[Federal Register Volume 66, Number 97 (Friday, May 18, 2001)]
[Proposed Rules]
[Pages 27616-27620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12576]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 66, No. 97 / Friday, May 18, 2001 / Proposed 
Rules

[[Page 27616]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CA-019-FOI, FRL-6982-5]


Clean Air Act Reclassification, San Joaquin Valley Nonattainment 
Area; Designation of East Kern Nonattainment Area and Extension of 
Attainment Date; California; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to change the boundary for the San Joaquin 
Valley (SJV) serious ozone nonattainment area by separating out the 
eastern portion of Kern County into its own nonattainment area. We are 
also proposing to extend the attainment deadline for the new East Kern 
serious ozone nonattainment area from November 15, 1999 to November 15, 
2001.
    As a result of this boundary change proposal, EPA is reproposing 
its June 19, 2000 proposed finding (65 FR 37926) that the SJV area did 
not attain the 1-hour ozone national ambient air quality standard 
(NAAQS) by the November 15, 1999 Clean Air Act (CAA) deadline. If we 
finalize this proposal, the SJV nonattainment area with its revised 
boundaries will be reclassified by operation of law as severe, and the 
East Kern nonattainment area will remain classified as serious.

DATES: Comments on these proposed actions must be received by June 18, 
2001.

ADDRESSES: Comments may be mailed to: John Ungvarsky, Planning Office 
(AIR-2), Air Division, EPA Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105; <a href="/cdn-cgi/l/email-protection#95e0fbf2e3f4e7e6feecbbfffafdfbd5f0e5f4bbf2fae3"><span class="__cf_email__" data-cfemail="94e1faf3e2f5e6e7ffedbafefbfcfad4f1e4f5baf3fbe2">[email protected]</span></a>.
    Copies of the proposed rule and technical support document (TSD) 
are contained in the docket for this rulemaking. The docket is 
available for inspection during normal business hours at the address 
listed above. A copy of this proposed rule and the TSD are also 
available in the air programs section of EPA Region 9's website, http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: John Ungvarsky, Planning Office (AIR-
2), Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 
94105, (415) 744-1286.

SUPPLEMENTARY INFORMATION:

I. Introduction

    On June 19, 2000 EPA proposed to find that the SJV serious ozone 
nonattainment area did not attain the 1-hour ozone NAAQS by November 
15, 1999, the CAA attainment deadline for serious ozone nonattainment 
areas.\1\ 65 FR 37926. The current SJV nonattainment area includes the 
counties of San Joaquin, Kern, Fresno, Kings, Madera, Merced, 
Stanislaus and Tulare. 40 CFR 81.301. During the public comment period 
for the proposal, EPA received a substantial number of comments 
requesting that EPA remove the eastern portion of Kern County from the 
SJV nonattainment area and designate it a separate ozone nonattainment 
area. On August 28, 2000, The California Air Resources Board (CARB) 
formally requested that EPA create a separate ozone nonattainment area 
for eastern Kern County.
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    \1\ EPA also proposed to find that the approved serious area 
ozone California state implementation plan (SIP) for the SJV 
nonattainment area has not been fully implemented. The Agency 
intends to take final action on that proposal in a separate 
rulemaking.
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    Based on the public's comments, the State's request and our own 
analysis, we are today proposing to revise the SJV ozone nonattainment 
area by changing its boundaries to remove eastern Kern County. In order 
to reflect this proposed boundary change, we are reproposing our 
finding that the SJV did not attain the ozone NAAQS by the statutory 
deadline. If we finalize this proposal, the SJV nonattainment area with 
its revised boundaries will be reclassified by operation of law to 
severe.
    We are today also proposing to designate eastern Kern County as a 
new, separate ozone nonattainment area, which would keep its serious 
classification. That is because we are proposing to extend the 
attainment deadline for the proposed East Kern County serious ozone 
nonattainment area from November 15, 1999 to November 15, 2001. This 
proposed extension is based in part on monitoring data that indicate 
there were no exceedances of the 1-hour ozone NAAQS during 1999 and 
2000 in eastern Kern County.

