[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65025-65030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32332]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-002-BU; FRL-5932-6]


Clean Air Act Reclassification; California--Santa Barbara 
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finding that the Santa Barbara nonattainment area has 
not attained the 1-hour ozone national ambient air quality standard 
(NAAQS) by the applicable attainment date in the Clean Air Act (CAA) 
for moderate ozone nonattainment areas, which is November 15, 1996. The 
finding is based on EPA's review of monitored air quality data from 
1994 through 1996 for compliance with the 1-hour ozone NAAQS. As a 
result of the finding, the Santa Barbara ozone nonattainment area will 
be reclassified by operation of law as a serious ozone nonattainment 
area on the effective date of this action. The effect of the 
reclassification will be to continue progress toward attainment of the 
1-hour ozone NAAQS through the development of a new State 
implementation plan (SIP), due 12 months from the effective date of 
this action, addressing attainment of that standard by November 15, 
1999.

EFFECTIVE DATE: January 9, 1998.

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Office of Air Planning, 
AIR-2, Air Division, U.S. Environmental Protection Agency, Region 9, 75 
Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1288.

SUPPLEMENTARY INFORMATION:

I. Background

    Under sections 107(d)(1)(C) and 181(a) of the Clean Air Act (CAA) 
as amended in 1990, Santa Barbara County was designated nonattainment 
for the 1-hour ozone NAAQS and classified as ``moderate.'' See 56 FR 
56694 (November 6, 1991). Moderate nonattainment areas were required to 
show attainment by November 15, 1996. CAA section 181(a)(1).
    Pursuant to section 181(b)(2)(A) of the CAA, EPA has the 
responsibility for determining, within 6 months of an area's applicable 
attainment date, whether the area has attained the 1-hour ozone 
NAAQS.1 Under section 181(b)(2)(A), if EPA finds that an 
area has not attained the 1-hour ozone NAAQS, it is reclassified by 
operation of law to the higher of the next higher classification or to 
the classification applicable to the area's design value at the time of 
the finding. CAA section 181(b)(2)(B) requires EPA to publish a 
document in the Federal Register identifying areas which failed to 
attain the standard and therefore must be reclassified by operation of 
law. A complete discussion of the statutory provisions and EPA policies 
governing findings of whether an area failed to attain the ozone NAAQS 
can be found in the proposal for this action at 62 FR 46234 (September 
2, 1997).
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    On July 18, 1997 (62 FR 38856), EPA revised the ozone NAAQS to 
establish a 8-hour standard; however, in order to ensure an 
effective transition to the new 8-hour standard, EPA also retained 
the 1-hour NAAQS for an area until such time as it determines that 
the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR 
38894. As a result of retaining the 1-hour standard, CAA part D, 
subpart 2, Additional Provisions for Ozone Nonattainment Areas, 
including the reclassification provisions of section 181(b), remain 
applicable to areas that are not attaining the 1-hour standard. 
Unless otherwise indicated, all references in this notice are to the 
1-hour ozone NAAQS.
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II. Proposed Action

    On September 2, 1997, EPA proposed to find that the Santa Barbara 
ozone nonattainment area failed to attain the 1-hour ozone NAAQS by the 
applicable attainment date. The proposed finding was based upon ambient 
air quality data from the years 1994-1996. The data showed that the 1-
hour ozone NAAQS of 0.12 parts per million (ppm) had been exceeded on 
average more than one day per year over this 3-year period. Attainment 
of the 1-hour NAAQS is demonstrated when an area averages one or less 
days per year over the standard during a 3-year period. 40 CFR 50.9 and 
Appendix H. EPA also proposed that the appropriate reclassification of 
the area was to serious, based on the area's 1994-1996 design value of 
0.130 ppm. This design value is well below the range of 0.180 to 0.280 
ppm for a severe classification. For a complete discussion of the Santa 
Barbara ozone data and the method of calculating both the average 
number of days over the ozone standard and the design value, see 62 FR 
46235-6.2
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    \2\ EPA wishes to correct one number in the table in the 
proposal entitled ``Average Number of Ozone Exceedance Days Per Year 
in the Santa Barbara Area'' (62 FR 46236). SBCAPCD pointed out that 
the correct site design value for the El Capitan station for 1994-
1996 is 0.118 ppm, rather than 0.119 ppm.
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    Finally, EPA proposed to require submittal of the serious area SIP 
revisions no later than 12 months from the effective date of the area's 
reclassification.

