[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Rules and Regulations]
[Pages 39416-39418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18721]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-010-0002, FRL-6401-6]


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: Final rule.

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SUMMARY: On July 10, 1998 (63 FR 37258), EPA redesignated the San 
Francisco Bay Area from maintenance to nonattainment, without a 
classification, for the federal one-hour ozone standard. By not 
assigning a classification, EPA inadvertently affected the Bay Area's 
funding appropriation under the Transportation Equity Act for the 21st 
Century (TEA 21), Congestion Mitigation and Air Quality Improvement 
Program (CMAQ). On March 18, 1999, EPA proposed to assign the Bay Area 
a nonattainment classification for the federal one-hour ozone standard 
for CMAQ purposes only so that the Bay Area would be able to receive 
CMAQ funding commensurate with the severity of its air pollution 
problem (65 FR 13383). After providing a 30-day extension to the public 
comment period (64 FR 24123, May 5, 1999), EPA is today finalizing the 
classification.

EFFECTIVE DATE: This action is effective on August 23, 1999.

ADDRESSES: A copy of this document 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.


[[Page 39417]]


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). The final redesignation to nonattainment 
was made without assigning the Bay Area a nonattainment classification. 
By not assigning a classification, EPA inadvertently affected the Bay 
Area's funding appropriation under TEA 21's CMAQ program. According to 
the apportionment formula for CMAQ funding (section 104(b)(2) of Title 
23, United States Code), areas with nonattainment classifications 
receive a weighting factor based on the severity of air pollution, 
while areas without a classification do not. The result was that, while 
the Bay Area has a design value equivalent to a moderate nonattainment 
area, it was not receiving the level of CMAQ funding appropriate to 
address its air quality problem. On March 18, 1999 (65 FR 13383), EPA 
proposed to remedy this situation by assigning the Bay Area a 
classification of ``moderate'' for CMAQ purposes only.

II. Summary of Public Comments and EPA Response

    EPA received numerous letters supporting the classification and one 
adverse comment. The Santa Barbara County Association of Governments 
expressed concern that EPA's action would set a precedent enabling 
nonattainment areas to benefit financially from a nonattainment 
classification without having to comply with the planning requirements 
associated with that classification.
    Today's action will not set such a precedent, as the Bay Area is in 
a unique situation. The Bay Area is the only area in the country to 
attain the ozone standard, be redesignated to attainment, fall out of 
attainment, and be redesignated back to nonattainment. The Bay Area is 
also the only area in the country to be redesignated nonattainment 
without a classification. Finally, the Bay Area is the only 
nonattainment area in the country that is receiving CMAQ funding at a 
level below what was intended for areas with similar air quality 
problems.
    Further, while EPA acknowledges that the plan submittal elements 
associated with the Bay Area redesignation have been streamlined, EPA 
is not enabling the Bay Area to evade planning requirements. The Bay 
Area is required to adopt and implement control measures sufficient to 
attain the federal one-hour ozone standard; the Bay Area must adopt and 
implement contingency measures if the standard is not attained; and the 
Bay Area is required to use the moderate area offset thresholds for new 
source review. Furthermore, having been classified moderate 
nonattainment previously, the Bay Area is already complying with 
Inspection and Maintenance requirements for moderate areas.

III. Final EPA Action

    EPA is today classifying the Bay Area pursuant to section 172(a) as 
moderate for the federal one-hour ozone standard 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 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.

IV. 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 final 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 
are ``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

[[Page 39418]]

(``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 this final action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. 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.

F. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

G. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 20, 1999. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

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: July 15, 1999.
 Felicia Marcus,
Regional Administrator, Region IX.

    Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In Sec. 81.305, the table for California--Ozone, is amended by 
revising the entry for the San Francisco Bay Area to read as follows:


Sec. 81.305  California.

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                                                                    California--Ozone
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                                                         Designation                                                Classification
        Designated area         ------------------------------------------------------------------------------------------------------------------------
                                             Date1                          Type                          Date1                         Type
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San Francisco--Bay Area........  August 10, 1998..............  Nonattainment...............  August 10, 1998/............  Not classified/Moderate
                                                                                              August 23, 1999.............   under 23 U.S.C. Sec.
                                                                                                                             104(b)(2).
    Alameda County.............  ......do.....................  ......do....................  ......do....................    Do.
    Contra Costa County........  ......do.....................  ......do....................  ......do....................    Do.
    Marin County...............  ......do.....................  ......do....................  ......do....................    Do.
    Napa County................  ......do.....................  ......do....................  ......do....................    Do.
    San Francisco County.......  ......do.....................  ......do....................  ......do....................    Do.
    Santa Clara County.........  ......do.....................  ......do....................  ......do....................    Do.
    San Mateo County...........  ......do.....................  ......do....................  ......do....................    Do.
    Solano County (part).......  ......do.....................  ......do....................  ......do....................    Do.
    Sonoma County (part).......  ......do.....................  ......do....................  ......do....................    Do.
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1This date is November 15, 1990, unless otherwise noted.

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[FR Doc. 99-18721 Filed 7-21-99; 8:45 am]
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