46234 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules

1On July 18, 1997 (62 FR 38856), PA 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.

of any rule that includes any Federal

mandate that may result in the

expenditures by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more’’

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

is defined, under section 101 of UMRA,

as a provision that ‘‘would impose an

enforceable duty’’ upon the private

sector or State, local, or tribal

governments’’, with certain exceptions

not here relevant. Under sec. 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.

Sections 202, 204, and 205 of UMRA

do not apply to today’s action because

the proposed factual determination that

Phoenix failed to reach attainment does

not, in-and-of-itself, constitute a Federal

mandate because it does not impose an

enforceable duty on any entity.

Although the establishment of a SIP

submission schedule may impose such

a duty on the State, this requirement

merely establishes due dates, does not

set out any requirements not otherwise

already present, and thus cannot be

considered to cost $100 million or more.

Finally, section 203 of UMRA does not

apply to today’s action because the

regulatory requirements proposed

today—the SIP submittal schedule—

affect only the State of Arizona, which

is not a small government under UMRA.

D. Rule vs. Adjudication

It should be noted that each of the

three administrative requirements

described above—E.O. 12866, the

Regulatory Flexibility Act, and UMRA—

apply only with respect to agency

actions that fall into the category of

‘‘rules’’, as defined under those

provisions or under the Administrative

Procedures Act. E.O. 12866 sec. 3 (d)–

(e); Regulatory Flexibility Act, 5 U.S.C.

sec. 603(a), 601(2); Unfunded Mandates

Reform Act, secs. 202–205, 421. EPA is

considering the possibility that today’s

action, to the extent it consists of a

determination that the Phoenix area

failed to attain the ozone NAAQS as of

the end of 1996, might not be

considered a ‘‘rule’’ as defined under

these provisions, and instead might be

considered an informal adjudication.

The basis for this distinction could be

that today’s action constitutes a specific

factual determination applicable only to

the area in question, based on preexisting facts. Under these

circumstances, the administrative

requirements discussed above might not

apply. However, EPA is taking this

approach under consideration, it is not

today proposing this approach.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Ozone.

Authority: 42 U.S.C. sections 7401–7671q.

Dated: August 25, 1997.

Felicia Marcus,

Regional Administrator.

[FR Doc. 97–23234 Filed 8–29–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[CA–002–BU; FRL–5886–6]

Clean Air Act Reclassification;

California-Santa Barbara

Nonattainment Area; Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to determine

that the Santa Barbara moderate ozone

nonattainment area has not attained the

1-hour ozone national ambient air

quality standard (NAAQS) by the Clean

Air Act (CAA) mandated attainment

date for moderate nonattainment areas,

November 15, 1996. The proposed

determination is based on EPA’s review

of monitored air quality data for

compliance with the 1-hour ozone

NAAQS. If EPA takes final action on the

determination as proposed, the Santa

Barbara ozone nonattainment area will

be reclassified by operation of law as a

serious nonattainment area. The effect

of such a reclassification would be to

continue progress toward attainment of

the 1-hour ozone NAAQS through

development of a new State

implementation plan (SIP) addressing

attainment of the standard by November

15, 1999.

DATES: Comments on this proposal must

be received in writing by October 2,

1997. Comments should be addressed to

the Region 9 office under ADDRESSES.

ADDRESSES: Copies of EPA’s draft

technical support document (TSD) for

this rulemaking and EPA’s policies

governing attainment findings and

extension requests are contained in the

docket for this rulemaking. A copy of

this notice and the TSD are also

available in the air programs section of

EPA Region 9’s website, http://

www.epa.gov/region09. The docket is

available for inspection during normal

business hours at the following

locations:

U.S. Environmental Protection Agency,

Region 9, Office of Air Planning, Air

Division, 17th Floor, 75 Hawthorne Street,

San Francisco, California 94105. (415) 744–

1248;

California Air Resources Board; 2020 L

Street; Sacramento, California; and

Santa Barbara Air Pollution Control District;

26 Castilian Drive B–23; Goleta, California.

FOR FURTHER INFORMATION CONTACT:

Dave Jesson, Office of Air Planning

(AIR–2), U.S. Environmental Protection

Agency, Region 9, 75 Hawthorne Street,

San Francisco, California 94105. (415)

