[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)]
[Rules and Regulations]
[Pages 8128-8134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4005]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[TX89-1-7370; FRL-5967-4]


Clean Air Act Reclassification; Texas-Dallas/Fort Worth 
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finding that the Dallas/Fort Worth (DFW) 
nonattainment area (Dallas, Tarrant, Collin, Denton Counties, Texas) 
has not attained the 1-hour ozone national ambient air quality standard 
(NAAQS) by the applicable attainment date in the Clean Air Act (Act) 
for moderate ozone nonattainment areas, 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 
this finding, the DFW ozone nonattainment area will be reclassified by 
operation of law as a serious ozone nonattainment area on the effective 
date of this action. This Federal Register reclassification final rule 
does not subject the State to sanctions under section 110(m) of the 
Act. 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: March 20, 1998.

FOR FURTHER INFORMATION CONTACT: Thomas Diggs or James F. Davis, Air 
Planning Section (6PD-L), Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Suite 1200, Dallas, Texas, 75202, (214) 665-7214.

SUPPLEMENTARY INFORMATION:

I. Background

    Under sections 107(d)(1)(C) and 181(a) of the Act, the DFW area 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 (section 181(a)(1)).
    Pursuant to section 181(b)(2)(A) of the Act, EPA has the 
responsibility for determining, within six 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 next higher classification or to the 
classification applicable to the area's design value at the time of the 
finding. Section 181(b)(2)(B) of the Act requires EPA to publish a 
notice in the Federal Register identifying areas which failed to attain 
the standard and therefore must be reclassified by operation of law.
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    \1\ On July 18, 1997 (62 FR 38856), EPA revised the ozone NAAQS 
to establish an 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, the Act 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 document are to 
the 1-hour ozone NAAQS.
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    If a state does not have the data necessary to show attainment of 
the NAAQS, it may apply, under section 181(a)(5) of the Act, for a one-
year attainment date extension. Issuance of an extension is 
discretionary, but EPA can exercise that discretion only if the state 
has: (1) complied with the requirements and commitments pertaining to 
the applicable implementation plan for the area, and (2) the area has 
measured no more than one exceedance of the ozone NAAQS at any 
monitoring site in the nonattainment area in the year preceding the 
extension year.
    A complete discussion of the statutory provisions and EPA policies 
governing findings of whether an area failed to attain the ozone NAAQS 
and extensions of the attainment date can be found in the proposal for 
this action at 62 FR 46238 (September 2, 1997).

II. Proposed Action

    On September 2, 1997, EPA proposed to find that the DFW ozone 
nonattainment area failed to attain the 1-hour ozone NAAQS by the 
applicable attainment date (62 FR 46238). The proposed finding was 
based upon ambient air quality data from the years 1994, 1995, and 
1996. These 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 three-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 three-year period (40 CFR 50.9 and Appendix H). The 
EPA also proposed that the appropriate reclassification of the area was 
too serious, based on the area's 1994-1996 design value of 0.139 ppm. 
This Federal Register reclassification final rule is not an action 
subjecting the State to sanctions described in section 110(m) of the 
Act. The sanctions provisions of the Act would only apply if the State 
failed to submit a revised DFW SIP or submitted a revised DFW SIP that 
was disapproved by the EPA. For a complete discussion of the DFW ozone 
data and method of calculating both the average number of days over the 
ozone standard and the design value, see 62 FR 46238.
    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. The requirements for serious ozone nonattainment 
areas are outlined in section 182(c) of the Act.

III. Response to Comments

    The EPA received 156 comment letters in response to its September 
2, 1997 proposal. The EPA wishes to express its appreciation to each of 
these individuals and organizations for taking the time to comment on 
the proposal. Each raised important issues to which EPA welcomes the 
opportunity to respond.
    As described above, EPA's proposal was composed of two elements: 
(1) a finding of failure to attain by the statutory deadline of 
November 15, 1996, (2) a 12-month schedule for submittal of the revised 
SIP.

