[Federal Register Volume 61, Number 196 (Tuesday, October 8, 1996)]
[Rules and Regulations]
[Pages 52852-52856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25786]



[[Page 52851]]


_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 50



National Ambient Air Quality Standards for Nitrogen Dioxide: Final Rule

  Federal Register / Vol. 61, No. 196 / Tuesday, October 8, 1996 / 
Rules and Regulations  

[[Page 52852]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[AD-FRL-5632-1]
RIN 2060-AC06


National Ambient Air Quality Standards for Nitrogen Dioxide: 
Final Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final decision.

-----------------------------------------------------------------------

SUMMARY: The level for both the existing primary and secondary national 
ambient air quality standards (NAAQS) for nitrogen dioxide (NO2) 
is 0.053 parts per million (ppm) (100 micrograms per meter cubed 
(g/m\3\)) annual arithmetic average. As required under the 
provisions of sections 108 and 109 of the Clean Air Act (Act), the EPA 
has conducted a review of the criteria upon which the existing NAAQS 
for NO2 are based. On October 2, 1995, the Administrator announced 
her proposed decision not to revise either the primary or secondary 
NAAQS for NO2 based on this review (60 FR 52874; October 11, 
1995). Today's action provides the Administrator's final determination, 
after careful evaluation of the comments received on the October 1995 
proposal, that revisions to neither the primary nor the secondary NAAQS 
for NO2 are appropriate at this time.

ADDRESSES: A docket containing information relating to the EPA's review 
of the NAAQS for NO2 (Docket No. A-93-06) is available for public 
inspection at the U.S. Environmental Protection Agency, Air and 
Radiation Docket and Information Center (Mail Code 6102), Central 
Docket Section, South Conference Center, Room M-1500, 401 M Street, 
SW., Washington, DC 20460, telephone (202) 260-7548. The docket may be 
inspected between 8 a.m. and 5:30 p.m. on weekdays. A reasonable fee 
may be charged for copying. The information in the docket constitutes 
the complete basis for this final decision. For availability of related 
information see the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT: Ms. Chebryll C. Edwards, U.S. EPA, 
Office of Air Quality Planning and Standards (OAQPS), Air Quality 
Strategies and Standards Division (MD-15), Research Triangle Park, NC 
27711, telephone (919) 541-5428.

SUPPLEMENTARY INFORMATION: Availability of Related Information. The 
revised criteria document, ``Air Quality Criteria for Oxides of 
Nitrogen'' (three volumes, EPA-600/8-91/049aF-cF, August 1993: Volume 
I, NTIS #PB95124533, $52.00; Volume II, NTIS #PB95124525, $77.00; 
Volume III, NTIS #PB95124517, $77.00), and the final revised OAQPS 
Staff Paper, ``Review of the National Ambient Air Quality Standards for 
Nitrogen Dioxide: Assessment of Scientific and Technical Information,'' 
(EPA-452/R-95-005, September 1995; NTIS #PB95271573, $27.00) are 
available from: U.S. Department of Commerce, National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161, or 
call 1-800-553-6847 (a handling charge will be added to each order). 
Other documents generated in connection with this standard review, such 
as air quality analyses and relevant scientific literature, are 
available in Docket No. A-93-06.
    Affected entities. Entities potentially affected by this action are 
those which emit (or manufacture products which emit) NO2 or other 
oxides of nitrogen. Affected categories and entities include:

------------------------------------------------------------------------
              Category                   Examples of affected entities  
------------------------------------------------------------------------
Industry............................  Electric utilities, automobile    
                                       manufacturers, mining and mineral
                                       processing companies.            
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be affected. To determine whether 
your facility is affected by this action, you should carefully examine 
the applicability criteria in title 40 of the Code of Federal 
Regulations, part 50. If you have questions regarding the applicability 
of this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    The contents of this action are listed below:

