21456 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations

rules for ozone in accordance with EPA

guidance that interpreted the

requirements of the pre-amendment Act.

A detailed discussion of the background

for the above rule and nonattainment

area is provided in the NPRM cited

above.

EPA has evaluated the above rule for

consistency with the requirements of

the CAA, EPA regulations, and EPA

interpretation of these requirements as

expressed in the various EPA policy

guidance documents referenced in the

NPRM cited above. EPA has found that

the rule meets the applicable EPA

requirements. A detailed discussion of

the rule provisions and evaluations has

been provided in 59 FR 63724 and in a

technical support document (TSD)

available at EPA’s Region IX office

(dated December 2, 1994).

Response to Public Comments

A 30-day public comment period was

provided in 59 FR 3274. EPA received

no adverse comments.

EPA Action

EPA is finalizing action to approve

SDCAPCD Rule 67.3 for inclusion into

the California SIP. EPA is approving the

submittal under section 110(k)(3) as

meeting the requirements of section

110(a) and Part D of the CAA. This

approval action will incorporate these

rules into the federally approved SIP.

The intended effect of approving these

rules is to regulate emissions of VOCs in

accordance with the requirements of the

CAA.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Regulatory Process

The OMB has exempted this action

from review under Executive Order

12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

Note: Incorporation by reference of the

State Implementation Plan for the State of

California was approved by the Director of

the Federal Register on July 1, 1982.

Dated: March 31, 1995.

Felicia Marcus,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart F—California

2. Section 52.220 is amended by

adding paragraph (c)(206) to read as

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(206) Amended rule for the following

APCD was submitted on November 23,

1994, by the Governor’s designee.

(i) Incorporation by reference.

(A) San Diego County Air Pollution

Control District.

(1) Rule 67.3, adopted on November 1,

1994.

* * * * *

[FR Doc. 95–10695 Filed 5–1–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 52 and 81

[OH50–1–6077a, FRL–5176–8]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes: State of Ohio

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: USEPA is approving, through

‘‘direct final’’ procedure, a redesignation

request and maintenance plan for the

Toledo, Ohio area (Lucas and Wood

Counties) as a revision to Ohio’s State

Implementation Plan (SIP) for ozone.

The revision is based on a request from

the State of Ohio to redesignate this area

from a moderate nonattainment area to

an attainment area for ozone, and to

approve the maintenance plan for the

area. The State has met the requirements

for redesignation contained in the Clean

Air Act (the Act), as amended in 1990.

The redesignation request is based on

ambient monitoring data that show no

violations of the ozone National

Ambient Air Quality Standard (NAAQS)

during the three-year period from 1990

through 1992. In the proposed rules

section of this Federal Register, USEPA

is proposing approval of and soliciting

public comment on this requested

redesignation and SIP revision. If

adverse comments are received on this

direct final rule, USEPA will withdraw

this final rule and address these

comments in a final rule based on the

related proposed rule which is being

published in the proposed rules section

of this Federal Register.

DATES: This action will be effective on

July 3, 1995 unless adverse or critical

comments are received by June 1, 1995.

If the effective date is delayed, timely

notice will be published in the Federal

Register.

ADDRESSES: Copies of the SIP revision

and USEPA’s analysis are available for

inspection at the following address: (It

is recommended that you telephone

Angela Lee at (312) 353–5142 before

visiting the Region 5 Office.) United

States Environmental Protection

Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

A copy of this SIP revision is

available for inspection at the following

location: Office of Air and Radiation

Docket and Information Center, Room

M1500, United States Environmental

Protection Agency, 401 M Street SW.,

Washington, DC 20460, (202) 260–7548.

Written comments can be mailed to:

William MacDowell, Chief, Regulation

Development Section, Air Enforcement

Branch (AE–17J), United States

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois, 60604.

FOR FURTHER INFORMATION CONTACT:

Angela Lee, Regulation Development

Section, Air Enforcement Branch (AE–

17J), United States Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, (312) 353–5142.

SUPPLEMENTARY INFORMATION: On

September 17, 1993, Ohio submitted a

redesignation request and section 175A

maintenance plan for Lucas and Wood

Counties. The USEPA reviewed these

submittals against the redesignation

criteria set forth by section 107(d)(3)(E)

of the Act, which are discussed in a

September 4, 1992, memorandum from

the Director of the Air Quality

Management Division, Office of Air

Quality Planning and Standards, to

Directors of Regional Air Divisions

entitled, ‘‘Procedures for Processing

Requests to Redesignate Areas to

Attainment’’ (Calcagni Memorandum).

A second memorandum dated

September 17, 1993, signed by Michael

Shapiro, Acting Assistant Administrator

for Air and Radiation, entitled, ‘‘State

Implementation Plan (SIP)

Requirements for Areas Submitting
Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations 21457

Requests for Redesignation to

Attainment of the Ozone and Carbon

Monoxide NAAQS on or after November

15, 1992’’ was also used to evaluate

Ohio’s request. An analysis of these

submittals is contained in a Technical

Support Document (TSD), dated

December 9, 1994, and an addendum to

this TSD dated March 7, 1995.

I. Background

The 1977 Act required areas that were

designated nonattainment to develop

SIPs with sufficient control measures to

expeditiously attain and maintain the

standard. For Ohio, Lucas and Wood

Counties were designated

nonattainment for ozone, see 43 FR

8962 (March 3, 1978), 43 FR 45993

(October 5, 1978), and 40 CFR Part 81.

After enactment of the amended Act

on November 15, 1990, the

nonattainment designation of the

Toledo area continued by operation of

law according to section 107(d)(1)(C)(i)

of the Act; furthermore, it was classified

by operation of law as moderate for

ozone pursuant to section 181(a)(1) (56

FR 56694, November 6, 1991), codified

at 40 CFR 81.336.

More recently, the Toledo area has

ambient monitoring data that show no

violations of the ozone NAAQS, during

the period from 1990 through 1992. The

area, therefore, became eligible for

redesignation from nonattainment to

attainment consistent with the amended

Act. On September 17, 1993, Ohio

requested redesignation of the area to

attainment with respect to the ozone

NAAQS. To ensure continued

attainment of the ozone standard, Ohio

submitted an ozone maintenance SIP for

the Toledo area with the redesignation

request. On November 1, 1993, Ohio

held a public hearing on the

maintenance plan and redesignation

request.

