85064 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 

1 84 FR 11198 (March 25, 2019). 

2 83 FR 61346, at 61357 (November 29, 2018) 

(proposed conditional approval), finalized at 84 FR 

11198, at 11205–11206. 

3Association of Irritated Residents v. EPA, 10 

F.4th 937 (9th Cir. 2021). 

with subject-matter jurisdiction may, for 

a reasonable period upon a showing of 

sufficient cause, extend the time for any 

party’s response. 

(5) The General Counsel or his or her 

designee shall render the Office of the 

General Counsel’s decision on the 

matter. The decision will be premised 

on the reasonableness factors of 

paragraph (e) of this section, the 

standards of paragraph (f) of this 

section, the limitation on direct 

payment of paragraph (h)(1)(i) of this 

section, the claims file, the parties’ 

submissions, and all relevant factors. 

The decision may address the issue of 

fee eligibility if no other agency of 

original jurisdiction has made a 

determination on that issue. 

(6) The Office of the General 

Counsel’s decision is a final 

adjudicative action that may only be 

appealed to the Board of Veterans’ 

Appeals. Unless a party files a Notice of 

Disagreement with the Office of the 

General Counsel’s decision, the parties 

must allocate any excess payment in 

accordance with the decision not later 

than the expiration of the time within 

which the Office of the General 

Counsel’s decision may be appealed to 

the Board of Veterans’ Appeals. 

(j) Failure to comply. In addition to 

whatever other penalties may be 

prescribed by law or regulation, failure 

to comply with the requirements of this 

section may result in proceedings under 

§ 14.633 to terminate the agent’s or 

attorney’s accreditation to practice 

before VA. 

(k) Appeals. Except as otherwise 

provided in this section, appeals shall 

be initiated and processed using the 

procedures in 38 CFR part 20 applicable 

to appeals under the modernized 

system. 

[FR Doc. 2024–24708 Filed 10–24–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2024–0338; FRL–12118– 

03–R9] 

Interim Final Determination To Stay or 

Defer Sanctions; California; San 

Joaquin Valley Unified Air Pollution 

Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final determination. 

SUMMARY: The Environmental Protection 

Agency (EPA) is making an interim final 

determination that the State of 

California has submitted revisions to the 

California State Implementation Plan 

(SIP) that correct the deficiency 

prompting the partial disapproval of 

previous SIP submissions addressing 

the requirements under the Clean Air 

Act (CAA or ‘‘Act’’) for contingency 

measures for the 2008 ozone national 

ambient air quality standards (NAAQS 

or ‘‘standards’’) for the San Joaquin 

Valley ozone nonattainment area. This 

determination is based upon a proposed 

conditional approval, published 

elsewhere in this issue of the Federal 

Register, of SIP revisions addressing the 

contingency measure requirements for 

the 2008 ozone NAAQS for the San 

Joaquin Valley. The effect of this interim 

final determination is to stay the 

application of the offset sanction and to 

defer the application of the highway 

sanction that were triggered by the 

EPA’s previous partial disapproval of 

SIP revisions submitted to address the 

contingency measure requirements for 

the 2008 ozone NAAQS for this area. 

DATES: This interim final determination 

is effective on October 25, 2024. 

However, comments will be accepted on 

or before November 25, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2024–0338 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with a 

disability who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Ledezma, Air Planning Office 

(ARD–2), EPA Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105, (415) 

972–3985, or by email at 

Ledezma.Andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background 

II. EPA Evaluation and Action 

III. Statutory and Executive Order Reviews 

I. Background 

In March 2019, the EPA took final 

action to approve, or conditionally 

approve, certain state implementation 

plan (SIP) revisions submitted by the 

State of California to meet CAA 

requirements for the 2008 ozone 

NAAQS in the San Joaquin Valley, 

California, ozone nonattainment area.1

Specifically, the EPA approved the base 

year emissions inventory, reasonable 

further progress (RFP) demonstration, 

and motor vehicle emissions budgets, 

and conditionally approved the 

contingency measure element for the 

2008 ozone NAAQS. We justified a 

conditional approval of the contingency 

measure element, even though the 

contingency measure itself would only 

achieve a small fraction of the 

recommended amount for contingency 

measures, on the basis of a surplus in 

emissions reductions that could be 

anticipated from already-implemented 

measures in the milestone years and 

year after the attainment year and a 

commitment by the State to achieve 

additional emissions reductions by the 

attainment year in the San Joaquin 

Valley that would reduce the chances 

that additional contingency measures 

would be needed for failure to attain the 

2008 ozone NAAQS by the applicable 

attainment date.2

Our final conditional approval of the 

contingency measure element was the 

subject of a legal challenge and, in a 

2021 Ninth Circuit decision in the 

Association of Irritated Residents v. EPA 

case, the Court remanded the 

conditional approval action back to the 

Agency.3 In so doing, the Court found 

that, by taking into account the 

emissions reductions from alreadyimplemented measures to find that the 

contingency measure would suffice to 


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Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 85065 

4 Id., at 946. The reference to ‘‘Bahr v. EPA’’ is 

to Bahr v. EPA, 836 F.3d 1218, at 1235–1237 (9th 

Cir. 2016). Under the Bahr holding, contingency 

measures under CAA sections 172(c)(9) and 

182(c)(9) must be designed so as to be implemented 

prospectively; already-implemented control 

measures may not serve as contingency measures 

even if they provide emissions reductions beyond 

those needed for any other CAA purpose. 