II. Proposed Boundaries for the Revised San Joaquin Valley 
Nonattainment Area and the New East Kern Nonattainment Area

    During the public comment period for our proposed finding that the 
SJV had failed to attain the ozone NAAQS, CARB, the Kern County Air 
Pollution Control District (KCAPCD), and the U.S. Department of Defense 
submitted information supporting the removal of eastern Kern County 
from the SJV nonattainment area.
    As stated above, CARB subsequently requested, pursuant to CAA 
section 107(d)(3)(D), that EPA create a separate ozone nonattainment 
area for East Kern County. That section provides that the Governor of 
any State may submit a revised designation of any area or portion of an 
area within the State. Based on our analysis of the information 
provided and under the authority in section 107(d)(3)(D), we are 
proposing to remove eastern Kern County from the SJV nonattainment area 
and to designate East Kern County as a new, separate ozone planning 
area.
    The only change to the existing SJV nonattainment area would be 
within Kern County, where the new boundary would divide the county into 
two parts, generally following the ridge line of the Sierra Nevada and 
Tehachapi Mountain Ranges. It would be the same as the current boundary 
line for the Kern County and San Joaquin Valley air districts. The 
portion of Kern County that is west of the proposed split, which 
includes the Bakersfield area, would remain in the SJV ozone 
nonattainment area. The area east of the proposed split, which includes 
Ridgecrest, Mojave, California City, and the remainder of Kern County, 
would be designated the East Kern ozone nonattainment area. The 
specific boundary proposal for the new East Kern nonattainment area is 
as follows:

    Kern County (part)--that portion of Kern County east and south 
of a line described below:
    Beginning at the Kern-Los Angeles County boundary and running 
north and east along the northwest boundary of the Rancho La Liebre 
Land Grant to the point of intersection

[[Page 27617]]

with the range line common to Range 16 West and Range 17 West, San 
Bernardino Base and Meridian; north along the range line to the 
point of intersection with the Rancho El Tejon Land Grant boundary; 
then southeast, northeast, and northwest along the boundary of the 
Rancho El Tejon Grant to the northwest corner of Section 3, Township 
11 North, Range 17 West; then west 1.2 miles; then north to the 
Rancho El Tejon Land Grant boundary; then northwest along the Rancho 
El Tejon line to the southeast corner of Section 34, Township 32 
South, Range 30 East, Mount Diablo Base and Meridian; then north to 
the northwest corner of Section 35, Township 31 South, Range 30 
East; then northeast along the boundary of the Rancho El Tejon Land 
Grant to the southwest corner of Section 18, Township 31 South, 
Range 31 East; then east to the southeast corner of Section 13, 
Township 31 South, Range 31 East; then north along the range line 
common to Range 31 East and Range 32 East, Mount Diablo Base and 
Meridian, to the northwest corner of Section 6, Township 29 South, 
Range 32 East; then east to the southwest corner of Section 31, 
Township 28 South, Range 32 East; then north along the range line 
common to Range 31 East and Range 32 East to the northwest corner of 
Section 6, Township 28 South, Range 32 East, then west to the 
southeast corner of Section 36, Township 27 South, Range 31 East, 
then north along the range line common to Range 31 East and Range 32 
East to the Kern-Tulare County boundary.\2\
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    \2\ The revised SJV ozone nonattainment area would include the 
following counties: Fresno, Kings, Madera, Merced, San Joaquin, 
Stanislaus, Tulare, and that portion of Kern County which lies west 
and north of the line described above.
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III. Proposed Finding of Failure To Attain for the Revised San 
Joaquin Valley Nonattainment Area

