[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65025-65030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32332]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA-002-BU; FRL-5932-6]
Clean Air Act Reclassification; California--Santa Barbara
Nonattainment Area; Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finding that the Santa Barbara nonattainment area has
not attained the 1-hour ozone national ambient air quality standard
(NAAQS) by the applicable attainment date in the Clean Air Act (CAA)
for moderate ozone nonattainment areas, which is November 15, 1996. The
finding is based on EPA's review of monitored air quality data from
1994 through 1996 for compliance with the 1-hour ozone NAAQS. As a
result of the finding, the Santa Barbara ozone nonattainment area will
be reclassified by operation of law as a serious ozone nonattainment
area on the effective date of this action. The effect of the
reclassification will be to continue progress toward attainment of the
1-hour ozone NAAQS through the development of a new State
implementation plan (SIP), due 12 months from the effective date of
this action, addressing attainment of that standard by November 15,
1999.
EFFECTIVE DATE: January 9, 1998.
FOR FURTHER INFORMATION CONTACT: Dave Jesson, Office of Air Planning,
AIR-2, Air Division, U.S. Environmental Protection Agency, Region 9, 75
Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1288.
SUPPLEMENTARY INFORMATION:
I. Background
Under sections 107(d)(1)(C) and 181(a) of the Clean Air Act (CAA)
as amended in 1990, Santa Barbara County was designated nonattainment
for the 1-hour ozone NAAQS and classified as ``moderate.'' See 56 FR
56694 (November 6, 1991). Moderate nonattainment areas were required to
show attainment by November 15, 1996. CAA section 181(a)(1).
Pursuant to section 181(b)(2)(A) of the CAA, EPA has the
responsibility for determining, within 6 months of an area's applicable
attainment date, whether the area has attained the 1-hour ozone
NAAQS.1 Under section 181(b)(2)(A), if EPA finds that an
area has not attained the 1-hour ozone NAAQS, it is reclassified by
operation of law to the higher of the next higher classification or to
the classification applicable to the area's design value at the time of
the finding. CAA section 181(b)(2)(B) requires EPA to publish a
document in the Federal Register identifying areas which failed to
attain the standard and therefore must be reclassified by operation of
law. A complete discussion of the statutory provisions and EPA policies
governing findings of whether an area failed to attain the ozone NAAQS
can be found in the proposal for this action at 62 FR 46234 (September
2, 1997).
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On July 18, 1997 (62 FR 38856), EPA revised the ozone NAAQS to
establish a 8-hour standard; however, in order to ensure an
effective transition to the new 8-hour standard, EPA also retained
the 1-hour NAAQS for an area until such time as it determines that
the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR
38894. As a result of retaining the 1-hour standard, CAA part D,
subpart 2, Additional Provisions for Ozone Nonattainment Areas,
including the reclassification provisions of section 181(b), remain
applicable to areas that are not attaining the 1-hour standard.
Unless otherwise indicated, all references in this notice are to the
1-hour ozone NAAQS.
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II. Proposed Action
On September 2, 1997, EPA proposed to find that the Santa Barbara
ozone nonattainment area failed to attain the 1-hour ozone NAAQS by the
applicable attainment date. The proposed finding was based upon ambient
air quality data from the years 1994-1996. The data showed that the 1-
hour ozone NAAQS of 0.12 parts per million (ppm) had been exceeded on
average more than one day per year over this 3-year period. Attainment
of the 1-hour NAAQS is demonstrated when an area averages one or less
days per year over the standard during a 3-year period. 40 CFR 50.9 and
Appendix H. EPA also proposed that the appropriate reclassification of
the area was to serious, based on the area's 1994-1996 design value of
0.130 ppm. This design value is well below the range of 0.180 to 0.280
ppm for a severe classification. For a complete discussion of the Santa
Barbara ozone data and the method of calculating both the average
number of days over the ozone standard and the design value, see 62 FR
46235-6.2
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\2\ EPA wishes to correct one number in the table in the
proposal entitled ``Average Number of Ozone Exceedance Days Per Year
in the Santa Barbara Area'' (62 FR 46236). SBCAPCD pointed out that
the correct site design value for the El Capitan station for 1994-
1996 is 0.118 ppm, rather than 0.119 ppm.