I. Background
    A. Legislative Requirements Affecting this Decision
    1. The Standards
    2. Related Control Requirements
    B. Nitrogen Oxides and the Existing Standards for NO2
    C. Review of Air Quality Criteria and Standards for Oxides of 
Nitrogen
    D. Decision Docket
    E. Litigation
II. Summary of Public Comments
III. Rationale for Final Decision
    A. The Primary Standard
    B. The Secondary Standard
    1. Key Public Comments Concerning Acidification
    2. Key Public Comments Concerning Eutrophication
    3. Final Decision on the Secondary Standard
    C. Judicial Review
IV. Miscellaneous
    A. Executive Order 12866
    B. Regulatory Flexibility Analysis
    C. Impact on Reporting Requirements
    D. Unfunded Mandates Reform Act
References

I. Background

A. Legislative Requirements Affecting This Decision

    1. The standards. Two sections of the Act govern the establishment 
and revision of NAAQS. Section 108 (42 U.S.C. 7408) directs the 
Administrator to identify pollutants which ``may reasonably be 
anticipated to endanger public health and welfare'' and to issue air 
quality criteria for them. These air quality criteria are to 
``accurately reflect the latest scientific knowledge useful in 
indicating the kind and extent of all identifiable effects on public 
health or welfare which may be expected from the presence of [a] 
pollutant in the ambient air * * *.''
    Section 109 (42 U.S.C. 7409) directs the Administrator to propose 
and promulgate ``primary'' and ``secondary'' NAAQS for pollutants 
identified under section 108. Section 109(b)(1) defines a primary 
standard as one ``the attainment and maintenance of which, in the 
judgment of the Administrator, based on the criteria and allowing an 
adequate margin of safety, (is) requisite to protect the public 
health.'' For a discussion of the margin of safety requirement, see the 
October 11, 1995 proposal notice (60 FR 52875). 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 (the) 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.'' Welfare 
effects, as defined in section 302(h) (42 U.S.C. 7602(h)), include, but 
are not limited to, ``effects on soil, water, crops, vegetation, 
manmade materials, animals, wildlife, weather, visibility and climate, 
damage to and deterioration of property, and hazards to transportation, 
as well as effects on economic values and on personal comfort and well-
being.''
    Section 109(d)(1) of the Act requires periodic review and, if 
appropriate, revision of existing criteria and standards. The process 
by which EPA has reviewed the existing air quality

[[Page 52853]]

criteria and standards for NO2 is described later in this notice.
    2. Related control requirements. States are primarily responsible 
for ensuring attainment and maintenance of ambient air quality 
standards. The October 11, 1995 proposal notice (60 FR 52876) provides 
a detailed discussion of the requirements States must fulfill to ensure 
adequate implementation of control programs directed toward air 
emission sources.

B. Nitrogen Oxides and the Existing Standards for NO2

    Nitrogen dioxide is a brownish, highly reactive gas which is formed 
in the ambient air through the oxidation of nitric oxide (NO). Nitrogen 
oxides (NOX), the term used to describe the sum of NO, NO2 
and other oxides of nitrogen, play a major role in the formation of 
ozone in the atmosphere through a complex series of reactions with 
volatile organic compounds. A variety of NOX compounds and their 
transformation products occur both naturally and as a result of human 
activities. Anthropogenic sources of NOX emissions account for a 
large majority of all nitrogen inputs to the environment. The major 
sources of anthropogenic NOX emissions are mobile sources and 
electric utilities. Ammonia and other nitrogen compounds produced 
naturally are important in the cycling of nitrogen through the 
ecosystem.
    The origins, concentrations, and effects of NO2 are discussed 
in detail in the ``Review of National Ambient Air Quality Standards for 
Nitrogen Dioxide: Assessment of Scientific and Technical Information,'' 
(Staff Paper or SP) (U.S. EPA, 1995a) and in the revised document, 
``Air Quality Criteria for Oxides of Nitrogen,'' (Criteria Document or 
CD) (U.S. EPA, 1993). At elevated concentrations, NO2 can 
adversely affect human health, vegetation, materials, and visibility. 
Nitrogen oxide compounds also contribute to increased rates of acidic 
deposition. Typical peak annual average ambient concentrations of 
NO2 have historically ranged from 0.007 to 0.061 ppm (U.S. EPA, 
1993). The highest hourly NO2 average concentrations range from 
0.04 to 0.54 ppm (U.S. EPA, 1993). Currently, all areas of the U.S., 
including Los Angeles (which is the only area to record violations in 
the last decade), are in attainment of the annual NO2 NAAQS of 
0.053 ppm.
    On April 30, 1971, EPA promulgated identical primary and secondary 
NAAQS for NO2, under section 109 of the Act, at 0.053 ppm annual 
average (36 FR 8186). The criteria upon which these initial standards 
were based were updated in the revised 1982 document, ``Air Quality 
Criteria for Oxides of Nitrogen'' (U.S. EPA, 1982). On February 23, 
1984, the EPA proposed to retain both the annual primary and secondary 
standards at 0.053 ppm annual average (49 FR 6866). After taking into 
account public comments, the final decision to retain the NAAQS for 
NO2 was published by EPA in the Federal Register on June 19, 1985 
(50 FR 25532). For a more detailed discussion of the regulatory history 
and the bases for the existing NAAQS for NO2, see the October 11, 
1995 proposal notice (60 FR 52876).

