[Federal Register Volume 65, Number 181 (Monday, September 18, 2000)]
[Rules and Regulations]
[Pages 56245-56251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23947]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-6869-8]
RIN 2060-AJ37


Stay of the Eight-Hour Portion of the Findings of Significant 
Contribution and Rulemaking for Purposes of Reducing Interstate Ozone 
Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In today's action, EPA is amending a final rule it issued 
under section 110 of the Clean Air Act (CAA) related to interstate 
transport of pollutants. The EPA is staying its findings in the 
nitrogen oxides State Implementation Plan call (NOX SIP 
call) related to the 8-hour ozone national ambient air quality 
standards (NAAQS).
    In the final NOX SIP call, EPA found that emissions of 
NOX from 22 States and the District of Columbia (23 States) 
significantly contribute to downwind areas' nonattainment of the 1-hour 
ozone NAAQS. The EPA also separately found that NOX 
emissions from the same 23 States significantly contribute to downwind 
nonattainment of the 8-hour ozone NAAQS.
    Subsequently, the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) remanded the 8-hour ozone NAAQS. 
American Trucking Associations, Inc. v. EPA, 175 F.3d 1027 on rehearing 
195 F.3d 4 (D.C. Cir. 1999). The EPA proposed to stay the 8-hour basis 
of the NOX SIP call rule based on the uncertainty created by 
the D.C. Circuit's decision. Four parties commented on the proposed 
rule which was published on March 1, 2000 (65 FR 11024). No requests 
were made to hold a public hearing. After considering these comments, 
EPA has determined to finalize its proposed stay of the 8-hour basis of 
the NOX SIP call rule.

DATES: The final rule is effective October 18, 2000.

ADDRESSES: Documents relevant to this action are available for 
inspection at the Air and Radiation Docket and Information Center 
(6102), Attention: Docket No. A-96-56, U.S. Environmental Protection 
Agency, 401 M Street, SW, Room M-1500, Washington, DC 20460, telephone 
(202) 260-7548 between 8:00 a.m. and 5:30 p.m., Monday though Friday, 
excluding legal holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's action 
should be addressed to Jan King, Office of Air Quality Planning and 
Standards, Air Quality Strategies and Standards Division, MD-15, 
Research Triangle Park, NC, 27711, telephone (919) 541-5665, e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Related Information

    The official record for the NOX SIP call rulemaking, as 
well as the public version of the record, has been established under 
docket number A-96-56 (including comments and data submitted 
electronically as described below). The EPA has added new sections to 
that docket for purposes of today's rulemaking. The public version of 
this record, including printed, paper versions of electronic comments, 
which does not include any information claimed as confidential business

[[Page 56246]]

information, is available for inspection from 8:00 a.m. to 5:30 p.m., 
Monday through Friday, excluding legal holidays. The rulemaking record 
is located at the address in ADDRESSES at the beginning of this 
document. In addition, the Federal Register rulemakings and associated 
documents are located at http://www.epa.gov/ttn/rto/.

Outline

I. Background
    A. Findings under Section 110 to Reduce Interstate Ozone 
Transport
    B. Court Decisions
    1. 8-Hour NAAQS
    2. Challenges to the NOX SIP Call
II. Final Rule
III. Response to Comments
IV. Administrative Requirements
    A. Executive Order 12866: Regulatory Impact Analysis
    B. Unfunded Mandates Reform Act
    C. Executive Order 13132: Federalism
    D. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    E. Executive Order 12898: Environmental Justice
    F. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. National Technology Transfer and Advancement Act
    I. Paperwork Reduction Act
    J. Judicial Review
    K. Congressional Review Act