744–1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions

Concerning Designation and

Classifications

The Clean Air Act Amendments of

1990 (CAA) were enacted on November

15, 1990. Under section 107(d)(1)(C) of

the CAA, each ozone area designated

nonattainment for the 1-hour ozone

NAAQS prior to enactment of the 1990

Amendments, such as the Santa Barbara

nonattainment area, was designated

nonattainment by operation of law upon

enactment of the 1990 Amendments.1

Under section 181(a) of the Act, each

ozone area designated nonattainment

under section 107(d) was also classified

by operation of law as ‘‘marginal,’’

‘‘moderate,’’ ‘‘serious,’’ ‘‘severe,’’ or

‘‘extreme’’ depending on the severity of

the area’s air quality problem. Ozone
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46235

2Under section 181(a)(5) of the CAA, if a state

does not have the clean data necessary to show

attainment of the NAAQS, it may apply for, and

EPA may issue, up to two one-year attainment date

extensions if the state has: (1) Complied with the

requirements and commitments pertaining to the

applicable implementation plan for the area, and (2)

the area has measured no more than one

exceedance of the ozone NAAQS at any monitoring

site in the nonattainment area in the year preceding

the extension year. See memorandum from D. Kent

Berry, Acting Director, Air Quality Management

Division, EPA, to Regional Air Office Directors,

entitled ‘‘Procedures for Processing Bump Ups and

Extensions for Marginal Ozone Nonattainment

Areas,’’ February 3, 1994 (Berry memorandum). The

State has not applied for an extension for the Santa

Barbara area and, as discussed below, the area does

not meet the second statutory criterion for such an

extension.

3See generally 57 FR 13506 (April 16, 1992) and

Berry memorandum. While explicitly applicable

only to marginal areas, the general procedures for

processing reclassifications and extension requests

described in this memorandum apply regardless of

the initial classification of an area because all

reclassification are made pursuant to the same

Clean Air Act requirements in section 181(b)(2).

4All quality-assured available data includes all

data available from the state and local/national air

monitoring (SLAMS/NAMS) network as submitted

to EPA’s AIRS system and all data available to EPA

from special purpose monitoring (SPM) sites that

meet the requirements of 40 CFR 58.13.

5See memorandum from William G. Laxton,

Director Technical Support Division, entitled

‘‘Ozone and Carbon Monoxide Design Value

Calculations,’’ June 18, 1990.

nonattainment areas with design values

between 0.138 and 0.160 parts per

million (ppm), such as the Santa

Barbara area, were classified as

moderate. These nonattainment

designations and classifications were

codified in 40 CFR part 81. See 56 FR

56694 (November 6, 1991). The Santa

Barbara nonattainment area comprises

the entire County of Santa Barbara. See

40 CFR 81.305.

States containing areas that were

classified as moderate nonattainment by

operation of law under section 107(d)

were required to submit State

implementation plans (SIPs) designed to

show progress towards attainment, and

attainment of the ozone NAAQS as

expeditiously as practicable but no later

than November 15, 1996. Moderate area

SIP requirements are found primarily in

section 182(b) of the CAA.

B. Reclassification to Serious

EPA has the responsibility, pursuant

to section 181(b)(2)(A) of the CAA, of

determining, within six months of the

applicable attainment date (including

any extension of that date) 2 whether an

ozone nonattainment area has attained

the ozone NAAQS. Under section

181(b)(2)(A), if EPA finds that a

moderate area has not attained the

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.

Pursuant to section 186(b)(2)(B) of the

Act, EPA must publish a notice in the

Federal Register identifying areas

which failed to attain the standard and

therefore must be reclassified by

operation of law.

The 1-hour ozone NAAQS is 0.12

ppm not to be exceeded on average

more than one day per year over any

three year period. 40 CFR 50.9 and

Appendix H. EPA makes attainment

determinations for ozone nonattainment

areas using the most recently available,

quality-assured air quality data covering

the 3-year period up to and including

the attainment date.3 Consequently, EPA

will determine whether the Santa

Barbara area’s air quality has met the

moderate area attainment deadline of

November 15, 1996 based upon all 1994,

1995, and 1996 (through November 15)

quality-assured air quality data available

to the Agency.4 From the available data,

EPA determines the average number of

exceedances per year at each ozone

monitor during this period. If this

number is greater than one at any

monitor, then the area is determined to

have not attained by November 15,

1996. EPA then calculates the design

value for the area to determine the

correct new classification.5

II. Proposal in Regard to the Santa

Barbara Ozone Nonattainment Area

A. Current Air Quality

The Santa Barbara County Air

Pollution Control District (SBCAPCD)

and the California Air Resources Board

(CARB) have worked hard to improve

the County’s air quality. The early

introduction of cleaner burning gasoline

and the strictest vehicle emission

standards in the country, reflect CARB’s

leadership on air quality issues. In

addition, SBCAPCD has been

recognized for it’s innovative

approaches toward clean air. For its

efforts, SBCAPCD received the 1996

Presidential Award for Sustainable

Development and the 1996 Governor’s

Environmental and Economic

Leadership Award.