A. June 19, 2000 Proposal

    In order to reflect the proposed change to the boundaries for the 
SJV ozone nonattainment area, we must repropose our June 19, 2000 
proposed finding (65 FR 37926) that the SJV ozone nonattainment area 
failed to attain the ozone NAAQS. In addition to the proposed boundary 
change, EPA is also revising the original proposal by proposing a new 
deadline for the State to submit a severe area attainment plan 
(discussed below).
    EPA intends to respond to the comments submitted concerning the 
original proposed finding of failure to attain along with the comments 
on this reproposal in the final action for this rulemaking. A brief 
summary of the June 19, 2000 proposed failure to attain finding 
follows.
    Based on air quality data for the 1997-1999 period, at least twelve 
ozone monitoring sites in the current SJV nonattainment area, excluding 
monitors in eastern Kern County, averaged more than one exceedance per 
year. Because the average number of exceedance days per year for 1997-
99 exceeded one, we proposed to find that the San Joaquin Valley 
serious ozone nonattainment area failed to attain by its applicable CAA 
deadline of November 15, 1999. 65 FR at 37927.
    When EPA finalizes a finding of failure to attain the 1-hour ozone 
standard, the area is reclassified by operation of law to a higher 
classification (CAA section 181(b)(2)(a)). The impact that a 
reclassification to severe would have on the San Joaquin Valley 
nonattainment area includes the establishment of a new attainment 
deadline, as expeditiously as practicable but no later than November 
15, 2005, and the requirement to submit a new attainment plan that 
meets the CAA requirements for severe ozone nonattainment areas (CAA 
section 182(d)).
    Under CAA section 182(d), the new severe area plan must meet all 
the requirements for serious area plans plus the requirements for 
severe areas, including, but not limited to: (1) A 25 ton per year 
major stationary source threshold; (2) additional reasonably available 
control technology (RACT) rules for sources subject to the new lower 
major source applicability cutoff; (3) a new source review (NSR) offset 
ratio of at least 1.3 to 1; (4) a rate of progress demonstration 
showing emissions reductions of at least 3 percent per year from 2000 
until the attainment year; and (5) a fee requirement \3\ for major 
sources of volatile organic compounds (VOC) and nitrogen oxides 
(NO<INF>X</INF>) \4\ should the area fail to attain by the attainment 
deadline. Failure to submit the severe area requirements can result in 
the start of a sanctions clock (CAA section 179(a)).
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    \3\ Section 182(d)(3) sets a deadline of December 31, 2000 to 
submit the plan revision requiring fees for major sources should the 
area fail to attain. This date can be adjusted pursuant to CAA 
section 182(i). We propose to adjust this date to coincide with the 
submittal deadline for the rest of the severe area plan 
requirements.
    \4\ Ozone is not emitted directly into the air, but is formed 
through the photochemical reaction of NO<INF>X</INF> and VOCs.
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    Also, the severe area plan must include new transportation 
conformity emissions budgets for the SJV nonattainment area. The 
current SIP-approved attainment year budgets for VOC and NO<INF>X</INF> 
will remain in place until new severe area budgets are submitted and 
have been determined adequate. For a detailed discussion of the 
requirements that the severe area plan must meet, see 65 FR at 37928-
37930; June 19, 2000.

B. Modifications to June 19, 2000 Proposal

    Having been put on notice by the June 19, 2000 proposal, the State 
has been working with the San Joaquin Valley Unified Air Pollution 
Control District (SJVUAPCD) to prepare for the severe area plan 
requirements. In recent discussions with EPA, the State suggested that 
despite past progress and future reductions, attainment by 2005 may not 
be possible given the air quality problem in the area. The current 
design value in the SJV is .161.\5\ This design value is higher than 
all other areas in the country with a 2005 attainment deadline. We are 
therefore soliciting comment on the viability of the 2005 attainment 
deadline. We are also soliciting comment on any legal, policy, and 
technical rationale for allowing a 2007 attainment deadline that would 
justify EPA establishing a 2007 attainment deadline when the Agency 
takes final action on the proposed finding. The 2007 date is the 
attainment deadline for areas originally classified as ``severe 17'' on 
November 15, 1990 pursuant to CAA section 181(a)(2).
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    \5\ A design value is an ambient ozone concentration that 
indicates the severity of the ozone problem in an area and is used 
to determine the level of emission reductions needed to attain the 
standard, that is, it is the ozone level around which a State 
designs its control strategy for attaining the ozone standard. A 
monitor's design value is the fourth highest ambient concentration 
recorded at that monitor over the previous three-year period. An 
area's design value is the highest of the design values from the 
area's monitors.
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    In the June 19, 2000 proposal we stated that the State would be 
required to submit the severe area SIP revisions no later than 18 
months from the effective date of the area's reclassification. 65 FR at 
37928. Pursuant to section 182(i), EPA can adjust any applicable 
deadline (other than the attainment date) as appropriate. EPA is today 
proposing a new submittal deadline of May 31, 2002 to ensure that 
control measures are put in place as quickly as possible and there is 
ample time for the control measures to take effect before the 
attainment deadline. EPA believes the May 31, 2002 SIP submittal 
deadline is both reasonable and feasible given the advance notice 
provided by our June 19, 2000 proposal and the planning efforts already 
under way at the SJVUAPCD and the State.

