Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 65025

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.

2EPA 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.

(ii) Affected sources must comply

with the California Regulatory

Requirements Applicable to the Air

Toxics Program, August 1, 1997

(incorporated by reference as specified

in § 63.14) as described below.

(A) The material incorporated in

Chapter 1 of the California Regulatory

Requirements Applicable to the Air

Toxics Program California Code of

Regulations Title 17, section 93109)

pertains to the perchloroethylene dry

cleaning source category in the State of

California, and has been approved

under the procedures in § 63.93 to be

implemented and enforced in place of

subpart M—National Perchloroethylene

Air Emission Standards for Dry

Cleaning Facilities, as it applies to area

sources only, as defined in § 63.320(h).

* * * * *

(B) The material incorporated in

Chapter 2 of the California Regulatory

Requirements Applicable to the Air

Toxics Program (San Luis Obispo

County Air Pollution Control District

Rule 432) pertains to the

perchloroethylene dry cleaning source

category in the San Luis Obispo County

Air Pollution Control District, and has

been approved under the procedures in

§ 63.93 to be implemented and enforced

in place of subpart M—National

Perchloroethylene Air Emission

Standards for Dry Cleaning Facilities, as

it applies to area sources only, as

defined in § 63.320(h).

(1) Authorities not delegated.

(i) San Luis Obispo County Air

Pollution Control District is not

delegated the Administrator’s authority

to implement and enforce those

provisions of subpart M which apply to

major sources, as defined in § 63.320(g).

Dry cleaning facilities which are major

sources remain subject to subpart M.

(ii) San Luis Obispo County Air

Pollution Control District is not

delegated the Administrator’s authority

of § 63.325 to determine equivalency of

emissions control technologies. Any

source seeking permission to use an

alternative means of emission

limitation, under sections B.17, G.3.a.5,

G.3.b.2.iii, and I of Rule 432, must also

receive approval from the Administrator

before using such alternative means of

emission limitation for the purpose of

complying with section 112.

* * * * *

[FR Doc. 97–32329 Filed 12–9–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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).

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

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.
65026 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

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 nearexceedances 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
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 65027

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).

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 northsouth 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.

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
65028 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

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 healthbased 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
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 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-forprofit 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.
65030 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

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 § 81.305 the table for

California—Ozone, is amended by

revising the entry for ‘‘Santa BarbaraSanta Maria-Lompoc Area Santa Barbara

County’’ to read as follows:

§ 81.305 California.

* * * * *

CALIFORNIA-OZONE

Designated area

Designation Classification

Date 1 Type Date 1 Type

* * * * * * *

Santa Barbara-Santa Maria-Lompoc Area Santa Barbara County ........................... 11/15/90 Nonattainment .... 1–9–98 Serious.

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.

[FR Doc. 97–32332 Filed 12–9–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 180

[OPP–300588; FRL–5758–2]

RIN 2070–AB78

Cyromazine; Pesticide Tolerances for

Emergency Exemptions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes

time-limited tolerances for the

combined residues of cyromazine and

its metabolite melamine in or on lima

beans and blackeye peas. This action is

in response to EPA’s granting of an

emergency exemption under section 18

of the Federal Insecticide, Fungicide,

and Rodenticide Act authorizing use of

the pesticide on lima beans and

blackeye peas. This regulation

establishes a maximum permissible

level for residues of cyromazine in this

food commodity pursuant to section

408(l)(6) of the Federal Food, Drug, and

Cosmetic Act, as amended by the Food

Quality Protection Act of 1996. The

tolerance will expire and is revoked on

December 31, 1998.

DATES: This regulation is effective

December 10, 1997. Objections and

requests for hearings must be received

by EPA on or before February 9, 1998.

ADDRESSES: Written objections and

hearing requests, identified by the

docket control number, [OPP–300588],

must be submitted to: Hearing Clerk

(1900), Environmental Protection

Agency, Rm. M3708, 401 M St., SW.,

Washington, DC 20460. Fees

accompanying objections and hearing

requests shall be labeled ‘‘Tolerance

Petition Fees’’ and forwarded to: EPA

Headquarters Accounting Operations

Branch, OPP (Tolerance Fees), P.O. Box

360277M, Pittsburgh, PA 15251. A copy

of any objections and hearing requests

filed with the Hearing Clerk identified

by the docket control number, [OPP–

300588], must also be submitted to:

Public Information and Records

Integrity Branch, Information Resources

and Services Division (7502C), Office of

Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. In person, bring

a copy of objections and hearing

requests to Rm. 1132, CM 2, 1921

Jefferson Davis Hwy., Arlington, VA.

A copy of objections and hearing

requests filed with the Hearing Clerk

may also be submitted electronically by

sending electronic mail (e-mail) to: oppdocket@epamail.epa.gov.

Copies of objections and hearing

requests must be submitted as an ASCII

file avoiding the use of special

characters and any form of encryption.

Copies of objections and hearing

requests will also be accepted on disks

in WordPerfect 5.1/6.1 file format or

ASCII file format. All copies of

objections and hearing requests in

electronic form must be identified by

the docket control number [OPP–

300588]. No Confidential Business

Information (CBI) should be submitted

through e-mail. Electronic copies of

objections and hearing requests on this

rule may be filed online at many Federal

Depository Libraries.

FOR FURTHER INFORMATION CONTACT: By

mail: Andrew Ertman, Registration

Division 7505C, Office of Pesticide

Programs, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460. Office location, telephone

number, and e-mail address: Crystal

Mall 2, 1921 Jefferson Davis Hwy.,

Arlington, VA, (703) 308–9367, e-mail:

ertman.andrew@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: EPA, on

its own initiative, pursuant to section

408(e) and (l)(6) of the Federal Food,

Drug, and Cosmetic Act (FFDCA), 21

U.S.C. 346a(e) and (l)(6), is establishing

a tolerance for combined residues of the

insecticide cyromazine and its

metabolite melamine in or on lima

beans at 5.0 part per million (ppm) and

blackeye peas at 5.0 ppm. This tolerance

will expire and is revoked on December

31, 998. EPA will publish a document

in the Federal Register to remove the

revoked tolerance from the Code of

Federal Regulations.

I. Background and Statutory Authority

The Food Quality Protection Act of

1996 (FQPA) (Pub. L. 104–170) was

signed into law August 3, 1996. FQPA

amends both the Federal Food, Drug,

and Cosmetic Act (FFDCA), 21 U.S.C.

301 et seq., and the Federal Insecticide,

Fungicide, and Rodenticide Act

(FIFRA), 7 U.S.C. 136 et seq. The FQPA

amendments went into effect

immediately. Among other things,

FQPA amends FFDCA to bring all EPA

pesticide tolerance-setting activities

under a new section 408 with a new

safety standard and new procedures.

These activities are described below and

discussed in greater detail in the final

rule establishing the time-limited

tolerance associated with the emergency

exemption for use of propiconazole on

sorghum (61 FR 58135, November 13,

1996) (FRL–5572–9).

New section 408(b)(2)(A)(i) of the

FFDCA allows EPA to establish a

tolerance (the legal limit for a pesticide

chemical residue in or on a food) only

if EPA determines that the tolerance is

‘‘safe.’’ Section 408(b)(2)(A)(ii) defines

‘‘safe’’ to mean that ‘‘there is a