66578 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules

the IM240 test. Consequently, the AVR

SIP is not applicable to current

programs as submitted.

This revision is not required by the

Act. Therefore, this proposed

disapproval action does not impose

sanctions for failure to meet Act

requirements.

The EPA is soliciting public comment

on the proposed action discussed in this

document or on other relevant matters.

These comments will be considered

before taking final action. Interested

parties may participate in the Federal

rule making procedure by submitting

written comments to the EPA Regional

office listed in the Addresses section of

this document.

Nothing in today’s action should be

construed as permitting, allowing, or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

The Regional Administrator’s

decision to approve or disapprove the

AVR SIP revision will be based on

whether it meets the requirements of

section 110(a)(2)(A)–(K) and part D of

the Act, as amended, and EPA

regulations in 40 CFR part 51.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

B. 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. See 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-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

The EPA’s proposed disapproval of

the State request under sections 110 and

301, and subchapter I, part D of the Act

does not affect any existing

requirements applicable to small

entities. Any preexisting Federal

requirements remain in place after this

proposed disapproval. Federal

disapproval of the State submittal does

not affect its State-enforceability.

Moreover, the EPA’s disapproval of the

submittal does not impose any new

Federal requirements. Therefore, the

EPA certifies that this proposed

disapproval action does not have a

significant impact on a substantial

number of small entities because it does

not remove existing requirements, nor

does it impose any new Federal

requirements.

C. Unfunded Mandates Act

Under section 202 of the Unfunded

Mandate Reform Act of 1995, 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 aggregate;

or to the 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.

The EPA has determined that the

proposed disapproval 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 does

not impose new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or

private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Ozone, Volatile

organic compounds.

Dated: December 10, 1997.

Lynda F. Carroll,

Acting Deputy Regional Administrator,

Region VI.

[FR Doc. 97–33222 Filed 12–18–97; 8:45 am]

BILLING CODE 6560–50–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[CA–004–BU; FRL–5937–5]

Designation of Areas for Air Quality

Planning Purposes; State of California;

Redesignation of the San Francisco

Bay Area to Nonattainment for Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: On May 22, 1995, EPA

redesignated the San Francisco Bay

Area (Bay Area) from moderate

nonattainment for the federal 1-hour

ozone standard to attainment (60 FR

27028). The redesignation became

effective on June 21, 1995. Two days

later, the Bay Area experienced its first

violation of the federal 1-hour ozone

standard as an attainment area. There

have been a total of 43 exceedances and

17 violations of the standard since

redesignation. The Clean Air Act (CAA

or Act) provides that EPA may at any

time notify the Governor that available

air quality information indicates that the

designation of an area within the State

should be revised. EPA must consider

the response from the Governor as well

as public comment on the proposed

redesignation before finalizing its

action.

On August 21, 1997, EPA sent a letter

to the Governor of California notifying

him of the Agency’s intent to

redesignate the Bay Area from

attainment to nonattainment of the

federal 1-hour ozone standard. In

today’s action, EPA is proposing to

redesignate the Bay Area as a

nonattainment area for ozone.

DATES: Comments on this proposed

action must be received in writing by

February 17, 1998. Comments should be

addressed to the contact listed below.

ADDRESSES: EPA’s technical support

document and other supporting

documentation for the proposal are

contained in the docket for this

rulemaking. A copy of this document

and the technical support document are

also available in the air programs

section of EPA Region IX’s website,

http://www.epa.gov/region09. The

docket is available for inspection during

normal business hours at EPA Region

IX, Planning Office, Air Division, 17th

Floor, 75 Hawthorne Street, San

Francisco, California 94105. (415) 744-

1288.

FOR FURTHER INFORMATION CONTACT:

Dave Jesson, Planning Office (AIR–2),

Air Division, EPA Region IX, 75

Hawthorne Street, San Francisco, CA

94105, (415) 744–1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. Original Designation

The Bay Area was originally

designated under section 107 of the

1977 CAA as nonattainment for ozone

on March 3, 1978 (40 CFR 81.305). The

Bay Area consists of the following

counties: Alameda, Contra Costa, Marin,

Napa, San Francisco, San Mateo, Santa

Clara, Solano (part), and Sonoma (part).

