[Federal Register Volume 63, Number 36 (Tuesday, February 24, 1998)]
[Rules and Regulations]
[Pages 9149-9151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3884]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-5966-4]


Control of Air Pollution; Removal and Modification of Obsolete, 
Superfluous or Burdensome Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) published a direct 
final rule and an associated notice of proposed rulemaking of the same 
title on April 11, 1996 (61 FR 16050, 61 FR 16068). Both actions were 
to delete or modify certain rules previously promulgated under the 
Clean Air Act in the Code of Federal Regulations (CFR), 40 CFR parts 51 
and 52, clarify their legal status and remove unnecessary, obsolete or 
burdensome regulations. EPA received adverse comments on the deletion 
of rules 40 CFR 51.100(o), 40 CFR 51.101, 40 CFR 51.110(g) and 40 CFR 
51.213 as published in both the direct final rule and associated notice 
of proposed rulemaking. In response to those comments, EPA withdrew 
those sections from the direct final rule on June 14, 1996 (61 FR 
30162). In today's action, EPA is finalizing the notice of proposed 
rulemaking with respect to these sections. Separate from the notice of 
proposed rulemaking action, EPA is also removing sections 40 CFR 
51.103(a)(1) and (a)(2), as they were superseded by the Clean Air Act 
Amendments of 1990.

DATES: This rule will be in effect on March 26, 1998.

FOR FURTHER INFORMATION CONTACT: Maureen Delaney, Office of Air and 
Radiation, Office of Policy Analysis and Review (202) 260-7431.

SUPPLEMENTARY INFORMATION:

I. Introduction

    On March 4, 1995, the President directed all Federal agencies and 
departments to conduct a comprehensive review of the regulations they 
administer, to identify those rules that are obsolete or unduly 
burdensome. EPA conducted a review of such rules, including rules 
issued under the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et 
seq.). On June 29, 1995, EPA deleted more than 200 Clean Air Act rules 
that were no longer legally in effect under the amended Clean Air Act. 
60 FR 33915 (June 29, 1995).
    On April 11, 1996, EPA simultaneously published a direct final 
notice of rulemaking and a notice of proposed rulemaking consisting of 
EPA's second phase of its revision effort. 61 FR 106050 (April 11, 
1996). Where EPA determined that a regulation did not add substantial 
value to what is already contained in the law, or where there are 
alternative means to accomplish the regulatory end without restricting 
EPA's ability to respond to factual peculiarities in a timely and 
appropriate way, EPA determined that the regulation should be deleted. 
The rulemaking specified that EPA would withdraw any portions of the 
direct final rule that were the subject of filed adverse or critical 
comments. EPA received adverse comments on the revisions to 40 CFR 
51.100(o), 40 CFR 51.101, 40 CFR 51.110(g) and 40 CFR 51.213 as 
published in the direct final rule and associated notice of proposed 
rulemaking within 30 days of publication in the Federal Register of the 
proposed rule and withdrew those portions of the direct final rule on 
June 14, 1996 (61 FR 30162). This final rule summarizes the comments 
received on these CFR sections and EPA's responses.
    Removal of any rules from the CFR is not intended to affect the 
status of any civil or criminal actions that were initiated prior to 
the publication of this rule, or which may be initiated in the future 
to readdress violations of the rules that occurred when the rules were 
still legally in effect. Removal of provisions on the ground that they 
reiterate or are redundant of statutory provisions does not affect any 
obligation or requirement to comply with such statutory provision.

II. Deletion and Modification of Unnecessary or Burdensome Rules

40 CFR 51.110(g)

    Section 51.110(g) states that EPA encourages states, in developing 
their attainment plans, to identify alternative control strategies and 
the costs and benefits thereof. EPA proposed to delete this provision 
and rely on Clean Air Act sections 110(a)(2)(A) and 101(a)(3), as well 
as Train v. NRDC, 421 U.S. 60, 78-79 (1975) and Union Electric Co. v. 
EPA, 427 U.S. 246, 256-57 (1976), which make clear that a state is free 
to consider a broad range of factors in constructing its attainment 
plans.
    Commenters suggest that without section 51.110(g) states may be 
hesitant to submit an implementation plan with provisions outside of 
the specific requirements of the CFR or Clean Air Act. As stated 
previously in the notice of proposed rulemaking, EPA agrees with the 
policies embodied in section 51.110(g). For that reason, EPA has 
decided to retain the provision in the CFR.