II. Evaluation Criteria

The 1990 Amendments revised

section 107(d)(3)(E) to provide five

specific requirements that an area must

meet in order to be redesignated from

nonattainment to attainment.

1. The area must have attained the

applicable NAAQS.

2. The area has met all applicable

requirements under section 110 and part

D of the Act.

3. The area has a fully approved SIP

under section 110(d) of the Act.

4. The air quality improvement must

be permanent and enforceable.

5. The area must have a fully

approved maintenance plan pursuant to

section 175A of the Act.

Each of these requirements are

addressed below.

A. Section 107(d)(3)(E)(i). The

Administrator determines that the area

has attained the National Ambient Air

Quality Standard (NAAQS). For ozone,

an area is considered in attainment of

the NAAQS if there are no violations, as

determined in accordance with 40 CFR

50.9, based on quality assured

monitoring data for three complete,

consecutive calendar years. A violation

of the NAAQS occurs when the annual

average number of expected

exceedances is greater than 1.0 at any

site in the area at issue. An exceedance

occurs when the maximum hourly

ozone concentration exceeds 0.124 ppm.

The data should be collected and

quality-assured in accordance with 40

CFR Part 58, and recorded in the

Aerometric Information Retrieval

System (AIRS) in order for it to be

available to the public for review. The

monitors should have remained at the

same location for the duration of the

monitoring period required for

demonstrating attainment.

Ohio submitted ozone monitoring

data recorded in the Lucas and Wood

Counties Metropolitan Area (LWCMA)

during the years 1984 through August

31, 1993. No violations were monitored

for the three-year period 1990 through

1992 upon which the redesignation

request was based. Furthermore, no

violations have been monitored since

then. Monitored exceedances (one-hour

averaged) of 0.127 ppm in 1991, 0.126

ppm in 1993, and 0.142 ppm occurred

at the Yondota Avenue monitor in 1994.

An exceedance of 0.136 ppm occurred

at the Friendship Park monitor in 1993.

The USEPA used data stored in AIRS to

determine the annual average expected

exceedances for the years 1990, 1991,

1992, 1993, and 1994. Since the annual

average expected exceedances for each

monitor during these years is less than

1.0, Lucas and Wood Counties are

considered to have attained the

standard.

B. Section 107(d)(3)(E)(iii). The

Administrator determines that the

improvement in air quality is due to

permanent and enforceable measures.

Ohio estimated emission reductions

from a nonattainment year (1988) to an

attainment year (1990), and found that

emission reductions from federally

mandated control on fuel volatility and

new automobiles reduced volatile

organic compound (VOC) emissions by

25,843 lbs/day. In 1989, fuel volatility

was restricted to 10.5 pounds per square

inch (psi) in the Toledo area. Currently,

the fuel volatility standard is 9.0 psi.

This standard was established in 1992.

The USEPA considers the emissions

reductions from the Federal Motor

Vehicle Control Program (FMVCP) and

Federal volatility standards to be

permanent and enforceable and to have

contributed to the improvement in air

quality.

Controls placed on a wastewater ditch

which was used to transport wastewater

from the British Petroleum (BP) refinery

to a wastewater treatment system also

provided VOC emissions reductions

during this period. This wastewater

ditch, which measured about 3600 feet

in length and an average of about 10 feet

in width, is referred to as the ‘‘oily

ditch.’’ Prior to 1990, this ‘‘oily ditch’’

was uncontrolled and was one of the

largest single sources of VOCs in the

LWCMA with emissions of 19,802 lbs/

summer day. The USEPA reviewed the

methodology used to calculate these

emissions and agrees with the amount

of emissions estimated from this source.

A major portion of the open ditch was

converted to a hard pipe to minimize

VOC emissions. Ohio estimates that the

enclosure of 3000 feet of the ‘‘oily

ditch’’ which was completed on March

15, 1990, resulted in an emission

reduction of 11,225 lbs/summer day of

VOCs. Since the USEPA is approving

the Director’s Findings and Orders

requiring this control into the SIP as

part of the maintenance plan, the

emission reductions from the enclosure

of the ‘‘oily ditch’’ at the BP Toledo

Refinery are considered permanent and

enforceable and to have contributed to

the improvement in air quality.

C. Section 107(d)(3)(E)(iv). The Area

must have a fully approved

maintenance plan meeting the

requirements of Section 175A. Section

175A of the CAA sets forth the elements

of a maintenance plan for areas seeking

redesignation from nonattainment to

attainment. The maintenance plan is a

SIP revision which provides for

maintenance of the relevant NAAQS in

the area for at least 10 years after

redesignation. The Calcagni

Memorandum provides further guidance

on the required content of a

maintenance plan.

An ozone maintenance plan should

address the following five areas: the

attainment inventory, maintenance

demonstration, monitoring network,

verification of continued attainment and

a contingency plan. The attainment

emissions inventory identifies the

emissions level in the area which is

sufficient to attain the ozone NAAQS,

and includes emissions during the time

period which had no monitored

violations. Maintenance is demonstrated

by showing that future emissions will

not exceed the level established by the

attainment inventory. Provisions for

continued operation of an appropriate

air quality monitoring network are to be
21458 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations

included in the maintenance plan. The

State must show how it will track and

verify the progress of the maintenance

plan. Finally, the maintenance plan

must include contingency measures

which ensure prompt correction of any

violation of the ozone standard.

1. Attainment Inventory

The State has developed an adequate

attainment emission inventory for 1990

that identifies the level of emissions in

the Toledo area sufficient to attain the

ozone NAAQS. The 1990 attainment

inventory was based on the

comprehensive inventories of VOC and

nitrogen oxides (NOX) emissions from

area, stationary, and mobile sources for

1990. The 1990 base year emission

inventory represents 1990 average

summer day actual emissions for the

Toledo area and was prepared in

accordance with USEPA guidance.

USEPA’s TSD prepared for the 1990

base year emission inventory SIP

revision contains a detailed analysis of

this inventory. The USEPA approved

this inventory as satisfying the

requirements of section 182(a)(1) for an

emissions inventory on March 22, 1995

(60 FR 15053).