IV. Rationale for Establishing a New, Separate East Kern 
Nonattainment Area

A. Background

    EPA is proposing the designation of the new East Kern ozone 
nonattainment area pursuant to CAA section

[[Page 27618]]

107(d)(3)(D). CAA section 107(d)(3)(D) states that the Governor may, on 
the Governor's own motion, submit a revised designation request to EPA. 
On August 28, 2000, in a letter from Michael Kenny, Executive Director, 
CARB, to Felicia Marcus, EPA Region 9 Administrator, the State formally 
requested that EPA split the SJV nonattainment area into two separate 
nonattainment areas. While section 107(d)(3)(D) does not contain 
criteria upon which to evaluate the request, EPA believes it can rely 
on the criteria listed in an analogous CAA provision, section 
107(d)(3)(A), which authorizes EPA to notify the Governor that the 
designation of an area should be revised on the basis of air quality 
data, planning and control considerations, or any other air quality-
related considerations that EPA deems appropriate.
    The SJV 1-hour ozone nonattainment area currently includes all of 
Kern County, a region that straddles the Sierra Nevada and Tehachapi 
mountains. It is located in two separate air basins: the SJV and the 
Southeast Desert (SED) air basins. The dividing line between these two 
air basins coincides with the jurisdictional boundary between the 
KCAPCD and the SJVUAPCD; \6\ it is also consistent with the boundary 
that we are today proposing to draw between eastern Kern and the rest 
of the SJV nonattainment area.
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    \6\ Prior to the formation of the SJVUAPCD in 1992, the SJV 
ozone nonattainment area consisted of eight county air pollution 
control districts (i.e., San Joaquin, Stanislaus, Merced, Madera, 
Fresno, Kings, Tulare, and Kern).
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    Prior to 1991, the eastern portion of Kern County was designated 
unclassified. 43 FR 8964, 8972 (March 3, 1978). On November 6, 1991, 
all of Kern County became part of the SJV ozone nonattainment area as 
recommended by the Governor of California and promulgated by EPA. 56 FR 
56693. In 1991, we generally relied on the Metropolitan Statistical 
Area (MSA) boundaries for the purpose of designating nonattainment 
areas consistent with CAA section 107(d)(4)(A)(iv), and all of Kern 
County is in the same MSA as the other counties in the SJV 
nonattainment area. While the State acknowledged that eastern Kern 
County did not have any monitoring sites established in 1991, the State 
supported eastern Kern's inclusion in the nonattainment area because 
``ozone is clearly a regional pollutant, and violations of both the 
state and federal ozone standards have been measured within 10 miles of 
Kern County's desert border.'' \7\
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    \7\ See March 15, 1991 letter from CARB Executive Officer, James 
D. Boyd, to Daniel McGovern, Regional Administrator, EPA, Region IX.
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    The 1991 designation also pre-dated the consolidation of the SJV 
counties into a single air district, the SJVUAPD. With this change, the 
western portion of Kern County was annexed into the newly-formed 
SJVUAPCD. At the same time, the eastern portion of Kern County, which 
was within the SED air basin, became an independent air district, the 
KCAPCD.
    Commenters on EPA's June 19, 2000 proposal, including the State, 
KCAPCD, and the Department of Defense, provided a compelling technical 
justification as to why eastern Kern County should be designated a 
separate ozone planning area.\8\ A summary of their reasoning follows, 
and a more in-depth technical discussion is found in the companion TSD 
for this notice.
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    \8\ The SJVUAPCD indicated in its comments that it supports the 
split.
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B. Justification for New Boundaries