Following the 1990 amendments to the

Act, the area was classified by operation
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules 66579

1There were no monitored violations of the

federal ozone standard at the District’s official State

and Local Air Monitoring Station (SLAMS) network

monitors. There were, however, two violations at

special purpose monitors (SPMs) that were

established for research purposes. EPA was aware

of these violations at the time it redesignated the

area to attainment. However, EPA excluded these

data because the monitors were not part of the

official monitoring network and were not intended

to monitor ambient air quality for federal

compliance purposes. For policy reasons, EPA did

not want to discourage the Bay Area, or other areas,

from establishing monitors for research purposes.

EPA has since determined that all quality assured

data that meet the requirements of 40 CFR 58.14,

with the exception of fine particulate matter data

(PM–2.5), must be considered for any regulatory

purpose, including an ozone redesignation action.

(August 22, 1997 memorandum entitled, ‘‘Agency

Policy on the Use of Special Purpose Monitoring

Data,’’ from John Seitz, Director of the Office of Air

Quality Planning and Standards, to Air Division

Directors, EPA Regions I-X) While EPA has

determined that the SPMs data should have been

considered in the 1995 redesignation action, the

Agency is not basing today’s proposed action on

these data. Today’s action is based on the 17

violations recorded during 1995 and 1996.

2Air quality in the Bay Area is monitored by the

District’s State and Local Air Monitoring Station

(SLAMS) network, which comprises 24 monitoring

stations. All data must be quality assured.

3As required by section 175A of the Act, the Bay

Area maintenance plan contains contingency

measures that should be designed to correct any

violation of the standard occurring after

redesignation to attainment. The Bay Area

maintenance plan contains six equipment-specific

NOx controls and several improvements to the

federally mandated Basic Inspection and

Maintenance Program (I/M). While the District is

continuing to implement the contingency measures

in its maintenance plan, the remaining emission

reductions to be gained from these measures total

1.2 tons per day in NOx reductions and almost no

reductions of Volatile Organic Compounds (VOCs).

4A SIP call is a determination under section

110(k)(5) of the Clean Air Act that the SIP is

inadequate and must be revised.

5This letter is available to the public as part of

the docket for this rulemaking action. While EPA

indicated in this letter that the Bay Area would be

classified as ‘‘moderate,’’ the Agency has

determined that a moderate classification is not

necessary under subpart 1 of the Act. (See

discussion at II.A.) Furthermore, the planning

requirement to prepare a modeling plan for the 8-

hour ozone standard will no longer be required as

the District is already engaged in such an exercise

with the California Air Resources Board and

downwind air districts.

of law, under section 181(a), as a

‘‘moderate’’ nonattainment area. (56 FR

56694, November 6, 1991).

B. Redesignation to Attainment

On November 12, 1993, after three

years without any violations of the

federal ozone standard according to

quality assured ambient air quality data

from the official monitoring network 1 of

the Bay Area Air Quality Management

District (Bay Area, District, or

BAAQMD), the California Air Resources

Board (CARB) submitted to EPA for

approval a maintenance plan and a

request to redesignate the Bay Area

ozone nonattainment area to attainment.

On September 28, 1994, EPA proposed

to approve the State of California’s

submittal (59 FR 49361). On May 22,

1995, EPA published the final rule

redesignating the Bay Area to

attainment for ozone (60 FR 27028). The

redesignation to attainment became

effective on June 21, 1995.

C. Violations of the Ozone Standard

After Redesignation

Despite implementation of most of the

measures in the Bay Area’s maintenance

plan, the Bay Area’s monitoring

network 2 has recorded 46 exceedances

(43 since the redesignation to

attainment in June 1995) and 17

violations of the federal 1-hour ozone

standard over the 3-year period 1994–

1996.3

An exceedance of the 1-hour ozone

standard occurs when the hourly

average ozone concentration at a given

monitoring site is greater than or equal

to .125 ppm. A violation of the standard

occurs when the expected number of

days per calendar year with maximum

hourly average ozone concentrations

above 0.12 ppm is greater than one. 40

CFR part 50.9. The average number of

days is calculated for a 3-year period. 40

CFR part 50, appendix H. This 3-year

period was established to reduce the

impact of yearly fluctuations in ozone

levels. Table 1 lists both the

exceedances and the 3-year average

number of days over the 1-hour ozone

standard for each SLAMS monitoring

site in the Bay Area for the period 1994–

1996.