C. Review of Air Quality Criteria and Standards for Oxides of Nitrogen

    On July 22, 1987, in response to requirements of section 109(d) of 
the Act, the EPA announced that it was undertaking plans to revise the 
1982 CD (52 FR 27580). In November 1991, the EPA released the revised 
CD for public review and comment (56 FR 59285).
    The revised CD provides a comprehensive assessment of the available 
scientific and technical information on health and welfare effects 
associated with NO2 and NOX. The Clean Air Scientific 
Advisory Committee (CASAC) reviewed the CD at a meeting held on July 1, 
1993 and concluded in a closure letter to the Administrator that the CD 
``* * * provides a scientifically balanced and defensible summary of 
current knowledge of the effects of this pollutant and provides an 
adequate basis for EPA to make a decision as to the appropriate NAAQS 
for NO2'' (Wolff, 1993). In the summer of 1995, OAQPS finalized 
the document entitled, ``Review of the National Ambient Air Quality 
Standards for Nitrogen Dioxide: Assessment of Scientific and Technical 
Information,'' (U.S. EPA, 1995a). This Staff Paper summarizes and 
integrates the key studies and scientific evidence contained in the 
revised CD and identifies the critical elements to be considered in the 
review of the NO2 NAAQS.
    The Staff Paper received external review at a December 12, 1994 
CASAC meeting. The CASAC comments and recommendations were reviewed by 
EPA staff and incorporated into the final draft of the Staff Paper as 
appropriate. The CASAC reviewed the final draft of the Staff Paper in 
June 1995 and responded by written closure letter (Wolff, 1995).

D. Decision Docket

    In 1993, the EPA established a docket (Docket No. A-93-06) for this 
standard review. This docket incorporates by reference a separate 
docket established for the CD revision (Docket No. ECAO-CD-86-082).

E. Litigation

    On July 21, 1993, the Oregon Natural Resources Council and Jan 
Nelson filed suit under section 304 of the Act to compel the EPA to 
complete its periodic review of the criteria and standards for NO2 
under section 109(d)(1) of the Act (Oregon Natural Resources Council v. 
Carol M. Browner, No. 91-6529-HO (D.Or.)). The U.S. District Court for 
the District of Oregon entered an order on February 8, 1995 requiring 
the EPA Administrator to sign a notice to be published in the Federal 
Register announcing the final decision whether or not to modify the 
NO2 NAAQS by October 1, 1996.

II. Summary of Public Comments

    The EPA received eight written responses to its proposed decision 
which was published October 11, 1995 (60 FR 52874). Of the eight 
submissions, five were provided by individual industrial companies or 
industrial associations, two were submitted by a State government and 
an independent agency of that State, and the last by an incorporated 
association of citizens concerned about environmental issues. Below is 
a general summary of the public comments. A more detailed summary, 
along with EPA's responses to each comment, can be found in Docket No. 
A-93-06, Category IV-D.
    Of the five commenters who chose to address the primary (health-
based) standard, all concurred with the Administrator's proposed 
determination that revisions to the existing annual primary standard 
for NO2 are not appropriate.
    These same commenters also agreed with the Administrator's proposed 
decision that revisions to the existing annual secondary (welfare-
based) standard are not appropriate. The other three commenters 
expressed concern about EPA's proposed decision not to revise the 
secondary standard to protect sensitive aquatic resources. 
Specifically, the State commenters were concerned about nitrogen 
deposition and its contribution to the acidification of their State's 
freshwater bodies, particularly Adirondack lakes. The citizen's group 
is concerned about nitrogen deposition and its contribution to the 
eutrophication effects being observed in Chesapeake Bay.

