[Federal Register Volume 73, Number 6 (Wednesday, January 9, 2008)]
[Rules and Regulations]
[Pages 1497-1503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5954]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 50
[EPA-HQ-OAR-2001-0017; FRL-8502-3]
RIN 2060-AO59
Interpretation of the National Ambient Air Quality Standards for
PM2.5--Correcting and Simplifying Amendment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA recently finalized changes to the data handling
conventions and computations necessary for determining when the annual
and 24-hour national ambient air quality standards (NAAQS) for fine
particles (generally referring to particles less than or equal to 2.5
micrometers ([mu]m) in diameter, PM2.5) are met. These
changes were made in support of revisions to the NAAQS for particulate
matter (PM) that were finalized in the same rulemaking. After
publication, EPA discovered an inadvertent omission in the rule text
explaining the procedures for calculating the key statistic (98th
percentile) involved with determining compliance with the 24-hour
PM2.5 standard in locations where extra samples of
PM2.5 in ambient air were taken above the specified sampling
frequency. If the error in the regulatory text is left unchanged, the
resulting statistic for calculating compliance with the 24-hour
PM2.5 standard would be biased low at some samplers, leading
to potentially incorrect determinations that an area was attaining the
NAAQS. In this direct final action, EPA is correcting this error. The
correction involves the replacement of the currently used statistical
formula and instructions with a simpler look-up table approach which is
easier for readers to understand and which retains the intended
numerical consistency with EPA's historic practice.
DATES: This rule is effective on April 8, 2008 without further notice,
unless EPA receives adverse comment by February 8, 2008. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this direct final rule will
not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2001-0017 by one of the following methods:
www.regulations.gov. Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-9744.
Mail: Review of the National Ambient Air Quality Standards
(NAAQS) for Particul0ate Matter (PM), Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Please include a total of two copies.
Hand Delivery: EPA Docket Center, 1301 Constitution
Avenue, NW., EPA Headquarters Library, Room 3334, EPA West Building,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2001-0017. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at: http://www.regulations.gov including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or e-mail. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Review of the National
Ambient Air Quality Standards (NAAQS) for Particulate Matter (PM)
Docket, EPA/DC, EPA West Building, EPA Headquarters Library, Room 3334,
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.
FOR FURTHER INFORMATION CONTACT: For general questions, please contact
Mr. Lewis Weinstock, U.S. Environmental Protection Agency, Office of
Air Quality Planning and Standards, Air Quality Assessment Division,
Ambient Air Monitoring Group (C304-06), Research Triangle Park, North
Carolina 27711; telephone number: (919) 541-3661; fax number: (919)
541-1903; e-mail address: [email protected]. For technical
questions, please contact Mr. Mark Schmidt, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Assessment Division, Air Quality Analysis Group (C304-04),
Research Triangle Park, North Carolina 27711; telephone number: (919)
541-2416; fax number: (919) 541-1903; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Why Is EPA Using a Direct Final Rule?
II. Does This Action Apply to Me?
III. Authority
IV. Judicial Review
V. Overview of the October 17, 2006 NAAQS Rule Changes
VI. This Action
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
[[Page 1498]]
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Why Is EPA Using a Direct Final Rule?
The EPA is publishing this rule to correct and simplify 40 CFR part
50 to Appendix N, Interpretation of the National Ambient Air Quality
Standards for PM2.5, without a prior proposed rule because
we view this as a non-controversial action and anticipate no adverse
comment. The change does not alter the regulatory requirements on
affected entities that were promulgated in the final rule that was
published in the Federal Register on October 17, 2006 (71 FR 61144).
The amended rule also expresses EPA's actual intentions, as explained
in that rulemaking. However, in the ``Proposed Rules'' section of
today's Federal Register, we are publishing a separate document that
will serve as a proposed rule if EPA receives significant adverse
comments on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that this direct final rule will not take
effect. We would address all public comments in any subsequent final
rule based on the proposed rule.
II. Does This Action Apply to Me?
Categories and entities potentially regulated by this action
include:
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NAICS Examples of regulated
Category code \1\ entities
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Federal government.................. 924110 Federal agencies that
conduct ambient air
monitoring similar to
that conducted by
States under 40 CFR
part 58 and that wish
EPA to use their
monitoring data in the
same manner as State
data.