    1. Geography. Eastern Kern is in a different air basin than the 
SJV; it is separated from the SJV by the Sierra Nevada and Tehachapi 
Mountain Ranges at elevations up to 7,500 feet. Eastern Kern is a vast 
arid desert, 3,700 square miles in size.
    2. Population and Employment. There are no major or fast growing 
population centers in eastern Kern County. Eastern Kern's population of 
approximately 92,000 has stayed constant over the past 10 years. The 
area has a low population density of approximately 25 persons per 
square mile. People tend to live and work in eastern Kern, and because 
of its geographic isolation there is no convenient commute to cities 
outside the region. The major employers in eastern Kern are Edwards Air 
Force Base (AFB) and China Lake Naval Weapons Station (NAWS), which 
employ over half of the eastern Kern workforce. Two of the three major 
towns within eastern Kern are Ridgecrest, which is located just outside 
the China Lake NAWS, and California City, located 9 miles from Edwards 
AFB. This close correlation between population and workforce suggests 
that a large percentage of the traffic in eastern Kern is independent 
of western Kern and urban areas in the SED nonattainment area. 
Ridgecrest, the largest town in eastern Kern, has a population of 
approximately 28,000. It is located in the portion of eastern Kern with 
air quality well below the 1-hour standard and farthest from any major 
urban areas in western Kern or SED. The SED urban areas nearest to 
eastern Kern, Palmdale and Lancaster, are bedroom communities for the 
Los Angeles area. There are no significant commute patterns from 
eastern Kern into the SED, SJV or the South Coast Air Basin (SCAB) or 
vice versa.
    3. Commercial Development. Eastern Kern County is not strongly 
integrated economically with western Kern County or the SED urban 
areas. The economy of western Kern is largely based on the oil and 
agricultural industries. Eastern Kern's economy is based largely on the 
aerospace, defense, and mineral extraction industries. Also, eastern 
Kern residents are not dependent on western Kern for economic 
activities such as employment, shopping, or other services.
    4. Sources of Emissions. There are only a handful of major emission 
sources in eastern Kern, and projected industrial growth is minimal. 
The 1996 annual emissions inventory for eastern Kern indicates 11 tons 
per day (tpd) of VOC and 33 tpd of NO<INF>X</INF>.\9\ Total emissions 
in the area are not sufficient to cause violations of the federal 1-
hour ozone standard.
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    \9\ Ozone is not emitted directly into the air, but is formed 
through the photochemical reaction of NO<INF>X</INF> and VOCs.
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    5. Air Quality. During the late 1990s, eastern Kern County averaged 
only a few days over the 1-hour ozone NAAQS each year; the SJV averaged 
approximately 30 days over the NAAQS each year. Ozone levels in eastern 
Kern are markedly lower than the SJV and marginally lower than the SED. 
For the 1997-1999 period, the 1-hour design value for eastern Kern was 
0.139 parts per million (ppm) compared to 0.154 ppm for western Kern, 
0.161 ppm for the highest site in the SJV, and 0.147 for Victorville in 
the SED.

[[Page 27619]]



                         Table 1.--Ozone Air Quality in Eastern Kern County (1997-1999)
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                                                                  Number of days
                                                                     over the     Average number    Site design
                         Monitoring site                          standard 1997-   of exceedance    value (ppm)
                                                                     1999 \10\     days per year
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China Lake NAWS \11\............................................               0             0.0           0.083
Mohave..........................................................               2             0.6           0.119
Edwards AFB \12\................................................               6             2.0          0.139
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\10\ No exceedances of the 1-hour ozone standard were recorded in 1999 or 2000 in eastern Kern County.
\11\ The China Lake monitor is a special purpose monitor (SPM) operated by the Navy at China Lake NAWS in
  eastern Kern County. It began operation in April, 1998. EPA's policy on the use of ozone special purpose
  monitoring data is described in a memorandum entitled ``Agency Policy on the Use of Ozone Special Purpose
  Monitoring Data'' from John Seitz, Director, Office of Air Quality Planning and Standards, to the Regional Air
  Directors, August 22, 1997. Until three years of data can be collected, the design value for the China Lake
  monitoring site is based on its highest recorded value.
\12\ The Edwards AFB monitor is a SPM operated by the Air Force on Edwards AFB in eastern Kern County. We have
  evaluated the Edwards site and its quality assurance information and have determined that its data are valid.