[[Page 8129]]

    The EPA received comment letters from 147 citizens supporting the 
reclassification action and/or requiring further improvements in air 
quality. One additional citizen commented that EPA should focus on 
sources of pollution other than motor vehicles such as aircraft, power 
plants and diesel engines. The Environmental Defense Fund commented in 
support of requiring further improvements in air quality. The Lone Star 
Chapter of the Sierra Club sent in a letter supporting EPA's proposal 
for reclassification of the DFW area to facilitate improvements in air 
quality. Two citizen commenters expressed some qualified concerns about 
the proposed action. The Greater Dallas Chamber requested EPA to 
reconsider the action in view of improvements in air quality, and the 
City of Plano requested a cost/benefit analysis and assessment on 
whether new control standards are achievable. The City of Dallas 
commented that programs should be required to be implemented across the 
entire nonattainment area, and that the nonattainment area should be 
expanded to the entire metropolitan statistical area (MSA) or 
consolidated metropolitan statistical area (CMSA). The City of Dallas 
also commented on flexible implementation times, on compliance with the 
Unfunded Mandates Reform Act, Regulatory Flexibility Act, and on 
Executive Order 12866. The Mayor of Fort Worth, the Honorable Kenneth 
Barr, expressed concern that counties adjacent to the metroplex are not 
being required to participate in the overall abatement program and 
urged EPA to expand the program to all areas contributing to the ozone 
problem. The City of Grand Prairie commented that the 1999 attainment 
date is virtually unattainable, that the nonattainment area should 
include the entire urbanized region, with control strategies applied 
fairly throughout the entire area, and the EPA ensure sufficient 
resources are available for technical assistance and public outreach. 
The Texas Natural Resource Conservation Commission (TNRCC) commented 
that it will continue to work in a results oriented way to improve air 
quality in the DFW area, but expressed procedural and legal concerns 
with the action. The EPA also received comments and questions from U.S. 
Representative Martin Frost and from Texas State Representative Lon 
Burnam regarding the timeframes associated with the reclassification 
SIP due date in view of the extension of the comment period. Specific 
comments along with EPA's responses are described below.

A. Comments on Air Quality Data

    Comments: The Greater Dallas Chamber commented that while the area 
has not met the air quality standards specified by EPA, since 1990 
emissions have been reduced 15 percent while population has increased 
13 percent. The City of Plano also made the comment that significant 
progress has been made. The Environmental Defense Fund concurred with 
EPA's assessment of the air quality data that the area did not attain 
the ozone NAAQS by November 1996 and commented that little if any 
progress has been made since 1994.
    Response: The EPA recognizes that over the very long term some 
improvements in the DFW air quality have been made and that programs 
have been put in place to improve air quality at a Federal, State, and 
local level. However, these programs have not been adequate to meet the 
health-based ozone standard or make the area eligible for an extension 
of the 1996 attainment date. Between 1994 and 1996, based on the number 
of exceedance days DFW had the eighth worst air quality in the nation 
(28 days). In the same time period based on air quality design value, 
DFW had the tenth worst air quality in the nation (0.139 ppm). In 1990, 
twenty-two areas had worse air quality than DFW based on air quality 
design value (DFW design value in 1990 was 0.140 ppm). Over a ten year 
period the area's design value has not shown a downward trend, and 
continues to remain at unacceptable levels above the health-based 
standards.

