional information

about EPA's public docket visit

EDOCKET on-line or see the Federal

Register of May 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

not publicly available, i.e., CBI or other

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically in EDOCKET or in hard

copy at the Air Docket, 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 Docket is (202) 566-

1742.

FOR FURTHER INFORMATION CONTACT:

Anne Pastorkovich, Attorney/Advisor,

Transportation and Regional Programs

Division, Office of Transportation 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 This Action Apply to Me?

Regulated categories and entities

potentially affected by this proposed

action include:

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Category NAICSs SiC Examples of potentially regulated parties

codes a codesb

Industry ...................................................................................................... 324 110 29 11 P etro le um refine rs.

Industry ...................................................................................................... 422710 5171 G asoline M arketers and D istributors.

422720 5172

aNorth American Industry Classification System (NAICS).

b Standard Industrial Classification (SIC) system code.

This table is not 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 of entities 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 RFG provisions at 40 CFR part 80,

particularly § 80.81 dealing specifically

with California gasoline. If you 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. What Should I Consider as I Prepare

My Comments for EPA?

1. Submitting CB. Do not submit this

information to EPA through EDOCKET,

regulations.gov or e-mail. Clearly mark

the part or all of the information that

you claim to be CBI. For CBI

information in a disk or CD-ROM that

you mail to EPA, mark the outside of the

disk or CD-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 of the comment that

includes information claimed as CBI, a

copy of the 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 for Preparing Your 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 ask you to respond to specific

questions or organize comments by

referencing a Code of Federal

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 data that you used.

v. If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

vi. Provide specific examples to

illustrate your concerns, and suggest

alternatives.

vii. Explain your views as clearly as

possible, avoiding the use of profanity

or personal threats.

viii. Make sure to submit your

comments by the comment period

deadline identified.

II. Current Status and Basis for

California Enforcement Exemptions

Section 211(k) of the Federal Clean

Air Act (the Act) directs the EPA to

establish requirements for reformulated

gasoline (RFG) to be used in specified

ozone nonattainment areas, as well as "anti-dumping" requirements for

conventional gasoline used in the rest of

the country. The areas covered by the

Federal RFG program in California are

San Joaquin Valley, Los Angeles, San

Diego, and Sacramento.' The RFG

provisions of the Act require EPA to

promulgate regulations to reduce the

emissions of ozone forming volatile

organic compounds (VOCs) and toxic air

pollutants from gasoline-fueled motor

vehicles. Such regulations must also

require that there be no increase in the

emission of oxides of nitrogen (NOx)

over baseline levels. Finally, gasoline

subject to the RFG requirements must

meet certain content standards for

oxygen, benzene and heavy metals.

The RFG program 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, and is currently in

effect, is similar to the Phase I program,

but requires even greater reductions in

emissions of VOC, toxics and NOx. The

regulations for RFG and conventional

gasoline may be found at 40 CFR part

80, subparts D, E, and F.

1 See http://www.epa.gov/otaq/rfgmap.jpg for a

map and listing of RFG covered areas and 40 CFR

80.70 for a listing of covered areas by state. A copy

of the map has been placed in the docket for this

rulemaking.

On September 18, 1992, the California

Air Resources Board (CARB) adopted

regulations establishing California's

state Phase 2 reformulated gasoline

program ("California Phase 2 RFG"),

which became effective March 1, 1996.

These regulations established a

comprehensive set of gasoline

specifications designed to achieve

reductions in emissions of VOCs, NOx,

carbon monoxide (CO), sulfur dioxide,

and toxic air pollutants from gasolinefueled motor vehicles.2 The California

Phase 2 RFG regulations set standards

for eight gasoline parameters-sulfur,

benzene, olefins, aromatic

hydrocarbons, oxygen, Reid vapor

pressure (RVP), and distillation

temperatures for the 50 percent and 90

percent evaporation points (T-50 and

T-90, respectively). These regulations

also provide for the production and sale

of alternative gasoline formulations,

with certification under the CARB

program based on a predictive model or

on vehicle emission testing.

EPA previously adopted enforcement

exemptions for California Phase 2

gasoline under the Federal Phase I RFG

program. 3 In doing so, we concluded:

(1) That the emission reductions

resulting from the California Phase 2

standards would be equal to or greater

than the Federal Phase I RFG standards

(i.e., the standards that were applicable

from January 1, 1995, through December

31, 1999),

(2) That the content standard for

benzene under California Phase 2 would

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 in Federal

RFG areas, and

(3) That the CARB's compliance and

enforcement program was designed to

be sufficiently rigorous to ensure that

Federal Phase I requirements would be

met in practice.