State/territorial/local/tribal 924110 State, territorial, and
government. local, air quality
management programs
that are responsible
for ambient air
monitoring under 40
CFR part 58. The
proposal also may
affect Tribes that
conduct ambient air
monitoring similar to
that conducted by
States and that wish
EPA to use their
monitoring data in the
same manner as State
monitoring data.
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\1\ North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware of
that could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. If you have
questions regarding the applicability of this action to a particular
entity, consult one of the persons listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
III. Authority
Two sections of the Clean Air Act (CAA) govern the establishment
and revision of the NAAQS and supporting appendices detailing
associated Federal Reference Methods and NAAQS interpretation (data
handling) procedures.
Section 108 (42 U.S.C. 7408) directs the Administrator to identify
and list ``air pollutants'' that ``in his judgment, may reasonably be
anticipated to endanger public health and welfare'' and whose
``presence * * * in the ambient air results from numerous or diverse
mobile or stationary sources'' and to issue air quality criteria for
those that are listed. Air quality criteria are intended to
``accurately reflect the latest scientific knowledge useful in
indicating the kind and extent of identifiable effects on public health
or welfare which may be expected from the presence of [a] pollutant in
ambient air * * *.''
Section 109 (42 U.S.C. 7409) directs the Administrator to propose
and promulgate ``primary'' and ``secondary'' NAAQS for pollutants
listed under section 108. Section 109(b)(1) defines a primary standard
as ``the attainment and maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an adequate margin
of safety, are requisite to protect the public health.'' A secondary
standard, as defined in section 109(b)(2), must ``specify a level of
air quality the attainment and maintenance of which, in the judgment of
the Administrator, based on such criteria, is requisite to protect the
public welfare from any known or anticipated adverse effects associated
with the presence of [the] pollutant in the ambient air.''
IV. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this direct final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit by March 10, 2008. Under section 307(d)(7)(B) of the CAA, only
an objection to this direct final rule that was raised with reasonable
specificity during the period for public comment can be raised during
judicial review. Moreover, under section 307(b)(2) of the CAA, the
requirements established by this action may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
V. Overview of the October 17, 2006 NAAQS Rule Changes
On October 17, 2006 (71 FR 61144), EPA amended the primary and
secondary NAAQS for PM to provide increased protection of public health
and welfare by revising the NAAQS for PM2.5 and PM10
(generally referring to particles less than or equal to 10 micrometers
([mu]m) in diameter). The rule amendments also modified the data
handling procedures associated with the PM10 and PM2.5
NAAQS (Appendices K and N of part 50, respectively). Appendix K and N
describe the procedures and equations for determining whether a
monitoring site
[[Page 1499]]
meets the PM10 and PM2.5 NAAQS, respectively.
Appendix N of part 50 (Interpretation of the National Ambient Air
Quality Standards for PM2.5) was revised to incorporate the
revised 24-hour NAAQS level (i.e., 35 [mu]g/m\3\), and also to make
several notable enhancements to the previous data handling conventions
and computations (adopted at 62 FR 38755, July 18, 1997). These
enhancements expanded the existing instructions to include relevant
details for certain special cases previously addressed only in a 1999
EPA guidance document.\2\ EPA meant to make the rule text more explicit
in order to avoid regulatory ambiguity in these special cases. The
special cases addressed in the 1999 EPA guidance are situations in
which a monitoring agency has performed ``make-up'' or ``supplemental''
sampling of PM2.5. The 1999 guidance, but not the previous
version of Appendix N, provided details about how these samples could
be taken into account in the calculation of design values used for
determining whether areas are in compliance with the 24-hour PM2.5
NAAQS.
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\2\ Guideline on Data Handling Conventions for the PM NAAQS,
EPA-454/R-99-008, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, NC, April
1999. http://www.epa.gov/ttn/oarpg/t1/memoranda/pmfinal.pdf.
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The monitoring network used for determining compliance with the
PM2.5 NAAQS is currently based solely on filter-based
samplers that typically operate on a 1-in-3 day sampling frequency.\3\
Such filter-based samplers can malfunction resulting in missed or
invalidated samples. The 1999 guidance encouraged monitoring agencies
to collect make-up samples \4\ for such lost data, and to use the make-
up data in the calculation of the design values for the monitoring
site. Monitoring agencies may also collect supplemental samples on days
falling between required sampling days for local purposes, such as to
better understand the nature and causes of a multi-day PM2.5
episode. The original (1997) Appendix N did not provide explicit
procedures addressing make-up or supplemental samples. The 1999
guidance suggested procedures for calculating design values in these
cases which would ensure the appropriate treatment of such make-up and
supplemental samples in the calculation of PM2.5 24-hour
standard design values.