[[Page 52854]]

III. Rationale for Final Decision

A. The Primary Standard

    The rationale for retaining the existing primary NAAQS for NO2 
was presented in some detail in the 1995 proposal notice (60 FR 52874; 
October 11, 1995) and remains unchanged. At that time, EPA concluded 
that the existing annual primary standard appears to be both adequate 
and necessary to protect human health against both long- and short-term 
NO2 exposures. The EPA also concluded that retaining the existing 
annual standard is consistent with the scientific data assessed in the 
Criteria Document (U.S. EPA, 1993) and Staff Paper (U.S. EPA, 1995a) 
and with the advice and recommendations of CASAC. After taking into 
account the public comments, all of which supported the proposed 
decision on the primary standard, the Administrator again concludes 
that revisions to the existing annual primary NAAQS for NO2 are 
not appropriate at this time.

B. The Secondary Standard

    As discussed in detail in the October 11, 1995 proposal notice (60 
FR 52880), NO2 and other nitrogen compounds have been associated 
with a wide range of effects on public welfare. These effects include 
the acidification and eutrophication of aquatic systems, potential 
changes in the composition and competition of some species of 
vegetation in wetland and terrestrial systems, and visibility 
impairment.
    Commenters were generally supportive of, or were silent with 
respect to, EPA's conclusions regarding the following: (1) The direct 
effects of NOX on vegetation and materials, (2) the direct toxic 
effects of ammonia deposition to aquatic systems, (3) the effects of 
nitrogen deposition on terrestrial and wetland systems and soil 
acidification, and (4) the appropriateness of the secondary standard to 
protect against visibility impairment. Hence, for the reasons discussed 
in the October 1995 proposal (60 FR 52880), the Administrator again 
concludes that it is not appropriate to make any revisions to the 
existing annual secondary standard for NO2 with respect to such 
effects nor is it appropriate to establish a separate secondary 
NO2 standard to protect visibility.
    The principal issues raised, with respect to the Administrator's 
proposed decision not to revise the annual secondary standard for 
NO2 at this time, were concerning the effects of nitrogen 
deposition on the acidification of freshwater bodies (particularly 
Adirondack lakes) and the eutrophication of Chesapeake Bay. The two 
State commenters and one concerned citizen's group argued that the 
proposed decision did not comply with section 109(b)(2) of the Act 
because the existing annual secondary standard for NO2 does not 
protect aquatic systems from the adverse effects of NOX in the 
ambient air. All other commenters agreed with the Administrator's 
conclusion that there is not yet enough consistent scientific 
information to support a revision of the current secondary standard to 
protect these aquatic systems.
    The October 1995 proposal notice (60 FR 52882) discussed the basic 
scientific evidence available regarding the effects of NOX on 
aquatic systems through the processes of eutrophication and 
acidification. No commenter challenged EPA's interpretation of the 
available science. Therefore, it is left to the Administrator's 
judgment as to whether the available evidence provides an adequate 
basis to set a secondary NAAQS to protect sensitive aquatic resources 
from the effects associated with nitrogen deposition. The discussions 
in the next two subsections focus on the key concerns of the commenters 
and provide some indication of the Administrator's conclusions on 
particular issues.
    1. Key public comments concerning acidification. Two commenters 
were particularly concerned about the acidification of Adirondack 