TABLE 1.—AVERAGE NUMBER OF

EXCEEDANCES FOR THE OZONE

SLAMS NETWORK 1994–1996

Monitoring site

Observed

values

greater

than

standard

Average

number of

exceedances

per year

Livermore ........... 17 5.7

Oakland .............. 0 0.0

San Leandro ...... 3 1.0

Fremont .............. 2 0.7

Hayward ............. 2 0.7

Concord ............. 4 1.3

Richmond ........... 0 0.0

Bethel Island ...... 2 0.7

Pittsburg ............. 0 0.0

San Rafael ......... 0 0.0

Napa .................. 1 0.3

San Francisco .... 0 0.0

Redwood City .... 1 0.3

Gilroy .................. 1 0.3

San Jose (4th

Street) ............. 1 0.3

Los Gatos .......... 5 1.7

Mountain View ... 0 0.0

San Jose (W.

San Carlos) .... 0 0.0

San Jose (Piedmont) .............. 3 1.0

San Martin ......... 2 0.7

Fairfield .............. 1 0.3

Vallejo ................ 1 0.3

Santa Rosa ........ 0 0.0

Sonoma .............. 0 0.0

Source: AIRS/AQS.

D. Petitions to the Administrator

EPA has received two petitions

requesting that the Administrator

redesignate the Bay Area to

nonattainment with the federal 1-hour

ozone standard. On March 31, 1997, the

Sierra Club and Communities for a

Better Environment requested that EPA

withdraw the 1995 redesignation action,

or alternatively redesignate the area to

nonattainment. The Sierra Club also

requested that EPA issue a section

110(k)(5) SIP call based on the

inadequacy of the current SIP.4 On July

14, 1997, U.S. Congressman Gary Condit

and a coalition of federal, state and local

elected officials and public interest and

industry groups from downwind areas

(primarily the San Joaquin Valley) also

requested that EPA withdraw the 1995

redesignation to attainment, or

alternatively redesignate the area to

nonattainment and issue a SIP call.

E. Applicable Statutory Provisions

Section 107(d)(3) of the Act gives the

Administrator the authority to

redesignate areas. Under this provision,

the Administrator may ‘‘(O)n the basis

of air quality data, planning and control

considerations, or any other air qualityrelated considerations the Administrator

deems appropriate, * * * at any time

notify the Governor of any State that

available information indicates that the

designation of any area * * * should be

revised.’’ Section 107(d)(3)(A). The

Governor then has 120 days to submit

the redesignation, as the Governor

considers appropriate. Section

107(d)(3)(B). The Administrator must

promulgate the redesignation within

120 days of the Governor’s response.

The Administrator may make any

modifications to the Governor’s

redesignation which she deems

necessary, but must notify the Governor

of such changes 60 days before

promulgating a final redesignation. If

the Governor does not submit the

redesignation, the Administrator shall

promulgate the redesignation which she

deems appropriate. Section 107(d)(3)(C).

EPA notified the Governor of California

by letter dated August 21, 1997, that

EPA believes that, based on air quality

data, the Bay Area should be

redesignated to nonattainment.5 The
66580 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules

6The Bay Area requested and received a NOx

waiver pursuant to section 182(f) of the Act. 60 FR

27028, May 22, 1995. The waiver was based on 3

years of clean ambient air quality data showing that

ozone attainment was achieved without application

of the section 182(f) NOx control requirements.

Since the waivers only apply to nonattainment

areas, they remain in effect only during the period

before redesignation of the area to attainment under

section 107(d)(3). Thus, when the Bay Area’s

redesignation to attainment became effective on

June 21, 1995, precursor emissions, like NOx, were

addressed, as appropriate, under terms of the Bay

Area maintenance plan. It is clear, upon final

redesignation of the Bay Area to nonattainment

based on subsequent violations of the ozone

NAAQS, that the basis for granting the original NOx

waiver no longer exists.

Governor must respond to this letter by

December 19, 1997.

F. Proposed Action

In today’s document, EPA proposes to

redesignate the San Francisco Bay Area

to nonattainment for the 1-hour ozone

NAAQS because ozone levels have

violated the federal standard 17 times

over the three year period 1994–1996.

Today’s action further proposes to

require the Bay Area to develop and

submit a SIP revision designed to

demonstrate attainment of the 1-hour

ozone NAAQS by November 15, 1999.

Finally, today’s action proposes an

amendment to 40 CFR parts 52 and 81

to reflect the change in designation.

These actions are proposed in

accordance with sections 107(d), 110,

and 172 of the CAA.