[[Page 65026]]

III. Response To Comments

    In response to its September 2, 1997 proposal, EPA received 
comments from the Environmental Defense Center, Congressman Walter 
Capps, the Santa Barbara County Air Pollution Control District 
(SBCAPCD), the Chair of the SBCAPCD Board, the California Air Resources 
Control Board (CARB), the Santa Barbara Association of Realtors, and 
one private citizen. EPA is grateful for the comments, suggestions, and 
helpful information, and the Agency responds below.

A. Comments Related to Splitting the Nonattainment Area and 
Reclassifying Only the South Portion of the County

    The entire Santa Barbara County has been designated nonattainment 
and classified moderate since November 15, 1990, the date of enactment 
of the 1990 amendments to the Clean Air Act. 56 FR 56694 and 56 FR 
56729. In the proposal, EPA noted that SBCAPCD had asked the Agency to 
consider dividing the County along a specific boundary line (for the 
most part, along the ridge of the Santa Ynez Mountain Range), and then 
applying the reclassification to only the south portion of the County. 
EPA proposed to determine, pursuant to section 181(a)(2), that the 
existing nonattainment area did not meet the 1-hour ozone NAAQS. 
However, in response to SBCAPCD's request, the Agency sought comment on 
the technical rationale for applying the resulting reclassification to 
only the south portion, including information on the north portion's 
impact on air quality in the south, and information on current and 
expected air quality in the north portion in relation to the new 8-hour 
ozone standard. 62 FR 46236.
    Although a number of commenters urged splitting the nonattainment 
area, EPA is not currently inclined to do so, based on the available 
information, as discussed further below. Moreover, the Agency believes 
that in order to accomplish such a result, it would have to initiate 
additional rulemaking in order to comply with the Administrative 
Procedure Act, 5 U.S.C. 551 et seq. However, because most of the 
comments in response to the proposed reclassification were directed to 
this issue, EPA is preliminarily addressing them here.
    1. Comments on the impacts of reclassifying only the south portion: 
The late Congressman Walter Capps encouraged EPA to change the size of 
the affected nonattainment area and focus control efforts on those 
areas that are causing the pollution problems. SBCAPCD and CARB 
expressed a desire to minimize the impacts of the reclassification to 
serious, particularly within the north portion of the county, where no 
site has violated the 1-hour ozone NAAQS since the 1989-1991 period.
    EDC, on the other hand, noted specific adverse impacts if the north 
portion of the County were not to be bumped up: (1) The potential loss 
of revenues to the County from several Federal funding sources, 
including Congestion Management and Air Quality (CMAQ) monies; (2) the 
dislocating impacts on the County's fee structures and rule 
implementation and enforcement efforts, and other logistical and 
financial ramifications; (3) the loss of increased agricultural 
productivity in the north portion if the air quality benefits 
associated with the bump-up of the entire County are foregone; (4) the 
need to undertake a wholesale revision to the SIP, and to require 
additional emissions reductions only from sources in the south portion; 
(5) the disruption of air quality planning, if the north county (where 
the margin of attainment is very slim) slips back into nonattainment 
for the 1-hour standard, triggering the need for additional reductions, 
but too late to avoid a 1999 nonattainment finding; and (6) the 
complication for air quality planning if the north portion continues to 
