Clean Air Act Reclassification; CaliforniaSanta Barbara Nonattainment Area; Ozone

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