II. Applicable Plan Requirements

A. Clean Air Act Provisions

The classifications and attainment

dates for areas classified nonattainment

under the 1990 amendments to the Act

are contained in section 181(a). The

provisions for new designations to

nonattainment are found in subsection

(b)(1). This subsection provides that

areas that were attainment or

unclassifiable at the time of the 1990

amendments and are subsequently

redesignated to nonattainment are to be

classified according to the table in

section 181(a)(1). This language

contains no reference to areas that were

designated nonattainment as a result of

the 1990 amendments.

For areas that were designated

attainment or unclassifiable following

the 1990 amendments, this section

further provides that such areas are

subject to the same requirements of

section 110 and subparts 1 and 2 of the

Act as areas designated nonattainment

pursuant to the 1990 amendments. In

addition, these areas are given an

extension of all fixed date deadlines

equal to the length of time between

November 15, 1990, and the date the

area is redesignated.

Although section 181(b)(1) deals with

designations to nonattainment occurring

after the initial round of classifications

under the 1990 amendments, it does not

address areas, such as the Bay Area, that

were designated nonattainment under

the amendments, redesignated to

attainment, and that subsequently fall

out of attainment and are redesignated

back to nonattainment. Because this

provision does not, on its face, apply to

areas like the Bay Area, EPA believes

that it has discretion to determine

whether such areas should fall under

subpart 2 of the Act when they are

redesignated to nonattainment, or

should only be subject to the more

general provisions of subpart 1.

EPA believes the latter is the

appropriate result for a number of

reasons. First, the plain language of

section 181(b)(1) of the statute applies

only to areas designated attainment

under section 107(d)(4) and excludes

areas like the Bay Area. Second, it is

logical to grant the generous extension

of deadlines to areas that have never

been nonattainment and must devise

their first nonattainment area SIPs.

Conversely, an area that was previously

designated as nonattainment has already

done much of this work and should not

need this lengthy time period to

complete its planning process.

Moreover, areas such as the Bay Area

generally will have already

implemented the section 181

requirements applicable to their

previous classification (moderate,

serious, severe or extreme). Assuming

that these requirements continue to be

implemented, placing the area back into

the section 181 scheme would do little

to bring the area back into attainment.

On the other hand, placing the area

under section 172 provides the

flexibility for the area to identify a new

mix of measures that, when combined

with those already implemented under

section 181, will bring the area back into

attainment. Finally, sections 172(a)(1)

and (2) contain express statements that

they do not apply to nonattainment

areas that are specifically covered by

other provisions of part D of the Act,

thereby demonstrating that the Act

contemplates that some areas will fall

under subpart 1, rather than subpart 2.

See sections 172(a)(1)(C) and (a)(2)(D).

For these reasons, EPA believes the best

interpretation of the Act is that it

intentionally excludes areas like the Bay

Area from section 181 and places them

under section 172.

B. Section 172 Requirements

General nonattainment plan

requirements are contained in section

172(c). Section 172(b) requires the Bay

Area plan to meet the ‘‘applicable’’

requirements of section 172(c). For

reasons set forth below, we believe that

some of the section 172(c) requirements

have already been satisfied and

therefore need not be part of the plan

revisions the Bay Area would be

required to submit under this proposed

action. A table containing the proposed

submittals and submittal dates is

located at the end of section II.D. below.

Section 172(c)(1) requires that the

plan provide for implementation of all

reasonably available control measures

(RACM) as expeditiously as practicable,

including emission reductions from

existing sources through adoption of

reasonably available control technology

(RACT). This provision is applicable to

the Bay Area only to the extent that it

has not already been complied with.

EPA believes that the Bay Area

implemented all VOC RACT and most,

if not all, oxides of nitrogen (NOX)

RACT measures prior to being

redesignated to attainment in 1995.6 60

FR 27028.

As required by section 172(c)(1), the

plan must provide for attainment.

Generally, new modeling is required in

order to demonstrate that a plan will

indeed provide for attainment. During

the stakeholder process that preceded

the Agency’s decision to propose

redesignation EPA heard two points

made fairly consistently by all those

involved. First, all parties agreed on the

importance of a new field study and

modeling effort in order to better

understand the ozone problem in the

Bay Area, as well as its effects on

downwind areas. Second, the parties

agreed that it would be impossible to

conduct a new field study and modeling

effort for a short term plan, particularly

in light of the fact that the Bay Area will

be required to undertake such an effort

for the new 8-hour standard if

designated nonattainment for the 8-hour

standard.