    6. Pollution Transport. The State has completed three reviews of 
the impacts of pollution transport on ozone concentrations in 
California. The State has determined that the few exceedances that have 
occurred in eastern Kern County were the result of pollutant transport 
from the SJV Air Basin and SCAB.\13\ Wind patterns are such that 
eastern Kern does not contribute to exceedances in the SJV, SED, or 
SCAB.
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    \13\ Transport Assessment, November 1996 and November 1999, 
California Air Resources Board (http://www.arb.ca.gov/aqd/transport/transport.htm).
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    Based on the above factors, EPA believes that the criteria listed 
in CAA section 107(d)(3)(A) have been met. Eastern Kern is in a 
separate air basin than the SJV and has a small population that 
primarily lives and works in the immediate area. Furthermore, eastern 
Kern has minimal VOC and NO<INF>X</INF> emission sources with markedly 
better air quality than the SJV. In addition, the few exceedances of 
the ozone NAAQS that have occurred in eastern Kern are a result of 
overwhelming transport from outside the eastern Kern air basin. EPA is 
therefore proposing to approve the State's section 107(d)(3)(D) request 
to change the boundaries of the current SJV ozone nonattainment area to 
remove eastern Kern County and make it its own nonattainment area.

V. Proposed Attainment Date Extension for Proposed East Kern 
Nonattainment Area

    Because a new East Kern nonattainment area would retain the serious 
classification that it had as part of the originally designated SJV 
nonattainment area, the attainment deadline for the area would be 
November 15, 1999. CAA section 181(a)(1). On December 15, 2000, the 
State requested two one-year attainment date extensions for the 
proposed East Kern ozone nonattainment area.\14\
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    \14\ A review of the ambient air quality ozone data from the EPA 
Aerometric Information Retrieval System (AIRS) and special purpose 
monitors shows that two of the three air quality monitors located in 
the proposed East Kern ozone nonattainment area recorded exceedances 
of the NAAQS for ozone during the three-year period from 1997 to 
1999. There were 6 exceedances at the Edwards AFB monitor, an 
average of more than 1.0 over the three-year period, which 
constitutes a violation of the ozone NAAQS for the proposed East 
Kern area during this three-year period. Thus, because we determine 
attainment status on the basis of the expected number of exceedances 
of the NAAQS over the three-year period up to, and including, the 
attainment date (57 FR 13498, 13506, April 16, 1992), the area needs 
the two 1-year extensions to avoid a reclassification to severe.
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    CAA section 181(a)(5) provides that, upon application by any State, 
the Administrator may extend the attainment deadline for one year if 
the State has complied with all requirements and commitments pertaining 
to the area in the applicable implementation plan, and no more than one 
exceedance of the NAAQS has occurred in the area in the year preceding 
the extension year. This section further provides that up to two one-
year extensions may be granted.
    We interpret this provision to authorize the granting of a one-year 
extension under the following minimum conditions: (1) The State 
requests a one-year extension; (2) all requirements and commitments in 
the EPA-approved SIP for the area have been complied with; and (3) at 
any one monitor, the area has no more than one measured exceedance of 
the NAAQS during the year that includes the attainment date (or the 
subsequent year, if a second one-year extension is requested). See 
generally 57 FR 13506 (April 16, 1992) and Memorandum from D. Kent 
Berry, Acting Director, Air Quality Management Division, EPA, to 
Regional Air Office Directors; ``Procedures for Processing Bump Ups and 
Extensions for Marginal Ozone Nonattainment Areas,'' February 3, 
1994.\15\ Granting extensions is discretionary; EPA guidance states 
that, in exercising this discretion, the Agency will examine the air 
quality progress made in the nonattainment area. Specifically, EPA will 
expect the state to have adopted and substantially implemented control 
measures necessary to reduce emissions in the area.\16\
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    \15\ 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.
    \16\ See Memorandum from Sally Shaver, Director, Air Quality 
Strategies and Standards Division, EPA, to EPA Regional Offices, 
titled ``Criteria for Granting Attainment Date Extensions, Making 
Attainment Determinations, and Determinations of Failure to Attain 
the NAAQS for Moderate [carbon monoxide] CO Nonattainment Areas,'' 
October 23, 1995. While this memorandum specifically addresses the 
CAA extension provisions for CO nonattainment areas, it applies 
equally to ozone areas. Compare the substantially identical language 
of sections 181(a)(5) (ozone) and 186(a)(4) (CO).
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    We have determined that both the mandatory and discretionary 
requirements for one-year extensions of the attainment date for both 
1999 and 2000 have been fulfilled as follows:
    (1) CARB has formally submitted the attainment date extension 
request, in a letter dated December 15, 2000, from Michael P. Kenny, 
Executive Officer, CARB, to Felicia Marcus, EPA Regional Administrator, 
Region 9.
    (2) California is currently implementing the EPA-approved SIP. The 
State's letter, cited above, discusses implementation of State measures 
in the SIP, and shows that these measures plus new State measures have 
achieved an overall surplus of emission reductions beyond those assumed 
in the SIP. In addition, a letter dated December 1, 2000 from Thomas 
Paxson, Air Pollution Control Officer, KCAPCD, provides evidence that 
all District SIP

