[Federal Register Volume 72, Number 197 (Friday, October 12, 2007)]
[Rules and Regulations]
[Pages 58013-58016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20059]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0657; FRL-8479-4]


Approval and Promulgation of Implementation Plans; Revisions to 
the California State Implementation Plan; San Francisco Bay Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action under the Clean Air Act to 
approve a revision to the San Francisco Bay Area portion of the 
California State Implementation Plan (SIP). This revision consists of 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. The intended effect 
is to update the transportation conformity criteria and procedures in 
the applicable SIP.

DATES: This rule is effective on December 11, 2007 without further 
notice, unless EPA receives adverse comments by November 13, 2007. If 
we receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this direct final rule will 
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0657, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Ginger Vagenas (Air-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, and 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send e-mail directly to 
EPA, your e-mail address will be automatically captured and included as 
part of the public comment. 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.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, (415) 
972-3964, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA. This supplementary information section is 
arranged as follows:

I. Transportation Conformity
II. Background for This Action
    A. Federal Requirements
    B. San Francisco Bay Area Conformity SIP
III. State Submittal and EPA Evaluation
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews

I. Transportation Conformity

    Transportation conformity is required under section 176(c) of the 
Clean Air Act (CAA or Act) to ensure that federally supported highway, 
transit projects, and other activities are consistent with (``conform 
to'') the purpose of the SIP. Conformity currently applies to areas 
that are designated nonattainment, and to areas that have been 
redesignated to attainment after 1990 (maintenance areas) with plans 
developed under section 175A of the Act, for the following 
transportation related criteria pollutants: Ozone, particulate matter 
(PM2.5 and PM10), carbon monoxide (CO), and 
nitrogen dioxide (NO2).
    Conformity to the purpose of the SIP means that transportation 
activities will

[[Page 58014]]

not cause new air quality violations, worsen existing violations, or 
delay timely attainment of the relevant national ambient air quality 
standards (NAAQS). The transportation conformity regulation is found in 
40 CFR part 93 and provisions related to conformity SIPs are found in 
40 CFR 51.390.

II. Background for This Action

A. Federal Requirements

    EPA promulgated the Federal transportation conformity criteria and 
procedures (the conformity rule) on November 24, 1993. See 58 FR 62188. 
Among other things, the rule required states to address all provisions 
of the conformity rule in their SIPs (``conformity SIPs''). Under 40 
CFR 51.390, most sections of the conformity rule were required to be 
copied verbatim. States were also required to tailor all or portions of 
the following three sections of the conformity rule to meet their 
state's individual circumstances: 40 CFR 93.105, which addresses 
consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses 
written commitments to control measures that are not included in a 
metropolitan planning organization's (MPO's) transportation plan and 
transportation improvement program that must be obtained prior to a 
conformity determination, and the requirement that such commitments, 
when they exist, must be fulfilled; and 40 CFR 93.125(c), which 
addresses written commitments to mitigation measures that must be 
obtained prior to a project-level conformity determination, and the 
requirement that project sponsors must comply with such commitments, 
when they exist.
    On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised section 176(c) of the Clean Air Act's 
transportation conformity provisions. One of the changes streamlines 
the requirements for conformity SIPs. Under SAFETEA-LU, states are 
required to address and tailor only three sections of the conformity 
rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), 
and, 40 CFR 93.125(c), described above. In general, states are no 
longer required to submit conformity SIP revisions that address the 
other sections of the conformity rule. These changes took effect on 
August 10, 2005, when SAFETEA-LU was signed into law.