5 Id. at 947. 

6 87 FR 59688 (October 3, 2022). 

7 Id, at 59690. 

8 Id. 

9The California Air Resources Board (CARB) 

submitted the San Joaquin Valley Unified Air 

Pollution Control District’s 2024 SJV Ozone 

Contingency Measure Plan electronically on April 

29, 2024 as an attachment to a letter dated April 26, 

2024 from Stephen S. Cliff, Ph.D., Executive Officer, 

CARB, to Martha Guzman, Regional Administrator, 

EPA Region IX. 

10See 40 CFR 52.31(d)(2)(ii). 

11The two existing contingency measures for the 

2008 ozone NAAQS for the San Joaquin Valley 

relate to architectural coatings and the California 

smog check program. The EPA approved these 

contingency measures at 87 FR 78544 (December 

22, 2022) (architectural coatings contingency 

measure) and 89 FR 56222 (July 9, 2024) (smog 

check contingency measure). 

12See 40 CFR 52.31(d)(3)(ii). 

13See 40 CFR 52.31(d)(5). 

meet the applicable requirement, the 

EPA was circumventing the court’s 2016 

holding in Bahr v. EPA.4 The Court also 

held that the EPA could not avoid the 

need for robust contingency measures 

by assuming that they will not be 

needed.5

In October 2022, in light of the 

Association of Irritated Residents v. EPA 

decision, the EPA took final action to 

withdraw our previous conditional 

approval and to partially disapprove the 

contingency measure element submitted 

to address the contingency measure 

requirements for the San Joaquin Valley 

for the 2008 ozone NAAQS.6 We did so 

because we found that, if we did not 

take into account surplus emissions 

reductions or the State’s commitment to 

achieve additional emissions reductions 

in San Joaquin Valley by the attainment 

year, then the one contingency measure 

that was included in the contingency 

measure element would have had to 

shoulder the entire burden of achieving 

the recommended amount for 

contingency measures (if triggered) but 

would have only achieved a small 

fraction of the recommended amount.7

The effective date of our final partial 

disapproval action was November 2, 

2022. 

Pursuant to section 179 of the CAA 

and 40 CFR 52.31, the EPA’s partial 

disapproval of the contingency measure 

element triggered sanctions clocks. 

More specifically, and as explained in 

our final partial disapproval action, 

under 40 CFR 52.31, the offset sanction 

in CAA section 179(b)(2) would be 

imposed 18 months after November 2, 

2022, and the highway funding sanction 

in CAA section 179(b)(1) would be 

imposed six months after the offset 

sanction was imposed, unless the EPA 

determines that a subsequent SIP 

submission corrects the identified 

deficiencies before the applicable 

deadlines.8

In April 2024, in response to our final 

partial disapproval, the State of 

California adopted and submitted the 

‘‘Ozone Contingency Measure State 

Implementation Plan Revision for the 

2008 and 2015 8-Hour Ozone 

Standards’’ (April 25, 2024) (‘‘2024 SJV 

Ozone Contingency Measure Plan’’) to 

the EPA as a revision to the California 

SIP.9 In the Proposed Rules section of 

this issue of the Federal Register, we 

have proposed to conditionally approve 

the 2024 SJV Ozone Contingency 

Measure Plan for the 2008 ozone 

NAAQS for the San Joaquin Valley 

ozone nonattainment area. Based on the 

proposed conditional approval action in 

this issue of the Federal Register with 

respect to the contingency measure 

element, we are taking this final 

rulemaking action, effective upon 

publication, to stay application of the 

offset sanction and defer application of 

the highway sanction that were 

triggered by the EPA’s October 3, 2022 

partial disapproval of the contingency 

measure element for the San Joaquin 

Valley 2008 ozone nonattainment 

area.10 We are doing so because we find 

that it is more likely than not that the 

2024 SJV Ozone Contingency Measure 

Plan corrects the deficiencies that 

triggered such sanctions, when 

considered with two contingency 

measures that EPA has approved in 

separate rulemaking actions 11 and 

commitments to adopt and submit five 

additional contingency measures for the 

San Joaquin Valley ozone 

nonattainment area. 

The EPA is providing the public with 

an opportunity to comment on this stay 

of the offset sanction and deferral of the 

highway sanction. If comments are 

submitted that change our assessment, 

as described in this interim final 

determination and in our proposed 

conditional approval, that the 2024 SJV 

Ozone Contingency Measure Plan meets 

the contingency measure requirements 

for the 2008 ozone NAAQS for the San 

Joaquin Valley nonattainment area, we 

will take final action to lift this stay of 

the offset sanction and deferral of the 

highway sanction under 40 CFR 52.31. 