B. Comments Related to the Area of Coverage and Regional Approach to 
Controls

    Comments: The EPA received 11 comments from citizens supporting the 
inclusion of surrounding counties to the DFW nonattainment area, 
particularly Ellis County. Several commenters expressed specific 
concerns about air pollutants coming from large stationary point 
sources in Ellis County. Some of the comments were specifically 
directed towards the burning of hazardous waste.
    Response: The EPA agrees that sources of pollution outside the four 
county nonattainment area must be taken into consideration in air 
quality planning. We anticipate that the revised air quality attainment 
modeling demonstration will include large stationary sources of 
pollution from an area beyond the four county nonattainment area. The 
control strategy included in the revised SIP may require emission 
reductions from sources outside the nonattainment area if the State 
determines they would be effective in achieving attainment for the DFW 
area. The EPA has not included additional counties in the nonattainment 
area at this time, since there has not been any air quality monitoring 
data showing exceedances of the ozone standard in these counties. Part 
of the additional monitoring requirements resulting from this action 
will be a monitor located south of the DFW nonattainment area. In 
addition, the EPA will be reevaluating the nonattainment area of 
coverage again when designations are made for the revised 8-hour ozone 
standard. Also, if the area does not meet its 1999 attainment deadline, 
EPA will consider expanding the nonattainment area to additional 
counties in the CMSA or the entire CMSA in a reclassification of the 
area to severe ozone nonattainment. Regarding the burning of hazardous 
waste, EPA's proposal for reclassification was strictly an action that 
applied to the ozone standard and not related to this issue.
    Comments: The Greater Dallas Chamber stated that it is important to 
equally apply all standards and regulations among all four counties in 
the nonattainment area and that a truly Regional approach to improve 
air quality should be taken. The Greater Dallas Chamber also requested 
EPA reconsider the proposed reclassification and work with all parts of 
the nonattainment area to expand air quality control efforts. The City 
of Dallas and City of Grand Prairie similarly commented that emission 
control requirements should apply to all segments of the nonattainment 
area. The City of Dallas specifically pointed to the growth in Collin 
and Denton County, and the air quality exceedances in these counties as 
reasons to include these counties in the emission control programs 
especially those directed towards mobile sources such as the vehicle 
inspection and maintenance program. They pointed to the inequity of the 
situation in which the commuter to Dallas from the northern two 
counties may drive 25 miles each way and not be subject to enhanced 
testing, while the commuter to Dallas from Oak Cliff may drive only 5 
miles each way and be subject to enhanced I/M testing. The City 
commented that EPA should not accept any implementation plan which 
omits enhanced I/M in Denton and Collin Counties. The Mayor of Fort 
Worth expressed concern that counties adjacent to the metroplex are not 
being required to participate in the overall abatement program. The 
City of Dallas felt the current imbalance in application

[[Page 8130]]

of control programs raised questions of environmental justice.
    Response: The EPA concurs that strategies that apply equally across 
the nonattainment area are normally in the best interest in air quality 
improvement efforts. The EPA has listed expansion of the vehicle 
inspection and maintenance program to Collin and Denton counties as a 
cost effective measure which the State should consider in its revised 
SIP. However, EPA cannot require I/M programs to be placed in areas 
outside the 1990 urbanized area. The State is planning to implement 
remote sensing testing for vehicles commuting into Dallas and Tarrant 
counties. The EPA will be evaluating the program to determine whether 
sufficient numbers of failing vehicles are being repaired to make up 
urbanized area coverage shortages stemming from the State decision to 
implement its core I/M program in only Dallas and Tarrant counties. The 
EPA's action to finalize the DFW reclassification is based upon the 
area's monitored air quality and will help to focus efforts on needed 
air quality improvements. Therefore, EPA does not believe it is in the 
best interest of air quality to reconsider its proposed 
reclassification. Furthermore, section 181(b)(2) of the Act mandates 
that the Administrator redesignate an area that has not attained the 
standard by the applicable attainment date.
    Comments: The City of Dallas commented that EPA is required by 
operation of law, 42 U.S.C. section 7407(d)(4)(iv), to designate the 
entire MSA or CMSA as nonattainment with the serious classification. 
The CMSA includes Collin, Dallas, Denton, Ellis, Henderson, Hunt, 
Kaufman, Rockwall, Hood, Johnson, Parker and Tarrant counties. The City 
of Dallas also cited 57 FR 13514-13515 (April 16, 1992) which stated 
that when a moderate area is bumped up to serious this section of the 
Act requires that the boundaries reflect the MSA/CMSA unless the State 
notifies EPA of its intent to study the appropriate boundaries. In 
addition, the City commented that for the policy reason of addressing 
all emissions in the area the entire CMSA should be included.
    Response: The City has correctly read EPA's interpretation cited in 
the 1992 proposed General Preamble for Implementation of Title 1 of the 
Clean Air Act (57 FR 13514-13515). However, since 1992 EPA has 
interpreted and implemented section 107(d)(4)(A)(iv) of the Act in a 
more flexible manner regarding reclassifications. This section of the 
Act can also be interpreted only to be required to apply to areas when 
they are initially classified and not necessarily when they are 
reclassified. This latter interpretation was applied in the Phoenix 
nonattainment area in its carbon monoxide reclassification (61 FR 
39343-39347 (July 29, 1996)) and more recently in the moderate ozone 
area reclassification to serious (62 FR 60001-60013 (November 6, 
1997)). However, if the DFW area does not meet its 1999 attainment 
deadline, EPA will consider expanding the nonattainment area to 
additional counties in the CMSA or the entire CMSA in a 
reclassification of the area to severe ozone nonattainment.
    Comments: The EDF also commented that EPA should require Texas to 
consider the finding of the Ozone Transport Assessment Group (OTAG) and 
other studies which show ozone pollution is transported long distances 
and to consider the likely impact on the DFW nonattainment area from 
large point sources in Central and Northeast Texas.
    Response: This comment is not relevant to the issues presented in 
this rulemaking. The EPA anticipates that the revised air quality 
modeling attainment demonstration will include emissions from large 
stationary sources of pollution long distances from the nonattainment 
area. The EPA agrees that looking at sources located at greater 
distances is an appropriate approach. This was the conclusion of the 
OTAG study. Although the OTAG results did not find that Texas was 
contributing to transport to the eastern United States, the results did 
conclude that transport is a factor in ozone formation.

