[Federal Register Volume 88, Number 143 (Thursday, July 27, 2023)]
[Proposed Rules]
[Pages 48406-48409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15498]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0203; FRL-10757-01-R9]


Approval and Promulgation of Implementation Plans; Revisions to 
the California State Implementation Plan; San Francisco Bay Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing under 
the Clean Air Act (CAA or ``Act'') to approve a revision to the San 
Francisco Bay Area portion of the California State Implementation Plan 
(SIP). This revision consists of updated transportation conformity 
procedures related to the interagency coordination on project-level 
conformity and exchange of travel data for emissions inventories 
developed for air quality plans and regional transportation conformity 
analyses. The intended effect is to update the transportation 
conformity criteria and procedures in the California SIP.

DATES: Comments must be received on or before August 28, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0203 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with a disability 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Michael Dorantes, Geographic 
Strategies and Modeling Section (AIR-2-2), EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105, (415) 972-3934, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:  Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Transportation Conformity
II. Background and State Submittal
III. The EPA's Evaluation
IV. Summary of Our Proposed Action

[[Page 48407]]

V. Statutory and Executive Order Reviews

I. Transportation Conformity

    Transportation conformity is required under section 176(c) of the 
CAA to ensure that federally supported highway, transit projects, and 
other activities are consistent with (``conform to'') the purpose of 
the SIP. Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant national ambient 
air quality standards (NAAQS). Transportation conformity currently 
applies to areas that are designated nonattainment, and to areas that 
have been redesignated to attainment after 1990 (maintenance areas) 
with plans developed under section 175A of the Act. This applies for 
the following transportation-related criteria pollutants: ozone, fine 
and coarse particulate matter (PM2.5 and PM10), 
carbon monoxide (CO), and nitrogen dioxide (NO2), as well as 
criteria pollutant precursors. The transportation conformity regulation 
is found in 40 CFR part 93 and provisions related to conformity SIPs 
are found in 40 CFR 51.390.
    On November 24, 1993, the EPA promulgated the federal 
transportation conformity criteria and procedures (``conformity 
rule''). Among other things, the conformity rule required states to 
address all of its provision in their SIPs (``conformity SIPs'').\1\ 
The requirements were subsequently revised on August 10, 2005, when the 
``Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users'' (SAFETEA-LU) was signed into law. SAFETEA-LU revised 
section 176(c) of the CAA's transportation conformity provisions. One 
of the changes streamlined the requirements for conformity SIPs. Under 
SAFETEA-LU, states are required to address and tailor only three 
sections of the conformity rule in their conformity SIPs: 40 CFR 
93.105, 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c). These sections 
address consultation procedures (40 CFR 93.105); written commitments to 
control measures that are not included in a metropolitan planning 
organization's (MPO's) transportation plan and transportation 
improvement program that must be obtained prior to a conformity 
determination, and the requirement that such commitments, when they 
exist, must be fulfilled (40 CFR 93.122(a)(4)(ii)); and written 
commitments to mitigation measures that must be obtained prior to a 
project-level conformity determination, and the requirement that 
project sponsors must comply with such commitments, when they exist (40 
CFR 93.125(c)). In general, states are no longer required to submit 
conformity SIP revisions that address the other sections of the 
conformity rule but may elect to include any other provision of 40 CFR 
part 93, subpart A.\2\ These changes took effect when SAFETEA-LU was 
signed into law.
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    \1\ 58 FR 62188 (November 24, 1993).
    \2\ 40 CFR 51.390(b).
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II. Background and State Submittal

