[Federal Register: June 26, 2003 (Volume 68, Number 123)]
[Rules and Regulations]
[Page 38159-38163]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn03-21]
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Part IV
Environmental Protection Agency
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40 CFR Part 50
Stay of Authority Under 40 CFR 50.9(b) Related to Applicability of 1-
Hour Ozone Standard; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 50
[FRL-7519-3]
RIN 2060-AK78
Stay of Authority Under 40 CFR 50.9(b) Related to Applicability
of 1-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action to stay its authority to
determine that the 1-hour national ambient air quality standard for
ozone no longer applies in areas that meet that standard. Under an
existing EPA rule, EPA can determine that the 1-hour standard no longer
applies to an area upon finding that the area has met that standard.
The final stay will ensure that the 1-hour standard remains in place
nationwide until EPA issues a new rule governing how and when the 1-
hour standard should be removed. EPA is addressing that issue as part
of a proposed rule for implementing the 8-hour ozone standard (68 FR
32801, June 2, 2003), and is providing the public an opportunity to
comment on the issue. The stay will remain effective until the Agency
takes final action revising or reinstating its authority to remove the
1-hour ozone standard, and addresses any public comments received on
certain relevant issues. This final rule addresses comments received
during the comment period on the previously proposed rule issued
December 27, 2002.
DATES: The effective date for this final rule is August 25, 2003.
ADDRESSES: Documents relevant to this action are available for
inspection at the EPA Docket Center (Air Docket), located at 1301
Constitution Avenue, NW, Room: B108, Washington, DC 20004, telephone
(202) 566-1742, fax (202) 566-1741, between 8:30 a.m. and 4:30 p.m.,
Monday through Friday, excluding legal holidays. A reasonable fee may
be charged for copying.
FOR FURTHER INFORMATION CONTACT: Questions concerning this final rule
should be addressed to Annie Nikbakht, Office of Air Quality Planning
and Standards, Air Quality Strategies and Standards Division, Ozone
Policy and Strategies Group, Mail Drop C539-02, Research Triangle Park,
NC 27711, telephone (919) 541-5246.
SUPPLEMENTARY INFORMATION: Electronic Availability--The official record
for this final rule, as well as the public version, has been
established under Docket Number OAR-2002-0067. To view electronically
the docket for this rule, see http://www.epa.gov/rpas.
Table of Contents
I. Background
II. Summary of Today's Action
III. Summary of Comments and Responses
IV. Statutory and Executive Order Reviews
I. Background
On December 27, 2002, EPA issued a proposed rule (67 FR 79460) to
stay its authority under the second sentence of 40 CFR 50.9(b) to
determine that the 1-hour ozone standard no longer applies based on a
determination that an area met that standard. The EPA proposed that the
stay would be effective until such time as EPA takes final action in a
subsequent rulemaking addressing whether the second sentence of 40 CFR
50.9(b) should be modified in light of the Supreme Court's decision in
Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001),
regarding implementation of the 8-hour ozone NAAQS.
II. Summary of Today's Action
In today's action, EPA is finalizing the stay and providing that
prior to lifting such a stay, we will consider and address any comments
concerning (a) which, if any, implementation activities for an 8-hour
ozone standard, including designations and classifications, would need
to occur before EPA would determine that the 1-hour ozone standard no
longer applied to an area, and (b) the effect of revising the ozone
NAAQS on existing designations for the pollutant ozone.
The EPA plans to consider the timeframe and basis for revoking the
1-hour standard in the implementation rulemaking that it will propose
shortly in response to a remand from the Supreme Court. The EPA
believes that it is appropriate to reconsider this issue because, at
the time EPA promulgated Sec. 50.9(b), EPA anticipated that subpart 2
would not apply for purposes of implementing the revised ozone
standard. It makes sense, in light of the many issues that are now
being considered regarding implementation of the 8-hour standard,
including the applicability of subpart 2 for purposes of implementing
that standard, for EPA to consider simultaneously the most effective
means to transition from implementation of the 1-hour standard to
implementation of the revised 8-hour ozone NAAQS.
III. Summary of Comments and Responses
The EPA received two comments on the proposed rule during the
comment period which ended on January 27, 2003. Both commenters were
concerned that the regulatory language could be construed as staying
EPA's authority to determine whether an area has met the 1-hour ozone
standard. The proposed language said that EPA was staying its authority
``to determine that an area has attained the 1-hour standard and that
the 1-hour standard no longer applies.'' The EPA agrees that the
language in the regulatory text, as proposed, could be construed in the
manner suggested by the commenters. The EPA did not intend to propose
that it was staying its authority to determine whether an area has
attained the 1-hour standard. In fact, the Clean Air Act (CAA) requires
EPA to make such determinations within 6 months of a nonattainment
area's attainment date. See CAA section 181(b)(2); section 179(c). In
order to avoid confusion, EPA is modifying the regulatory text as
follows:
EPA's authority under paragraph (b) of this section to determine
that the 1-hour standard no longer applies to an area based on a
determination that the area has attained the 1-hour standard is
stayed . . .
The EPA believes this language makes clear that EPA is only staying
its authority to determine the 1-hour standard no longer applies to an
area, which is triggered by a determination that the 1-hour standard
has been attained. Thus, while EPA may still determine that an area has
attained the 1-hour NAAQS, such a determination would not provide a
basis for revoking the 1-hour standard for that area.