2. Maintenance Demonstration

To demonstrate continued attainment,

Ohio projected point, area, and mobile

source emissions from the year 1990 to

the year 2005. These projections show

that the level of emissions established

by the attainment inventory will not be

exceeded during the maintenance

period, 1990–2005. Table 1 lists the

emissions for the year 1990 and

projected emissions for the year 2005.

Total point, mobile, and area emissions

are expected to be lower in 2005 than

total emissions in the 1990 attainment

inventory.

TABLE 1.—MAINTENANCE DEMONSTRATION

Source category 1990 1996 2000 2005

VOC Emissions (pounds per day)

Point .......................................................................................................................................... 120,154 78,978 78,611 77,742

Mobile (on-road) ........................................................................................................................ 132,659 102,560 82,494 57,412

Area ........................................................................................................................................... 74,502 74,693 75,119 75,209

Total ....................................................................................................................................... 327,315 256,231 236,224 210,363 

NOX Emissions (pounds per day)

Point .......................................................................................................................................... 147,943 146,793 80,294 81,376

Mobile (on-road) ........................................................................................................................ 75,630 65,128 58,126 49,374

Area ........................................................................................................................................... 20,522 20,547 20,563 20,584

Total ....................................................................................................................................... 244,095 232,468 158,983 151,334

3. Emission projections

Point source emissions were projected

by accounting for known changes to

sources for each year between 1990 and

2005, and applying a growth factor

based on manufacturing employment

data provided by the Bureau of

Economic Analysis, United States

Department of Commerce, to derive

inventories for all ensuing years. The

stationary source emission projections

incorporate existing control measures.

The known stationary source emission

reductions came from the British

Petroleum (BP) Refinery reductions

documented in annual Reasonable

Further Progress Reports, and stationary

source shutdowns.

Some of the emission reductions from

the BP refinery during the maintenance

period result from controls included in

Ohio’s non-control technology guideline

(non-CTG) Reasonably Available

Control Technology (RACT) rules, Ohio

Administrative Code 3745–21–09(UU)

and 3745–21–04(c)(55). Additional VOC

reductions at the BP Refinery result

from the conversion of two cooling

towers to non-VOC emitting processes

and the removal of the Crude Vacuum

blow down drum. Emission reductions

from source shutdowns can be

considered permanent and enforceable

to the extent that those shutdowns have

been reflected in the SIP and all

applicable permits have been modified

accordingly. Once the maintenance plan

is approved into the SIP, these emission

reductions will be provided for by the

SIP. Consequently, resumption of

operation of these sources would be

treated as operation of a new source and

would be subject to preconstruction

review under Part C of the Prevention of

Significant Deterioration (PSD) program.

The net reduction in VOC emissions at

the BP refinery during the maintenance

period is estimated to be 40,582 lbs/day.

Stationary source emissions of

nitrogen oxides (NOX) are projected to

decline from 1990 levels. This reduction

is caused by shutdowns of utility units,

‘‘low-NOX burner’’ requirements of Title

IV of the Clean Air Act, and declining

growth in stationary sources. In 1992,

Toledo Edison permanently retired all

units at its Acme Generating Station

other than Unit 16. The operating

permits for the retired units have been

surrendered, making the resulting

emission reductions permanent and

enforceable. These shutdowns reduced

1990 levels of NOX emission by 15,403

lbs/day. A negative growth factor of 2.3

percent based on manufacturing

employment from 1990 and 2005,

reduces NOX emissions by 973 lbs/day.

Mobile source emissions were

projected by forecasting vehicle miles

travelled (VMT) for the year 2005. This

was done by considering the future

highway networks and forecasts of

socio-economic data. Growth

parameters for the year 2005 were

developed from the travel forecasting

modeling programs and VMTs from the

transportation modeling growth factors

and 1990 Highway Performance

Modeling System data.

Area source emissions were projected

using growth factors consistent with

Table III.3 in USEPA’s guidance

document entitled ‘‘Procedures for

Preparing Emissions Projections,’’ dated

July 1991.

4. Emissions Budgets

The emissions budget to be used for

determining the conformity status of

transportation plans and transportation

improvement plans is 29.85 tons VOC/

day and 24.69 tons NOX/day. On

November 28, 1994, the USEPA

received a request from Ohio to add

1.142 tons VOC/day of the ‘‘safety

margin’’ to the year 2005 VOC emissions

(28.71 tons/day) for purposes of

conformity. This is provided for by

section 51.456(b) of the conformity rule

(58 FR 62188). (The safety margin is the

difference between the attainment
Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations 21459

inventory level of mobile source

emissions from the projected levels of

mobile source emissions in the out year

(i.e. 2005) of the maintenance plan.) The

USEPA is approving this submittal as

part of the maintenance plan.

5. Contingency Plan

Ohio has committed to adopt and

implement various contingency

measures following various triggering

events. The contingency plan is

summarized in Table 3. If three

exceedances at one monitor occur in the

same year, Stage II Vapor Recovery

(Stage II) would be implemented. Stage

II and the vehicle inspection and

maintenance (I/M) program would be

implemented after a violation has been

monitored. If a violation occurred after

both Stage II and the I/M program have

been implemented, NOX RACT would

be adopted and implemented. If an

emissions inventory meeting the

requirements of USEPA guidance shows

that total area-wide VOC emissions

exceed 95 percent of the 1990 emissions

inventory, then either one or both Stage

II and the I/M program would be

implemented. The implementation

schedules for each contingency measure

are detailed in Table 4. If more

violations were to occur, Ohio has

committed to identify and develop the

legislative authority to implement

additional contingency measures.

Ohio has the legislative authority to

implement the I/M program in Toledo.

Ohio’s Stage II rule allows for the

implementation of Stage II as part of a

maintenance and/or a contingency plan.

The Director of the Ohio Environmental

Protection Agency (OEPA) issued a

Director’s Findings and Orders on

September 17, 1993, suspending Stage II

in the Toledo area. This suspension will

continue until there are three monitored

exceedances of the ozone standard in

one year or a violation of the ozone

standard is monitored. On October 20,

1994, the USEPA partially approved and

partially disapproved Ohio’s SIP

revision for implementation of Stage II

(58 FR 52911). As stated in that

rulemaking action, with the exception of

paragraph 3745–21–09 (DDD)(5),

USEPA considers Ohio’s Stage II

program to fully satisfy the criteria set

forth in the USEPA guidance document

for such programs entitled

‘‘Enforcement Guidance for Stage II

Vehicle Refueling Control Programs.’’