C. Comments Related to the Timing of the Submission of the Revised SIP

    Comments: U.S. Representative Martin Frost commented that he had 
been contacted by groups that the implementation plan stay on the 
original schedule in view of the 60-day extension of the comment 
period. Texas State Representative Lon Burnam also commented regarding 
the timeframes associated with the reclassification SIP due date in 
view of the extension of the comment period. Representative Burnam 
requested that the EPA stay on the original time frame for the final 
reclassification and SIP due date and was concerned about the impact of 
the 60-day time extension.
    The EDF expressed concern that the proposed SIP submittal timing 
will pass before new actions to improve air quality are taken. One 
citizen also commented that a one-year SIP submittal window is too 
long, in view of the serious attainment deadline of November 1999, and 
requested EPA finalize a 6-month SIP submittal deadline. The citizen 
also requested that EPA require the State to have some control measures 
in place at May 1, 1998, and a second tier of measures in place by May 
1, 1999. The TNRCC commented that if DFW is reclassified, the TNRCC 
should be given a minimum of one year from the effective date prior to 
the final reclassification action. The City of Dallas commented that 
assuming EPA approval of the SIP, the nonattainment area will have 
approximately one year from the time of SIP approval to achieve 
attainment and that this time period will likely not be sufficient to 
put in place many requirements to achieve meaningful results. The City 
urged EPA to exercise all discretion to extend timetables so the region 
has a reasonable chance to achieve compliance.
    Response: The EPA believes that a 12-month schedule for submittal 
of the revised plan is appropriate because of the time needed for the 
State to develop and submit the revised SIP. This 12-month timeframe is 
consistent with actions EPA has taken with the ozone reclassifications 
of Phoenix and Santa Barbara. The 12-month timeframe will begin upon 
the effective date of this action. Since the attainment date for 
serious areas, November 15, 1999, is less than 2 years away, the State 
will need to expedite adoption and implementation of controls to meet 
that deadline. The EPA believes the two-tiered approach for the revised 
air quality improvement plan has merit, but it will be up to the State 
to determine when to implement the additional controls with the desired 
result of meeting the 1999 attainment date. The EPA does not have 
discretion to extend the attainment date, under section 182(I) of the 
Act. However, the Act does allow for extensions of the attainment date 
under section 182(a)(5), if in the attainment year the area has 
sufficiently improved air quality and has met its SIP requirements.

D. Comments on Future Control Requirements

    Comments: One citizen commented that EPA should make it clear that 
the TNRCC has the ``powers'' to go beyond the required measures to come 
up with an appropriate compliance plan for DFW. The citizen also 
commented that EPA list the possible control options it has developed 
in the final reclassification. Another citizen commented that EPA 
should focus on sources of pollution other than motor vehicles such as 
aircraft, power plants and diesel engines.
    Response: The State has always had the ability to implement air 
quality improvement programs that exceed the

[[Page 8131]]