Consequently, while the Federal

Phase I RFG standards continued to

apply in California, EPA exempted

2 California'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 of these

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, and blenders of the enforcement-related provisions of and included the following provisions

gasoline sold in California from many of the Federal Phase I RFG regulations. in 40 CFR part 80:

The exemptions applied to the

gasoline they sold for use in California

Citation at Requirement exempted 40 CFR 80.xx

C o m p lia n c e S u rv e y s 4 ............................................................................................................................................................... 8 0 .6 8

In d e pe nd e nt S a m p lin g & T e stin g .............................................................................................................................................. 8 0 .6 5 (f)

D e s ig n a tio n o f G a s o lin e ............................................................................................................................................................ 8 0 .6 5 (d )

M a rking of C onve ntio na l G asoline ............................................................................................................................................ 80 .65 (g) and 80 .82

D o w nstre a m O xyge nate B le nd ing ............................................................................................................................................. 8 0 .69

R e c o rd k e e p in g ........................................................................................................................................................................... 8 0 .7 4 a n d 8 0 .1 0 4

R e p o rtin g ................................................................................................................................................................................... 8 0 .7 5 a n d 8 0 .1 0 5

P ro d u ct T ra n sfe r D o c u m e n ts .................................................................................................................................................... 8 0 .7 7

Pa ram ete r V alue R econciliation R equirem ents ........................................................................................................................ 80.65(e)(2)

Reformulated Gasoline and Reformulated Gasoline Blendstock for Oygenate Blending (RBOB) Compliance Requirements 80.65(c)

A nnual C om pliance A udit R equire m ents .................................................................................................................................. 80 .65 (h)

C om pliance Attest E ngagem ent R equirem ents ........................................................................................................................ S ubpart 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 I RFG. 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 2 gasoline 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 2 would

be equivalent in practice to the Federal

Phase II content standard and that the

oxygen content standard of 2.0 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 of Today's Proposed

Action

A. California's Phase 3 Gasoline

Rulemaking Activities

On August 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 a written request from the

California Air Resources Board (CARB)

requesting extension of the California

enforcement exemptions of 40 CFR

80.81 to CaRFG3. In that letter, CARB

explains that its CaRFG3 regulations

were adopted in response to Governor

Gray Davis's issuance of Executive

Order D-5-99, directing the phase-out

of methyl tertiary-butyl ether (MTBE) as

an additive in California gasoline by

December 31, 2002.

Since March 21, 2001, CARB has

completed a series of rulemakings that

amended their CaRFG3 regulations.

Many of these amendments were made

necessary by a postponement of the

MTBE phase-out and to accommodate

the use of ethanol. The MTBE phase-out

was delayed until December 31, 2003 by

Governor Gray Davis's issuance of a

second Executive Order D-52-02.6 The

CaRFG3 regulations and all standards

discussed in this notice represent the

May 1, 2003, version of the California

Reformulated Gasoline Regulations, title

13, California Code of Regulations,

section 2250 et seq.

6 A copy of the Executive Order has been placed

in the docket.

B. EPA's Analysis and Conclusions

Regarding California's Phase 3 Gasoline

Regulations

In order to determine whether to

apply the Federal enforcement

exemptions of 40 CFR 80.81 should be

applied to CaRFG3, we considered:

(1) Whether the emissions reductions

resulting from CaRFG3 would be 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 and whether

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 in practice.

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 2 gasoline under both

the Federal Phase I and Phase 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

7 See 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 1990 baseline 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

1 apply to California areas covered by

the Federal RFG program. 9

California's Phase 2 RFG 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 of these specifications and

incorporated an updated version of the

California predictive model. 10 Refiners

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 of a gasoline meeting

the established specifications. Six of the

parameters are also input parameters for

the EPA Complex Model. The remaining

two, T50 and T90, are closely related to

E200 and E300, the remaining two

Complex Model inputs."1

If CaRFG3 provides emission benefits

equivalent to Federal Phase II RFG, then

a gasoline formulation meeting the

CaRFG3 flat limit 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 of the

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 II RFG

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 1 shows two sets of results; one

where the oxygenate was assumed to be

MTBE and the other where the

oxygenate was assumed to be ethanol.