Ohio has adopted NOX RACT rules for

the Toledo area. The Director of OEPA

has suspended the NOX RACT rules in

the Toledo area until a violation is

monitored after the implementation of I/

M and Stage II.

TABLE 3.—CONTINGENCY PLAN

Trigger Control measure

3 exceedances of

ozone standard in

one year.

Stage II.

Violation .................... Stage II and I/M.

Violation after implementation of Stage

II and I/M.

NOX RACT.

VOC emissions

greater than 95%

of the 1990 level of

VOC emissions.

Stage II and/or I/M.

TABLE 4.—CONTINGENCY PLAN SCHEDULE FOR ADOPTION AND IMPLEMENTATION

Activity Completion time after triggering event

Stage II Vapor Recovery

Identify and verify third excursion in one year or violation of ozone standard ...................................................... 1 month.

Initiate compliance schedules contained in Ohio Administrative Code (OAC) 3745–21–04 ................................ 2 months.

Source demonstration of compliance or submittal of schedules to achieve compliance ...................................... 3 months.

Achieve final compliance of non-independent facilities for which construction commenced after 11/15/90 ........ 6 months.

Achieve final compliance of non-independent facilities greater than 100,000 gallons per month ........................ 12 months.

Achieve final compliance of all other non-independent facilities ........................................................................... 24 months.

Achieve final compliance of 33% of facilities owned by each marketer ................................................................ 12 months.

Achieve final compliance of 66% of facilities owned by each marketer ................................................................ 24 months.

Achieve final compliance of 100% of facilities owned by each marketer .............................................................. 36 months.

Activity Time after triggering event

Vehicle Inspection and Maintenance

Identify and verify violation of the ozone standard. Begin revisions to the Request for Proposals for centralized portion of program based on existing legislative authority.1 month.

Begin drafting rules for contingency centralized I/M program, procedures and guidelines .................................. 1 month.

Release Request for Proposals for centralized contractor .................................................................................... 2 months.

File draft program rules with Legislative Service Commission .............................................................................. 3 months.

Public hearing on new program rules .................................................................................................................... 4 months and 15 days.

Rules approved by Joint Committee on Agency Rule Review .............................................................................. 4 months and 30 days.

Request for Proposal responses for centralized contract due .............................................................................. 4 months and 30 days.

Begin evaluation of Request for Proposal responses ........................................................................................... 5 months.

Award centralized contract for each zone. ............................................................................................................ 6 months and fifteen days.

Program rules become effective ............................................................................................................................ 6 months and 30 days.

Begin drafting Request for Proposal for Ohio Environmental Protection Agency (BAR90) approved analyzer

certification, if necessary..

7 months.

Begin drafting Request for Proposal for inspector certification training in the Toledo metropolitan area ............ 7 months.

Release Request for Proposal for analyzer certification services ......................................................................... 8 months.

Release Request for Proposal for inspector certification training ......................................................................... 8 months.

Proposals for analyzer certification services due .................................................................................................. 9 months and 15 days.

Proposals for inspector certification training due ................................................................................................... 9 months and 15 days.

Begin evaluation of proposals for analyzer certification services .......................................................................... 9 months and 16 days.

Begin evaluation of proposals for inspector certification training .......................................................................... 9 months and 16 days.

Award contract for analyzer certification services ................................................................................................. 10 months.

Award contract for inspector certification training .................................................................................................. 10 months.

Begin licensing process for reinspection stations. State will require Ohio Certified BAR90 (or better) equipment, on-line real-time systems, and ASE certified mechanics.11 months.

New analyzer specifications issued, if necessary. Begin certifying four-gas analyzers ........................................ 12 months.
21460 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations

Activity Time after triggering event

Inspector certification begins ................................................................................................................................. 14 months.

Begin final licensing of reinspection stations ......................................................................................................... 15 months.

Initiate PR program including media blitz .............................................................................................................. 16 months.

Initiate motorist notification mailings ...................................................................................................................... 16 months and 15 days.

Begin limited voluntary inspections at centralized test stations. Allow first month motorist to receive valid test.

Reinspection stations begin to perform retests.

17 months.

Begin mandatory testing at centralized test stations ............................................................................................. 18 months.

Activity Completion time after triggering event

NOX RACT

Identify and verify violation following implementation of OAC 3745–21–09 and automobile inspection and

maintenance.

1 month.

Source demonstration of compliance or submittal of schedule to achieve compliance ........................................ 3 months.

Achieve compliance with requirements of OAC 3745–14–03 or request extension ............................................. 18 months.

6. Tracking Maintenance

The State plans to track monitored

levels of ozone. Emissions inventories

will be prepared every 3 years beginning

with the year 1993. The point source

inventory will be updated annually with

facility and permit data. OEPA will

update emissions estimates from the BP

refinery wastewater system on an

annual basis. The mobile source

inventory will be updated annually with

new VMT estimates and revised mobile

emissions models if appropriate. Area

source inventories will be updated

annually using new census data. The

OEPA will submit annual progress

reports to USEPA which will include

available emissions data and a

comparison of projected and actual

emissions. The Toledo Division of

Pollution Control has committed to

continue operating and maintaining the

four existing ozone monitors in a

manner consistent with Federal and

State monitoring guidelines.

The USEPA has determined that the

maintenance plan for Lucas and Wood

Counties meets the requirements set

forth by the CAA.

D. Section 107(d)(3)(E)(v). The Area

must have met all applicable

requirements under Section 110 and

Part D. Section 107(d)(3)(E) requires

that, for an area to be redesignated, an

area must have met all applicable

requirements under section 110 and Part

D. The USEPA interprets section

107(d)(3)(E)(v) to mean that for a

redesignation to be approved, the State

must have met all requirements that

applied to the subject area prior to or at

the time of the submission of a complete

redesignation request. Requirements of

the Act that come due subsequently

continue to be applicable to the area at

those later dates (see section 175A(c))

and, if the redesignation of the area is

disapproved, the State remains

obligated to fulfill those requirements.

1. Section 110 Requirements

General SIP elements are delineated

in section 110(a)(2) of Title I, Part A.

