[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]
BILLING CODE 6560-50-P