I. Background

A. Findings Under Section 110 To Reduce Interstate Ozone Transport

    On September 24, 1998 (63 FR 57356, October 27, 1998), EPA took 
final action requiring 22 States and the District of Columbia (23 
States) to regulate emissions of nitrogen oxides (NOX), one 
of the main precursors of ground-level ozone, on the basis that these 
emissions contribute to the transport of ozone across State boundaries 
in the eastern half of the United States. The EPA found that sources 
and emitting activities in the 23 States emit NOX in amounts 
that significantly contribute to nonattainment of the 1-hour ozone 
NAAQS. Separately, EPA also determined that sources and emitting 
activities in the 23 States emit NOX in amounts that 
significantly contribute to nonattainment of the 8-hour ozone NAAQS. 
The EPA also concluded that the level of NOX reductions 
necessary to address the significant contribution for the 8-hour NAAQS 
was the same as for the 1-hour NAAQS. The EPA set forth requirements 
for each of the affected upwind States to submit SIP revisions 
prohibiting those amounts of NOX emissions which 
significantly contribute to downwind nonattainment. To accomplish this 
goal, each State is required to submit a SIP, providing for 
NOX reductions in amounts such that any remaining emissions 
would not exceed the level specified in EPA's SIP call regulations for 
that State in 2007.\1,2\
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    \1-2\ On March 2, 2000 (65 FR 11222), EPA issued technical 
corrections of the portion of the rule specifying the NOX 
emissions levels that each State must project it will not exceed in 
2007 (NOX budget).
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B. Court Decisions

1. 8-Hour NAAQS
    The EPA promulgated the revised 8-hour ozone NAAQS in July 1997, 
and the NAAQS were challenged by a number of parties. On May 14, 1999, 
the D.C. Circuit issued an opinion questioning the constitutionality of 
the CAA authority to review and revise the NAAQS, as applied in EPA's 
revision to the ozone and particulate matter NAAQS. See American 
Trucking Ass'ns v. EPA, 175 F.3d 1027 (D.C. Cir. 1999).\3\ The court 
also addressed other issues, including EPA's authority to implement a 
revised ozone standard. Based on the statutory provisions regarding 
classifications and attainment dates under sections 172(a) and 181(a), 
the court determined that, although the statute allowed EPA to 
promulgate a more stringent ozone NAAQS, the statute provided no 
authority for EPA to require States to comply with a more stringent 
ozone NAAQS.
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    \3\ The EPA promulgated revised particulate matter NAAQS in July 
1997, and the challenges to the particulate matter NAAQS were heard 
and decided at the same time as the challenges to the ozone NAAQS.
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    The EPA and the Department of Justice sought rehearing on whether 
the CAA, as applied by EPA, violated the constitution and on whether 
the issue of EPA's implementation authority was appropriately before 
the court and, if so, whether the CAA prohibited EPA from implementing 
a more stringent ozone NAAQS.\4\ On October 29, 1999, the three-judge 
panel that issued the initial decision granted in part and denied in 
part EPA's rehearing request with respect to whether EPA had authority 
to implement a more stringent ozone NAAQS. American Trucking 
Association v. EPA, 195 F.3d 4 (D.C. Cir. 1999). The three-judge panel, 
in a two-to-one decision, denied EPA's rehearing request on the 
constitutional issue; and the full court also denied EPA's request for 
rehearing on that issue.\5\
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    \4\ The EPA sought rehearing on one other issue, not relevant 
here.
    \5\ To grant rehearing, a majority of the judges sitting on the 
court need to vote in favor of rehearing. Of the eleven sitting 
judges, five voted in favor of rehearing, four voted against 
rehearing and two did not participate in the decision.
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    With respect to EPA's implementation authority, the panel modified 
its decision to find that EPA may implement a more stringent ozone 
NAAQS only in conformity with the planning provisions specific to 
ozone, located in subpart 2 of part D of title I of the CAA. Judge 
Tatel did not join in the majority opinion, but filed a separate 
concurring decision on the basis that he read the majority decision to 
allow EPA to implement the more stringent 8-hour NAAQS once an area had 
attained the 1-hour ozone NAAQS. 195 F.3d at 11.
    The EPA filed a petition requesting the Supreme Court to review the 
D.C. Circuit's decision regarding the constitutional and implementation 
issues. The Supreme Court granted EPA's request on May 22, 2000.\6\
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    \6\ The State and industry parties that had challenged the NAAQS 
separately requested the Supreme Court to review the issue of 
whether EPA is precluded from considering costs when promulgating 
NAAQS. The Supreme Court granted their request on May 30, 2000, and 
provided that it would consider this issue at the same time it 
considers the issues raised by EPA.
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    The litigation continues to create uncertainty with respect to when 
EPA may be able to move forward to fully implement the revised 8-hour 
NAAQS; thus, EPA continues to believe that it is imprudent to rely on 
the 8-hour NAAQS as an independent, alternative basis for the 
NOX SIP call at this time. Instead, EPA believes the most 
prudent course--and one respectful of the Court's conclusions in 
American Trucking--is to stay the findings in the SIP call that 
emissions in certain States contribute significantly to nonattainment 
of the 8-hour ozone NAAQS in certain downwind States.\7\ The effect of 
such a stay is described in section II, below.
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    \7\ The EPA's approach here is consistent with its 
administrative stay of a rule related to the NOx SIP call, commonly 
referred to as the ``Section 126 Rule'' (64 FR 28249, May 25, 1999). 
On June 24, 1999, EPA issued a 5-month interim final stay of that 
rule in part due to the uncertainty about the 8-hour ozone standards 
engendered by the ATA decision (64 FR 33956, June 24, 1999). The EPA 
simultaneously published a proposal to stay the 8-hour 
determinations indefinitely (64 FR 33962, June 24, 1999). The EPA 
issued a final rule staying the 8-hour determinations indefinitely 
on January 18, 2000, (65 FR 2674).
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2. Challenges to the NOX SIP Call
    Nine States and a variety of industry and industry and labor 
organizations challenged the NOX SIP call rule. The State 
petitioners requested the court to stay the obligation under the SIP 
call

