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.
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46239

TABLE 1.—AVERAGE NUMBER OF OZONE EXCEEDANCES DAYS PER YEAR IN THE DALLAS/FORT WORTH AREA [1994–

1996]

Site AIRS ID number

Number of

days over

the standard (1994–

1996)

Average

number of

exceedance

days per

year

Site design

value (PPM)

Frisco .................................................................................................................... 48–085–0005 4 1.3 0.126

Nuestra Drive (Galleria) ........................................................................................ 48–113–0045 7 2.3 0.134

Hinton Street ......................................................................................................... 48–113–0069 1 0.3 0.121

Denton County Airport .......................................................................................... 48–121–0033 12 4.0 0.139

Plano Parkway/South Colony ............................................................................... 48–121–0054 5 1.7 0.127

Meacham Field ..................................................................................................... 48–439–1002 4 1.3 0.126

Keller ..................................................................................................................... 48–439–2003 12 4.0 0.139

Red Bird Airport 1 .................................................................................................. 48–113–0087 2 0.7 0.118

1The Red Bird Airport was activated in 1995. The design value is the third highest reading based on two years of data.

As can be seen from Table 1, Average Number of Ozone Exceedances, DFW, six of the eight monitoring sites

have averaged more than one exceedance day per year in the 1994–1996 period. Therefore, EPA has determined that

the Dallas/Fort Worth metropolitan area did not attain the one-hour ozone NAAQS by the statutory deadline for moderate

areas of November 15, 1996.

Additionally, as shown in Table 2, 1996 Ozone Exceedances, DFW, four monitors in the Dallas/Fort Worth area

recorded two or more exceedances in 1996. Accordingly, the area would not qualify for a one-year extension due

to the multiple exceedances.

TABLE 2.—OZONE EXCEEDANCES IN DALLAS/FORT WORTH AREA—1996

Site AIRS ID Number Site type Date PPM

Denton County Airport ................................... 48–121–0033 SLAMS July 8, 1996 ................................................... 0.131

Denton County Airport ................................... 48–121–0033 SLAMS September 6, 1996 ........................................ 0.139

Meacham Field .............................................. 48–439–1002 SLAMS July 3, 1996 ................................................... 0.127

Meacham Field .............................................. 48–439–1002 SLAMS July 8, 1996 ................................................... 0.126

Keller .............................................................. 48–439–2003 SLAMS July 8, 1996 ................................................... 0.131

Keller .............................................................. 48–439–2003 SLAMS September 6, 1996 ........................................ 0.133

Red Bird Airport ............................................. 48–113–0087 SLAMS June 3, 1996 .................................................. 0.135

Red Bird Airport ............................................. 48–113–0087 SLAMS July 3, 1996 ................................................... 0.144

The EPA also believes that the

appropriate reclassification of the area is

too 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 the Dallas/Fort Worth area is serious.

Based on the design value calculated

using data from the SLAMS/NAMS

network, the area’s design value is 0.139

ppm. The area’s design value is

calculated in accordance with 40 CFR

part 81, Air Quality Designations and

Classifications; Final Rule, 56 FR 56697

(November 6, 1991). See also the June

18, 1990, Memorandum from William G.

Laxton, Director of the Technical

Support Division, Office of Air Quality

Planning and Standards for the method

of calculating ozone design values.

C. SIP Requirements for Serious Ozone

Nonattainment Areas

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

attainment deadline for moderate ozone

nonattainment areas reclassified to

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

completed as expeditiously as possible,

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 one-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. The EPA believes

that a 12 months schedule is

appropriate because the attainment date

for serious areas, November 15, 1999, is

little more than two years away and the

State will need to expedite adoption and

implementation of controls to meet that

deadline.

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.

The 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).

This guidance should be followed in the

development of the serious ozone

nonattainment area SIP revision.

The EPA has recently promulgated an

eight-hour ozone standard (62 FR 38856,

July 18, 1997). In order to facilitate the

transition from the one-hour to the

eight-hour NAAQS, EPA may issue

additional guidance to assist states in

meeting the serious area requirements.

II. Proposed Action

The EPA has evaluated this action for

consistency with the Act, EPA

regulations, and EPA policy. The EPA

has determined that a reclassification of

the Dallas/Fort Worth ozone

nonattainment area from moderate to
46240 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules

serious is necessary to satisfy the

requirements of the Act and the policy

set forth in the General Preamble. The

EPA is proposing today to reclassify the

Dallas/Fort Worth ozone nonattainment

area to serious.

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 Office of

Management and Budget 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.

The EPA has determined that the

finding of failure to attain proposed

today, as well as the establishment of

SIP submittal schedules resulting from a

bump-up, 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. Sections 603

and 604 of 5 U.S.C. 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 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 section] 202’’, EPA must

identify and consider a reasonable

number of regulatory alternatives and

either adopt the least costly, most costeffective 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

the Dallas/Fort Worth area failed to

reach attainment does not, in-and-ofitself, 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 Dallas/Fort Worth

nonattainment area, 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, 5 U.S.C. 551 et. seq.,

E.O. 12866 section 3 (d)–(e); Regulatory

Flexibility Act, 5 U.S.C. 603(a), 601(2);

Unfunded Mandates Reform Act,

sections 202–205, 421. The EPA is

considering the possibility that today’s

action, to the extent it consists of a

determination that the Dallas/Fort

Worth 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
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46241

1This petition was filed in the Commission’s

Digital Television proceeding Fifth Report and

Order in MM Docket No. 87–268, FCC 97–116

(April 22, 1997) (Fifth Report and Order), 62 FR

26966 (May 16, 1997). The Commission will,

however, treat the Petition as one filed pursuant to

47 CFR 1.401 seeking the institution of a new rule

making proceeding.