In response to public input, EPA is

proposing to require an assessment,

employing available modeling

information, of the level of emission

reductions needed to attain the 1-hour

ozone NAAQS. The assessment should

take into account the meteorological

conditions and ambient concentrations

associated with the ozone violations in

1995 and 1996, and should be based on

likely control measures for reducing

VOC and NOx emissions. This work may

include previous photochemical

modeling that was based on Bay Area’s

1989 field study, the 1990 modeling

analysis done for the San Joaquin

Valley, modeling conducted for Bay

Area’s SIP attainment demonstration
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules 66581

7EPA Guidance Document #EPA–450–4–91–014,

entitled ‘‘Preparation of Emissions for CO and

Ozone Precursors for Air Quality Modeling,’’

Volume II, May 1991. 8See 54 FR 11866 (March 19, 1982).

9 ‘‘Bay Area Emission Inventory Projections:

1980–2002,’’ provided by the Bay Area to EPA May

1997.

10 62 FR 38426, July 18, 1997.

that was based on the Empirical Kinetic

Modeling Approach [EKMA], and any

other work that will lend insight into

the nature of the ozone problem in the

Bay Area. It may be appropriate to form

a committee made up of representatives

with technical modeling expertise from

the BAAQMD, CARB, and EPA to

review the analysis. EPA recommends

that the committee also include

technical staff from downwind districts.

EPA is proposing that this assessment

be submitted on May 1, 1998.

Section 172(c)(2) contains the

requirement for reasonable further

progress (RFP). RFP is defined as ‘‘such

annual incremental reductions in

emissions * * * as are required by this

part or may reasonably be required by

the Administrator for the purpose of

ensuring attainment * * * by the

applicable date.’’ Section 171(1).

Because EPA is not proposing to require

submission of adopted measures until

September 1998, the Agency believes

that the RFP requirement would be

satisfied if all required emission

reductions occur by 1999, the proposed

attainment year.

Under section 172(c)(3) the Bay Area

must submit a comprehensive, accurate,

and current inventory of actual

emissions from all sources. To address

this requirement, EPA proposes that the

Bay Area must submit a current and

complete baseline annual average and

summer weekday and weekend day 7

emissions inventory for VOC, NOx, and

carbon monoxide (CO). This submittal

would be due on May 1, 1998.

Section 172(c)(4) requires the area to

identify and quantify emissions that

will be allowed from new major sources

or major modifications in urban

enterprise zones identified by the

Administrator in consultation with the

Secretary of Housing and Urban

Development under section 173(a)(1)(B)

of the Act. No such zones have been

identified in the Bay Area

nonattainment area. Thus, no

submission is required for this plan.

Were such zones to be identified, a

growth allowance would have to be

included in the SIP to ensure that

emission increases from new sources in

the urban enterprize zones would not

interfere with attainment.

Section 172(c)(5) requires submittal of

a new source review (NSR) program

consistent with section 173 of the Act.

While the Bay Area does have a SIPapproved NSR program, it is out of date

and does not meet current statutory

requirements.8 The Bay Area has

submitted a revised new source review

rule designed to meet the requirements

of the 1990 amendments to the Act. EPA

will act on this rule and the NSR

requirement in separate rulemaking.

Based on the Bay Area’s design value of

.138 ppm, EPA believes that the NSR

program should, by analogy, meet the

requirements applicable to a moderate

area. Thus, we are proposing that the

NSR permitting requirements,

applicability thresholds, and offset

ratios be set at the same levels that

apply to moderate ozone nonattainment

areas under sections 182(a)(2)(C) and

182(b)(5).

Section 172(c)(6) requires enforceable

emission limitations and other control

measures, means or techniques,

necessary to provide for attainment by

the applicable date. We are proposing

that the Bay Area submit by September

1, 1998, adopted regulations (and/or

enforceable commitments to adopt and

implement control measures in

regulatory form by specified dates)

sufficient to attain the 1-hour ozone

NAAQS by November 15, 1999. Section

172(c)(6) allows the Bay Area to identify

and adopt a mix of measures that best

meets the needs of the area.

Section 172(c)(7) requires that

nonattainment plans meet the general

SIP requirements of section 110(a)(2).

Section 172(c)(8) allows the District to

apply to the Administrator to use

equivalent modeling, emission

inventory, and planning procedures.

Under section 172(c)(9), a plan must

contain contingency measures that go

into effect if the area fails to make RFP

or fails to attain the standard. The Bay

Area plan will need to contain

contingency measures that go into effect

if the area is unable to attain the 1-hour

ozone NAAQS by the attainment date.