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\3\ 40 CFR 58.12(d) describes the required operating schedules
for manual PM2.5 samplers. Although the majority of such
samplers must operate on a 1-in-3 day operating schedule, a subset
of samplers is required to operate on a daily schedule, and samplers
that are collocated with a continuous operating PM2.5
monitor may be eligible for a reduction to 1-in-6 days sampling if
approved by the Regional Administrator.
\4\ Make-up samples are samples taken to replace missed or
invalidated required scheduled samples. Make-up samples can be made
by either the primary or the collocated instruments. Make-up samples
are either taken before the next required sampling day or exactly
one week after the missed (or voided) sampling day. The guidance
also made other suggestions regarding make-up sampling practices.
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As noted in the preamble to the October 17, 2006 NAAQS rulemaking,
EPA intended to incorporate into regulation PM2.5 data
handling procedures that previously had only been stated in guidance.
71 FR at 61211. In the course of making these intended changes,
however, an error was made in section 4.5 of Appendix N dealing with
procedures and equations for calculating the 24-hour PM2.5
NAAQS under certain conditions. As described in the following section,
this action was inadvertent, contrary to EPA's stated intentions, and
necessitates correction.
VI. This Action
EPA is amending Appendix N in this action to correct the Agency's
inadvertent error. As a result, the procedures in Appendix N will give
results that will be identical to the intended formula (instead of the
formula that was misstated in the October 2006 rulemaking) and also to
the previous method that had been recommended in EPA guidance. In
addition, this action simplifies the procedures for calculating 24-hour
PM2.5 design values.
As noted, EPA intended in the October 2006 final rule to codify the
1999 guidance's procedure for avoiding a bias that could be introduced
into calculations of the 98th percentile concentration if supplemental
samples are unaccounted for in the statistical calculations. For
example, if supplemental ambient samples were taken during periods of
low PM2.5 concentrations, the annual \5\ 98th percentile
value could be biased low using the previous (1997) Appendix N
procedures compared with the statistic that would have been generated
(using that same procedure) if supplemental samples were not taken or
considered. To minimize this bias, the 1999 guidance and the October
2006 version of Appendix N based the annual 98th percentile calculation
on the creditable \6\ number of monitoring samples as defined in
section 1(c) of the October 2006 version of Appendix N to 40 CFR part
50.\7\
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\5\ The term ``annual 98th percentile value'' refers to a
single-year statistic required for the calculation of 24-hour
PM2.5 design values and should not be confused with
procedures required for calculation of the annual form of the
PM2.5 standard that are not referenced or modified by
this rulemaking.
\6\ Creditable samples are samples that are given credit for
data completeness. They include valid samples collected on required
sampling days and valid ``make-up'' samples taken for missed or
invalidated samples on required sampling days.
\7\ The EPA notes that most sites do not take supplemental
samples; hence, the total number of samples is generally equal to
the creditable number of samples. Also, EPA notes that the
collection of supplemental samples has a negligible impact on the
determination of attainment for the annual PM2.5 NAAQS
since the metric for that standard is weighted by quarter.
Furthermore, data completeness, an integral consideration for
evaluating attainment of a NAAQS, is based solely on creditable
samples.
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In the 2006 rule, EPA intended to encompass certain relevant
details previously addressed only in the 1999 guidance by expanding the
existing instructions in the text of Appendix N. The EPA's 1999
guidance document recommended procedures for calculating regular annual
PM2.5 98th percentile values for two distinct situations.
Chapter 1 of the guidance document addressed a monitoring site which
had sampled solely on official required sample days. One method for
this situation simply reiterated the formula finalized in 1997
accompanied by an example. This formula utilized a generic sample count
(``n'') which was only appropriate when no ``extra'' (non-scheduled)
samples were taken at the monitoring site during the year. An alternate
method for the same situation used a table look-up approach, but again
specified the generic ``n'' and, hence, was also only accurate when
there were no extra samples taken during the year. Chapter 2 of the
guidance document explained that modifications should be made to the
stated techniques if there were extra samples present for a site-year.