[[Page 27620]]

rules and serious area requirements have been fully implemented.\17\
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    \17\ As noted in footnote 1, EPA's June 19, 2000 proposal 
included a finding of failure to fully implement the SIP. The SIP 
measures at issue in that proposal are ones committed to by the 
SJVUAPCD, not the KCAPCD. All KCAPCD SIP measures have been 
implemented.
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    (3) Data recorded at the three eastern Kern monitors (TSD, Appendix 
A) and confirmed by CARB in its December 15, 2000 letter, indicate no 
monitored exceedances during 1999 and 2000.
    Because the statutory provisions have been satisfied, we are 
proposing to grant two one-year attainment date extensions for the 
proposed East Kern ozone nonattainment area. If we finalize this 
action, the attainment deadline would be extended from November 15, 
1999 to November 15, 2001.

VI. Summary of EPA Proposed Rulemaking

    We are proposing to change the boundaries for the SJV ozone 
nonattainment area by removing the eastern portion of Kern County and 
proposing the designation of a new East Kern ozone nonattainment area 
with a serious classification. Concurrently, EPA is proposing to grant 
the State's request for two one-year attainment date extensions for the 
proposed East Kern ozone nonattainment area, which would make the 
attainment deadline November 15, 2001.
    In order to reflect the proposed boundary change, we are 
reproposing our finding that the SJV ozone nonattainment area failed to 
attain the federal 1-hour ozone standard by its CAA deadline of 
November 15, 1999. If we finalize this nonattainment finding, the 
revised SJV nonattainment area will be reclassified by operation of law 
to severe and California must submit to EPA by May 31, 2002 a severe 
area nonattainment plan that meets the requirements of CAA section 
182(d), including providing for the attainment of the federal 1-hour 
ozone standard as expeditiously as practicable, but no later than 
November 15, 2005. We are also asking for comment on the legal, 
technical, and policy justifications for an alternative November 15, 
2007 attainment deadline.

VII. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget.
    Under section 188(b)(2) of the CAA, findings of failure to attain 
are based solely upon air quality considerations and the subsequent 
nonattainment area reclassification must occur by operation of law in 
light of those air quality conditions. These actions 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. 
The proposed designation of eastern Kern County as a new, separate 
nonattainment area with a serious classification and the proposed 
attainment date extensions will not impose any new requirements on any 
sectors of the economy because the area is already classified as 
serious.
    Accordingly, the Administrator certifies that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
    These proposed actions do not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) for the 
following reasons: (1) The proposed finding of failure to attain is a 
factual determination based on air quality considerations; (2) the 
resulting reclassification must occur by operation of law and will not 
impose any federal intergovernmental mandate; and (3) the proposed 
designation of eastern Kern County as a separate nonattainment area 
with a serious classification will not impose any new requirements on 
any sectors of the economy. For the same reason, this proposed rule 
also does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). For these same reasons, 
these proposed actions will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). These proposed actions are also not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because they 
are not economically significant. Finally, for these same reasons, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing these proposed actions, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. These proposed actions do not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Parts 52 and 81

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, National parks, Nitrogen oxides, Ozone, 
Volatile organic compounds, Wilderness areas.

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

    Dated: May 10, 2001.
 Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. 01-12576 Filed 5-17-01; 8:45 am]
BILLING CODE 6560-50-P


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