exceed the 8-hour ozone NAAQS and the State and District must therefore 
prepare separate plans for the north and south portions.
    Response: EPA fully supports streamlining and targeting plan 
requirements, and will work with SBCAPCD and CARB to maximize 
flexibility and cost effectiveness in the preparation of the SIP 
revision. So long as the few minimum CAA mandates are met, SBCAPCD and 
CARB are entitled to impose new controls of different stringency in 
different portions of the County. This is true regardless of whether or 
not the reclassification is restricted only to the south portion. 
Whether the reclassification may be limited to only the southern 
portion depends on the technical basis. The technical basis is 
discussed below. In any event, EPA believes that EDC raises important, 
potentially unfavorable consequences of splitting the County and 
reclassifying only the south portion. EPA urges CARB and SBCAPCD to 
consider such possible detrimental aspects of significantly changing 
the focus of air pollution control efforts in the County.
    2. Comments on the technical basis for reclassifying only the south 
portion: SBCAPCD provided technical information on the air quality and 
meteorological basis for limiting the bump-up to the south portion, 
including an assessment of the contribution the north portion of the 
County has on days when the south portion exceeded the 1-hour ozone 
NAAQS in the period 1994 through 1996. SBCAPCD concluded from this 
analysis that on most of the exceedance days contributions from the 
north portion do not appear to be significant, but that on other 
exceedance days contributions from the north portion of the County 
could not be ruled out with the available data. The District noted that 
one monitor in the north portion recorded violations of the new 8-hour 
NAAQS for the 1994-1996 period, but SBCAPCD expressed the belief that 
anticipated reductions in regional and local emissions should cause the 
site to be in compliance with the 8-hour standard by 2000.
    CARB pointed to the absence of violations of the 1-hour ozone 
standard in the north portion since 1991, referenced a downward 
emissions trend, and stated that the north and south portions of the 
County are geographically distinct. CARB concluded that EPA should 
reconsider the proposal to reclassify the entire County.
    EDC, on the other hand, strongly opposed bifurcating the 
nonattainment area and presented: (1) technical information relating to 
rapid development now occurring in, or planned for, the north portion 
of the County, making an increase in mobile source emissions highly 
probable; (2) air quality data showing that several monitoring 
locations in the north portion experience exceedances or near-
exceedances of the new Federal 8-hour NAAQS and routinely exceed the 
State 1-hour ozone standard (0.09 ppm); (3) arguments that the existing 
monitoring network is inadequate to record peak concentrations and that 
high elevation stations should be located near urbanized north County 
areas; and (4) arguments that modeling shows that the entire southern 
California region shares at least portions of airsheds at times, and 
that the north portion is both a downwind/recipient region and an 
upwind/contributor region, and that therefore the failure to bump up 
the north portion of the County could impair the efforts of Ventura and 
the South Coast areas to attain.
    Response: EPA agrees with SBCAPCD that, for the period 1994-1996, 
most exceedances appear to have been influenced by areas to the 
southeast, rather than from the north portion of the County. EPA is not 
convinced at this time that the available data and analyses (which do 
not include photochemical