40 CFR 51.101 Stipulations

    Section 51.101 states that nothing in part 51 should be construed 
to encourage states: to adopt implementation plans that do not protect 
the environment; to adopt plans that do not take into consideration 
cost-effectiveness and social and economic impact; to limit appropriate 
techniques for estimating air quality or demonstrating adequacy of 
control strategies; and otherwise to limit state flexibility to adopt 
appropriate control strategies or to attain and maintain air quality 
better than that required by a national standard. EPA proposed to 
delete this provision and rely on Clean Air Act sections 110(a)(2)(A) 
and 101(a)(3), as well as Train v. NRDC, 421 U.S. 60, 78-79 (1975) and 
Union Electric Co. v. EPA, 427 U.S. 246, 256-57 (1976), which make 
clear that a state is free to consider a broad range of factors in 
constructing its attainment plans.
    Commenters suggested that section 51.101 should remain in the CFR 
because the flexibility available to States may not be clear if this 
section were removed. As stated previously in the notice of proposed 
rulemaking, EPA agrees with the policies embodied in section 51.101. 
For that reason, EPA has decided to retain the provision in the CFR.

40 CFR 51.100(o)

    Section 51.100(o) defines reasonably available control technology 
(``RACT'') for the purpose of implementing secondary national ambient 
air quality standards (``NAAQS''). This definition is only used in the 
establishment of secondary NAAQS attainment dates and in the evaluation 
of State requests for extensions of state implementation plan 
submittals for secondary NAAQS.
    Section 51.110(c) requires plans to provide for the attainment of a 
secondary standard within a reasonable time after the date of the 
Administrator's approval of the plan, and for maintenance of the 
standard after it has been attained.
    Under the Clean Air Act of 1977, the test for approval of the 
attainment date in a SIP implementing a secondary

[[Page 9150]]

NAAQS was contained in section 110(a)(2)(A)(ii). This required that the 
SIP attain the secondary NAAQS within a ``reasonable time.'' Under the 
CAA of 1990, this was changed. The new test for approval of a secondary 
NAAQS attainment date is contained in section 172(a)(2)(B) and requires 
attainment ``as expeditiously as practicable after the date such area 
was designated nonattainment.''
    As a result of this statutory change, EPA proposed to delete 
section 51.110(c) from the CFR to eliminate any possible confusion 
regarding the appropriate tests for approval of a secondary NAAQS 
attainment date. Because the sole purpose of the section 51.100(o) 
definition of RACT was to aid in EPA's evaluation of the approvability 
of secondary NAAQS attainment dates or requests for extension of SIP 
submittal dates and the 1990 Amendments changed the test governing the 
evaluation of secondary NAAQS attainment dates, EPA stated that it 
believed the definition was no longer necessary and proposed deletion. 
The EPA then stated its belief that evaluation of the approvability of 
the expeditiousness of attainment dates for secondary nonattainment 
areas requires a case-by-case analysis of the nature and extent of the 
problem. The EPA stated that it did not believe that the availability 
and effectiveness of RACT should be a determinative factor in 
implementing secondary NAAQS. In addition, EPA maintained that the 
deletion of section 51.100(o) would eliminate potential confusion, 
since for other purposes the Agency generally interprets the statute's 
RACT requirements consistently with the definition of RACT contained in 
a December 9, 1976, memorandum from R. Strelow to Regional 
Administrators, Regions I-X, entitled ``Guidance to Determining 
Acceptability of SIP Regulations in Nonattainment Areas.''
    Commenters suggest that the definition of RACT in section 51.100(o) 
is the only regulatory definition that states that the availability and 
effectiveness of RACT should be a determinative factor in implementing 
secondary NAAQS. EPA does not agree that RACT as defined in section 
51.100(o) should be the determinative factor in setting attainment 
dates for the secondary NAAQS under the new statutory test for setting 
those dates. However, EPA sees no compelling need to delete the 
definition of RACT for purposes of guiding the decisions under 40 CFR 
51.341 on whether to grant extensions for submitting SIPs to attain the 
secondary NAAQS. For these reasons, section 51.100(o) will remain in 
the CFR, but for this latter purpose only. The reference to section 
51.110(c)(2) will be deleted since that section has previously been 
deleted from the CFR.