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Finally, EPA proposed to require submittal of the serious area SIP
revisions no later than 12 months from the effective date of the area's
reclassification.
[[Page 65026]]
III. Response To Comments
In response to its September 2, 1997 proposal, EPA received
comments from the Environmental Defense Center, Congressman Walter
Capps, the Santa Barbara County Air Pollution Control District
(SBCAPCD), the Chair of the SBCAPCD Board, the California Air Resources
Control Board (CARB), the Santa Barbara Association of Realtors, and
one private citizen. EPA is grateful for the comments, suggestions, and
helpful information, and the Agency responds below.
A. Comments Related to Splitting the Nonattainment Area and
Reclassifying Only the South Portion of the County
The entire Santa Barbara County has been designated nonattainment
and classified moderate since November 15, 1990, the date of enactment
of the 1990 amendments to the Clean Air Act. 56 FR 56694 and 56 FR
56729. In the proposal, EPA noted that SBCAPCD had asked the Agency to
consider dividing the County along a specific boundary line (for the
most part, along the ridge of the Santa Ynez Mountain Range), and then
applying the reclassification to only the south portion of the County.
EPA proposed to determine, pursuant to section 181(a)(2), that the
existing nonattainment area did not meet the 1-hour ozone NAAQS.
However, in response to SBCAPCD's request, the Agency sought comment on
the technical rationale for applying the resulting reclassification to
only the south portion, including information on the north portion's
impact on air quality in the south, and information on current and
expected air quality in the north portion in relation to the new 8-hour
ozone standard. 62 FR 46236.
Although a number of commenters urged splitting the nonattainment
area, EPA is not currently inclined to do so, based on the available
information, as discussed further below. Moreover, the Agency believes
that in order to accomplish such a result, it would have to initiate
additional rulemaking in order to comply with the Administrative
Procedure Act, 5 U.S.C. 551 et seq. However, because most of the
comments in response to the proposed reclassification were directed to
this issue, EPA is preliminarily addressing them here.
1. Comments on the impacts of reclassifying only the south portion:
The late Congressman Walter Capps encouraged EPA to change the size of
the affected nonattainment area and focus control efforts on those
areas that are causing the pollution problems. SBCAPCD and CARB
expressed a desire to minimize the impacts of the reclassification to
serious, particularly within the north portion of the county, where no
site has violated the 1-hour ozone NAAQS since the 1989-1991 period.
EDC, on the other hand, noted specific adverse impacts if the north
portion of the County were not to be bumped up: (1) The potential loss
of revenues to the County from several Federal funding sources,
including Congestion Management and Air Quality (CMAQ) monies; (2) the
dislocating impacts on the County's fee structures and rule
implementation and enforcement efforts, and other logistical and
financial ramifications; (3) the loss of increased agricultural
productivity in the north portion if the air quality benefits
associated with the bump-up of the entire County are foregone; (4) the
need to undertake a wholesale revision to the SIP, and to require
additional emissions reductions only from sources in the south portion;
(5) the disruption of air quality planning, if the north county (where
the margin of attainment is very slim) slips back into nonattainment
for the 1-hour standard, triggering the need for additional reductions,
but too late to avoid a 1999 nonattainment finding; and (6) the
complication for air quality planning if the north portion continues to
exceed the 8-hour ozone NAAQS and the State and District must therefore
prepare separate plans for the north and south portions.
Response: EPA fully supports streamlining and targeting plan
requirements, and will work with SBCAPCD and CARB to maximize
flexibility and cost effectiveness in the preparation of the SIP
revision. So long as the few minimum CAA mandates are met, SBCAPCD and
CARB are entitled to impose new controls of different stringency in
different portions of the County. This is true regardless of whether or
not the reclassification is restricted only to the south portion.
Whether the reclassification may be limited to only the southern
portion depends on the technical basis. The technical basis is
discussed below. In any event, EPA believes that EDC raises important,
potentially unfavorable consequences of splitting the County and
reclassifying only the south portion. EPA urges CARB and SBCAPCD to
consider such possible detrimental aspects of significantly changing
the focus of air pollution control efforts in the County.