[[Page 65027]]

modeling information) provide conclusive evidence that sources in the 
north portion would not significantly impact air quality in the south 
portion under meteorological conditions that have occurred in the area, 
and may occur in the future. While the existing modeling domain does 
not cover the bulk of the north portion, it is possible that useful 
urban airshed modeling (UAM) for the entire County will be available 
from the Southern California Ozone Study (SCOS), a broad scale regional 
air quality assessment undertaken this year. EPA hopes that this 
information will allow for a more informed decision regarding the 
impacts of emissions in the north portion on ozone concentrations in 
the south portion, both with respect to the 1-hour and the 8-hour ozone 
standards.
    EPA continues to review the submitted data and conclusions, and has 
requested additional information from SBCAPCD relating to the amount of 
manmade and biogenic emissions in the north portion compared to the 
south portion of the County. SBCAPCD has provided this data, which is 
part of the rulemaking docket. The SBCAPCD data on point source 
emissions indicate that south county sources emit approximately 26% of 
reactive organic gases (ROG) and 8.5% of nitrogen oxides (NOx), north 
county sources emit roughly 53% of ROG and 65% of NOx, and the 
remaining emissions occur in the Outer Continental Shelf (OCS). EPA has 
not yet received data on the north-south split of mobile source 
emissions, including VMT, but the high proportion of industrial 
emissions in the north portion by itself suggests the potential for 
significant impacts from these sources on ozone concentrations in the 
south portion.
    Moreover, as discussed in response to the comment below on 
procedural issues, EPA does not believe that the Agency could revise, 
in this final action, the nonattainment boundaries or establish 
separate nonattainment areas with different classifications, since the 
public involvement requirements of the Administrative Procedure Act, 
including notice and comment, have not yet been satisfied for this 
issue. EPA offers to work closely with the SBCAPCD, CARB, and other 
interested parties if they wish to assemble and analyze all of the 
necessary information to determine whether reclassification or 
redesignation is appropriate.
    3. Comments on procedural issues associated with reclassifying only 
the south portion or redesignating the north portion to attainment: 
SBCAPCD noted that while certain procedural requirements of section 107 
of the CAA may still need to be addressed, EPA may at this time 
determine that available information indicates that the north portion 
should not be classified as a serious nonattainment area. SBCAPCD 
stated that EPA can use its authority under section 110(k)(6) of the 
Act to correct the boundaries of nonattainment areas where information 
reveals that the previous boundaries were in error.
    EDC stated that EPA's notice of proposed rulemaking cannot serve as 
a vehicle for redesignation of the nonattainment boundaries, since the 
notice did not propose partial reclassification and lacked the 
specificity to alert interested parties to the relevant facts. EDC 
concluded that a final EPA action reclassifying only the south portion 
would fail to meet the requirements of the Administrative Procedures 
Act regarding full disclosure of the legal basis, supporting facts, and 
logical rationale for a partial reclassification action, and therefore 
would fail to provide a fair opportunity for the public to consider and 
review the action. EDC also referenced section 107(d)(3)(E) of the CAA, 
which requires a series of determinations and approvals before 
redesignation to attainment, if the north portion were not to retain a 
moderate nonattainment classification but be redesignated to 
attainment. EDC noted that prerequisite to redesignation must be full 
approval of applicable attainment and maintenance plans, findings of 
the permanence and enforceability of emission reductions, and other 
factual conclusions which are not appropriate for the north portion of 
the County at this time.
    Response: EPA agrees with EDC that the proposal published on 
September 2, 1997, does not meet applicable procedural requirements for 
public notice and involvement on issues relating to a bump up of only 
the south portion. For this reason, EPA is not taking final action at 
this time to divide the County into two nonattainment areas.
    Moreover, as discussed above, EPA does not believe that currently 
available information supports a determination that the county-wide 
boundary for Santa Barbara is in error.
    Finally, if the State and SBAPCD intend the north portion of the 
County to be redesignated to attainment, the CAA specifies both 
procedural and substantive steps that the Governor and EPA must take 
before a redesignation or boundary change is proposed.3 If 
the State wishes the north portion to be designated as a separate 
nonattainment area, EPA would also need to identify appropriate SIP 
requirements for the area. EPA will protect the public's rights to be 
involved in, and to provide constructive input to, any future 
decisionmaking on reclassification and redesignation.
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    \3\ In the 1990 amendments to the Clean Air Act, Congress 
established by operation of law boundaries for ozone and carbon 
monoxide nonattainment areas classified as serious, severe, or 
extreme. Congress set the default boundary for these areas as the 
metropolitan statistical area (MSA) or consolidated metropolitan 
statistical area (CMSA). CAA Section 107(d)(4)(iv). This expansive 
boundary was selected in order to ensure that nonattainment areas 
would not be reduced to a size that would frustrate regional 
planning or jeopardize long-term attainment prospects because of 
pollution transported into the nonattainment area from rapidly 
growing suburban areas.
    In section 107(d)(4)(A)(v) of the Act, Congress identified some 
of the criteria to be used in determining whether any portion of an 
MSA or CMSA could be excluded from an ozone or carbon monoxide 
nonattainment area. ``Whenever a Governor finds and demonstrates to 
the satisfaction of the Administrator, and the Administrator concurs 
in such finding, that with respect to a portion of a metropolitan 
statistical area or consolidated metropolitan statistical area, 
sources in the portion do not contribute significantly to violation 
of the national ambient air quality standard, the Administrator 
shall approve the Governor's request to exclude such portion from 
the nonattainment area. In making such finding, the Governor and the 
Administrator shall consider factors such as population density, 
traffic congestion, commercial development, industrial development, 
meteorological conditions, and pollution transport.''
    The State of California formally concurred in the county-wide 
boundaries for the Santa Barbara ozone nonattainment area, which 
were confirmed by EPA in the initial promulgation of designations 
and classifications under the 1990 amendments to the CAA. See letter 
from James D. Boyd, CARB Executive Officer, to Daniel W. McGovern, 
Regional Administrator, USEPA Region 9, dated March 15, 1991; and 56 
FR 56729, November 6, 1991 (codified at 40 CFR 81.305).
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B. Comments Related to Pollutant Transport