    For transportation planning purposes, the San Francisco Bay Area is 
defined as the nine California counties of Alameda, Contra Costa, 
Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma. 
Transportation planning in the San Francisco Bay Area is conducted by 
the Metropolitan Transportation Commission (MTC).\3\ As the San 
Francisco Bay Area MPO, the MTC develops regional transportation plans 
and transportation improvement plans for the area. By contrast, for air 
quality planning purposes, the San Francisco Bay Area is defined as all 
the same counties, except the eastern portion of Solano County and the 
northern half of Sonoma County are excluded. This planning area is 
designated as nonattainment for several 8-hour ozone NAAQS and for the 
2006 PM2.5 standard.\4\ A portion of the San Francisco Bay 
Area, referred to as ``urbanized areas,'' was redesignated from 
nonattainment to attainment for the CO NAAQS in 1998. The areas within 
the San Francisco Bay Area, but outside the ``urbanized areas,'' were 
designated as unclassifiable/attainment for the CO NAAQS. The San 
Francisco Bay Area is considered unclassifiable/attainment for the 
other NAAQS.\5\
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    \3\ California Government Code section 66500 et seq.
    \4\ 40 CFR 81.305.
    \5\ Id.
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    On December 16, 1996, the Governor's designee for SIP submittals, 
the California Air Resources Board (CARB), submitted ``The San 
Francisco Bay Area Transportation Air Quality Conformity Protocol--
Conformity Procedures'' and ``The San Francisco Bay Area Transportation 
Air Quality Conformity Protocol--Interagency Consultation Procedures,'' 
together referred to as the ``San Francisco Bay Area conformity SIP 
submittal'' to the EPA. The EPA approved the San Francisco Bay Area 
conformity SIP submittal on October 21, 1997.\6\
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    \6\ 62 FR 54587 (October 21, 1997).
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    Following SAFETEA-LU's enactment in 2005, the co-lead agencies for 
air quality planning in the San Francisco Bay Area, i.e., Bay Area Air 
Quality Management District (BAAQMD), the MTC, and Association of Bay 
Area Governments (ABAG), revised the San Francisco Bay Area conformity 
SIP to reflect the SAFETEA-LU changes and to clarify interagency 
consultation procedures. The revisions, referred to as the 
Transportation Air Quality Conformity Protocol, were adopted by the 
BAAQMD Board of Directors on July 19, 2006, by the ABAG Executive Board 
on July 20, 2006, and by the MTC on July 26, 2006. The MTC subsequently 
sent the transportation conformity protocol to CARB. On December 20, 
2006, CARB adopted the transportation conformity protocol as a revision 
to the California SIP and submitted the protocol to the EPA for 
approval. The EPA approved the SIP revision on October 12, 2007.\7\
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    \7\ 72 FR 58013 (October 12, 2007).
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    The eastern portion of Solano County is in the Sacramento 
Metropolitan air quality planning area, which is also designated 
nonattainment for the same 8-hour ozone and PM2.5 NAAQS as 
the San Francisco Bay Area. For the Sacramento Metropolitan area, 
transportation planning is conducted by the Sacramento Area Council of 
Governments (SACOG).
    Effective May 12, 1994, the MTC and SACOG entered into the original 
``Memorandum of Understanding between the Metropolitan Transportation 
Commission and the Sacramento Area Council of Governments'' to 
establish an agreement regarding Federal conformity procedures and 
programming of Federal Congestion Mitigation and Air Quality (CMAQ) 
funds in Solano County. The MTC and SACOG then amended the original 
Memorandum of Understanding (MOU) in 2004 to provide clarity regarding 
their responsibilities during a conformity lapse.
    The MTC and SACOG updated the Memorandum of Understanding between 
the two agencies (``revised MTC-SACOG MOU'' or ``revised MOU'') again 
in 2018. The MTC approved resolution No. 2611, Revised, on July 6, 
2018, and MTC's and SACOG's executive directors executed the MOU on 
September 11, 2018.\8\ To provide further clarification regarding the 
updated coordination between the MTC and SACOG, the BAAQMD, the

[[Page 48408]]