Federal requirements. The control options the EPA is recommending for 
consideration in the revised SIP include: 1) expansion of the I/M 
program into Collin and Denton or additional counties, 2) enhancements 
to the I/M program such as loaded mode testing, 3) cleaner gasolines 
such as Phase II of the reformulated gasoline program, 4) adoption of 
Reasonably Available Control Technology for offset lithographers, 5) 
additional transportation control measures, 6) an effective clean fuel 
fleet program, 7) nitrogen oxide (NOx) controls on utility 
sources, and 8) opting into the California Low Emitting Vehicle 
program. The EPA agrees that all sources of pollution have to be 
considered for additional controls. However, in the DFW area on-road 
mobile sources comprise about 41 percent of the emissions inventory 
with off-road mobile sources comprising about 18 percent. Stationary 
point sources account for about 12 percent of the area's volatile 
organic compound air pollution.
    Comments: The City of Grand Prairie commented that the attainment 
date of 1999 is virtually unattainable due to the lateness of EPA's 
action. The TNRCC also commented that it will be all but impossible for 
the DFW area to implement controls in time prior to the proposed new 
attainment deadline of November 15, 1999, and that another 
reclassification would be likely in the same timeframe as EPA's new 
ozone NAAQS. The TNRCC recommended that if the DFW area is 
reclassified, EPA allow a three-year assessment period beyond the new 
attainment date prior to any other action and that the TNRCC be given a 
minimum of one year from the effective date for submittal of the 
revised SIP.
    Response: The EPA believes the State needs to take a proactive 
approach in implementing measures to improve air quality, but agrees it 
will be a challenge to achieve all the reductions needed by the summer 
of 1999. The State has the option of extending the 1-hour ozone 
attainment date out to 2005 if it requests a voluntary reclassification 
to a severe ozone nonattainment area. If such an approach was taken, 
requirements in the Act for a severe area would apply. Another 
reclassification will not occur if the area has improved air quality by 
November 1999 such that it is eligible for an extension based on the 
monitored data, under section 182(a)(5) of the Act. The EPA does not 
have the discretion in the Act to allow the three year assessment 
period contemplated by the TNRCC. If the area is not eligible for the 
extension, the Act would require another reclassification six months 
after the November 15, 1999, attainment date. As stated earlier, the 
EPA is allowing the State up to one year from the effective date to 
submit its revised SIP.

E. Comments on Cost and Benefits

    Comments: The City of Plano expressed concern about the costs 
related to the new standards and that the cost may surpass public 
health benefits. The City of Plano recommended that EPA perform a full 
cost-benefit analysis of its action to the DFW area, investigate 
whether new control standards are realistically achievable, and further 
test the health benefits of stricter air control standards for DFW 
before finalizing its proposed action.
    Response: The EPA may not consider cost in the setting of air 
quality standards or reclassification of areas that fail to attain the 
standard. The decision whether or not to reclassify an area is solely 
based on air quality monitoring data compared with the national ambient 
air quality standard. The standards are required by the Act to be set 
at levels that protect public health without consideration of costs. 
However, we anticipate cost effectiveness will be considered by the 
State in the development of the revised SIP in the selection of what 
measures are best suited in achieving the standards.
    Comments: The City of Grand Prairie commented that the EPA should 
ensure sufficient State resources are available since the State has 
failed in the past to provide sufficient or timely monitoring, modeling 
and technical assistance to the area due to a stated lack of funding. 
The City of Grand Prairie also requested a greater partnership with EPA 
in public outreach to persuade public opinion concerning participation 
in ozone reduction strategies since local entities do not have 
sufficient resources to undertake these efforts independently.
    Response: The EPA can only require that the State meet the 
requirements of the serious areas which will include an attainment 
modeling demonstration, enhanced monitoring and control strategy to 
meet attainment. The financial and personnel resources needed to meet 
these requirements can only be determined by the State. Regarding 
partnership on public outreach, EPA agrees more can and should be done 
in communicating the need for improved air quality in the DFW area and 
the steps needed to achieve clean air. The EPA has been and is 
available for public outreach events and welcomes opportunities to 
participate. As part of this rulemaking action, EPA designed and 
implemented a communication plan which is intended to develop support 
for efforts to improve air quality.