While CARB and SBCAPCD continue

to make progress in addressing the

ozone problem, more still needs to be

done. EPA will work with the State,

District, local communities, business

and environmental interests to develop

additional approaches to improving

Santa Barbara County’s air quality.

Attainment of the 1-hour ozone

NAAQS is demonstrated in an area

when the expected number of days per

calendar year with maximum hourly

average ozone concentrations above 0.12

ppm is equal to or less than one. 40 CFR

50.9. The average number of days is

calculated for a three-year period. 40

CFR part 50, Appendix H and Laxton

memo. The 1994–1996 period is used to

demonstrate attainment by November

15, 1996.

The SBCAPCD and CARB operate an

ozone monitoring network in Santa

Barbara County which consists of six

ozone monitoring stations designated as

State or Local Air Monitoring Stations

(SLAMS). In addition to its SLAMS

network the SBCAPCD also oversees the

operation of a number of special

purpose monitors (SPMs). These SPMs

are operated independently by certain

permitted stationary sources in the

county but all data collected at these

SPMs are validated and audited by a

SBCAPCD contractor. All data produced

by these SPMs are submitted to the

EPA’s Aerometric Information Retrieval

System—Air Quality Subsystem (AIRS–

AQS) database. While these SPMs are

not part of the county’s SLAMS

network, data from these sites are used

to augment the data from the SLAMS

network.

The following table lists the 3-year

average number of days over the 1-hour

ozone standard at each SLAMS/SPM

monitoring site in the Santa Barbara

area for the period 1994 to 1996 and

each monitor’s design value for that

period. Design values are calculated

following the procedures in the Laxton

memo. A complete listing of the ozone

exceedances at each monitor as well as

EPA’s calculations of the design values

can be found in the TSD.
46236 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules

6The SBCAPCD is recommending the following

boundaries for the South County portion of the

nonattainment area: Beginning at the Pacific Ocean

outfall of Jaluma Creek and running east and north

along Jaluma Creek to a point of intersection with

the west boundary of the San Julian Land Grant;

then south along the San Julian Land Grant

boundary to its southwest corner; then east along

the south boundary of the San Julian Grant to the

northeast corner of partial Section 20, T. 5 N, R. 32

W, San Bernardino Base and West; then south and

east along the boundary of the Las Cruces Land

Grant to the southwest corner of partial Section 13,

T. 5 N, R. 32 W; then northeast along the Las Cruces

Land Grant boundary; then east along the north

boundaries of Section 13, T. 5 N, R. 32 W, and

Sections 18, 17, 16, 15, 14, 13, T. 5 N, R. 31 W,

and Sections 18, 17, 16, 15, 14, 13, T. 5 N, R. 30

W, and Sections 18, 17, 16, 15, T. 5 N, R. 29 W;

then south along the east boundary of Section 15,

T. 5 N, R 29 W; then east along the north

boundaries of Sections 23 and 24, T. 5 N, R. 29 W,

and Sections 19, 20, 21, 22, 23, T. 5 N, R. 28 W,

and Sections 19 and 20, T. 5 N, R. 27 W; then south

along the east boundary of Section 20, T. 5 N, R.

27 W, then east along the north boundaries of

Sections 28, 27, 26, 25, T. 5 N, R. 27 W, and Section

30 T. 5 N, R. 26 W; then south along the east

boundary of Section 30, T. 5 N, R. 26 W; then east

along the north boundaries of Sections 32, 33, 34,

T. 5 N, R. 26 W; then south along the east boundary

of Section 35, T. 5 N, R. 26 W to the township line

common to T. 4 N and T. 5 N; then east along this

township line to the Santa Barbara-Ventura County

boundary; State waters offshore of that portion of

the Santa Barbara County lying south of the latitude

of the mouth of the Jalama Creek and those areas

of the Outer Continental Shelf waters for which the

District has been designated the corresponding

onshore area by the Environmental Protection

Agency.