These requirements include but are not

limited to submittal of a SIP that has

been adopted by the State after

reasonable notice and public hearing,

provisions for establishment and

operation of appropriate apparatus,

methods, systems and procedures

necessary to monitor ambient air

quality, implementation of a permit

program, provisions for Part C (PSD)

and D (NSR) permit programs, criteria

for stationary source emission control

measures, monitoring, and reporting,

provisions for modeling, and provisions

for public and local agency

participation. For purposes of

redesignation, the Ohio SIP was

reviewed to ensure that all requirements

under the amended Act were satisfied.

Although section 110 was amended in

1990, the Toledo area SIP meets the

requirements of the amended section

110(a)(2). A number of the requirements

did not change in substance and,

therefore, USEPA believes that the pre1990 amendment SIP meets those

requirements. As to those requirements

that were amended in 1990, many are

duplicative of other requirements in the

Act and USEPA has determined that the

Toledo SIP is consistent with the

requirements of section 110 of the

amended Act.

2. Part D Requirements

Before the Toledo area may be

redesignated to attainment, it must have

fulfilled the applicable requirements of

part D. Under part D, an area’s

classification determines the

requirements to which it is subject.

Subpart 1 of part D sets forth the basic

nonattainment requirements applicable

to all nonattainment areas. Subpart 2 of

part D establishes additional

requirements for nonattainment areas

classified under Table 1 of section

181(a). As described in the General

Preamble for the Implementation of

Title 1, specific requirements of subpart

2 may override subpart 1’s general

provisions (57 FR 13501 (April 16,

1992)). The Toledo area was classified

as moderate (56 FR 56694). Therefore, in

order to be redesignated, the State must

meet the applicable requirements of

subpart 1 of part D—specifically

sections 172(c) and 176, as well as the

applicable requirements of subpart 2 of

part D.

a. Section 172(c) Requirements

Section 172(c) sets forth general

requirements applicable to all

nonattainment areas. Under section

172(b), the section 172(c) requirements

are applicable as determined by the

Administrator, but no later than 3 years

after an area has been designated as

nonattainment under the amended Act.

Furthermore, as noted above, some of

these section 172(c) requirements are

superseded by more specific

requirements in subpart 2 of part D. In

the case of Toledo, the State has

satisfied all of the section 172(c)

requirements necessary for Toledo to be

redesignated upon the basis of the

November 8, 1993 redesignation

request.

USEPA has determined that the

section 172(c)(2) reasonable further

progress (RFP) requirement (with

parallel requirements for a moderate

ozone nonattainment area under subpart

2 of part D, due November 15, 1993) was

not applicable as the State of Ohio

submitted this redesignation request on

November 8, 1993. Also the section

172(c)(9) contingency measures and

additional section 172(c)(1) non-RACT

reasonable available control measures

beyond what may already be required in

the SIP are no longer necessary, since no

earlier date was set for these measures
Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations 21461

and as RFP was not due until November

15, 1993.

The section 172(c)(3) emissions

inventory requirement has been met by

the submission and approval of the 1990

base year inventory required under

subpart 2 of part D, section 182(a)(1) (60

FR 15053).

As for the section 172(c)(5) NSR

requirement, USEPA has determined

that areas being redesignated need not

comply with the NSR requirement prior

to redesignation provided that the area

demonstrates maintenance of the

standard without part D NSR in effect.

Memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled Part D New Source Review (part

D NSR) Requirements for Areas

Requesting Redesignation to

Attainment. The rationale for this view

is described fully in that memorandum,

and is based on the Agency’s authority

to establish de minimis exceptions to

statutory requirements. See Alabama

Power Co. v. Costle, 636 F. 2d 323, 360–

61 (D.C. Cir. 1979). As discussed below,

the State of Ohio has demonstrated that

the Toledo area will be able to maintain

the standard without part D NSR in

effect and, therefore, the State need not

have a fully-approved part D NSR

program prior to approval of the

redesignation request for Toledo. Ohio’s

part C PSD program will become

effective in the Toledo area upon

redesignation to attainment.

Finally, for purposes of redesignation,

the Toledo SIP was reviewed to ensure

that all requirements of section

110(a)(2), containing general SIP

elements, were satisfied. As noted

above, USEPA believes the SIP satisfies

all of those requirements. Section 176

Conformity Plan Provisions Section

176(c) of the Act requires States to

revise their SIPs to establish criteria and

procedures to ensure that, before they

are taken, Federal actions conform to

the air quality planning goals in the

applicable State SIP. The requirement to

determine conformity applies to

transportation plans, programs and

projects developed, funded or approved

under Title 23 U.S.C. or the Federal

Transit Act (transportation conformity),

as well as to all other Federal actions

(general conformity). Section 176

further provides that the conformity

revisions to be submitted by States must

be consistent with Federal conformity

regulations that the Act required EPA to

promulgate. Congress provided for the

State revisions to be submitted one year

after the date for promulgation of final

EPA conformity regulations. When that

date passed without such promulgation,

USEPA’s General Preamble for the

Implementation of Title I informed

States that its conformity regulations

would establish a submittal date [see 57

FR 13498, 13557 (April 16, 1992)].

The USEPA promulgated final

transportation conformity regulations on

November 24, 1993 (58 FR 62188) and

general conformity regulations on

November 30, 1993 (58 FR 63214).

These conformity rules require that

States adopt both transportation and

general conformity provisions in the SIP

for areas designated nonattainment or

subject to a maintenance plan approved

under CAA section 175A. Pursuant to

section 51.396 of the transportation

conformity rule and section 51.851 of

the general conformity rule, the State of

Ohio is required to submit a SIP

revision containing transportation

conformity criteria and procedures

consistent with those established in the

Federal rule by November 25, 1994.

Similarly, Ohio is required to submit a

SIP revision containing general

conformity criteria and procedures

consistent with those established in the

Federal rule by December 1, 1994.

Because the deadlines for these

submittals did not come due prior to the

date the Toledo redesignation request

was submitted, however, they are not

applicable requirements under section

107(d)(3)(E)(v) and, thus, do not affect

approval of this redesignation request.

b. Subpart 2 Requirements

The Toledo area is classified moderate

nonattainment; therefore, part D,

subpart 2, section 182(b) requirements

apply. The requirements which came

due prior to the submission of the

request to redesignate the Toledo area

must be fully approved into the SIP

prior to redesignating the area to

attainment. These requirements are

discussed below:

(i) 1990 Base Year Emission

Inventory. The 1990 base year emission

inventory was due on November 15,

1992. It was submitted to the USEPA on

March 15, 1994. The USEPA approved

this submittal on March 22, 1995 (60 FR

15053).