2. Comments on the technical basis for reclassifying only the south
portion: SBCAPCD provided technical information on the air quality and
meteorological basis for limiting the bump-up to the south portion,
including an assessment of the contribution the north portion of the
County has on days when the south portion exceeded the 1-hour ozone
NAAQS in the period 1994 through 1996. SBCAPCD concluded from this
analysis that on most of the exceedance days contributions from the
north portion do not appear to be significant, but that on other
exceedance days contributions from the north portion of the County
could not be ruled out with the available data. The District noted that
one monitor in the north portion recorded violations of the new 8-hour
NAAQS for the 1994-1996 period, but SBCAPCD expressed the belief that
anticipated reductions in regional and local emissions should cause the
site to be in compliance with the 8-hour standard by 2000.
CARB pointed to the absence of violations of the 1-hour ozone
standard in the north portion since 1991, referenced a downward
emissions trend, and stated that the north and south portions of the
County are geographically distinct. CARB concluded that EPA should
reconsider the proposal to reclassify the entire County.
EDC, on the other hand, strongly opposed bifurcating the
nonattainment area and presented: (1) technical information relating to
rapid development now occurring in, or planned for, the north portion
of the County, making an increase in mobile source emissions highly
probable; (2) air quality data showing that several monitoring
locations in the north portion experience exceedances or near-
exceedances of the new Federal 8-hour NAAQS and routinely exceed the
State 1-hour ozone standard (0.09 ppm); (3) arguments that the existing
monitoring network is inadequate to record peak concentrations and that
high elevation stations should be located near urbanized north County
areas; and (4) arguments that modeling shows that the entire southern
California region shares at least portions of airsheds at times, and
that the north portion is both a downwind/recipient region and an
upwind/contributor region, and that therefore the failure to bump up
the north portion of the County could impair the efforts of Ventura and
the South Coast areas to attain.
Response: EPA agrees with SBCAPCD that, for the period 1994-1996,
most exceedances appear to have been influenced by areas to the
southeast, rather than from the north portion of the County. EPA is not
convinced at this time that the available data and analyses (which do
not include photochemical
[[Page 65027]]
modeling information) provide conclusive evidence that sources in the
north portion would not significantly impact air quality in the south
portion under meteorological conditions that have occurred in the area,
and may occur in the future. While the existing modeling domain does
not cover the bulk of the north portion, it is possible that useful
urban airshed modeling (UAM) for the entire County will be available
from the Southern California Ozone Study (SCOS), a broad scale regional
air quality assessment undertaken this year. EPA hopes that this
information will allow for a more informed decision regarding the
impacts of emissions in the north portion on ozone concentrations in
the south portion, both with respect to the 1-hour and the 8-hour ozone
standards.
EPA continues to review the submitted data and conclusions, and has
requested additional information from SBCAPCD relating to the amount of
manmade and biogenic emissions in the north portion compared to the
south portion of the County. SBCAPCD has provided this data, which is
part of the rulemaking docket. The SBCAPCD data on point source
emissions indicate that south county sources emit approximately 26% of
reactive organic gases (ROG) and 8.5% of nitrogen oxides (NOx), north
county sources emit roughly 53% of ROG and 65% of NOx, and the
remaining emissions occur in the Outer Continental Shelf (OCS). EPA has
not yet received data on the north-south split of mobile source
emissions, including VMT, but the high proportion of industrial
emissions in the north portion by itself suggests the potential for
significant impacts from these sources on ozone concentrations in the
south portion.
Moreover, as discussed in response to the comment below on
procedural issues, EPA does not believe that the Agency could revise,
in this final action, the nonattainment boundaries or establish
separate nonattainment areas with different classifications, since the
public involvement requirements of the Administrative Procedure Act,
including notice and comment, have not yet been satisfied for this
issue. EPA offers to work closely with the SBCAPCD, CARB, and other
interested parties if they wish to assemble and analyze all of the
necessary information to determine whether reclassification or
redesignation is appropriate.
3. Comments on procedural issues associated with reclassifying only
the south portion or redesignating the north portion to attainment:
SBCAPCD noted that while certain procedural requirements of section 107
of the CAA may still need to be addressed, EPA may at this time
determine that available information indicates that the north portion
should not be classified as a serious nonattainment area. SBCAPCD
stated that EPA can use its authority under section 110(k)(6) of the
Act to correct the boundaries of nonattainment areas where information
reveals that the previous boundaries were in error.