MTC, and ABAG proposed further revisions to the San Francisco Bay Area 
Transportation Air Quality Conformity Protocol (``revised 
transportation conformity protocol'' or ``revised protocol''). On 
February 26, 2020, MTC adopted a resolution approving the revisions.\9\ 
Following the MTC's adoption of the resolution, the BAAQMD adopted the 
revisions on March 4, 2020,\10\ and ABAG adopted the revisions on April 
23, 2020.\11\ The BAAQMD then submitted the revisions to CARB for 
approval on June 11, 2020.\12\ CARB subsequently adopted the revised 
protocol on May 6, 2021,\13\ and submitted it the EPA for approval on 
May 17, 2021.\14\
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    \8\ Metropolitan Transportation Commission Resolution No. 2611. 
Revised, MTC/Sacramento Area Council of Governments (SACOG) 
Memorandum of Understanding (MOU) for Air Quality Planning in 
Eastern Solano County.
    \9\ Metropolitan Transportation Commission Resolution No. 3757, 
``Re: Approval of San Francisco Bay Area Transportation Air Quality 
Conformity Protocol,'' February 26, 2020.
    \10\ BAAQMD Board of Directors Regular Meeting Agenda Item #6 
and BAAQMD Board of Directors Regular Meeting Approved Minutes, 
March 4, 2020.
    \11\ ABAG Executive Board Resolution No. 04-2020, ``Authorizing 
Approval of Proposed Final San Francisco Bay Area Transportation Air 
Quality Conformity Protocol and Interagency Consultation 
Procedures,'' April 23, 2020.
    \12\ Letter from Jack P. Broadbent, Executive Officer and Air 
Pollution Control Officer, BAAQMD, to Richard Corey, Executive 
Officer, CARB. Re: San Francisco Bay Area State Implementation Plan 
Amended Transportation Air Quality Conformity Protocol (Dated June 
11, 2020).
    \13\ CARB Executive Order R-20-005, ``Approval of the Amended 
San Francisco Bay Area Transportation Air Quality Conformity 
Protocol as a Revision to the California State Implementation 
Plan,'' approved May 6, 2021.
    \14\ In addition to other supporting documents, the submittal 
package included the following documents: ``San Francisco Bay Area 
Transportation Air Quality Conformity Protocol, Revised: February 
26, 2020; Amended and Restated Memorandum of Understanding Between 
The Metropolitan Transportation Commission and The Sacramento Area 
Council of Governments, (September 11, 2018); Letter dated May 6, 
2021, (submitted electronically May 17, 2021), from Richard W. 
Corey, Executive Officer, CARB, to Deborah Jordan, Acting Regional 
Administrator, EPA Region IX, Subject: ``San Francisco Bay Area 
State Implementation Plan Amended Transportation Air Quality 
Conformity Protocol.''
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    The most recent revision to the transportation conformity protocol 
supersedes the 2006 revision and is the subject of this proposed 
action. The revised protocol largely retains the content of the 
previous protocol adopted in 2006 but contains revisions explicitly 
reflecting the revised MOU language along with some other content 
changes. A notable revision is the addition of a new standalone section 
(``Section X''), entitled ``Addressing Activities and Emissions that 
Cross MPO Boundaries.'' Section X retains relevant text from the 
previous transportation conformity protocol and references revisions 
made within the revised MTC-SACOG MOU that clarify MTC and SACOG roles 
and responsibilities related to updated Federal transportation air 
quality requirements. These address the responsibilities related to the 
programming of Federal CMAQ funds, coordination between the MTC and 
SACOG when exchanging travel data for emissions inventories, and 
coordination between the MTC and SACOG when conducting project-level 
and regional conformity, including procedures to follow in the event of 
a conformity lapse and considerations for new PM2.5 hot-spot 
analysis requirements.
    The updated SIP revision that CARB submitted to the EPA consisted 
of the revised transportation conformity protocol, as well as documents 
from the MTC, ABAG, the BAAQMD, and CARB adopting the revisions. In 
November 2019, the BAAQMD and ABAG delegated authority to the MTC to 
conduct a public hearing on the proposed conformity protocol.\15\ The 
MTC provided notice of a 30-day public comment period beginning on 
December 27, 2019,\16\ and held a public hearing on January 10, 2020, 
on the revised protocol.\17\ The MTC received no comments other than a 
suggested non-substantive edit from the EPA.
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    \15\ Letter from Jack P. Broadbent, Executive Officer and Air 
Pollution Control Officer, BAAQMD, to Richard Corey, Executive 
Officer, CARB. Re: San Francisco Bay Area State Implementation Plan 
Amended Transportation Air Quality Conformity Protocol (Dated June 
11, 2020).
    \16\ Metropolitan Transportation Commission Notice of Public 
Hearing: ``Draft Bay Area Transportation Air Quality Conformity 
Protocol (MTC Resolution No. 3757 Revised).''
    \17\ Metropolitan Transportation Commission, Planning Committee, 
``Public Hearing: MTC Resolution No. 3757, Revised: Draft Bay Area 
Transportation Air Quality Conformity Protocol,'' January 10, 2020.
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III. The EPA's Evaluation

    We have reviewed the submittal to ensure consistency with the Clean 
Air Act and with EPA regulations (40 CFR part 93 and 40 CFR 51.390) 
governing state procedures for transportation conformity and 
interagency consultation and have concluded that the submittal is 
approvable. The public comment period and hearing the MTC held for this 
SIP revision satisfies the requirements of CAA section 110(l) and 40 
CFR 51.102. Additional details of our review are set forth in a 
technical support document (TSD), which has been included in the docket 
for this proposed rulemaking. Specifically, in our TSD, we identify how 
the submitted procedures satisfy our requirements under 40 CFR 93.105 
for interagency consultation with respect to the development of 
transportation plans and programs, SIPs, and conformity determinations, 
the resolution of conflicts, the provision of adequate public 
consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 
93.125(c) for enforceability of control measures and mitigation 
measures.

IV. Summary of Our Proposed Action

    In accordance with section 110(k) of the Act, and for the reasons 
set forth in Section III of this document, the EPA is proposing to 
approve the ``San Francisco Bay Area Air Quality Conformity Protocol--
Conformity Procedures and Interagency Consultation Procedures'' as a 
revision to the California SIP.
    If we finalize our action as proposed, the revised protocol adopted 
by the BAAQMD on March 4, 2020, by ABAG on April 23, 2020, and by the 
MTC February 26, 2020, then adopted on May 6, 2021, and submitted to 
the EPA on May 17, 2021 by CARB, will be incorporated into the San 
Francisco Bay Area portion of the California SIP, and thereby replace 
the previous version of the revised protocol approved on October 11, 
2007.
    The EPA is soliciting public comments on the issues discussed in 
this document. We will accept comments from the public on this proposal 
until August 28, 2023, and will consider comments before taking final 
action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities

[[Page 48409]]

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it proposes to approve a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA.
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA did not perform an EJ analysis and did not consider 
EJ in this action. Due to the nature of the proposed action being taken 
here, this action is expected to have a neutral to positive impact on 
the air quality of the affected area. Consideration of EJ is not 
required as part of this proposed action, and there is no information 
in the record inconsistent with the stated goal of E.O. 12898 of 
achieving environmental justice for people of color, low-income 
populations, and Indigenous peoples.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental Relations, Nitrogen 
oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 17, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-15498 Filed 7-26-23; 8:45 am]
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