As discussed above, the short

attainment period for the Bay Area

means that failure to make RFP and

failure to attain are equivalent.

C. Applicable Attainment Date

Section 172(a)(2) governs attainment

dates for nonattainment areas that fall

under section 172. This section provides

that the attainment date for an area

designated nonattainment shall be as

expeditiously as practicable, but no later

than 5 years from the date the area is

designated nonattainment. Thus, the

Administrator may set the attainment

date at any point up to 5 years based on

an assessment of what is ‘‘as

expeditiously as practicable.’’

Because the Bay Area’s emissions

appear to be on a downward trend based

on currently available information,9 and

because the area was attaining the

standard as recently as 1994, EPA

believes that the Bay Area should be

able to identify and implement

measures that will bring it back into

attainment fairly quickly. Thus, EPA is

proposing to set the Bay Area’s

attainment deadline as November 15,

1999. This is the date by which the area

would have had to attain if it had been

bumped up to a ‘‘serious’’ classification

rather than being redesignated to

attainment. As discussed above, the Bay

Area recorded 43 exceedances and 17

violations of the standard from June 21,

1995 (the date on which the area was

redesignated to attainment) and

November 15, 1996, the attainment

deadline for moderate ozone

nonattainment areas. These violations

far exceed those recorded during the

same time frame by other moderate

ozone nonattainment areas which EPA

is proposing to bump up to serious for

failure to attain by November 15, 1996.

EPA proposes to make the

determination as to whether the area has

attained based on monitoring data from

the years 1997, 1998 and 1999. During

this time frame, EPA will be reviewing

1997–1999 monitoring data for the

entire country to determine whether

areas are violating the new NAAQS.

Areas that violate the 8-hour standard

but attain the 1-hour standard prior to

designation under the new standard will

be eligible for classification as a

‘‘transitional’’ area when designated

nonattainment for the new 8-hour

NAAQS.10 If the Bay Area attains the 1-

hour standard by 1999 and meets the

requirements for transitional areas, it

may take advantage of this status and

avoid certain enumerated requirements

under the new NAAQS.

In the event that the Bay Area does

not meet the 1999 attainment date, it

may, in the future, be eligible for up to

two 1-year extensions of this date if it

were to meet the requirements of section

172(a)(2)(C).

EPA is particularly interested in

receiving public comment on the

proposed November 15, 1999 attainment

deadline. The Agency has received

preliminary input from the District

indicating that it believes a later date

should be chosen. EPA solicits comment

from all interested parties on this issue.

D. Schedule for Plan Submissions

The schedule for plan submissions is

governed by section 172(b). This section
66582 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules

provides that the Administrator must

establish a schedule for each area to

submit a plan or plan revision that

meets the applicable requirements of

sections 172(c) and 110(a)(2). The

schedule must, at a minimum, require

submission of the attainment plan no

later than three years after designation

to nonattainment. EPA is proposing two

separate submittal dates for elements of

the Bay Area plan that are designed to

achieve the November 15, 1999

attainment date. These submittals will

be due on May 1, 1998 and September

1, 1998. The contents of these

submittals are discussed in section II.B.

above.

SCHEDULE OF SUBMITTAL OF REVISIONS TO THE STATE IMPLEMENTATION PLAN FOR OZONE FOR THE

SAN FRANCISCO BAY AREA

Action/SIP submittal Date

Current and complete baseline

annual average and summer

weekday and weekend day

emissions inventory for volatile

organic compounds (VOC), nitrogen oxides (NOX), and carbon monoxide .......................... 5–1–98

Assessment, employing available

modeling information, of the

level of emission reductions

needed to attain the current 1-

hour ozone National Ambient

Air Quality Standard (NAAQS).

This assessment should take

into account the meteorological conditions and ambient

concentrations associated with

the violations of the ozone

NAAQS in the period 1995–6,

and should be based on likely

control measures for reducing

VOC and NOX emissions ........ 5–1–98

Adopted regulations and/or control measures, with enforceable commitments to adopt

and implement the control

measures in regulatory form

by specified dates, sufficient to

meet reasonable further

progress and attain the 1-hour

NAAQS expeditiously .............. 9–1–98

III. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866, (58 FR 51735,

October 4, 1993), EPA is required to

determine whether today’s proposal is a

‘‘significant regulatory action’’ within

the meaning of the E.O., and therefore

should be subject to OMB review,

economic analysis, and the

requirements of the E.O. See E.O. 12866,

§ 6(a)(3). The E.O. defines, in § 3(f), a

‘‘significant regulatory action’’ as a

regulatory action that is likely to result

in a rule that may meet at least one of

four criteria identified in section 3(f),

including,

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

EPA has determined that the

redesignation to nonattainment

proposed today, as well as the

establishment of SIP submittal

schedules, would result in none of the

effects identified in E.O. 12866 § 3(f).