The specific oxygenate affects the toxics

performance estimate. Two sets of

Federal standards are shown, the per

gallon standards and the averaged

standards. (These numerically more

stringent averaged standards are

applicable if a refiner chooses to comply

on average, rather than on a per gallon

basis.) The emissions performance of

the flat limit recipe gasoline is better

than the Federal RFG per gallon

standards for VOC, toxics and NOx

reductions, and better 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 at least 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 of establishing a baseline is to prevent

any degradation in the quality of gasoline in areas

in which reformulated gasoline is not required. For

a discussion of baselines, please refer to the RFG

and anti-dumping final rule, 59 FR 7798 (February

16, 1994).

9 See 40 CFR 80.41 and 80.71.

Thus, CaRFG3 would meet Federal

standards if every 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 3 predictive 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 of the flat

limit recipe is equal to or better than the

Federal standards does not guarantee

that the Complex Model emissions

performance of all gasoline blends that

may be produced in compliance with

CaRFG3 will meet or surpass the

Federal standards.

10 The California predictive model, like the

Complex Model, is used to predict emissions

performance of gasoline.

"There is a strong correlation between T50 (the

50% distillation temperature) and E200 (the percent

distilled at 200F). Likewise, there is a strong

correlation between T90 (the 90% distillation

temperature) and E300 (the percent 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 not CaRFG3 produced and certified

under the 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 not represent each and every

possible gasoline formulation under the

California's regulations, but we believe

that they provide a representative

sample of that universe of gasoline

formulations that are likely to be

produced under the CaRFG3 program.

This analysis is discussed in more detail

in the following paragraphs.

In April of 1999, California applied

for a waiver of the Federal oxygen

content requirement for reformulated

gasoline. In order to complete an

evaluation of the technical basis for this

waiver request, we determined that

12 Oxygen was assumed to be 2.0 wt%, the

midpoint of the 1.8-2.2 wt% specification and RVP

was 6.90, the RVP used with the evaporative

compliance option in the predictive model.

13 The California waiver analysis considered the

effect of changes in gasoline composition on the

entire on-road and off-road gasoline-power fleet.

The analysis for this proposed rule considers only

Complex Model performance, which considers a

portion of the on-road gasoline-powered fleet.

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additional refinery modeling was

needed to forecast the likely

composition of CaRFG3, after

California's phase-out of methyltertiary-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 of the

continued or reduced use of MTBE

outside of California, whether or not

refiners avoid the patent held by 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 of extending the

existing enforcement exemptions to

CaRFG3. EPA believes that these

modeling results are likely to be the

most accurate and comprehensive

forecasts of the likely properties of the

CaRFG3 that will be sold in Federal RFG

areas in California. For the purpose of

this proposal, we have considered both

oxygenated and non-oxygenated

CaRFG3 blends.

Table 2, below, shows that

oxygenated CaRFG3 produced under

each of the scenarios that EPA evaluated

meets Federal RFG performance

standards. All of these fuels had better

performance than the Federal RFG per

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 to provide

a VOC 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, that the Federal per

gallon standard is a more appropriate

reference point.

MathPro's modeling assumed that

essentially all CaRFG3 is certified with

the flat limit variant of the Predictive

Model. Therefore, the formulations

which they forecast have California

predictive model emissions

performance equivalent to, or better

than, the flat limit recipe, but do not

necessarily meet California predictive

model averaged limit requirements. As

previously noted, California's flat limit

option requires refiners to meet

parameter standards on an every-gallon,

rather than averaged basis. The

California flat limits are analogous to

the Federal RFG per-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 of these CaRFG3

formulations to meet the Federal Phase

II per-gallon performance standards, but

not necessarily 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 3 below, shows that nonoxygenated CaRFG3 produced under

each of the scenarios that EPA evaluated

meets Federal RFG performance

standards. These fuels are not currently

permissible, because they do not

contain the equivalent of 2.0 weight %

oxygen. All of the fuels shown in Table

3, which EPA believes to be reasonably

representative of the fuel formulations

that refiners would produce in

California without an oxygen content

requirement are predicted to perform

better than the 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%) (%) (%) (%)

14 One of the reasons for this determination was

that earlier modeling was done before the CaRFG3

predictive model was finalized. This may have

affected the estimates of CaRFG3 properties

developed from these earlier 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 of this document has been placed in

the docket.