2 Fifth Report and Order, supra at ¶¶ 99, 100. See

Also Balanced Budget Act of 1997 (‘‘BBA’’), Pub. L.

105–33, 111 Stat. 251 (1997) (codified at 47 U.S.C.

309(j)(14) (A)–(B)) (establishing statutory target date

for return of the analog spectrum and setting out

exceptions to that deadline).

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, National parks,

Ozone, Wilderness areas.

Dated: August 25, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97–23236 Filed 8–29–97; 8:45 am]

BILLING CODE 6560–50–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[FCC 97–296]

Preemption of State and Local Zoning

and Land Use Restrictions on the

Siting, Placement and Construction of

Broadcast Transmission Facilities

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission issues this

Notice of Proposed Rule Making to

consider whether and in what

circumstances to preempt certain state

and local zoning and land use

ordinances which present an obstacle to

the rapid implementation of digital

television (‘‘DTV’’) service. Having

found that the accelerated roll-out is

essential to the success of over-the-air

DTV, the Commission set out an

accelerated construction schedule for

DTV facilities. To the extent that state

and local restrictions stand as an

obstacle to the achievement of its

purposes the Commission has the

authority to preempt state or local law.

In this Notice of Proposed Rule Making,

the Commission seeks comment on

whether and in what circumstances it

should preempt state or local action or

inaction that interferes with the rapid

roll-out of DTV.

DATES: Comments are due on or before

October 30, 1997 and reply comments

are due on or before December 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Keith Larson, Assistant Bureau Chief for

Engineering or Susanna Zwerling,

Policy and Rules Division, Mass Media

Bureau (202) 418–2140.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making, FCC 97–296

adopted August 18, 1997 and released

August 19, 1997. The full text of this

Commission Notice is available for

inspection and copying during normal

business hours in the FCC Dockets

Branch (Room 239), 1919 M Street NW,

Washington, DC. The complete text of

this Notice may also be purchased from

the Commission’s copy contractor,

International Transcription Services

(202) 857–3800 2100 M Street, NW.,

Suite 140, Washington, DC 20037.

Synopsis of Notice

I. Introduction

1. The Commission is undertaking

this rule making to consider whether

and in what circumstances to preempt

certain state and local zoning and land

use ordinances that present obstacles to

the rapid implementation of DTV. Such

ordinances may inhibit the resiting of

antennas made necessary by the

implementation of DTV. This issue was

brought before the Commission in a

‘‘Petition for Further Notice of Proposed

Rule Making’’ filed jointly by the

National Association of Broadcasters

and the Association for Maximum

Service Television (‘‘Petitioners’’).1

II. Background

2. In its Fifth Report and Order in the

DTV proceeding, the Commission

adopted an accelerated schedule for

construction of DTV transmission

facilities. The construction schedule

requires affiliates of the top four

networks to be on the air with digital

signals by May 1, 1999 in the top ten

markets and by November 1, 1999 in

markets 11–30. All other commercial

stations must construct their DTV

facilities by May 1, 2002, and

noncommercial stations by May 1, 2003.

Subject to biennial review and statutory

exceptions, all stations are to return

their analog spectrum by 2006.2

3. The accelerated DTV transition

schedule will require extensive tower

modification and construction.

Petitioners state that local regulation

presents obstacles to this construction

schedule in that the levels of review

required in the administration of such

restrictions can last several months.

4. To facilitate compliance with the

DTV construction schedule, Petitioners

ask the Commission to adopt a rule

allowing the Commission to preempt

state and local zoning and other land

use regulations to the extent they

unreasonably delay the DTV roll-out

and other ongoing broadcast

transmission facilities construction. The

proposed rule provides specific time

limits for state and local government

action in response to requests for

approval of the placement, construction

or modification of broadcast

transmission facilities. The Petitioners’

proposed rule would require action

within 21 days with respect to

modifications of existing broadcast

transmission facilities where no change

in location or height is proposed; within

30 days with respect to the relocation of

an existing broadcast transmission

facility from a currently approved

location to another location within 300

feet, or the consolidation of two or more

broadcast transmission facilities, or the

increase in the height of an existing

tower; and within 45 days for all other

requests. Failure to act within these

time limits would cause the request to

be deemed granted. The Petitioners

propose that a broadcaster receiving an

adverse decision could, within 30 days

of the decision, petition the Commission

for a declaratory ruling on which the

Commission, in turn, would have 30

days in which to act. The Petitioners’

proposed rule would remove from local

consideration (1) regulations based on

the environmental or health effects of

radio frequency (‘‘RF’’) emissions; and

(2) interference with other

telecommunications signals and

consumer electronics devices to the

extent that the facility complies with

Commission regulations. It would also

remove from local consideration

regulations concerning tower marking

and lighting provided that the facility

complies with applicable Commission

or Federal Aviation Administration

regulations. The Petitioners’ proposed

rule would preempt all state and local

regulations that impair the ability of

licensed broadcasters construct or

modify their facilities unless the state or

local authority can demonstrate that the

regulation is related to health or safety

objectives.

III. Discussion

5. In its Fifth Report and Order the

Commission set out the rationale for an

accelerated roll-out of DTV. The

Commission found that first, absent a

speedy roll-out, other DTV services

might achieve levels of penetration that