One group of commenters was further concerned that the proposed
regulatory text did not fully reflect the settlement agreement in which
EPA agreed to propose this stay. The EPA intended its proposed action
to fully reflect the settlement agreement as evidenced by the preamble
language providing that EPA would not lift the stay until such time as
it considered certain identified issues in a future rulemaking action.
See 67 FR 79460. The EPA did not consider it necessary to include such
language in the proposed regulatory text as EPA fully intended to
comply with such obligation if it took final action providing in the
preamble that it would do so. However, EPA understands the concern
raised by these commenters--the need for regulatory certainty--and
believes it is appropriate to include these conditions in the
regulatory text. Thus, EPA is modifying the regulatory text to provide
that its regulatory
[[Page 38161]]
authority to revoke the 1-hour standard is stayed:
until such time as EPA issues a final rule revising or reinstating
such authority and considers and addresses in such rulemaking any
comments concerning (1) which, if any, implementation activities for
a revised ozone standard (including but not limited to designation
and classification of areas) would need to occur before EPA would
determine that the 1-hour ozone standard no longer applies to an
area, and (2) the effect of revising the ozone NAAQS on the existing
1-hour ozone designations.
Another commenter raises additional issues that are not directly
implicated by the limited action EPA is taking here to stay its
authority to revoke the 1-hour standard. Specifically, the commenter
recommends that (1) EPA not require areas to update maintenance plans
for the 1-hour standard but rather be allowed to commit to submit plans
for the 8-hour standard; (2) EPA revoke the 1-hour ozone standard after
the 8-hour standard is fully enforceable and the designation and
classification process for the 8-hour standard is complete; and (3) EPA
issue its guidance for implementing the 8-hour NAAQS as quickly as
possible so that areas may consider such guidance in making
recommendations regarding designations for the 8-hour NAAQS. The EPA
intends to issue its rulemaking and guidance regarding 8-hour NAAQS
implementation as expeditiously as possible. It is in that rulemaking
that EPA will consider the other issues raised by the commenter:
whether areas will have an ongoing obligation to update 1-hour
maintenance plans and the time at which the 1-hour standard should be
revoked.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines a ``significant regulatory action'' as one that is likely to
result in a rule that may:
(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 entitlement, 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this action is not a ``significant regulatory action''
and was not submitted to OMB for review.
B. Paperwork Reduction Act
This final rule does not contain any information collection
requirements which require OMB approval under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.).
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business as
defined in the Small Business Administration's regulations at 13 CFR
12.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
This final action will not impose any requirements on small
entities. This final action stays EPA's regulatory authority to
determine the 1-hour standard no longer applies to an area, which
authority was based on EPA's determining that the 1-hour standard has
been attained. It does not establish requirements applicable to small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable laws. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This final action also does not impose any additional enforceable
duty, contain any unfunded mandate, or impose any significant or unique
impact on small governments as described in UMRA. Because today's
action does not create any additional mandates, no further UMRA
analysis is needed.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have
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federalism implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local officials early in
the process of developing the proposed regulation.
This final action does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This action stays the language
of 40 CFR 50.9(b) regarding EPA's authority to take action and imposes
no additional burdens on States or local entities; it does not change
the existing relationship between the national government and the
States or the distribution of power and responsibilities among the
various branches of government. Thus, the requirements of section 6 of
this Executive Order do not apply to this final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have Tribal implications.'' This final rule does not have
Tribal implications, as specified in Executive Order 13175, because it
will not have a substantial direct effect on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. Today's action does not
significantly or uniquely affect the communities of Indian Tribal
governments, and does not impose substantial direct compliance costs on
such communities. Thus, Executive Order 13175 does not apply to this
final rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This final rule is not subject
to Executive Order 13045, because this action is not ``economically
significant'' as defined under Executive Order 12866 and there are no
environmental health risks or safety risks addressed by this rule.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d)(15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The VCS are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
VCS bodies. The NTTAA directs EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable VCS.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Under Executive Order 12898, each Federal agency must make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. Today's final
action to stay EPA's authority under 40 CFR 50.9(b) related to
applicability of the 1-hour ozone standard does not have a
disproportionate adverse effect on minorities and low-income
populations.
K. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit by August 25, 2003. Filing a petition
of 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 it requirements (see section 307(b)(2)).
L. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 of the CRA provides an
exception to this requirement. For any rule for which an agency for
good cause finds that notice and comment are impracticable,
unnecessary, or contrary to the public interest, the rule may take
effect on the date set by the Agency. The EPA will submit 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
United States prior to publication of the rule in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
final rule is effective August 25, 2003.
List of Subjects in 40 CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, part 50 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
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PART 50--AMENDED
0
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7410, et seq.
0
2. Section 50.9 is amended by adding paragraph (c) to read as follows:
Sec. 50.9 National 1-hour primary and secondary ambient air quality
standards for ozone.
* * * * *
(c) EPA's authority under paragraph (b) of this section to
determine that the 1-hour standard no longer applies to an area based
on a determination that the area has attained the 1-hour standard is
stayed until such time as EPA issues a final rule revising or
reinstating such authority and considers and addresses in such
rulemaking any comments concerning (1) which, if any, implementation
activities for a revised ozone standard (including but not limited to
designation and classification of areas) would need to occur before EPA
would determine that the 1-hour ozone standard no longer applies to an
area, and (2) the effect of revising the ozone NAAQS on the existing 1-
hour ozone designations.
[FR Doc. 03-16236 Filed 6-25-03; 8:45 am]
BILLING CODE 6560-50-P