[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]
BILLING CODE 6560-50-P
