[Federal Register Volume 64, Number 52 (Thursday, March 18, 1999)]
[Proposed Rules]
[Pages 13383-13384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6511]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-010-0001, FRL-6309-8]


Classification of the San Francisco Bay Area Ozone Nonattainment 
Area for Congestion Mitigation and Air Quality (CMAQ) Improvement 
Program Purposes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On July 10, 1998 (63 FR 37258), EPA redesignated the San 
Francisco Bay Area from maintenance to nonattainment for the federal 
one-hour ozone standard. The redesignation was based on subpart 1 of 
the Clean Air Act (CAA), which does not require EPA to assign a 
nonattainment classification. Inadvertently, EPA's action under the CAA 
affected how the Bay Area would be treated under a separate, 
transportation-related statute, the Transportation Equity Act for the 
21st Century (TEA 21). Specifically, the Congestion Mitigation and Air 
Quality Improvement Program (CMAQ) in TEA 21 appropriates funding 
according to an area's CAA nonattainment classification. The purpose of 
this proposed rule is to assign the Bay Area a nonattainment 
classification for the federal one-hour ozone standard for CMAQ 
purposes only so that the Bay Area can receive CMAQ funding 
commensurate with the severity of its air pollution problem.

DATES: Comments on this proposed action must be received in writing by 
April 19, 1999.

ADDRESSES: Comments should be addressed to the contact listed below: 
Planning Office (AIR-2), Air Division, U.S. Environmental Protection 
Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.
    A copy of this proposed rule is available in the air programs 
section of EPA Region 9's website, http://www.epa.gov/region09/air. The 
docket for this rulemaking is available for inspection during normal 
business hours at EPA Region 9, Planning Office, Air Division, 17th 
Floor, 75 Hawthorne Street, San Francisco, California 94105. A 
reasonable fee may be charged for copying parts of the docket. Please 
call (415) 744-1249 for assistance.

FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (415) 744-1249, 
Planning Office (AIR-2), Air Division, EPA Region 9, 75 Hawthorne 
Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background

    The San Francisco Bay Area is the only area in the country that was 
initially designated nonattainment for the federal one-hour ozone 
standard, redesignated to attainment, and then redesignated back to 
nonattainment (40 CFR 81.305, March 3, 1978; 60 FR 27028, May 22, 1995; 
63 FR 3725, July 10, 1998). In redesignating the Bay Area back to 
nonattainment, EPA looked at the longstanding general nonattainment 
provisions of subpart 1 of the CAA as well as the subpart 2 provisions 
that were added as part of the 1990 Amendments. EPA concluded, based on 
a number of legal and policy reasons described at length in the 
proposed and final redesignation actions, that the Act is best 
interpreted as placing the Bay Area under subpart 1.1 
Because the Bay Area was redesignated under subpart 1, EPA did not 
assign it a subpart 2 classification. As a result, the Bay Area became 
the only ozone nonattainment area in the country without a 
classification for the federal one-hour ozone standard.
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    \1\ For a complete analysis of why EPA was redesignated under 
subpart 1 and not subpart 2, please refer to the proposed and final 
rulemakings on the redesignation (62 FR 66578, December 19, 1997; 63 
FR 3725, July 10, 1998)
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    At approximately the same time as the redesignation action, the 
subpart 2 classifications were incorporated into the apportionment 
formula for CMAQ funding under TEA 21 (section 104(b)(2) of Title 23, 
United States Code). Areas with nonattainment classifications received 
a weighting factor based on the severity of air pollution, while areas 
without a classification did not. The Federal Highway Administration 
(FHWA) initially stated that ``Since San Francisco will no longer have 
an ozone classification, under the law, this population can no longer 
be the basis for the apportionment formula.'' 2 However, 
after additional review, FHWA determined that ``Because the EPA 
classified the Bay Area as nonattainment for ozone but chose not to 
assign a severity classification, we have decided to give the Bay Area 
a weighting factor equivalent to a submarginal ozone nonattainment 
classification.'' 3
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    \2\ Memo from Jim Shrouds, FHWA, to Nancy Sutley, EPA, dated 
June 25, 1998.
    \3\ Letter from Kenneth R. Wykle, Administrator, FHWA, to the 
Honorable George Miller, House of Representatives, dated August 7, 
1998.
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    Despite FHWA's willingness to treat the Bay Area as submarginal for 
CMAQ purposes, state, local, and federal authorities in the area 
remained concerned that CMAQ funding would be inadequate in relation to 
the Bay Area's air quality situation. According to the CMAQ 
apportionment formula, submarginal areas, those where ozone 
concentration levels are under .121 parts per million measured over 
three years, receive an apportionment formula weighting factor of 0.8. 
Weighting factors are higher for areas with more severe air pollution 
problems. Since ozone levels in the Bay Area registered .138 parts per 
million for the three-year period 1995-97, the more appropriate 
weighting factor for the Bay Area is the one used for moderate 
nonattainment areas, a weighting factor of 1.1.

II. EPA Action

    EPA is today proposing to classify the Bay Area pursuant to section 
172(a) as moderate for CMAQ purposes only, and the classification is 
intended only in relation to the area's treatment under CMAQ. This 
classification is authorized by section 172(a)(1)(A) of subpart 1 of 
the Act, which states that ``the Administrator may classify the area 
for

[[Page 13384]]

the purpose of applying an attainment date pursuant to paragraph (2), 
and for other purposes.'' EPA is assigning a classification of moderate 
because it reflects the severity of the Bay Area's nonattainment 
problem. Specifically, the Bay Area has a design value 4 of 
.138 parts per billion for the three-year period 1994-1997. This design 
value is equivalent to the design value for moderate areas classified 
according to the severity table in subpart 2, section 181(a)(1).
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    \4\ The design value is derived from peak ozone concentrations 
and is a measure of the severity of an area's air quality problem. 
It is calculated according to an EPA Memorandum from William G. 
Laxton, Director, Technical Support Division, Office of Air Quality 
Planning and Standards, to the Regional Air Directors, ``Ozone and 
Carbon Monoxide Design Value Calculations,'' June 18, 1990.
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    The EPA believes that this classification is appropriate because it 
will allow the Bay Area to receive CMAQ funding commensurate with its 
air quality problem. As the only ozone nonattainment area in the 
country redesignated under subpart 1 for the one-hour standard, it is 
the only such area to have no classification. At the same time, the Bay 
Area's air quality, as reflected by its design value, is similar to 
that of the other ozone nonattainment areas that are classified as 
moderate. Today's proposed action would allow the Bay Area, with its 
unique status among ozone nonattainment areas, to be treated for CMAQ 
purposes the same as other nonattainment areas with similar air quality 
problems.

III. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The proposed rule is not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
E.O. 12866.

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, representatives of Indian tribal governments 
``to provide meaningful and timely input in the development of 
regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This classification action under subpart 1, section 172(a)(1)(A) of 
the Clean Air Act does not create any new requirements. Therefore, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected.

E. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the action proposed does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action imposes no new Federal 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic 
compounds.

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

    Dated: March 5, 1999.
David Howekamp,
Acting Regional Administrator, Region X.
[FR Doc. 99-6511 Filed 3-17-99; 8:45 am]
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