EDC stated that EPA's notice of proposed rulemaking cannot serve as
a vehicle for redesignation of the nonattainment boundaries, since the
notice did not propose partial reclassification and lacked the
specificity to alert interested parties to the relevant facts. EDC
concluded that a final EPA action reclassifying only the south portion
would fail to meet the requirements of the Administrative Procedures
Act regarding full disclosure of the legal basis, supporting facts, and
logical rationale for a partial reclassification action, and therefore
would fail to provide a fair opportunity for the public to consider and
review the action. EDC also referenced section 107(d)(3)(E) of the CAA,
which requires a series of determinations and approvals before
redesignation to attainment, if the north portion were not to retain a
moderate nonattainment classification but be redesignated to
attainment. EDC noted that prerequisite to redesignation must be full
approval of applicable attainment and maintenance plans, findings of
the permanence and enforceability of emission reductions, and other
factual conclusions which are not appropriate for the north portion of
the County at this time.
Response: EPA agrees with EDC that the proposal published on
September 2, 1997, does not meet applicable procedural requirements for
public notice and involvement on issues relating to a bump up of only
the south portion. For this reason, EPA is not taking final action at
this time to divide the County into two nonattainment areas.
Moreover, as discussed above, EPA does not believe that currently
available information supports a determination that the county-wide
boundary for Santa Barbara is in error.
Finally, if the State and SBAPCD intend the north portion of the
County to be redesignated to attainment, the CAA specifies both
procedural and substantive steps that the Governor and EPA must take
before a redesignation or boundary change is proposed.3 If
the State wishes the north portion to be designated as a separate
nonattainment area, EPA would also need to identify appropriate SIP
requirements for the area. EPA will protect the public's rights to be
involved in, and to provide constructive input to, any future
decisionmaking on reclassification and redesignation.
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\3\ In the 1990 amendments to the Clean Air Act, Congress
established by operation of law boundaries for ozone and carbon
monoxide nonattainment areas classified as serious, severe, or
extreme. Congress set the default boundary for these areas as the
metropolitan statistical area (MSA) or consolidated metropolitan
statistical area (CMSA). CAA Section 107(d)(4)(iv). This expansive
boundary was selected in order to ensure that nonattainment areas
would not be reduced to a size that would frustrate regional
planning or jeopardize long-term attainment prospects because of
pollution transported into the nonattainment area from rapidly
growing suburban areas.
In section 107(d)(4)(A)(v) of the Act, Congress identified some
of the criteria to be used in determining whether any portion of an
MSA or CMSA could be excluded from an ozone or carbon monoxide
nonattainment area. ``Whenever a Governor finds and demonstrates to
the satisfaction of the Administrator, and the Administrator concurs
in such finding, that with respect to a portion of a metropolitan
statistical area or consolidated metropolitan statistical area,
sources in the portion do not contribute significantly to violation
of the national ambient air quality standard, the Administrator
shall approve the Governor's request to exclude such portion from
the nonattainment area. In making such finding, the Governor and the
Administrator shall consider factors such as population density,
traffic congestion, commercial development, industrial development,
meteorological conditions, and pollution transport.''
The State of California formally concurred in the county-wide
boundaries for the Santa Barbara ozone nonattainment area, which
were confirmed by EPA in the initial promulgation of designations
and classifications under the 1990 amendments to the CAA. See letter
from James D. Boyd, CARB Executive Officer, to Daniel W. McGovern,
Regional Administrator, USEPA Region 9, dated March 15, 1991; and 56
FR 56729, November 6, 1991 (codified at 40 CFR 81.305).
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B. Comments Related to Pollutant Transport
Comment: SBCAPCD and the late Congressman Capps urged EPA to
recognize the contribution of transport of air pollution into Santa
Barbara County from upwind areas, and asked EPA to help ensure that
these areas meet their responsibilities in mitigating their transport.
SBCAPCD also requested EPA assistance in quantifying these impacts.