15 See "Analysis of the Production of California

Phase 3 Reformulated Gasoline With and Without

an Oxygen Waiver", MathPro, Inc. (January 19,

2001). A copy of this document has been placed in

the docket.

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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 of the

CaRFG3 flat limit "recipe" and Federal

Phase II Complex model standards, as

well as a consideration of possible

California fuel formulations certified

using the California Phase 3 predictive

model, we have concluded that the

NOx, VOC and toxics emissions

reductions resulting from the CaRFG3

standards would be equal to or greater

than the Federal Phase II RFG standards.

The content standard for benzene for

CaRFG3 is equivalent to the Federal

Phase II standards. The California flat

limit benzene 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. EPA retains

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 of CARB's

enforcement program, which includes

enforcement at refineries, 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 that refiners

and importers conduct testing and

maintain records of testing performed

on batches of gasoline. 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.

17 Title 13, CCR section 2270.

that 6.6% and 6.5% of gasoline 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 of samples). In 2000-2001,

the violation rate was 0.16% (based on

volumes sampled) and 1.06% (based on

the number of samples). 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 it is appropriate to

apply the enforcement exemptions at 40

CFR 80.81 to refiners, importers, and

blenders of CaRFG3.

C. Definition of California Gasoline

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 of Federal

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 Order 12866: Regulatory

Planning and Review

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 of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the 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

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal 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"

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

B. Paperwork Reduction Act

This proposed rule does not impose

any new information collection burden.

Today's proposed rule would extend

enforcement exemptions to refiners of

CaRFG3 and would reduce burdens

associated with overlapping Federal and

State requirements, including

recordkeeping and reporting

requirements. However, the Office of

Management and Budget (OMB), under

the provisions of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

has previously approved the

information collection requirements

contained in the final reformulated

gasoline (RFG) and anti-dumping

rulemaking and gasoline sulfur control

rulemaking, and has assigned OMB

control number 2060-0277, EPA ICR

number 1591.14. A copy of the OMB

approved Information Collection

Request (ICR) may be obtained from

Susan Auby, Collection Strategies

Division, U.S. Environmental Protection

Agency (2822T), 1200 Pennsylvania

Ave., NW., Washington, DC 20460 or by

calling (202) 566-1672.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

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requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

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. Regulatory Flexibility Act

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today'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

a government of a city, county, town,

school district or special district with a

population of less 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 of today's proposed rule on

small entities, I certify 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 of concern 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 of the

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 of the 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 to refiners 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 of the

proposed rule on small entities and

welcome comments on issues related to

such impacts.

D. Unfunded Mandates Reform Act

Title II of the 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 and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

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,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the 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

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the 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 and timely input in

the development of EPA regulatory

proposals with significant Federal

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 of title II of the UMRA) for

State, local or tribal governments or the

private sector. The proposed rule would

impose no enforceable duty on any

State, local or tribal governments or the

private sector.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, 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 that have

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 of government."

This proposed rule does not have

federalism implications. It would 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. Today's

proposed rule would extend

enforcement exemptions to refiners of

CaRFG3 and would reduce 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

and Coordination With Indian Tribal

Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." "Policies that have tribal

implications" are defined in the

Executive Order to include regulations

that have "substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes."

This proposed rule does not have

tribal implications. 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,

as specified in Executive Order 13175.

This proposed rule would apply to

refiners, importers and blenders of

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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 Order 13045: Protection of

Children From Environmental Health &

Safety Risks

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 to be economically

significant as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe 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

and reasonably feasible alternatives

considered by the Agency.

EPA interprets Executive Order 13045

as applying only to those regulatory

actions that are based on health or safety

risks, such that the analysis required

under section 5-501 of the Order has

the potential to influence the regulation.

This proposed rule is not subject to

Executive Order 13045, entitled

"Protection of Children 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 Order 13211:Actions That

Significantly Affect Energy Supply,

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, or Use" (66 FR 28355 (May

22, 2001)) because it does not have a

significant adverse effect on the supply,

distribution, or use of energy.

L National Technology Transfer and

Advancement Act

Section 12(d) of the 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 EPA to

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

and raises no issues under the NTTAA.

J. Statutory Provisions and Legal

Authority

Statutory authority for today's

proposed rule comes from sections

211(c), 211(i) and 211(k) of the CAA (42

U.S.C. 7545(c) and (k)). Section 211(c)

and 211(i) allows EPA to regulate 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) of the CAA.