Under section 107(d)(3) of the Act,

redesignations to nonattainment are

based upon air quality considerations.

The finding, based on air quality data,

that the Bay Area is not attaining the

ozone NAAQS and should be

redesignated to nonattainment does not,

in and of itself, impose any new

requirements on any sectors of the

economy. Similarly, the establishment

of new SIP submittal schedules merely

establishes the dates by which SIPs

must be submitted, and does not

adversely affect entities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 601 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

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

A redesignation to nonattainment

under section 107(d)(3), and the

establishment of a SIP submittal

schedule for a reclassified area, do not,

in and of themselves, directly impose

any new requirements on small entities.

See Mid-Tex Electric Cooperative, Inc. v.

FERC, 773 F.2d 327 (D.C. Cir. 1985)

(agency’s certification need only

consider the rule’s impact on entities

subject to the requirements of the rule).

Instead, this rulemaking simply

proposes to make a factual

determination and to establish a

schedule to require the State to submit

SIP revisions, and does not propose to

directly regulate any entities. Because

EPA is proposing to apply the same

permitting applicability thresholds and

offset ratios applicable to moderate

areas, no additional sources will be

subject to these requirements as a result

of EPA’s action. Therefore, pursuant to

5 U.S.C. 605(b), EPA certifies that

today’s proposed action does not have a

significant impact on a substantial

number of small entities within the

meaning of those terms for RFA

purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, when EPA promulgates ‘‘any

general notice of proposed rulemaking

that is likely to result in promulgation

of any rule that includes any Federal

mandate that may result in the

expenditures by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more’’

in any one year. A ‘‘Federal mandate’’

is defined, under section 101 of UMRA,

as a provision that ‘‘would impose an

enforceable duty’’ upon the private

sector or State, local, or tribal

governments,’’ with certain exceptions

not here relevant. Under section 203 of

UMRA, EPA must develop a small

government agency plan before EPA

‘‘establish[es] any regulatory

requirements that might significantly or

uniquely affect small governments.’’

Under section 204 of UMRA, EPA is

required to develop a process to

facilitate input by elected officers of

State, local, and tribal governments for

EPA’s ‘‘regulatory proposals’’ that

contain significant Federal

intergovernmental mandates. Under

section 205 of UMRA, before EPA

promulgates ‘‘any rule for which a

written statement is required under

[UMRA sec.] 202’’, EPA must identify

and consider a reasonable number of

regulatory alternatives and either adopt

the least costly, most cost-effective or

least burdensome alternative that

achieves the objectives of the rule, or

explain why a different alternative was

selected.

EPA has concluded that this proposed

rule is not likely to result in the

promulgation of any Federal mandate
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Proposed Rules 66583

that may result in expenditures of $100

million or more for State, local or tribal

governments in the aggregate, or for the

private sector, in any one year. It is

questionable whether a redesignation

would constitute a federal mandate in

any case. The obligation for the state to

revise its State Implementation Plan that

arises out of a redesignation is not

legally enforceable and at most is a

condition for continued receipt of

federal highway funds. Therefore, it

does not appear that such an action

creates any enforceable duty within the

meaning of section 421(5)(a)(i) of UMRA

(2 U.S.C. 658(5)(a)(i)), and if it does the

duty would appear to fall within the

exception for a condition of Federal

assistance under section 421(5)(a)(i)(I) of

UMRA (2 U.S.C. 658(5)(a)(i)(I)).

Even if a redesignation were

considered a Federal mandate, the

anticipated costs resulting from the

mandate would not exceed $100 million

to either the private sector or state, local

and tribal governments. Redesignation

of an area to nonattainment does not, in

itself, impose any mandates or costs on

the private sector, and thus, there is no

private sector mandate within the

meaning of section 421(7) of UMRA (2

U.S.C. 658(7)). The only cost resulting

from the redesignation itself is the cost

to the State of California of developing,

adopting and submitting any necessary

SIP revision. Because that cost will not

exceed $100 million, this proposal (if it

is a federal mandate at all) is not subject

to the requirements of sections 202 and

205 of UMRA (2 U.S.C. 1532 and 1535).