Response: As noted above, the SCOS was undertaken this year. The
domain of the SCOS extends from Santa Barbara to northern Mexico. This
study was designed to provide, for the first time, scientific
information on the extent to which ozone and ozone precursors travel
within this area. EPA has provided funding for the SCOS, and expects to
continue to provide technical support to the cooperative project. EPA
hopes that the SCOS will lead to the development of new analytical
tools, including updated and enhanced UAM
[[Page 65028]]
modeling, to predict with much greater precision the air quality
impacts of locally generated emissions and pollution transported from
upwind areas. Based on this information, the State and local air
pollution control districts should be able to develop more effective
air quality plans that can speed progress toward meeting the health-
based NAAQS and achieving other environmental benefits. In the
meantime, EPA has advised all Southern California air pollution control
agencies that they must responsibly implement their air quality plans
to ensure that air quality progress in downwind areas is not
jeopardized.
C. Miscellaneous Comments
Comment: The Santa Barbara Association of Realtors (SBAR) noted
that only 7 percent of the total emissions in the County can be
regulated by the SBCAPCD, that the District has gone just about as far
as they can go to reduce emissions, and that the imposition of harsher
air quality standards on the local business community will revert the
County into another recession. SBAR urged flexibility, and recommended
that EPA grant a waiver of one to three years for the County to meet
the 1996 ozone standard, rather than punish the area ``for failure to
meet a questionable standard in a minuscule manner in an exact time
period. * * *''
Response: EPA agrees with SBAR that the SBCAPCD and local industry
working in concert have an excellent record of environmental commitment
and innovation in identifying and implementing available controls. This
extraordinary cooperative local effort was honored last year when the
SBCAPCD received both the Presidential Award for sustainable
Development and the Governor's Environmental and Economic Leadership
Award.
While EPA may desire more flexibility in this situation to reward
Santa Barbara County for its demonstrated leadership, the Agency has
not been granted that flexibility under the Clean Air Act. The CAA does
not allow for reviewing an area's efforts to adopt controls or the
comparative availability of new control opportunities within an area.
Determining whether an area met its attainment deadline is based solely
on available ambient air quality data.
The classification structure of the Act is a clear statement of
Congress's belief that the later attainment deadlines afforded higher-
classified and reclassified areas as due to the greater stringency of
controls. The reclassification provisions of the Clean Air Act are not
punitive, but rather are a reasonable mechanism to assure continued
progress toward attainment of the health-based ambient air quality
standards when areas miss their attainment deadlines.
Neither the provisions of 40 CFR 50.9, as revised (62 FR 38856 and
62 FR 38894), nor any other statutory or regulatory provisions, provide
EPA with the authority to suspend enforcement of the 1-hour NAAQS in
Santa Barbara. Moreover, the Santa Barbara area has not complied with
some of the most significant serious area requirements (e.g., the 9
percent rate of progress requirement). Finally EPA believes that
complying with those requirements will have a positive, not
detrimental, effect on the ability of Santa Barbara to comply with the
8-hour standard.
Comment: SBAR commented that EPA should complete a ``cost versus
benefit'' analysis and should attempt to mitigate economic burdens
associated with reclassification through incentive and inducement
rather than punitive measures with a ``command and control'' mentality.
Response: Congress established in the CAA certain SIP requirements
for serious ozone areas. EPA does not mandate any specific controls or
control approach beyond these statutory requirements, and encourages
State and local agencies to pursue pollution prevention and other
techniques for achieving the CAA public health goals while minimizing
costs and dislocations. The Agency encourages SBAR to suggest specific
ways in which the Federal government could provide incentives and
inducements.
Comment: EDC noted that EPA and SBCAPCD had delayed in responding
to 1996 violations. EDC stated that setting a one year period after the
effective date of EPA's action would allow too long a period for SIP
submittal. EDC suggested February 1998 as the SIP submittal deadline,
unless SBCAPCD begins adopting and implementing additional control
measures immediately to assure progress towards attainment by November
1999.
Response: EPA believes that the SIP schedule--submission of a SIP
meeting all applicable CAA requirements for a serious ozone
nonattainment area by one year from the effective date of this final
action--is ambitious but grants sufficient time for completing
necessary technical analyses, interactions with involved agencies and
the public, and rule development activities. In addition, this schedule
should allow for implementation of the plan during the full ozone
season in 1999, the attainment year. EPA believes that it would be
unrealistic to require plan submission at an earlier date or to mandate
prior rule adoption by the SBCAPCD.