The guidance document recommended: (1) Utilizing a sample count that
accounted for (specifically, subtracted) extra samples, and, (2)
incorporating a term (specifically, adding) into the equation
accounting for the extra sample count. This formula, which was
misstated in the October 2006 rulemaking, also produced accurate
results when no extra samples were present since the total ``n'' was
the same as ``n'' minus ``extra samples'' or zero, and also the extra
sample term in the equation was zero. Chapter 2 in the guidance
document also noted that the table look-up approach in Chapter 1 still
produced the desired result when extra samples were present if only the
adjusted sample count (``n minus extra samples'') were used in lieu of
the total sample count (``n''). This approach also produced accurate
results whether extra samples were present or not.
In the October 2006 revisions to Appendix N, EPA intended to
incorporate the ``extra sample''
[[Page 1500]]
adjustment logic into the existing equation method (71 FR at 61211).
The sample count reference was modified (essentially changing ``n'' to
``n minus extra samples'') but the ``extra sample'' term was
inadvertently omitted from equation 5 of section 4.5 (71 FR at 61229).
That omission would cause significant miscalculations to the annual
98th percentile value when extra samples are present if the procedure
were explicitly followed. The presence of extra samples with the
misstated formula would result in a low bias in ascertaining the
single-year 98th percentile statistic, as well as in determining the
resulting PM2.5 NAAQS comparison metric (24-hour design
value) based on the three-year average of 98th percentile statistics.
If implemented as explicitly stated, the misstated formula would
improperly weaken the stringency of the 24-hour PM2.5 NAAQS
by showing sites and areas to be in attainment of the NAAQS when they
were actually violating the standard. This situation would result in
the 24-hour standard no longer being sufficiently stringent in those
areas to provide requisite protection to public health and welfare, in
violation of the fundamental requirement for establishing NAAQS in
section 109(b) of the Act.
For this direct final rule, EPA considered two possible approaches
to correct Appendix N. The first would be to correct equation 5 in
Appendix N, section 4.5 by adding a term and footnote indicating that
the number of extra samples, if taken, would have to be added to the
current equation result (i.e., 1 plus the integer part of the product
of 0.98 and the creditable number of samples) to determine where in the
ascending data distribution to select the 98th percentile value. Such a
correction would have restored EPA's intention of preserving numerical
consistency with previous practice in calculating the related metrics
for 24-hour PM2.5 design values, but would also have
preserved a set of procedures that is sensitive to the presence of
extra samples and is hard to apply without providing relatively complex
instructions.
The second possible approach would be to incorporate a table look-
up method into Appendix N instead of using an equation. The direct
final rule uses this approach. The EPA believes that the incorporation
of a table look-up method into the Appendix N procedures provides a
simpler means for calculating 98th percentile values by employing a
more intuitive descending sort procedure that is unaffected by the
presence of extra samples in the data distribution being examined. For
example, if the annual number of creditable samples at a 1-in-3 day
monitor is 125, then the appropriate 98th percentile value is the third
maximum value in the descending sort distribution as noted in the
table. If a 1-in-6 day monitor has recorded 50 creditable samples in a
year, then the 98th percentile value is the first maximum value in the
descending sort distribution.
Accordingly, the rule language of section 4.5(a)(1) of 40 CFR part
50, Appendix N is amended to replace equation 4.5 with a data look-up
table (table 1) that determines where in the descending sorted data
distribution the 98th percentile value is located. EPA is also adding
rule text to 4.5(a)(1) (labeled ``Regular procedure for identifying
annual 98th percentile values'' in the rule) to describe the procedures
for performing the descending sort distribution and for determining the
appropriate range for selecting the correct 98th percentile value based
on the creditable number of samples.