(ii) Emission Statements. The

emissions statement SIP was due on

November 15, 1992. It was submitted to

the USEPA on March 15, 1994. The

USEPA approved this SIP revision

through a direct final rulemaking action

published on October 13, 1994 (59 FR

51863).

(iii) VOC RACT Fix-ups and Catchups. Sections 182(a)(2)(A) and 182(b)(2)

establish VOC RACT requirements

applicable to moderate ozone

nonattainment areas such as Toledo.

Section 182(a)(2)(A) required the

submission to USEPA of all rules and

corrections to existing VOC RACT rules

that were required under the RACT

provision of the pre-1990 CAA (referred

to as RACT ‘‘fix-ups’’). Section 182(b)(2)

required the submission to USEPA of (1)

VOC RACT rules for all VOC sources

covered by a CTG issued before the date

of enactment of the 1990 CAA

amendments (a requirement that the

State has previously met), (2) VOC

RACT for each VOC source covered by

a CTG issued between the enactment of

the 1990 CAAA and the attainment date

(which is not an applicable requirement

for purposes of this redesignation since

the due date for these rules is November

15, 1994, a date after the submission of

the redesignation request), and (3) VOC

RACT for all other major stationary

sources of VOC located in the area.

On June 9, 1988, August 24, 1990, and

June 7, 1993, Ohio submitted VOC

RACT rules. In a final rulemaking

action, the USEPA partially approved,

partially disapproved and granted

partial limited approval/limited

disapproval to portions of Ohio’s VOC

RACT rules on May 9, 1994 (see 58 FR

49458). The USEPA processed draft

VOC RACT rules which addressed

identified deficiencies in Ohio’s VOC

RACT rules in parallel with the ozone

redesignation request. Ohio adopted

these rules and submitted them to

USEPA on February 14, 1995. Ohio’s

VOC RACT rules submittals have now

been approved in a direct final notice

published on March 23, 1995 (60 FR

15235). Thus, the State has now

satisfied all of the VOC RACT

requirements applicable to the Toledo

area. (The approval of the redesignation

is contingent upon the approval of the

VOC RACT rules and the 1990 BaseYear Emissions Inventory. Thus, this

redesignation will not become effective

until the approval of the VOC RACT

rules and the 1990 Base-Year Emissions

Inventory become effective.

Consequently, should the direct final

notice approving the VOC RACT rules

or 1990 Base-Year Inventory be

withdrawn as a consequence of adverse

comment, this direct final notice

approving the redesignation will also be

withdrawn and final action will be

taken on the redesignation at a later

date.)

(iv) Stage II Vapor Recovery (Stage II).

Section 182(b)(3) required States to

submit Stage II rules to USEPA for

moderate ozone nonattainment areas by

November 15, 1992. Ohio submitted

Stage II regulations as a SIP revision on

June 7, 1993. However, as the USEPA

promulgated onboard rules on April 6,

1994 (59 FR 16262), Stage II is no longer

required for moderate ozone

nonattainment areas (see section
21462 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations

202(a)(b). Thus, Stage II is not an

applicable requirement for purposes of

evaluating this redesignation.

(v) Vehicle Inspection and

Maintenance (I/M). On January 5, 1995,

the USEPA revised the I/M Program

Requirements promulgated on

November 5, 1992 (60 FR 1735). See 60

FR 1735. The revision allows areas

subject to the basic I/M program

requirements and that otherwise qualify

for redesignation from nonattainment to

attainment for ozone or carbon

monoxide NAAQS to defer adoption

and implementation of some of the

otherwise applicable requirements

established in the original promulgation

of the I/M rule. USEPA amended

Subpart S to allow such areas to be

redesignated if they submit a SIP that

contains the following four elements: (1)

Legal authority for a basic I/M program

(or an enhanced program, as defined in

the Federal rule, if the state chooses to

opt up), meeting all of the requirements

of Subpart S such that implementing

regulations can be adopted without

further legislation; (2) a request to place

the I/M plan or upgrades, as defined in

the Federal rule, (as applicable) in the

contingency measures portion of the

maintenance plan upon redesignation as

described in the fourth element below;

(3) a contingency measure to go into

effect as soon as a triggering event

occurs, consisting of a commitment by

the Governor or the governor’s designee

to adopt regulations to implement the

I/M program in response to the specified

triggering event; and (4) a commitment

that includes an enforceable schedule

for adopting and implementing the I/M

program, including appropriate

milestones, in the event the contingency

measure is triggered (milestones shall be

defined in terms of months since the

triggering event). USEPA believes that

for areas that otherwise qualify for

redesignation, a SIP meeting these four

requirements would satisfy the

obligation to submit ‘‘provisions to

provide’’ for a satisfactory I/M program,

as required by the stature.

Ohio has met each of the above four

requirements. Section 3704.14(B) of

Ohio’s Administrative Code states

‘‘* * * The Director shall implement

and supervise a basic or an enhanced

motor vehicle inspection and

maintenance program in a county that is

within an area classified as

nonattainment for carbon monoxide or

ozone when such a program is included

in the air quality maintenance plan or

contingency plan for the nonattainment

area that includes the county and that

is submitted to the USEPA by the

Director as required under section 175A

of the CAAA as part of a request for

redesignation of the nonattainment area

as attainment for carbon monoxide or

ozone under section 107(d) of that Act,

and the Director determines that the

conditions requiring implementation of

such a program and set forth in either

such plan have been met.’’ This

provision allows the I/M program to be

implemented in the Toledo area as part

of a contingency plan. In addition, I/M

programs in Ohio have been approved

by USEPA (46 FR 31881). As noted in

tables 3 and 4, Ohio has identified

appropriate triggering events and

submitted an enforceable

implementation schedule for the I/M

program. The commitment to

implement I/M was contained in the

letter from the Director of OEPA, the

Governor’s designee, requesting the

redesignation of the Toledo area to

attainment for ozone. This satisfies the

remaining requirements of the I/M rule

revision.