    Comment: SBCAPCD and the late Congressman Capps urged EPA to 
recognize the contribution of transport of air pollution into Santa 
Barbara County from upwind areas, and asked EPA to help ensure that 
these areas meet their responsibilities in mitigating their transport. 
SBCAPCD also requested EPA assistance in quantifying these impacts.
    Response: As noted above, the SCOS was undertaken this year. The 
domain of the SCOS extends from Santa Barbara to northern Mexico. This 
study was designed to provide, for the first time, scientific 
information on the extent to which ozone and ozone precursors travel 
within this area. EPA has provided funding for the SCOS, and expects to 
continue to provide technical support to the cooperative project. EPA 
hopes that the SCOS will lead to the development of new analytical 
tools, including updated and enhanced UAM

[[Page 65028]]

modeling, to predict with much greater precision the air quality 
impacts of locally generated emissions and pollution transported from 
upwind areas. Based on this information, the State and local air 
pollution control districts should be able to develop more effective 
air quality plans that can speed progress toward meeting the health-
based NAAQS and achieving other environmental benefits. In the 
meantime, EPA has advised all Southern California air pollution control 
agencies that they must responsibly implement their air quality plans 
to ensure that air quality progress in downwind areas is not 
jeopardized.

C. Miscellaneous Comments

    Comment: The Santa Barbara Association of Realtors (SBAR) noted 
that only 7 percent of the total emissions in the County can be 
regulated by the SBCAPCD, that the District has gone just about as far 
as they can go to reduce emissions, and that the imposition of harsher 
air quality standards on the local business community will revert the 
County into another recession. SBAR urged flexibility, and recommended 
that EPA grant a waiver of one to three years for the County to meet 
the 1996 ozone standard, rather than punish the area ``for failure to 
meet a questionable standard in a minuscule manner in an exact time 
period. * * *''
    Response: EPA agrees with SBAR that the SBCAPCD and local industry 
working in concert have an excellent record of environmental commitment 
and innovation in identifying and implementing available controls. This 
extraordinary cooperative local effort was honored last year when the 
SBCAPCD received both the Presidential Award for sustainable 
Development and the Governor's Environmental and Economic Leadership 
Award.
    While EPA may desire more flexibility in this situation to reward 
Santa Barbara County for its demonstrated leadership, the Agency has 
not been granted that flexibility under the Clean Air Act. The CAA does 
not allow for reviewing an area's efforts to adopt controls or the 
comparative availability of new control opportunities within an area. 
Determining whether an area met its attainment deadline is based solely 
on available ambient air quality data.
    The classification structure of the Act is a clear statement of 
Congress's belief that the later attainment deadlines afforded higher-
classified and reclassified areas as due to the greater stringency of 
controls. The reclassification provisions of the Clean Air Act are not 
punitive, but rather are a reasonable mechanism to assure continued 
progress toward attainment of the health-based ambient air quality 
standards when areas miss their attainment deadlines.
    Neither the provisions of 40 CFR 50.9, as revised (62 FR 38856 and 
62 FR 38894), nor any other statutory or regulatory provisions, provide 
EPA with the authority to suspend enforcement of the 1-hour NAAQS in 
Santa Barbara. Moreover, the Santa Barbara area has not complied with 
some of the most significant serious area requirements (e.g., the 9 
percent rate of progress requirement). Finally EPA believes that 
complying with those requirements will have a positive, not 
detrimental, effect on the ability of Santa Barbara to comply with the 
8-hour standard.
    Comment: SBAR commented that EPA should complete a ``cost versus 
benefit'' analysis and should attempt to mitigate economic burdens 
associated with reclassification through incentive and inducement 
rather than punitive measures with a ``command and control'' mentality.
    Response: Congress established in the CAA certain SIP requirements 
for serious ozone areas. EPA does not mandate any specific controls or 
control approach beyond these statutory requirements, and encourages 
State and local agencies to pursue pollution prevention and other 
techniques for achieving the CAA public health goals while minimizing 
costs and dislocations. The Agency encourages SBAR to suggest specific 
ways in which the Federal government could provide incentives and 
inducements.
    Comment: EDC noted that EPA and SBCAPCD had delayed in responding 
to 1996 violations. EDC stated that setting a one year period after the 
effective date of EPA's action would allow too long a period for SIP 
submittal. EDC suggested February 1998 as the SIP submittal deadline, 
unless SBCAPCD begins adopting and implementing additional control 
measures immediately to assure progress towards attainment by November 
1999.
    Response: EPA believes that the SIP schedule--submission of a SIP 
meeting all applicable CAA requirements for a serious ozone 
nonattainment area by one year from the effective date of this final 
action--is ambitious but grants sufficient time for completing 
necessary technical analyses, interactions with involved agencies and 
the public, and rule development activities. In addition, this schedule 
should allow for implementation of the plan during the full ozone 
season in 1999, the attainment year. EPA believes that it would be 
unrealistic to require plan submission at an earlier date or to mandate 
prior rule adoption by the SBCAPCD.