B. San Francisco Bay Area Conformity SIP

    For transportation planning purposes, the San Francisco Bay Area is 
defined as the nine California counties of Alameda, Contra Costa, 
Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma. 
All but the eastern half of Solano County and the northern half of 
Sonoma County lie within the San Francisco Bay Area 8-hour ozone 
nonattainment area. The eastern half of Solano County is also 
designated nonattainment for the ozone NAAQS but is included in the 
Sacramento Metropolitan air quality planning area.\1\ The northern half 
of Sonoma County is designated unclassifiable/attainment for ozone. A 
portion of the San Francisco Bay Area referred to as ``urbanized 
areas'' was redesignated from nonattainment to attainment for the CO 
NAAQS in 1998 and is subject to a maintenance plan. Areas within the 
San Francisco Bay Area but outside ``urbanized areas'' are designated 
as unclassifiable/attainment for the CO NAAQS. The San Francisco Bay 
Area is considered unclassifiable/attainment for the other NAAQS. See 
40 CFR 81.305 for California air quality planning areas and 
designations.
---------------------------------------------------------------------------

    \1\ The Sacramento Area Council of Governments (SACOG) is the 
MPO for the Sacramento area. The Metropolitan Transportation 
Commission (MTC) and SACOG, in consultation with the California 
Department of Transportation (Caltrans), the California Air 
Resources Board, and the Governor's office, have developed and 
signed a Memorandum of Understanding (MOU) for undertaking 
conformity analysis in eastern Solano County. This MOU, approved and 
adopted by MTC in Resolution No. 2611 on September 22, 1993, was 
included as Appendix A to the San Francisco Bay Area interagency 
consultation procedures that we approved into the California SIP on 
October 21, 1997 (62 FR 54587).
---------------------------------------------------------------------------

    On December 16, 1996, the Governor's designee for SIP submittals, 
the California Air Resources Board (ARB), submitted ``The San Francisco 
Bay Area Transportation Air Quality Conformity Protocol--Conformity 
Procedures'' (``conformity procedures'') and ``The San Francisco Bay 
Area Transportation Air Quality Conformity Protocol--Interagency 
Consultation Procedures'' (``consultation procedures''), together 
referred to as the ``San Francisco Bay Area conformity SIP'' to EPA. 
EPA approved the San Francisco Bay Area conformity SIP on October 21, 
1997. See 62 FR 54587. ARB submitted a revision to the San Francisco 
Bay Area conformity SIP on August 6, 1998. EPA did not act on that 
submittal.
    Subsequent to SAFETEA-LU being enacted, the co-lead agencies for 
air quality planning in the San Francisco Bay Area--Bay Area Air 
Quality Management District (BAAQMD), Metropolitan Transportation 
Commission (MTC), and Association of Bay Area Governments (ABAG)--
revised the San Francisco Bay Area conformity SIP to reflect the 
SAFETEA-LU changes and to clarify interagency consultation procedures. 
Resolutions approving the revised transportation conformity criteria 
and procedures, referred to as the transportation conformity protocol, 
were adopted by the BAAQMD Board of Directors on July 19, 2006, by the 
ABAG Executive Board on July 20, 2006, and by the MTC Commission on 
July 26, 2006. MTC subsequently forwarded the transportation conformity 
protocol to ARB, and ARB adopted and submitted the protocol to EPA as a 
revision to the California SIP on December 20, 2006. The December 20, 
2006 SIP revision submittal supersedes the August 6, 1998 submittal.

III. State Submittal and EPA Evaluation

    The SIP revision submitted to EPA on December 20, 2006, consists of 
the San Francisco Bay Area Transportation Air Quality Conformity 
Protocol--Conformity Procedures and Interagency Consultation 
Procedures. The submittal documents public notice and hearing for this 
SIP revision in compliance with CAA section 110(l) and 40 CFR 51.102. 
The submittal also contains a request that we delete the analogous SIP-
approved conformity procedures, which are no longer required under 
SAFETEA-LU, and replace them with the submitted language that addresses 
40 CFR 93.122(a)(4)(ii) and 93.125(c). When the SIP-approved conformity 
procedures are rescinded, the Federal transportation conformity 
regulations will apply, except for those sections addressed by the 
current submittal. EPA approval of these changes is consistent with 
Federal law and regulations, and will obviate the need for SIP 
revisions that would have otherwise been triggered by changes to the 
underlying Federal regulations.
    The submittal also includes provisions that would replace the SIP-
approved interagency consultation procedures with revised 
procedures.\2\ The changes to the interagency consultation procedures 
include the