(vi) 1.15:1 VOC and NOX Offsets

Requirement for NSR. As explained

above, USEPA has determined that areas

need not comply with the part D NSR

requirements of the Act in order to be

redesignated provided that the area is

able to demonstrate maintenance

without part D NSR in effect. As

maintenance has been demonstrated for

the Toledo area without part D NSR

being in effect, USEPA is not requiring

that the area have a fully-approved part

D NSR plan meeting the requirements of

sections 182(a) and (b) prior to

redesignation.

(vii) NOX Requirement. Section 182(f)

establishes NOX requirements for ozone

nonattainment areas. However, it

provides that it does not apply to an

area such as Toledo if the Administrator

determines that NOX reductions would

not contribute to attainment. The

Administrator has made such a

determination and has approved the

State of Ohio’s request to exempt the

Toledo area from the section 182(f) NOX

requirements (60 FR 3760). Thus, the

State of Ohio need not comply with the

NOX requirements of section 182(f) for

Toledo to be redesignated. If a violation

is monitored in the Toledo area, Ohio

has committed to adopt and implement

NOX RACT rules as a contingency

measure.

E. Section 107(d)(3)(E)(ii). The

Administrator has fully approved the

applicable implementation plan for the

area under Section 110(k). USEPA has

reviewed the SIP to ensure that it

contains all measures that were due

under the amended 1990 Act. Based on

the approval of submittals under the

pre-amended CAA, and USEPA’s

approval of SIP revisions under the

amended CAA, USEPA has determined

that the Toledo area has a fully

approved SIP under section 110(k),

which also meets the applicable

requirements of section 110 and part D

as discussed above (45 FR 72122, 59 FR

51863, 60 FR 3760, 60 FR 15053, 60 FR

15235).

III. Transport of Ozone Precursors to

Downwind Areas

Preliminary modeling results utilizing

USEPA’s regional oxidant model (ROM)

indicate that ozone precursor emissions

from various States west of the ozone

transport region (OTR) in the

northeastern United States contribute to

increases in ozone concentrations in the

OTR. The State of Ohio has provided

documentation that VOC and NOx

emissions in the Toledo area will

decrease 35 percent and 38 percent,

respectively, from attainment levels by

the year 2005. Given this decrease in

emissions, the Toledo area’s impact on

ozone concentrations in the OTR will

correspondingly be reduced. The

USEPA is currently developing policy

which will address long range impacts

of ozone transport. The USEPA is

working with the States and other

organizations to design and complete

studies which consider upwind sources

and quantify their impacts. The USEPA

intends to address the transport issue

through Section 110 based on a domainwide modeling analysis.

The USEPA notified Environment

Canada of this action. The redesignation

is not expected to have any adverse

impact on Canada since emissions are

expected to remain below levels

associated with attainment conditions

in the Toledo area.

IV. Final Rulemaking Action

The State of Ohio has met the

requirements of the Act for revising the

Ohio ozone SIP. The USEPA approves

the redesignation of Lucas and Wood

Counties to attainment areas for ozone.

In addition, the USEPA approves the

maintenance plan into the ozone SIP for

these Counties. As noted earlier, this

approval is contingent upon the direct

final approval of Toledo’s VOC RACT

rules and 1990 Base-Year Emissions

Inventory becoming effective.

Because USEPA considers this action

to be noncontroversial and routine,

USEPA is publishing this notice of

approval without prior proposal. This

action will become effective on July 3,

1995. However, if the USEPA receives

adverse comments by June 1, 1995 on

this action or by April 24, 1995,

regarding the VOC RACT notice

published at 60 FR 15235, or by April

21, 1995, regarding the 1990 Base-Year

Emissions Inventory published at 60 FR
Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations 21463

15053, then the USEPA will publish a

notice that withdraws the action, and

will address these comments in the final

rule on the requested redesignation and

SIP revision which has been proposed

for approval in the proposed rules

section of this Federal Register.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget exempted this

regulatory action from Executive Order

12866 review.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA 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, USEPA 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 SIP approvals under section 110

and subchapter I, part D, of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

Act, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The Act

forbids USEPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S.

246, 256–66 (1976).

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 July 3, 1995.

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

40 CFR Part 52

Air pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Volatile organic compounds, Reporting

and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: March 14, 1995.

Valdas V. Adamkus,

Regional Administrator.

40 CFR parts 52 and 81 are amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Section 52.1870 is amended by

adding a new paragraph (c)(105) to read

as follows:

§ 52.1870 Identification of plan.

* * * * *

(c) * * *

(105) On September 17, 1993, the

Ohio Environmental Protection Agency

requested the redesignation of Lucas

and Wood Counties to attainment of the

National Ambient Air Quality Standard

for ozone. To meet the redesignation

criteria set forth by section 107(d)(3)(E)

(iii) and (iv), Ohio credited emissions

reductions from the enclosure of the

‘‘oily ditch’’ at the British Petroleum

Refinery in Oregon, Ohio. The USEPA is

approving the Director’s Finding and

Order which requires the enclosure of

the ‘‘oily ditch’’ into the SIP for Lucas

and Wood Counties.

(i) Incorporation by reference.

Letter dated June 2, 1994, from

Donald R. Schregardus, Director, Ohio

Environmental Protection Agency, to

Valdas Adamkus, Regional

Administrator, USEPA, Region 5, and

one enclosure which is the revised

Director’s Final Findings and Orders in

the matter of BP Oil company, Toledo

Refinery, 4001 Cedar Point Road,

Oregon, Ohio, Fugitive Emissions from

the Refinery Waste Water System ‘‘Oily

Ditch’’, dated June 2, 1994.

3. Section 52.1885 is amended by

adding paragraph (b) to read as follows:

§ 52.1885 Control strategy: Ozone.

* * * * *

(b) The maintenance plans for the

following counties are approved:

(1)–(4) [Reserved].

(5) Lucas and Wood Counties.

* * * * *

PART 81—DESIGNATION OF AREAS

FOR AIR QUALITY PURPOSES

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Section 81.336 is amended by

revising the entry in the ozone table for

Toledo area to read as follows:

§ 81.336 Ohio.

* * * * *

OHIO—OZONE

Designated area

Designation Classification

Date 1 Type Date 1 Type

* * * * * * *

Toledo Area.