F. Comments Related to the Promulgation of the New Ozone NAAQS

    Comments: The TNRCC commented that it is inappropriate to maintain 
the current 1-hour standard when the 8-hour standard is considered by 
EPA to be more protective to human health and that this continued 
imposition of the 1-hour standard is diametrically different than what 
was originally proposed by EPA. The TNRCC recommended that EPA move now 
to impose the 8-hour standard so that DFW and the TNRCC will no longer 
be required to dedicate resources to the 1-hour standard. The TNRCC 
questioned the legal authority of how the EPA can hold an area such as 
DFW for two separate standards for the same criteria pollutant. The 
TNRCC also commented that in the Presidential Directive, the President 
stated he wanted to ensure that the new standards be implemented in a 
common sense, cost effective manner; that they be implemented in the 
most flexible, reasonable, and least burdensome manner; and that the 
Federal government work with the State and local governments towards 
this end. The TNRCC requested that EPA address each of these concepts 
and explain how the DFW reclassification meets this directive.
    Response: The continued applicability of the 1-hour standard is not 
the subject of this rulemaking. The 8-hour ozone standard is likewise 
not the subject of this action. This rulemaking only concerns the 
finding that the DFW area failed to attain the 1-hour standard by the 
attainment deadline and the consequences of that failure. The issue of 
the continued applicability of the 1-hour standard was part of the 
rulemaking in which EPA promulgated an 8-hour ozone standard (62 FR 
38856 (July 18, 1997)). In that rulemaking, EPA made it clear that the 
Act did not preclude EPA from simultaneously implementing both 
standards. Also, historically EPA has had more than one primary 
standard for criteria pollutants (e.g., annual and 24-hour PM10 and 
sulfur dioxide standards, and 8-hour and 1-hour CO standards)(62 FR 
38885). That rulemaking, not this one concerning DFW, was the 
appropriate forum in which to raise issues concerning the continued 
applicability of the 1-hour standard.
    The EPA concurs that the Presidential Directive does direct EPA to 
ensure that the new standards be implemented in a

[[Page 8132]]

common sense, cost effective manner and they be implemented in the most 
flexible, reasonable, and least burdensome manner. The EPA believes it 
has been working with the State and local governments towards this end. 
The EPA has participated and will continue to participate in numerous 
briefings at the request of local governments to discuss the reason for 
and implementation of the reclassification. The EPA will work with the 
State in meetings and by giving guidance on and commenting on the 
revised SIP as it proceeds through the State process. The Presidential 
Directive also directs EPA to continue the implementation of the 1-hour 
requirements until the 1-hour standard is achieved. The EPA believes it 
is reasonable and makes sense to implement measures to improve air 
quality prior to the 8-hour ozone SIPs due in 2003. The EPA allows a 
good deal of flexibility in the measures that are chosen for the 
revised SIP since the State may choose the measures it thinks are the 
least burdensome and most cost effective.

G. Comments Related to Consistency of EPA's Action With Other Marginal 
and Moderate Areas

    Comments: The TNRCC questioned what it described as EPA's 
inconsistency with areas similar to DFW noting that to date only three 
moderate areas have been proposed for reclassification to serious (DFW, 
Phoenix, and Santa Barbara). The TNRCC stated that it was encouraged by 
recent news that St. Louis was not going to be reclassified to serious 
nonattainment if the area made significant progress in reducing 
emissions, and the TNRCC was interested in discussing a similar 
approach with respect to DFW. The TNRCC specifically questioned why 
other marginal and moderate areas have not been acted on for not 
meeting their attainment deadlines.
    Response: In contrast with DFW, most marginal and moderate areas 
have either attained their air quality standards and been redesignated 
to attainment, or have been eligible for an extension under section 
182(a)(5) of the Act. The EPA is proceeding with implementing the 1-
hour standard for areas not falling into these categories and which 
were required to meet the ozone standard at the end of 1996. Both the 
Phoenix and Santa Barbara reclassifications to serious have been 
finalized. The EPA is intending to propose reclassification of the 
Beaumont/Port Arthur area to serious nonattainment in the absence of a 
convincing demonstration that the area is subject to overwhelming 
transport. The Manitowoc area was eligible for EPA's overwhelming 
transport policy, which recognizes that most of their air pollution is 
coming in from outside the area. In St. Louis, EPA is continuing to 
review the appropriate information, but the lack of final action with 
respect to St. Louis does not imply that EPA should determine that DFW 
should not be reclassified.