To reiterate, this direct final rule both eliminates the erroneous
terms in the equation, and replaces the equation-based procedure for
determining the 98th percentile concentration with a table look-up
approach that is equivalent to the intended equation-based procedure,
because the table look-up approach is both correct and much easier to
understand and execute. In fact, several public comments received on
the proposed Appendix N procedure (the proposal underlying the 2006
final rule) for determining 98th percentiles noted that the treatment
of extra samples (within that procedure) was complex, confusing, and
difficult to program. Moreover, EPA believes that the equation-based
procedure itself, especially when the extra sample adjustment is
properly incorporated, is more indirect and hence more confusing than
necessary. EPA's 1999 guidance perhaps contributed to the confusion by
describing multiple methods which could be used for calculating the
statistical metric. Also, the equation-based procedure promulgated in
1997 and described in the 1999 guidance utilized an ascending sorted
data distribution which created another source of confusion. Descending
sorts are generally utilized more frequently than ascending ones when
characterizing air quality; for example, other criteria pollutant NAAQS
focus on a fourth maximum concentration or a second maximum
concentration. The alternate 98th percentile calculation method
outlined in the 1999 guidance--the table look-up approach--utilizes
this more intuitive descending sort. EPA based the 1999 guidance on a
descending sort since it was thought to be more comprehensible. In
addition (as outlined in the 1999 guidance), when extra samples were
present at a site in a given year, the promulgated equation-based
procedure for the 98th percentile calculation required a critical
adjustment (an added term) to the associated equation. (As noted
earlier, this critical adjustment is what was omitted from equation 4.5
of Appendix N in the 2006 amendments.) However, as correctly stated in
the 1999 guidance, when extra samples are present and the table look-up
approach is utilized, no such adjustment is necessary. Thus, in
conclusion and in retrospect, it would have been better if EPA had
proposed and promulgated the table look-up approach. Now afforded a
second opportunity because of the need to address the error of the
missing term in the equation-based procedure, EPA is opting to switch
to the table look-up approach in this rulemaking.
EPA notes the retention of an equation-based procedure (equation 5
of section 4.5(a)(2) of 40 CFR part 50, Appendix N) to account for
sites that operate on an approved seasonal sampling schedule. An
equation-based approach is necessary to account for the different
number of days present in ``High'' and ``Low'' seasons.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
There is no information collection requirement directly associated with
revisions to a NAAQS or supporting appendices under section 109 of the
CAA.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing
[[Page 1501]]
and providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 rule on small
entities, small entity is defined as: (1) A small business whose parent
company has fewer than 100 or 1,000 employees, or fewer than 4 billion
kilowatt-hr per year of electricity usage, depending on the size
definition for the affected North American Industry Classification
System code; (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 this direct 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 direct
final rule will not impose any requirements on small entities because
it does not impose any additional regulatory requirements.
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 the 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 to State, local, and Tribal governments, in
the aggregate, or to 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 the 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 law. 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 the 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 rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local or tribal governments or the private sector.
The correcting and simplifying change does not create additional
regulatory requirements on affected entities compared to those that
were promulgated in the final rule that was published in the Federal
Register on October 17, 2006. The rule change only corrects and
simplifies one error in Appendix N of part 50 (Interpretation of the
National Ambient Air Quality Standards for PM2.5). Thus,
this final rule is not subject to the requirements of section 202 and
205 of the UMRA.
EPA has determined that this direct final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. The correcting and simplifying change does not
create additional regulatory requirements.
E. Executive Order 13132: Federalism
Executive Order 13132 (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
federalism implications'' is 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.''
This direct final rule 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. The change being
made only corrects and simplifies one error in Appendix N of part 50
(Interpretation of the National Ambient Air Quality Standards for
PM2.5); thus, Executive Order 13132 does 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 direct final rule does
not have tribal implications, as specified in Executive Order 13175.
The change being made only corrects and simplifies one error in
Appendix N of part 50 (Interpretation of the National Ambient Air
Quality Standards for PM2.5). Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23,1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria,
[[Page 1502]]
the Agency must evaluate the environmental health or safety effects of
the planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
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 direct final rule is not
subject to Executive Order 13045 because, while it is based on the need
for monitoring data to characterize risk, this direct final rule itself
does not establish an environmental standard intended to mitigate
health or safety risks.
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
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-
113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This action does not involve any new technical standards for
environmental monitoring and measurement. Ambient air concentrations of
PM2.5 are currently measured by the Federal reference method
in 40 CFR part 50, Appendix L (Reference Method for the Determination
of Fine Particulate as PM2.5 in the Atmosphere) or by
Federal Reference Method or Federal Equivalent Method that meet the
requirements in 40 CFR part 53.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this direct final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The rule merely amends the October 17, 2006, final PM
NAAQS rule (71 FR 61144) by correcting and simplifying existing
PM2.5 data handling conventions and computations.
K. Congressional Review Act
The Congressional Review Act, 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. 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.
A Major rule cannot take effect until 60 days after it is published
in the Federal Register. This action is not a ``major rule'' as defined
by 5 U.S.C. 804(2). This rule will be effective on April 8, 2008.
