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

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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