EPA has also determined that this

proposal would not result in regulatory

requirements that might significantly or

uniquely affect small governments

because only the State would take any

action as result of today’s rule, and thus

the requirements of section 203 (2

U.S.C. 1533) do not apply.

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: December 11, 1997.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 97–33225 Filed 12–18–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE36

Endangered and Threatened Wildlife

and Plants; Notice of Public Hearing

and Reopening of Comment Period on

Proposed Endangered Status for Three

Aquatic Snails, and Proposed

Threatened Status for Three Aquatic

Snails in the Mobile River Basin of

Alabama

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; notice of public

hearing and reopening of comment

period.

SUMMARY: The Fish and Wildlife Service

(Service), pursuant to the Endangered

Species Act of 1973, as amended (Act),

provides notice of a public hearing on

the proposed endangered status for the

cylindrical lioplax (Lioplax

cyclostomaformis), flat pebblesnail

(Lepyrium showalteri), and plicate

rocksnail (Leptoxis plicata); and the

proposed threatened status for the

painted rocksnail (Leptoxis taeniata),

round rocksnail (Leptoxis ampla), and

lacy elimia (Elimia crenatella). The

Service also announces the reopening of

the comment period for these actions.

The public hearing and the reopening of

the comment period will allow

additional comments on this proposal to

be submitted from all interested parties.

DATES: The public hearing will be held

from 7 to 10 p.m. on Tuesday, January

13, 1998, in Birmingham, Alabama. The

comment period now closes on January

23, 1998. Any comments received by the

closing date will be considered in the

final decision on this proposal.

ADDRESSES: The public hearing will be

held at the Dwight Beeson Hall

Auditorium on the campus of Samford

University, 800 Lakeshore Drive,

Birmingham, Alabama 35229. Written

comments and materials concerning the

proposal may be submitted at the

hearing or sent directly to the Field

Supervisor, U.S. Fish and Wildlife

Service, 6578 Dogwood View Parkway,

Jackson, Mississippi 39213. Comments

and materials received will be available

for public inspection, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT: Paul

Hartfield (see ADDRESSES section), 601/

965–4900, extension 25.

SUPPLEMENTARY INFORMATION:

Background

The six aquatic snail species are

endemic to portions of the Mobile River

Basin, Alabama. The cylindrical lioplax,

flat pebblesnail, and round rocksnail are

found in the Cahaba River drainage; the

lacy elimia and painted rocksnail are in

the Coosa River drainage; and the

plicate rocksnail is in the Black Warrior

River drainage. All six species have

disappeared from 90 percent or more of

their historic range. Known populations

are restricted to small portions of stream

drainages. The past decline of the snails

is attributed to impoundment, habitat

fragmentation, and water quality

degradation. Current threats include the

gradual and cumulative effects of

sedimentation and nutrification

originating from nonpoint sources on

the snails’ localized and isolated stream

refugia.

On October 17, 1997, the Service

published a rule proposing endangered

status for the cylindrical lioplax, flat

pebblesnail, and plicate rocksnail; and

threatened status for the painted

rocksnail, round rocksnail, and lacy

elimia in the Federal Register (62 FR

54020–54028. Section 4(b)(5)(E) of the

Act (16 U.S.C. 1531 et seq.) requires that

a public hearing be held if it is

requested within 45 days of the

publication of the proposed rule. A

public hearing request by Gorham &

Waldrep, P.C., was received within the

allotted time period. The Service has

scheduled a public hearing in

Birmingham, Alabama on Tuesday,

January 13, 1998, at Samford

University’s Dwight Beeson Hall

Auditorium from 7:00 to 10:00 p.m.

Oral and written comments will be

accepted and treated equally. Parties

wishing to make statements for the

record should bring a copy of their

statements to the hearing. Oral

statements may be limited in length, if

the number of parties present at the

hearing necessitates such a limitation.

There are no limits to the length of

written comments or materials

submitted at the hearing or mailed to

the Service. Legal notices announcing

the date, time, and location of the

hearing are being published in

newspapers concurrently with this

Federal Register notice. The comment

period on the proposal was initially

closed on December 16, 1997. To

accommodate the hearing, the public

comment period is reopened upon

publication of this notice. Written

comments may now be submitted until

January 23, 1998, to the Service office in

the ADDRESSES section.