List of Subjects in 40 CFR Part 50
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: November 29, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 50 of
the Code of Federal Regulations is amended as follows:
PART 50--[AMENDED]
0
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Appendix N is amended by:
0
a. Revising section 2.0(c);
0
b. Revising section 4.2(c); and
0
c. Revising section 4.5, as follows:
Appendix N to Part 50--Interpretation of the National Ambient Air
Quality Standards for PM2.5
* * * * *
2.0 Monitoring Considerations
* * * * *
(c) Section 58.12 of this chapter specifies the required minimum
frequency of sampling for PM2.5. Exceptions to the
specified sampling frequencies, such as a reduced frequency during a
season of expected low concentrations (i.e., ``seasonal sampling''),
are subject to the approval of EPA. Annual 98th percentile values
are to be calculated according to equation 5 in section 4.5 of this
appendix when a site operates on a ``seasonal sampling'' schedule.
* * * * *
4.2 24-Hour PM2.5 NAAQS
* * * * *
(c) The procedures and equations for calculating the 24-hour
standard design values are given in section 4.5 of this appendix.
* * * * *
4.5 Procedures and Equations for the 24-Hour PM2.5 NAAQS
(a) When the data for a particular site and year meet the data
completeness requirements in section 4.2 of this appendix,
calculation of the 98th percentile is accomplished by the steps
provided in this subsection. Table 1 of this appendix shall be used
to identify annual 98th percentile values, except that where a site
operates on an approved seasonal sampling schedule, equation 5 of
this appendix shall be used instead.
(1) Regular procedure for identifying annual 98th percentile
values. Identification of annual 98th percentile values using the
regular procedure (table 1) will be based on the creditable number
of samples (as described below), rather than on the actual number of
samples. Credit will not be granted for extra (non-creditable)
samples. Extra samples, however, are candidates for selection as the
annual 98th percentile. [The creditable number of samples will
determine how deep to go into the data distribution, but all samples
(creditable and extra) will be considered when making the percentile
assignment.] The annual creditable number of samples is the sum of
the four quarterly creditable number of samples.
Procedure: Sort all the daily values from a particular site and
year by descending value. (For example: (x[1], x[2], x[3], * * *,
x[n]).
[[Page 1503]]
In this case, x[1] is the largest number and x[n] is the smallest
value.) The 98th percentile is determined from this sorted series of
daily values which is ordered from the highest to the lowest number.
Using the left column of table 1, determine the appropriate range
(i.e., row) for the annual creditable number of samples for year y
(cny). The corresponding ``n'' value in the right column
identifies the rank of the annual 98th percentile value in the
descending sorted list of daily site values for year y. Thus,
P0.98, y = the nth largest value.
Table 1
------------------------------------------------------------------------
P0.98, y is the nth maximum
Annual creditable number of samples for value of the year, where n
year ``y'' (cny) is the listed number
------------------------------------------------------------------------
1-50...................................... 1
51-100.................................... 2
101-150................................... 3
151-200................................... 4
201-250................................... 5
251-300................................... 6
301-350................................... 7
351-366................................... 8
------------------------------------------------------------------------
(2) Formula for computing annual 98th percentile values when
sampling frequencies are seasonal.
Procedure: Calculate the annual 98th percentiles by determining
the smallest measured concentration, x, that makes W(x) greater than
0.98 using equation 5 of this appendix:
[GRAPHIC] [TIFF OMITTED] TR51AD07.000
Where:
dHigh = number of calendar days in the ``High'' season;
dLow = number of calendar days in the ``Low'' season;
dHigh + dLow = days in a year; and
[GRAPHIC] [TIFF OMITTED] TR51AD07.001
Such that ``a'' can be either ``High'' or ``Low''; ``x'' is the
measured concentration; and ``dHigh/(dHigh +
dLow) and dLow /(dHigh +
dLow)'' are constant and are called seasonal ``weights.''
(b) The 24-hour standard design value is then calculated by
averaging the annual 98th percentiles using equation 6 of this
appendix:
[GRAPHIC] [TIFF OMITTED] TR51AD07.002
(c) The 24-hour standard design value (3-year average 98th
percentile) is rounded according to the conventions in section 4.3
of this appendix before a comparison with the standard is made.
[FR Doc. 07-5954 Filed 1-8 -08; 8:45 am]
BILLING CODE 6560-50-P