7SBCAPCD is recommending that the North

County boundary be the remainder of Santa Barbara

County and corresponding State waters located

offshore not included in the previous footnote

describing the South County boundary.

AVERAGE NUMBER OF OZONE EXCEEDANCE DAYS PER YEAR IN THE SANTA BARBARA AREA

[1994–1996]

Site

Number of

days over the

standard

(1994–1996)

Average number of

exceedance

days per year

Site design

value (PPM)

El Capitan St (SLAMS) ................................................................................................................ 2 0.7 0.119

Goleta (SLAMS) ........................................................................................................................... 2 0.7 0.119

Gaviota West (SPM) .................................................................................................................... 1 0.3 0.110

Gaviota East (SPM) ..................................................................................................................... 1 0.3 0.111

Gaviota GTC B (SPM) ................................................................................................................. 1 0.3 0.103

Gaviota GTC C (SPM) ................................................................................................................. 4 1.3 0.125

Carpinteria (SPM) ......................................................................................................................... 4 1.3 0.128

Capitan LFC #1 (SPM) ................................................................................................................. 8 2.7 0.130

As can be seen from preceding table,

three SPM monitoring sites (Gaviota

GTC C, Carpinteria, and Capitan LFC #1)

have averaged more than 1 exceedance

day per year in the 1994–1996 period.

EPA is, therefore, proposing to find that

the Santa Barbara area did not attain the

1-hour ozone NAAQS by the November

15, 1996, statutory deadline for a

moderate area.

EPA is also proposing that the

appropriate reclassification of the area is

to serious. Section 181(b)(2) requires the

area to be reclassified to the higher of

the next higher classification or the

classification appropriate to the design

value at the time of the nonattainment

finding. The next highest classification

for Santa Barbara is serious. The other

potential classification is severe. Based

on the design value calculated using

data from the SLAMS/SPM network, the

area’s design value is 0.130 ppm. This

design value is well below the range

required for a severe classification, that

is 0.180 to 0.280 ppm.

In an August 19, 1997 letter,

SBCAPCD requested that EPA consider

applying the reclassification to only the

South County 6 portion of Santa Barbara

nonattainment area. Monitoring data

from 1990–1996 indicate that the North

County 7 portion of the nonattainment

area is in compliance with the existing

1-hour ozone standard. These two areas

are separated by the Santa Ynez

Mountains. EPA is proposing to

reclassify the entire Santa Barbara

nonattainment area. However, EPA is

requesting comment on the technical

rationale for only reclassifying the

South County portion of the

nonattainment area. The technical

rationale should include information on

North County’s contribution to the

South County’s air quality. In addition,

EPA is requesting information on the

current status of and future outlook for

the North County’s air quality in

relation to meeting the new 8-hour

ozone standard.

B. SIP Requirements for Serious Ozone

Areas

Under section 181(a)(1) of the Act, the

attainment deadline for moderate area

ozone nonattainment areas reclassified

to serious under section 181(b)(2) will

be as expeditiously as practicable but no

later than November 15, 1999. Under

section 182(i), these reclassified areas

are required to submit SIP revisions

addressing the serious area

requirements for the 1-hour ozone

NAAQS in section 182(c). Section 182(i)

further provides that the Administrator

may adjust the statutory schedules for

submittal of these SIP revisions.

Accordingly, EPA is exercising this

authority to require submittal of the

serious area SIP revisions no later than

12 months from the effective date of the

area’s reclassification. EPA believes that

a 12 months schedule is appropriate

because attainment date for serious

areas, November 15, 1999, is little more

than 2 years away and the State will

need to expedite adoption and

implementation of controls to meet that

deadline. EPA is requesting comment on

the proposed 12 month schedule.

Under section 182(c), the

requirements for serious ozone

nonattainment areas include, but are not

limited to, the following: (1) Attainment

and reasonable further progress

demonstrations; (2) an enhanced vehicle

inspection and maintenance program;

(3) clean-fuel vehicle programs; (4) a 50

ton-per-year major source threshold; (5)

more stringent new source review

requirements; (6) an enhanced

monitoring program; and (7)

contingency provisions.