lakes. These commenters pointed out that, in the October 1995 proposal 
notice, the Administrator did not conclude that ``the existing standard 
is sufficient to protect aquatic resources from the effects of nitrogen 
dioxide.'' Therefore, the commenters indicated that the Administrator 
must take some action to protect such resources. Because of the 
scientific complexity of nitrogen deposition issues and because the 
available scientific data assessed in the revised CD (U.S. EPA, 1993) 
do not provide adequate quantitative evidence on the relationship 
between deposition rates and environmental impacts, it is difficult for 
the Administrator to conclude, with any degree of certainty, that the 
existing secondary NAAQS for NO2 is not adequate to protect 
sensitive aquatic systems. The Administrator does agree that the 
available evidence indicates that nitrogen deposition plays some role 
in surface water acidification. However, as noted in the proposal 
notice (60 FR 52882), there are significant uncertainties with regard 
to the long-term role of nitrogen deposition in surface water acidity 
and with regard to the quantification of the magnitude and timing of 
the relationship between atmospheric deposition and the appearance of 
nitrogen in surface water. Thus, it is difficult to determine what 
levels of airborne reductions would be necessary to remedy the 
situation. Therefore, the Administrator concludes that until such 
evidence is available and incorporated into the air quality criteria 
for this pollutant, a revision to the secondary standard is not 
appropriate. All other commenters agreed with this conclusion.
    One of the commenters also pointed out that ``unless an acid 
deposition standard is promulgated, or other regulatory means are 
adopted that protect the valuable lakes and waters of [the State] and 
the other northeastern states from the destructive effects of acid 
rain, EPA must revise the secondary NAAQS for nitrogen dioxide . . ..'' 
The complexity of the scientific issues involved led the CASAC to 
conclude that available scientific information assessed in the CD and 
SP did not provide an adequate basis for standard setting purposes at 
this time (Wolff, 1995). Furthermore, in its review of the ``Acid 
Deposition Standard Feasibility Study: Report to Congress'' (U.S. EPA, 
1995b), the Acid Deposition Effects Subcommittee of the Ecological 
Processes and Effects Committee of the EPA's Science Advisory Board 
concluded that there was not an adequate scientific basis for 
establishing an acidic deposition standard. The commenter did not 
provide additional quantitative evidence for the Administrator to 
consider. Therefore, the Administrator again concludes that the current 
scientific uncertainties associated with determining the level(s) of an 
acid deposition standard(s) are significant and current scientific 
information does not provide an adequate basis for establishing a 
standard to protect sensitive ecosystems from the effects of 
acidification.
    The commenter recognized EPA's concern that revision of the 
secondary NAAQS may not be the best mechanism for addressing the 
effects of acid rain and supported regionally-targeted regulatory 
efforts. The Agency has initiated efforts to assess appropriate 
regionally-targeted environmental goals for sensitive systems. For 
instance, the ``Acid Deposition Standard Feasibility Study: Report to 
Congress'' (U.S. EPA, 1995b) sets forth a range of regionally-specific 
goals which were designed to help guide the policy maker when assessing 
NOX control strategies and their potential for reducing nitrogen 
deposition effects. The Agency will continue, as appropriate, to assess 
the feasibility of developing other regionally-targeted tools and 
policy

[[Page 52855]]