If no comments are submitted that 

change our assessment, then all 

sanctions and any sanction clocks 

triggered by our October 3, 2022 final 

action will continue to be stayed or 

deferred unless and until the 

conditional approval converts to a 

disapproval or the EPA proposes to or 

takes final action to disapprove in 

whole or in part the revised SIP the 

State submits to fulfill the commitment 

in the conditionally-approved plan, at 

which time the sanctions would 

reapply.12 Any sanction clock triggered 

by the October 2022 partial disapproval 

would be permanently stopped and 

sanctions applied, stayed, or deferred 

would be permanently lifted upon a 

final EPA finding that the deficiency 

forming the basis of the finding has been 

corrected.13

II. EPA Evaluation and Action 

We are making an interim final 

determination under 40 CFR 

52.31(d)(2)(ii) to stay the application of 

the offset sanction and to defer the 

application of the highway sanction 

associated with our October 3, 2022 

final action partially disapproving the 

contingency measure element for the 

2008 ozone NAAQS for the San Joaquin 

Valley nonattainment area. This 

determination is based on a concurrent 

proposal to conditionally approve the 

2024 SJV Ozone Contingency Measure 

Plan as meeting the 2008 ozone 

contingency measure requirement, 

which, if fully approved, would correct 

the deficiencies that triggered sanctions 

under section 179 of the CAA. 

The EPA has preliminarily 

determined that the submission of the 

2024 SJV Ozone Contingency Measure 

Plan more likely than not adequately 

addresses the deficiencies identified in 

the October 3, 2022 partial disapproval, 

when considered together with 

previously approved contingency 

measures and commitments to adopt 

and submit additional contingency 

measures in accordance with the 

commitments in the State’s commitment 

letter. As we are proposing conditional 

approval, relief from sanctions should 

be provided as quickly as possible. 

Therefore, the EPA is invoking the 

good cause exception under the 

Administrative Procedure Act (APA) in 

not providing an opportunity for 

comment before this action takes effect 

(5 U.S.C. 553(b)(3)). However, by this 

action, the EPA is still providing the 

public with an opportunity to comment 

on the EPA’s determination after the 

effective date, and the EPA will 

consider any comments received in 

determining whether to reverse such 

action. 

The EPA believes that notice-andcomment rulemaking before the 

effective date of this action is 

impracticable and contrary to the public 


ddrumheller on DSK120RN23PROD with RULES1
85066 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 

interest. The EPA has reviewed the 2024 

SJV Ozone Contingency Measure Plan 

and, through its proposed action, is 

indicating that it is more likely than not 

that the Plan corrects the deficiencies 

that were the basis for the partial 

disapproval that started the sanctions 

clocks. Therefore, it is not in the public 

interest to apply sanctions. The EPA 

believes that it is necessary to use the 

interim final rulemaking process to stay 

the application of the offset sanction 

and defer the application of the highway 

sanction while the EPA completes our 

rulemaking process to take final action 

on the 2024 SJV Ozone Contingency 

Measure Plan. Moreover, with respect to 

the effective date of this action, the EPA 

is invoking the good cause exception to 

the 30-day notice requirement of the 

APA because the purpose of this 

document is to relieve a restriction (5 

U.S.C. 553(d)(1)). 

III. Statutory and Executive Order 

Reviews 

This action stays or defers application 

of sanctions and imposes no additional 

requirements. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. This action stays or defers 

application of sanctions and imposes no 

new requirements. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This action stays or defers 

application of sanctions and imposes no 

new requirements. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This action stays or defers 

application of sanctions and imposes no 

new requirements. In addition, this 

action does not apply on any Indian 

reservation land or in any other area 

where the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations (people of color) and lowincome populations. The EPA believes 

that this type of action does not concern 

human health or environmental 

conditions and therefore cannot be 

evaluated with respect to potentially 

disproportionate and adverse effects on 

people of color, low-income 

populations, and/or Indigenous peoples. 

This action stays or defers application of 

sanctions in accordance with CAA 

regulatory provisions and imposes no 

additional requirements. 

K. Congressional Review Act (CRA) 

This action is subject to the 

Congressional Review Act (CRA), and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. The CRA allows the issuing 

agency to make a rule effective sooner 

than otherwise provided by the CRA if 

the agency makes a good cause finding 

that notice and comment rulemaking 

procedures are impracticable, 

unnecessary, or contrary to the public 

interest (5 U.S.C. 808(2)). The EPA has 

made a good cause finding for this 

action as discussed in section II of this 

preamble, including the basis for that 

finding. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 24, 2024. Filing a 

petition for reconsideration by the EPA 

Administrator of this action does not 

affect the finality of this action for the 

purpose of judicial review nor does it 

extend the time within which petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see CAA 

section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: October 16, 2024. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2024–24707 Filed 10–24–24; 8:45 am] 

BILLING CODE 6560–50–P 


ddrumheller on DSK120RN23PROD with RULES1