Lucas County ................................................................................................................... July 3, 1995. Attainment

Wood County ................................................................................................................... July 3, 1995. Attainment

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.
21464 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Rules and Regulations

[FR Doc. 95–10693 Filed 5–1–95; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[MM Docket 92–264; FCC 95–147]

Cable Television Act of 1992—Vertical

Ownership Rules

AGENCY: Federal Communications

Commission.

ACTION: Order on reconsideration.

SUMMARY: On reconsideration of the

cable television vertical ownership (or

channel occupancy) rules adopted in its

Second Report and Order, the Federal

Communications Commission (the

‘‘Commission’’) has adopted a

Memorandum Opinion and Order on

Reconsideration of the Second Report

and Order (‘‘Reconsideration Order’’).

The Reconsideration Order denies

petitions for reconsideration filed by the

Center for Media Education/Consumer

Federation of America (collectively

‘‘CME’’) and Bell Atlantic Corporation

(‘‘Bell Atlantic’’). Specifically, the

Reconsideration Order: Denies CME’s

petition requesting that the

Commission; reduce the percentage of

activated channels that a cable operator

may devote to video programming in

which it has an attributable interest

from 40% to 20%; reverse the

Commission’s decision to include overthe-air broadcast, public, educational,

governmental (‘‘PEG’’), and leased

access channels when calculating total

channel capacity; reverse the

Commission’s decision to exempt local

and regional networks from the channel

occupancy limits; reverse the

Commission’s decision not to apply

channel occupancy limits beyond a

system’s first 75 channels; and reverse

the Commission’s decision to

grandfather all vertically integrated

programming services being carried as

of the effective date of the 1992 Cable

Act. The Reconsideration Order also

denies Bell Atlantic’s petition asking

that the Commission reconsider its

decision to apply the vertical ownership

limits to cable systems facing actual

head-to-head competition.

EFFECTIVE DATE: April 6, 1995.

FOR FURTHER INFORMATION CONTACT: Rick

Chessen, Cable Services Bureau, (202)

416–0800.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Memorandum Opinion

and Order on Reconsideration of the

Second Report and Order

(‘‘Reconsideration Order’’) in MM

Docket 92–264, adopted April 5, 1995

and released April 6, 1995. This

Reconsideration Order responds to

petitions for reconsideration filed in

response to the Commission’s Second

Report and Order, 58 FR 60135

(November 15, 1993). The Second

Report and Order was established

pursuant to section 11(c)(2)(B) of the

Cable Television Consumer Protection

and Competition Act of 1992 (‘‘1992

Cable Act’’), Public Law 102–385, 106

Stat. 1460 (1992).

The complete text of this

Reconsideration Order is available for

inspection and copying during normal

business hours in the FCC Reference

Center (room 239), 1919 M Street, NW.,

Washington, DC, and also may be

purchased from the Commission’s copy

contractor, International Transcription

Services, Inc. (‘‘ITS, Inc.’’) at (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

Synopsis of the Memorandum Opinion

and Order on Reconsideration of the

Second Report and Order

A. Background

Pursuant to section 11(c)(2)(B) of the

Cable Television Consumer Protection

and Competition Act of 1992 (‘‘1992

Cable Act’’), Pub. L. 102–385, 106 Stat.

1460 (1992), the Commission’s Second

Report and Order, 58 FR 60135

(November 15, 1993), established cable

channel occupancy rules, including the

following rules relevant here: (1) Cable

operators generally may devote no more

than 40% of their activated channels to

the carriage of programing services in

which they have an attributable interest;

(2) all activated channels will be

included in calculating channel

capacity, including broadcast, PEG and

leased access channels; (3) channal

occupancy limits will apply only to

‘‘national’’ programming services (i.e.,

local and regional programming services

are exempt); (4) channel occupancy

limits will apply to a maximum of 75

channels per system; (5) all vertically

integrated programming services carried

as of the effective date of the 1992 Cable

Act (December 4, 1992) could continue

to be carried; and (6) channel occupancy

limits will not be eliminated in

communities where actual head-to-head

competition exists.

B. Petitions for Reconsideration

The Center for Media Education and

the Consumer Federation of America

(collectively ‘‘CME’’) filed a joint

Petition for Reconsideration asking the

Commission to reconsider several issues

decided in the Second Report and

Order. Specifically, CME asked the

Commission to: (1) Reduce the channel

occupancy limit from 40% to 20%; (2)

require that broadcast, PEG, and leased

access channels be subtracted from the

number of activated channels before

calculating total channel capacity; (3)

eliminate the exemption for local and

regional networks; (4) apply channel

occupancy limits beyond a system’s first

75 channels; and (5) reverse the

decision to grandfather all vertically

integrated programming services carried

as of December 4, 1992.

After consideration of the various

submissions, the Commission declines

to modify the 40% channel occupancy

limit. In requiring the Commission to

establish ‘‘reasonable’’ channel

occupancy limits, Congress directed the

Commission to balance the risks of

vertical integration against benefits such

as the development of diverse and high

quality video programming. The

Commission continues to believe that

the 40% limit strikes the appropriate

balance between these competing

objectives.

Moreover, CME may have overstated

the practical effect of must-carry, PEG

and leased access requirements on

unaffiliated programmers’ ability to

obtain carriage. In the absence of record

evidence on this point, the Commission

examined an unscientific sampling of 25

Tele-Communications, Inc. (‘‘TCI’’) and

Time Warner Entertainment Company,

L.P. (‘‘Time Warner’’) cable systems

(those being the most vertically

integrated cable operators) in order to

determine whether, in fact, broadcast,

PEG and leased access channels

occupied all, or nearly all, of the

systems’ unaffiliated programming

channels. Generally, the Commission

found that, even after excluding

broadcast, PEG and leased access

channels (and even assuming the

presence of two local or regional

networks), all of the systems had

capacity remaining for additional

unaffiliated programming.

Next, CME claims that the

Commission overstated the benefits of

vertical integration. As proof, CME

states that the Cable News Network, Inc.

(‘‘CNN’’), Black Entertainment

Television, Inc. (‘‘BET’’), and

Nickelodeon were successful prior to

their relationship with cable operators,

and that ‘‘there has been no successful

launch of an unaffiliated video

programmer since the cable industry

began the trend toward vertical

integration.’’ Whether or not CNN, BET

and Nickelodeon achieved some initial

independent success, there is evidence

in the record that these and other

programmers would have had difficulty