initiatives as additional scientific information emerges from ongoing 
research.
    2. Key public comments concerning eutrophication. The definition of 
eutrophication and a detailed summary of the potential effects 
associated with this process can be found in the October 11, 1995 
proposal notice (60 FR 52833).
    One concerned citizen's group has petitioned EPA to revise the 
secondary standard for NO2, or to take such other measures as 
required by the Act, to control NOX emissions to the Chesapeake 
Bay and other coastal waters. However, without better quantitative 
data, it is difficult to set a national standard which will adequately 
protect sensitive ecosystems, such as the Chesapeake Bay, from the 
effects of eutrophication. The commenter did not provide additional 
quantitative data for the Administrator's review.
    Even with limited quantitative information, the Administrator 
acknowledges the importance of reducing the atmospheric nitrogen loads 
into the Chesapeake Bay. The EPA has already initiated a number of 
activities which may have an impact on lessening the effects of 
atmospheric NOX deposition on nitrogen levels in the Bay. These 
measures include the following: (1) Developing a coordinated, 
multimedia approach for managing nutrient loads to coastal waters; (2) 
incorporating priorities into EPA's strategic plan to address acid 
deposition within the Mid-Atlantic region through reduction of nitrogen 
emissions; and (3) setting numerical goals for the reduction of 
NOX emissions (at the regional level) in compliance with programs 
mandated under titles I and IV of the Act. In addition, an internal EPA 
work group has recently been formed to develop a strategy for 
identifying research needs relevant to nitrogen deposition.
    Given the complexities associated with estimating the contribution 
of nitrogen deposition to the eutrophication of estuarine and coastal 
waters and the limited data currently available, the Administrator 
again concludes that there is not sufficient quantitative information 
to establish a national secondary standard to protect sensitive 
ecosystems from the eutrophication effects caused by nitrogen 
deposition. The Administrator also concludes that regional control 
strategies which consider all of the factors contributing to 
eutrophication are more likely to be effective in mitigating this 
problem than a national standard which addresses only atmospheric 
deposition of nitrogen compounds. Additional site-specific 
investigations (such as the Chesapeake Bay Study; see 60 FR 52883 for 
details) are needed to ascertain the most effective mitigation 
strategies. Other commenters agreed with the Administrator's conclusion 
that a revision to the secondary NAAQS based on concerns over 
eutrophication is not warranted at this time.
    3. Final decision on the secondary standard. For the reasons 
discussed in the October 11, 1995 proposal notice (60 FR 52874) and 
after taking into account the public comments as discussed above, the 
Administrator again concludes, in her judgment, that the available 
scientific and technical evidence assessed in the Criteria Document 
(U.S. EPA, 1993) and Staff Paper (U.S. EPA, 1995a) does not provide an 
adequate basis for setting a separate secondary standard for NO2 
to address the effects associated with nitrogen deposition on 
acidification of freshwater bodies and eutrophication of estuaries and 
coastal waters. Given the multiple causes and regional character of 
these problems, the Administrator also concludes that adoption of a 
nationally-uniform secondary standard would not be an effective 
approach to addressing them. Therefore, the Administrator has 
determined, pursuant to section 109(d)(1) of the Act, as amended, that 
it is not appropriate to revise the current secondary standard for 
NO2 to protect against welfare effects at this time.
    As provided for under the Act, the EPA will continue to assess the 
scientific information on nitrogen-related effects as it emerges from 
ongoing research and will update the air quality criteria accordingly. 
These revised criteria should provide a more informed basis for 
reaching a decision on whether a revised NAAQS or other regulatory 
measures are needed in the future.
    In the interim, the EPA and the States are in the process of 
achieving significant reductions in NOX emissions from both mobile 
and stationary sources in response to the Act's 1990 Amendments (Pub. 
L. 101-549, 104 Stat. 2399 (1990)) and local or regional initiatives. 
These actions include NOX emission reductions from the following: 
(1) Stationary sources to meet the ozone NAAQS under title I of the 
Act, (2) mobile sources through the Federal Motor Vehicle Control 
Program under title II of the Act, and (3) electric utilities under 
title IV. In addition, regional initiatives, such as the Ozone 
Transport Assessment Group (which covers a 37-state area) and the 
Chesapeake Bay Program, are considering the need for additional 
NOX reductions beyond those that are mandated by law. The EPA 
believes it is important to continue to recognize the benefits to the 
environment that can be achieved by further reducing NOX 
emissions. The NOX emissions reductions achieved through these 
actions will provide additional protection against the environmental 
impacts associated with the ozone NAAQS, visibility, eutrophication, 
and acid deposition and will assure areas attain and maintain the 
NO2 NAAQS.

C. Judicial Review

    The EPA has decided (pursuant to the Act, section 109(d)(1)) that 
no revision of the current primary or secondary NAAQS for NO2 is 
appropriate. This decision is a final Agency action based on a 
determination of nationwide scope and effect. This decision is 
therefore subject to judicial review under the Act, section 307(b), 
exclusively in the United States Court of Appeals for the District of 
Columbia Circuit. Any petition for judicial review of this final Agency 
action must be filed in that court within 60 days after October 8, 
1996.