[[Page 58015]]

addition of more detail regarding the consultation structure and 
procedures for regional transportation plan and transportation 
improvement program updates and amendments, clarification of agency 
roles and responsibilities for the conformity and SIP consultation 
processes, and additional detail regarding consultation on conformity 
analyses.
---------------------------------------------------------------------------

    \2\ CARB's December 20, 2006 SIP revision submittal does not 
include the MOU concerning conformity analyses in eastern Solano 
County and thus does not entirely supersede the previously-approved 
interagency consultation procedures. With today's action, the 
previously-approved MOU will continue to be a part of the applicable 
California SIP. It is our understanding that a revision to the MOU 
will be submitted as a SIP revision. If approved, it will supersede 
the previously approved MOU.
---------------------------------------------------------------------------

    We have reviewed the submittal to assure consistency with the Clean 
Air Act as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 
and 40 CFR 51.390) governing state procedures for transportation 
conformity and interagency consultation and have concluded that the 
submittal is approvable. Details of our review are set forth in a 
technical support document (TSD), which has been included in the docket 
for this action. Specifically, in our TSD, we identify how the 
submitted procedures satisfy our requirements under 40 CFR 93.105 for 
interagency consultation with respect to the development of 
transportation plans and programs, SIPs, and conformity determinations, 
the resolution of conflicts, and the provision of adequate public 
consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 
93.125(c) for enforceability of control measures and mitigation 
measures.

IV. Public Comment and Final Action

    Under section 110(k) of the Act, and for the reasons set forth 
above, EPA is taking action to approve the San Francisco Bay Area 
Transportation Air Quality Conformity Protocol--Conformity Procedures 
and Interagency Consultation Procedures, as a revision to the 
California SIP. As a result of this action, the Bay Area's previously 
SIP-approved conformity protocol will be replaced by the procedures 
adopted by BAAQMD on July 19, 2006, by ABAG on July 20, 2006, and by 
MTC on July 26, 2006, and submitted by ARB to EPA on December 20, 2006.
    We do not think anyone will object to this approval, so we are 
finalizing it without proposing it in advance. However, in the Proposed 
Rules section of this Federal Register, we are simultaneously proposing 
approval of the same submittal. If we receive adverse comments by 
November 13, 2007, we will publish a timely withdrawal in the Federal 
Register to notify the public that the direct final approval will not 
take effect and we will address the comments in a subsequent final 
action based on the proposal. If we do not receive timely adverse 
comments, the direct final approval will be effective without further 
notice on December 11, 2007. This will incorporate these transportation 
conformity procedures into the federally enforceable SIP and thereby 
replace the previous version of the procedures approved on October 21, 
1997 (62 FR 54587) in the San Francisco Bay Area portion of the 
California SIP except for the MOU covering eastern Solano County.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves state law 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission; to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 December 11, 2007. 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

[[Page 58016]]

challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: September 20, 2007.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(349) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (349) San Francisco Bay Area Transportation Air Quality Conformity 
Protocol--Conformity Procedures and Interagency Consultation Procedures 
was submitted on December 20, 2006, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Association of Bay Area Governments (ABAG), Bay Area Air 
Quality Management District (BAAQMD), and Metropolitan Transportation 
Commission (MTC).
    (1) The San Francisco Bay Area Transportation Air Quality 
Conformity Protocol--Conformity Procedures (July 26, 2006) and San 
Francisco Bay Area Transportation Air Quality Conformity Protocol--
Interagency Consultation Procedures (July 26, 2006), adopted by BAAQMD 
on July 19, 2006, by ABAG on July 20, 2006, and by MTC on July 26, 
2006.
* * * * *
 [FR Doc. E7-20059 Filed 10-11-07; 8:45 am]
BILLING CODE 6560-50-P