IV. Final Action

    EPA is finding that the Santa Barbara ozone nonattainment area did 
not attain the ozone NAAQS by November 15, 1996, the CAA attainment 
date for moderate ozone nonattainment areas. As a result of this 
finding, the Santa Barbara ozone nonattainment area is reclassified by 
operation of law as a serious ozone nonattainment area on the effective 
date of today's action and the submittal of the serious area SIP 
revisions will be due no later than 12 months from this effective date. 
The requirements for this SIP submittal are established in CAA section 
182(c) and applicable EPA guidance.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future action. Each finding of 
failure to attain, request for an extension of an attainment date, and 
establishment of a SIP submittal date shall be considered separately 
and shall be based on the factual situation of the area under 
consideration and in relation to relevant statutory and regulatory 
requirements.

V. Administrative Requirements

A. Executive Order (E.O.) 12866

    Under E.O. 12866, (58 FR 51735, October 4, 1993), EPA is required 
to determine whether today's action is a ``significant regulatory 
action'' within the meaning of the E.O., and therefore should be 
subject to OMB review, economic analysis, and the requirements of the 
E.O. See E.O. 12866, sec. 6(a)(3). The E.O. defines, in sec. 3(f), a 
``significant regulatory action'' as a regulatory action that is likely 
to result in a rule that may meet at least 1 of 4 criteria identified 
in section 3(f), including,

    (1) have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; (3) 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set 
forth in the Executive Order.

    EPA has determined that neither the finding of failure to attain it 
is making

[[Page 65029]]