IV. Final Action
EPA is finding that the Santa Barbara ozone nonattainment area did
not attain the ozone NAAQS by November 15, 1996, the CAA attainment
date for moderate ozone nonattainment areas. As a result of this
finding, the Santa Barbara ozone nonattainment area is reclassified by
operation of law as a serious ozone nonattainment area on the effective
date of today's action and the submittal of the serious area SIP
revisions will be due no later than 12 months from this effective date.
The requirements for this SIP submittal are established in CAA section
182(c) and applicable EPA guidance.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future action. Each finding of
failure to attain, request for an extension of an attainment date, and
establishment of a SIP submittal date shall be considered separately
and shall be based on the factual situation of the area under
consideration and in relation to relevant statutory and regulatory
requirements.
V. 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 action 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, sec. 6(a)(3). The E.O. defines, in sec. 3(f), a
``significant regulatory action'' as a regulatory action that is likely
to result in a rule that may meet at least 1 of 4 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 neither the finding of failure to attain it
is making
[[Page 65029]]
today, nor the establishment of SIP submittal schedule would result in
any of the effects identified in E.O. 12866 sec. 3(f). As discussed
above, findings of failure to attain under section 181(b)(2) of the Act
are based upon air quality considerations, and reclassifications must
occur by operation of law in light of certain air quality conditions.
These findings do not, in and of themselves, impose any new
requirements on any sectors of the economy. In addition, because the
statutory requirements are clearly defined with respect to the
differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local, or tribal governments or communities. 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-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
As discussed above, a finding of failure to attain (and the
consequent reclassification by operation of law of the nonattainment
area) under section 181(b)(2) of the Act, 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 makes a factual determination and establishes a
schedule to require States to submit SIP revisions, and does not
directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b),
EPA reaffirms its certification made in the proposal (62 FR 46233) that
today's final action will 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), P.L.
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 1 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.
Generally, EPA has determined that the provisions of sections 202
and 205 of UMRA do not apply to this decision. Under section 202, EPA
is to prepare a written statement that is to contain assessments and
estimates of the costs and benefits of a rule containing a Federal
Mandate ``unless otherwise prohibited by law.'' Congress clarified that
``unless otherwise prohibited by law'' referred to whether an agency
was prohibited from considering the information in the rulemaking
process, not to whether an agency was prohibited from collecting the
information. The Conference Report on UMRA states, ``This section [202]
does not require the preparation of any estimate or analysis if the
agency is prohibited by law from considering the estimate or analysis
in adopting the rule.'' 141 Cong. Rec. H3063 (Daily ed. March 13,
1995). Because the Clean Air Act prohibits, when determining whether an
area attained the ozone standard or met the criteria for an extension,
from considering the types of estimates and assessments described in
section 202, UMRA does not require EPA to prepare a written statement
under section 202. Although the establishment of a SIP submission
schedule may impose a Federal mandate, this mandate would not create
costs of $100 million or more, and therefore, no analysis is required
under section 202. The requirements in section 205 do not apply because
those requirements for rules ``for which a written statement is
required under section 202. * * *''
With regard to the outreach described in UMRA section 204, EPA
discussed its proposed action in advance of the proposal with State
officials.
Finally, section 203 of UMRA does not apply to today's action
because the regulatory requirements finalized today--the SIP submittal
schedule--affect only the State of California, which is not a small
government under UMRA.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 9, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, ozone.
[[Page 65030]]
Dated: November 26, 1997.
Felicia Marcus,
Regional Administrator.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.305 the table for California--Ozone, is amended by
revising the entry for ``Santa Barbara-Santa Maria-Lompoc Area Santa
Barbara County'' to read as follows:
Sec. 81.305 California.
* * * * *
California-Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
Santa Barbara-Santa Maria-Lompoc 11/15/90 Nonattainment.............. 1-9-98 Serious.
Area Santa Barbara County.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
[FR Doc. 97-32332 Filed 12-9-97; 8:45 am]
BILLING CODE 6560-50-P