IV. Miscellaneous

A. Executive Order 12866

    Under Executive Order 12866, the Agency must determine whether a 
regulatory action is ``significant'' and, therefore, subject to Office 
of Management and Budget (OMB) review and the requirements of the 
Executive Order. The order defines ``significant regulatory action'' as 
one 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 entitlements, grants, 
user fees, or loan programs or the rights and obligations or 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.
    Although EPA is not making any modification to the existing 
NO2 NAAQS, OMB has advised EPA that this action should be 
construed as a ``significant regulatory action'' within the meaning of 
the Executive Order. Accordingly, this action was submitted to OMB for 
review. Any suggestions or recommendations received from OMB have been 
incorporated into the public record.

[[Page 52856]]

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) requires 
Federal agencies to consider the impacts of certain proposed and final 
regulations on small entities, which are defined as small businesses, 
small organizations, and small governmental jurisdictions. These 
requirements do not apply to any final administrative action which does 
not involve rulemaking. The EPA does not interpret sections 109 and 307 
of the Act to require use of rulemaking procedures in those instances 
where the Agency decides not to initiate revision of existing NAAQS 
after completing its periodic review. The EPA has determined that the 
impact assessment requirements of the RFA are not applicable to this 
final administrative action.

C. Impact on Reporting Requirements

    There are no reporting requirements directly associated with an 
ambient air quality standard promulgated under section 109 of the Act 
(42 U.S.C. 7400). There are, however, reporting requirements associated 
with related sections of the Act, particularly sections 107, 110, 160, 
and 317 (42 U.S.C. 7407, 7410, 7460, and 7617). This final action will 
not result in any changes in these reporting requirements since it 
would retain the existing level and averaging times for both the 
primary and secondary standards.

D. 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 sections 202, 203, and 205, 
respectively, of the UMRA, EPA generally must: (1) 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 1 year; (2) develop a 
small government agency plan; and (3) 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.
    Because the Administrator has decided not to revise the existing 
national primary and secondary standards for NO2, this action will 
not impose any new expenditures on governments or on the private 
sector, or establish any new regulatory requirements affecting small 
governments. Accordingly, EPA has determined that the provisions of 
sections 202, 203, and 205 of the URMA do not apply to this final 
decision.

List of Subjects in 40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Dated: October 1, 1996.
Carol M. Browner,
Administrator.

References

    (1) ``Oregon Natural Resource Council vs. Carol M. Browner,'' 
No. 91-6529-HO (D. Or.) (1993).
    (2) U.S. Environmental Protection Agency. (1982) Air Quality 
Criteria for Oxides of Nitrogen. Research Triangle Park, NC: Office 
of Health and Environmental Assessment, Environmental Criteria and 
Assessment Office; EPA report no. EPA-600/8-82-026. Available from: 
NTIS, Springfield, VA; PB83-131011.
    (3) U.S. Environmental Protection Agency. (1993) Air Quality 
Criteria for Oxides of Nitrogen. Research Triangle Park, NC: Office 
of Health and Environmental Assessment, Environmental Criteria and 
Assessment Office; EPA report no. EPA-600/8-91-049aF-cF, August 
1993. Available from: NTIS, Springfield, VA.
    (4) U.S. Environmental Protection Agency. (1995a) Review of the 
National Ambient Air Quality Standards for Nitrogen Oxides: 
Assessment of Scientific and Technical Information. OAQPS Staff 
Paper. Office of Air Quality Planning and Standards; EPA report no. 
EPA-452/R-95-005, September 1995.
    (5) U.S. Environmental Protection Agency. (1995b) A SAB Report: 
Review of the Acid Deposition Standard Feasibility Study Report to 
Congress. Prepared by the Acid Deposition Effects Subcommittee of 
the Ecological Processes and Effects Committee; EPA report no. EPA-
SAB-EPEC-95-019, September 1995.
    (6) Wolff, G. T. (1993) CASAC closure letter for the 1993 
Criteria Document for Oxides of Nitrogen addressed to U.S. EPA 
Administrator Carol M. Browner dated September 30, 1993.
    (7) Wolff, G. T. (1995) CASAC closure letter for the 1995 OAQPS 
Staff Paper addressed to U.S. EPA Administrator Carol M. Browner 
dated August 22, 1995.

[FR Doc. 96-25786 Filed 10-7-96; 8:45 am]
BILLING CODE 6560-50-P