EPA has issued a ‘‘General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990’’

that sets forth the Agency’s preliminary

views on how it will act on SIPs

submitted under Title I of the Act. See

generally 57 FR 13498 (April 16, 1992)

and 57 FR 18070 (April 28, 1992).

EPA has recently promulgated an 8-

hour ozone standard (62 FR 38856, July

18, 1997). In order to facilitate the

transition from the 1-hour to the 8-hour

NAAQS, EPA may issue additional

guidance to assist states in meeting the

serious area requirements.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

action. Each finding of failure to attain

or request for an extension of an

attainment date shall be considered

separately and shall be based on the

factual situation of the area under
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46237

consideration and in relation to relevant

statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735,

October 4, 1993), EPA is required to

determine whether today’s proposal is a

‘‘significant regulatory action’’ within

the meaning of the E.O., and therefore

should be subject to OMB review,

economic analysis, and the

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

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

section 3(f), a ‘‘significant regulatory

action’’ as a regulatory action that is

likely to result in a rule that may meet

at least one of four criteria identified in

section 3(f), including,

(1) Have an annual effect on the economy

of $100 million or more or adversely affect

in a material way the economy, a sector of

the economy, productivity, competition, jobs,

the environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or

planned by another agency;

(3) Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the President’s

priorities, or the principles set forth in the

Executive Order.

EPA has determined that the finding

of failure to attain proposed today, as

well as the establishment of SIP

submittal schedules resulting from a

reclassification, would result in none of

the effects identified in E.O. 12866,

section 3(f). Under section 181(b)(2) of

the Act, findings of failure to attain 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.

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

proposes to make a factual

determination and to establish a

schedule to require States to submit SIP

revisions, and does not propose to

directly regulate any entities. Therefore,

pursuant to 5 U.S.C. 605(b), EPA

certifies that today’s proposed action

does not have a significant impact on a

substantial number of small entities

within the meaning of those terms for

RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, when EPA promulgates ‘‘any

general notice of proposed rulemaking

that is likely to result in promulgation

of any rule that includes any Federal

mandate that may result in the

expenditures by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more’’

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

is defined, under section 101 of UMRA,

as a provision that ‘‘would impose an

enforceable duty’’ upon the private

sector or State, local, or tribal

governments’’, with certain exceptions

not here relevant. Under sec. 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.

Sections 202, 204, and 205 of UMRA

do not apply to today’s action because

the proposed factual determination that

Santa Barbara County failed to reach

attainment does not, in and of itself,

constitute a Federal mandate because it

does not impose an enforceable duty on

any entity. Although the establishment

of a SIP submission schedule may

impose such a duty on the State, this

requirement merely establishes due

dates, does not set out any requirements

not otherwise already present, and thus

cannot be considered to cost $100

million or more. Finally, section 203 of

UMRA does not apply to today’s action

because the regulatory requirements

proposed today—the SIP submittal

schedule—affect only Santa Barbara

County, which is not a small

government under UMRA.

D. Rule vs. Adjudication

It should be noted that each of the

three administrative requirements

described above—E.O. 12866, the

Regulatory Flexibility Act, and UMRA—

apply only with respect to agency

actions that fall into the category of

‘‘rules’’, as defined under those

provisions or under the Administrative

Procedures Act. E.O. 12866 sec. 3 (d)–

(e); Regulatory Flexibility Act, 5 U.S.C.

sec. 603(a), 601(2); Unfunded Mandates

Reform Act, secs. 202–205, 421. EPA is

considering the possibility that today’s

action, to the extent it consists of a

determination that Santa Barbara

County failed to attain the ozone

NAAQS as of the end of 1996, might not

be considered a ‘‘rule’’ as defined under

these provisions, and instead might be

considered an informal adjudication.

The basis for this distinction could be

that today’s action constitutes a specific

factual determination applicable only to

the area in question, based on preexisting facts. Under these

circumstances, the administrative
46238 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules

requirements discussed above might not

apply. However, EPA is taking this

approach under consideration; it is not

today proposing this approach.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Ozone, Wilderness areas.

Authority: 42 U.S.C. 7401–7671q.