40 CFR 51.103(a)(1), (a)(2)

    Sections 51.103(a)(1) and (a)(2) require that a state make an 
official implementation plan submission to EPA for any primary national 
ambient air quality standard or secondary standard, or revision, within 
nine months after promulgation of such standard or revision.
    Prior to the Clean Air Act Amendments of 1990, section 110(a)(1) 
required submission of state implementation plans within nine months 
after promulgation of a national primary ambient air quality standard. 
The Amendments of 1990 changed section 110(a)(1) to give states ``3 
years (or such shorter period as the Administrator may prescribe)'' 
from promulgation. At this time, EPA sees no basis for retaining the 
nine month deadline, absent a new finding that nine months is 
reasonable for all purposes. Accordingly, EPA is removing the last 
sentence in section 51.103 and is deleting sections 51.103(a)(1) and 
(a)(2). EPA has determined that there is no need to promulgate another 
regulation stating the three year deadline since a regulation would not 
add substantial value to what is already contained in the law. EPA is 
relying on the ``good cause'' exception to the notice requirements of 
the Administrative Procedure Act (section 553(b)(3)(B)) because EPA 
believes it is unnecessary to provide an opportunity for comment since 
the deletion merely implements the changes Congress enacted in 1990.

40 CFR 51.213 Transportation Control Measure

    Section 51.213(a) provides that plans must contain procedures for 
obtaining and maintaining data on actual emissions reductions achieved 
as a result of implementation of transportation control measures. 
Section 51.213(b) provides that, for measures based on traffic flow 
changes or reductions in vehicle use, data must include observed 
changes in vehicle miles traveled and average speeds. Section 51.213(c) 
requires data to be kept so as to facilitate comparison of the planned 
and actual efficacy of transportation control measures.
    Section 51.213(a-c) are generally addressed in section III, SIP 
requirements, of the General Preamble for Title I of the 1990 CAA. The 
procedural elements of the SIP submittals are specifically required by 
sections 182 and 187 of the CAA. The requirements are incorporated in 
Agency regulation and guidance on each required SIP submittal that is 
related to transportation control. For example, guidance documents such 
as ``Transportation Control Measure: State Implementation Plan Guidance 
(September 1990), ``Section 187 VMT Forecasting and Tracking Guidance'' 
(January 1992), and ``Transportation Control Measure Information 
Documents'' (March 1992), discuss the same requirements that are set 
forth in section 51.213. Therefore, EPA believed this section was 
redundant of other EPA guidance regarding transportation control 
measures, and proposed to delete it from the CFR.
    Commenters suggest that even though guidance documents provide more 
detail than the rules implementing its provisions, rules, as opposed to 
guidance, are binding. EPA agrees that a binding rule on this subject 
would be useful, and section 51.213 will remain in the CFR.

III. Final Action

    EPA determines that the above-referenced rules should be deleted or 
modified at this time. This action will become effective March 26, 
1998.

IV. Analyses Under E.O. 12866, the Unfunded Mandates Reform Act of 
1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act

    Because the withdrawal of these rules from the CFR merely withdraws 
obsolete, duplicative, or superfluous requirements, this action is not 
a ``significant'' regulatory action within the meaning of Executive 
Order 12866.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Today's 
determination does not create any new requirements, but deletes or 
modifies existing requirements which are obsolete, duplicative, 
superfluous, unnecessary, or otherwise unduly burdensome. I therefore 
certify that it does not have any significant impact on any small 
entities affected.
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State,

[[Page 9151]]

local, or tribal governments in the aggregate.
    EPA's final action here does not impose upon the states any federal 
intergovernmental mandate, as defined in section 101 of the Unfunded 
Mandates Act. No additional costs to State, local, or tribal 
governments, or to the private sector, result from this action, which 
deletes or eases the indicated requirements. Thus, EPA has determined 
that this final action does not include a mandate that may result in 
estimated costs of $100 million or more to either State, local or 
tribal governments in the aggregate, or to the private sector.
    Finally, since EPA here is merely removing or revising superfluous 
requirements, their deletion from the CFR does not affect requirements 
under the Paperwork Reduction Act.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 27, 1998.

V. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Controller General of the 
General Accounting Office prior to the publication of the rule in 
today's Federal Register. This rule is not a ``major rule'' as defined 
by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 51

    Environmental protection, Air pollution control.

    Dated: February 6, 1998.
Carol M. Browner,
Administrator.

    Part 51, Chapter I, Title 40 of Code of Federal Regulations is 
amended as follows:

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671 et seq.

Subpart F--Procedural Requirements

    2. Section 51.100(o) (3) is revised to read as follows:


Sec. 51.100  Definitions.

* * * * *
    (o) * * *
    (3) Alternative means of providing for attainment and maintenance 
of such standard. (This provision defines RACT for the purposes of 
Sec. 51.341(b) only.)
* * * * *


Sec. 51.103  [Amended]

    3. Section 51.103 is amended by removing the last sentence in 
paragraph (a), and removing paragraphs (a)(1) and (a)(2).

[FR Doc. 98-3884 Filed 2-23-98; 8:45 am]
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