H. Comments Related to the Unfunded Mandates Reform Act, Regulatory 
Flexibility Act, and on Executive Order 12866

    Comments: The City of Dallas commented that EPA is disregarding the 
requirements of the Unfunded Mandates Reform Act (UMRA), Executive 
Order 12866, and the Regulatory Flexibility Act in conducting the 
rulemaking. The City noted EPA's position that since the proposed 
reclassification is ordained by operation of law, no new requirements 
are placed on the parties which these laws and the Executive order seek 
to protect. The City argued that in reality new requirements, not 
currently in the SIP, will be imposed on the community.
    Response: The EPA position regarding compliance of this action with 
the Regulatory Flexibility Act, Executive Order 12866, and the Unfunded 
Mandates Act is described in the Administrative Requirements section of 
this notice.

VI. Final Action

    The EPA is finding that the DFW ozone nonattainment area did not 
attain the ozone NAAQS by November 15, 1996, the Act's attainment date 
for moderate ozone nonattainment areas. The submittal of the serious 
area SIP revision will be due no later than 12 months from the 
effective date of this action. The requirements for this SIP submittal 
are established in section 182 of the Act 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.

VI. 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 Office of Management and Budget review, economic analysis, 
and the requirements of the E.O. See E.O. 12866, section 6(a)(3). The 
E.O. defines, in section 3(f), a ``significant regulatory action'' as a 
regulatory action that is likely to result in a rule that may meet at 
least one of four criteria identified in section 3(f), including, (1) 
have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The EPA has determined that neither the finding of failure to 
attain the ozone standard, nor the establishment of a SIP submittal 
schedule would result in any of the effects identified in E.O. 12866 
section 3(f). As discussed in the response to comments 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. section 601 et seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities. See 5 U.S.C. sections 
603 and 604. Alternatively, EPA may certify that the rule will not have 
a significant economic impact on a substantial number of small 
entities.

[[Page 8133]]

Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    A finding of failure to attain (and the consequent reclassification 
of the nonattainment area by operation of law 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 the State 
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 (September 2, 1997)) 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 Regulatory 
Flexibility Act purposes.

C. Unfunded Mandates Reform Act

    Title II of the UMRA, (Pub. 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 one year. A ``Federal mandate'' is defined, under section 101 of 
UMRA, as a provision that ``would impose an enforceable duty'' upon the 
private sector or State, local, or Tribal governments,'' with certain 
exceptions not here relevant. Under section 203 of UMRA, EPA must 
develop a small government agency plan before EPA ``establish[es] any 
regulatory requirements that might significantly or uniquely affect 
small governments.'' Under section 204 of UMRA, EPA is required to 
develop a process to facilitate input by elected officers of State, 
local, and Tribal governments for EPA's ``regulatory proposals'' that 
contain significant Federal intergovernmental mandates. Under section 
205 of UMRA, before EPA promulgates ``any rule for which a written 
statement is required under'' (UMRA section 202), EPA must identify and 
consider a reasonable number of regulatory alternatives and either 
adopt the least costly, most 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.'' See 141 Cong. Rec. H3063 (Daily ed. March 13, 
1995). Because the Clean Air Act prohibits the Agency from considering 
the types of estimates and assessments described in section 202 when 
determining whether an area attained the ozone standard or met the 
criteria for an extension, 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 are for rules ``for which a 
written statement is required under section 202.* * * ''
    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 Texas, 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 April 20, 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.

    Dated: February 4, 1998.
Lynda F. Carroll,
Acting 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 et seq.

    2. In Sec. 81.344 the table for Texas--Ozone is amended by revising 
the entry for the Dallas-Fort Worth area to read as follows:


Sec. 81.344  Texas.

* * * * *

                                                                      Texas--Ozone                                                                      
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                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
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[[Page 8134]]

                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Dallas-Fort Worth Area:                                                                                                                                 
    Collin County.......................  ...........  Nonattainment............................      3/20/98  Serious                                  
    Dallas County.......................  ...........  Nonattainment............................      3/20/98  Serious                                  
    Denton County.......................  ...........  Nonattainment............................      3/20/98  Serious                                  
    Tarrant County......................  ...........  Nonattainment............................      3/20/98  Serious                                  
                                                                                                                                                        
                  *                  *                  *                  *                  *                  *                  *                   
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\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             

* * * * *
[FR Doc. 98-4005 Filed 2-17-98; 8:45 am]
BILLING CODE 6560-50-P