Dated: August 25, 1997.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 97–23235 Filed 8–29–97; 8:45 am]

BILLING CODE 6560–50–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[TX–89–1–7356, FRL–5885–6]

Clean Air Act Reclassification, Texas;

Dallas/Fort Worth Nonattainment Area;

Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA has determined that

the Dallas/Fort Worth (DFW), Texas,

moderate ozone nonattainment area has

not attained the one-hour ozone

National Ambient Air Quality Standard

(NAAQS) by the November 15, 1996,

Clean Air Act (the Act) mandated

attainment date for moderate ozone

nonattainment areas. The proposed

determination is based on EPA’s review

of monitored air quality data for

compliance with the one-hour ozone

NAAQS. If EPA takes final action on the

determination as proposed, the Dallas/

Fort Worth ozone nonattainment area

will be reclassified by operation of law

as a serious nonattainment area. The

intended effect of such a reclassification

would be to aid in ensuring the

attainment of the NAAQS for ozone and

allow the State additional time to

submit a revised State Implementation

Plan (SIP) to reach attainment of the

one-hour ozone NAAQS.

DATES: Comments on this proposal must

be received in writing by October 2,

1997.

ADDRESSES: Written comments should

be addressed to Mr. Thomas H. Diggs,

Chief, Air Planning Section (6PD–L), at

the EPA Regional Office listed below.

Copies of the State ozone air quality

monitoring data and EPA policy

concerning attainment findings are

contained in the docket for this

rulemaking. The docket is available for

inspection during normal business

hours at the following locations:

Air and Radiation Docket and

Information Center, Environmental

Protection Agency, 401 M Street,

S.W., Washington, D.C. 20460.

Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Suite

1200, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT: Mr.

Kurt Sonderman, Air Planning Section

(6PD–L), Environmental Protection

Agency, Region 6, 1445 Ross Avenue,

Suite 1200, Dallas, Texas, 75202,

telephone (214) 665–7205.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA

Actions Concerning Designation and

Classifications

Under section 107(d)(1)(C) of the Act,

each ozone area designated

nonattainment for the one-hour ozone

NAAQS prior to enactment of the 1990

Amendments, such as the Dallas/Fort

Worth area, was designated

nonattainment by operation of law upon

enactment of the 1990 Amendments.

Under section 181(a) of the Act, each

ozone area designated nonattainment

under section 107(d) was also classified

by operation of law as ‘‘marginal,’’

‘‘moderate,’’ ‘‘serious,’’ ‘‘severe,’’ or

‘‘extreme,’’ depending on the severity of

the area’s air quality problem. Ozone

nonattainment areas with design values

between 0.138 and 0.16 parts per

million (ppm), such as the Dallas/Fort

Worth area, were classified as moderate.

These nonattainment designations and

classifications were codified in 40 CFR

part 81. See 56 FR 56694 (November 6,

1991).

States containing areas that were

classified as moderate nonattainment by

operation of law under section 107(d)

were required to submit SIPs designed

to show progress towards attainment,

and attainment of the ozone NAAQS as

expeditiously as practicable but no later

than November 15, 1996. Moderate area

SIP requirements are found primarily in

section 182(b) of the Act.

B. Reclassification to Serious

The EPA has the responsibility,

pursuant to section 181(b)(2)(A) of the

Act, of determining, within six months

of the applicable attainment date

(including any extension of that date)

whether an ozone nonattainment area

has attained the ozone NAAQS. Under

section 181(b)(2)(A) of the Act, if EPA

finds that a moderate area has not

attained the 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. Pursuant to section 182(b)(2)(B)

of the Act, EPA must publish a notice

in the Federal Register identifying areas

which failed to attain the standard and

therefore must be reclassified by

operation of law.

The one-hour ozone NAAQS is 0.12

ppm, not to be exceeded on average

more than one day per year over any

three year period. See 40 CFR section

50.9 and 40 CFR part 50, Appendix H.

The EPA makes attainment

determinations for ozone nonattainment

areas using the most recently available,

quality-assured air quality data covering

the three-year period up to and

including the attainment date. The EPA

has determined that the Dallas/Fort

Worth area’s air quality has not met the

moderate area attainment deadline of

November 15, 1996, based upon all

1994, 1995, and 1996 (through

November 15) quality-assured air

quality data available to the Agency.

Table 1 lists the three-year average

number of days over the one-hour ozone

standard at each State and Local Air

Monitoring Stations/National Air

Monitoring Stations (SLAMS/NAMS)

monitoring site in the Dallas/Fort Worth

metropolitan area for the period 1994

through 1996 and each monitor’s design

value for that period. A complete listing

of the ozone exceedances at each

monitor as well as EPA’s calculations of

the design values can be found in the

docket file.