today, nor the establishment of SIP submittal schedule would result in 
any of the effects identified in E.O. 12866 sec. 3(f). As discussed 
above, findings of failure to attain under section 181(b)(2) of the Act 
are based upon air quality considerations, and reclassifications must 
occur by operation of law in light of certain air quality conditions. 
These findings do not, in and of themselves, impose any new 
requirements on any sectors of the economy. In addition, because the 
statutory requirements are clearly defined with respect to the 
differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local, or tribal governments or communities. Similarly, the 
establishment of new SIP submittal schedules merely establishes the 
dates by which SIPs must be submitted, and does not adversely affect 
entities.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    As discussed above, a finding of failure to attain (and the 
consequent reclassification by operation of law of the nonattainment 
area) under section 181(b)(2) of the Act, and the establishment of a 
SIP submittal schedule for a reclassified area, do not, in-and-of-
themselves, directly impose any new requirements on small entities. See 
Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 
1985) (agency's certification need only consider the rule's impact on 
entities subject to the requirements of the rule). Instead, this 
rulemaking simply makes a factual determination and establishes a 
schedule to require States to submit SIP revisions, and does not 
directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), 
EPA reaffirms its certification made in the proposal (62 FR 46233) that 
today's final action will not have a significant impact on a 
substantial number of small entities within the meaning of those terms 
for RFA purposes.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, when EPA promulgates ``any general notice of proposed 
rulemaking that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more'' in any 1 year. A ``Federal 
mandate'' is defined, under section 101 of UMRA, as a provision that 
``would impose an enforceable duty'' upon the private sector or State, 
local, or tribal governments'', with certain exceptions not here 
relevant. Under section 203 of UMRA, EPA must develop a small 
government agency plan before EPA ``establish[es] any regulatory 
requirements that might significantly or uniquely affect small 
governments.'' Under section 204 of UMRA, EPA is required to develop a 
process to facilitate input by elected officers of State, local, and 
tribal governments for EPA's ``regulatory proposals'' that contain 
significant Federal intergovernmental mandates. Under section 205 of 
UMRA, before EPA promulgates ``any rule for which a written statement 
is required under [UMRA sec.] 202,'' EPA must identify and consider a 
reasonable number of regulatory alternatives and either adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule, or explain why a different 
alternative was selected.
    Generally, EPA has determined that the provisions of sections 202 
and 205 of UMRA do not apply to this decision. Under section 202, EPA 
is to prepare a written statement that is to contain assessments and 
estimates of the costs and benefits of a rule containing a Federal 
Mandate ``unless otherwise prohibited by law.'' Congress clarified that 
``unless otherwise prohibited by law'' referred to whether an agency 
was prohibited from considering the information in the rulemaking 
process, not to whether an agency was prohibited from collecting the 
information. The Conference Report on UMRA states, ``This section [202] 
does not require the preparation of any estimate or analysis if the 
agency is prohibited by law from considering the estimate or analysis 
in adopting the rule.'' 141 Cong. Rec. H3063 (Daily ed. March 13, 
1995). Because the Clean Air Act prohibits, when determining whether an 
area attained the ozone standard or met the criteria for an extension, 
from considering the types of estimates and assessments described in 
section 202, UMRA does not require EPA to prepare a written statement 
under section 202. Although the establishment of a SIP submission 
schedule may impose a Federal mandate, this mandate would not create 
costs of $100 million or more, and therefore, no analysis is required 
under section 202. The requirements in section 205 do not apply because 
those requirements for rules ``for which a written statement is 
required under section 202. * * *''
    With regard to the outreach described in UMRA section 204, EPA 
discussed its proposed action in advance of the proposal with State 
officials.
    Finally, section 203 of UMRA does not apply to today's action 
because the regulatory requirements finalized today--the SIP submittal 
schedule--affect only the State of California, which is not a small 
government under UMRA.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 9, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, ozone.


[[Page 65030]]


    Dated: November 26, 1997.
Felicia Marcus,
Regional Administrator.

    Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. In Sec. 81.305 the table for California--Ozone, is amended by 
revising the entry for ``Santa Barbara-Santa Maria-Lompoc Area Santa 
Barbara County'' to read as follows:


Sec. 81.305  California.

* * * * *

                                                California-Ozone                                                
----------------------------------------------------------------------------------------------------------------
                                                     Designation                         Classification         
           Designated area           ---------------------------------------------------------------------------
                                        Date \1\               Type               Date \1\           Type       
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
Santa Barbara-Santa Maria-Lompoc         11/15/90  Nonattainment..............       1-9-98  Serious.           
 Area Santa Barbara County.                                                                                     
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.                                                     

[FR Doc. 97-32332 Filed 12-9-97; 8:45 am]
BILLING CODE 6560-50-P