List of Subjects in 40 CFR Part 80

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 of title 40 chapter I of

the Code of Federal Regulations is

proposed to be amended as follows:

PART 80-REGULATION OF FUELS

AND FUEL ADDITIVES

1. The authority citation for part 80

continues to read as follows:

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, and J of this part are modified in

accordance with the provisions

contained in this section in the case of

California gasoline.

(2) For purposes of this section,

"California gasoline" means any

gasoline that is sold, intended for sale,

or made available for sale as a motor

vehicle fuel in the State of California

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 a refinery

that does not produce reformulated

gasoline for sale in any covered area

outside the State of California.

(c) Any refiner, importer, or oxygenate

blender of California gasoline that is

manufactured or imported subsequent

to March 1, 1996 and that meets the

requirements of the California Phase 2

or Phase 3 reformulated gasoline

regulations, as set forth in Title 13,

California Code of Regulations, section

2250 et seq. (May 1, 2003), is with

regard to such gasoline, exempt from the

following requirements (in addition to

the requirements specified in paragraph

(b) of this section: * * * * *

(e) * * *

(2) Such exemption provisions shall

not apply to any refiner, importer, or

oxygenate blender of California gasoline

with regard to any gasoline formulation

that it produces or imports and that is

certified under Title 13, California Code

of Regulations, section 2250 et seq. (May

1, 2003), unless: * * * * *

(h)(1) For the purposes of the 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 may use 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 or importer must

correlate the results from the applicable

sampling and/or analysis methodology

prescribed in Title 13, California Code

of Regulations, section 2250 et seq. (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

under the terms of a current and valid

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protocol agreement between the refiner

and the California Air Resources Board

with regard to sampling at the off site

tankage and consistent with the

requirements prescribed in Title 13,

California Code of Regulations, section

2250 et seq. (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 or less (PM-10) by the serious

area statutory deadline of December 31,

2001.

Separately in today's Federal

Register, EPA is publishing 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 of failure to

attain the serious area attainment date of

December 31, 2001, is based on

monitored air quality data for the PM10 NAAQS from January 1999 through

December 2001. If EPA takes final action

finding that Imperial Valley failed to

attain, the State of California must

submit within one year of publication of

the final action, a plan that provides for

attainment of the PM-10 NAAQS and

that achieves at least 5 percent 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 at http://

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 at http://

www.epa.gov/region 09/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 of California. It has

borders with Mexico to the south,

Arizona to the east, and San Diego

County to the west. Most of Imperial

County falls within the Imperial Valley

Planning Area (Imperial Valley). 40 CFR

part 81. The local jurisdiction that is

responsible for air pollution control is

the Imperial County Air Pollution

Control District (ICAPCD).

Upon enactment of the Clean Air Act

Amendments of 1990, Imperial Valley

was classified as a moderate 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 of EPA that it would

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 of CAA 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 1994 but for PM-10

emissions emanating from Mexico. 66

FR 53106.

The Sierra Club petitioned for review

of our October 2001 final action in the

U.S. Court of Appeals for the Ninth

Circuit. On October 9, 2003, the Court

issued its opinion. Sierra Club v. United

States Environmental Protection

Agency, et al., 352 F.3d 1186. The Court

rejected EPA's factual determination

with respect to two days, January 19 and

25, 1993, on which PM-10 exceedances

of the 24-Hour PM-10 NAAQS

occurred, finding that "[b]ased on the

data and the reports in the record, there

simply is no possibility that Mexican

transport could have caused the

observed PM-10 exceedances * * * "

The effect of this conclusion is that

Imperial Valley had exceedances of the

PM-10 NAAQS that preclude a finding

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 EPA to reclassify Imperial

Valley as a serious PM-10

nonattainment area.

On December 18, 2003, the Ninth

Circuit denied a petition for rehearing

by ICAPCD, an intervener in the 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 a writ of certiorari in the U.S.

Supreme Court. Imperial County did so

on March 17, 2004. On June 21, 2004,

the Supreme Court declined to hear the

case. Imperial County Air Pollution

Control District v. Sierra Club, et al., 72

U.S.L.W. 3757. Thereafter the stay was

lifted and the mandate issued.

Accordingly, elsewhere in today's

Federal Register, EPA is 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 later than December 31, 2001, unless

granted a one-time extension of up to

five years. CAA section 188(c)(2) and

(e).

48835

HeinOnline -- 69 Fed. Reg. 48835 2004