[[Page 56247]]

that States submit SIPs that regulated the necessary level of 
NOX emissions by September 30, 1999. On May 25, 1999, the 
court granted the States' request, staying the SIP submission deadline 
pending further order of the court.\8\ Michigan v. EPA, No. 98-1497 
(D.C. Cir., May 25, 1999) (order granting stay in part).
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    \8\ Although the State Petitioners requested the court to stay 
the submission obligation until April 27, 2000, the court stayed the 
submission requirement ``until further order.''
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    In November 1999, EPA requested the court to stay its consideration 
of the petitioners' issues regarding the 8-hour basis for the 
NOX SIP call based on the D.C. Circuit's decision regarding 
the 8-hour NAAQS, including the decision on rehearing, and the prospect 
of continued litigation regarding that NAAQS. The EPA provided that it 
planned to stay its finding in the NOX SIP call related to 
the 8-hour ozone NAAQS. The court granted EPA's motion. State of 
Michigan v. EPA, 213 F.3d 663, 670-671 (D.C. Cir. 2000).
    On March 3, 2000, the court issued a decision, largely upholding 
the NOX SIP call rule with respect to the 1-hour ozone 
NAAQS. However, the court remanded a few issues to the Agency and 
vacated the rule as it applied to three States. The court did not 
address its pending stay of the SIP submission requirement.
    More specifically, the court determined that EPA had not provided a 
sufficient opportunity for comment on two issues: (1) the definition of 
electric generating units as it relates to cogeneration units; and (2) 
the control level the Agency assumed for stationary internal combustion 
engines. State of Michigan v. EPA 213 F.3d at 691-93. On April 11 and 
13, 2000, EPA informed the 19 States and the District of Columbia by 
letter of the Agency's calculation of the effect of this aspect of the 
decision on the emissions ``budget'' for each State.
    With respect to Wisconsin, the court determined that EPA 
inappropriately included Wisconsin based on its contribution to 1-hour 
ozone nonattainment levels that were occurring over Lake Michigan. The 
Court held that the readings over the Lake could not be considered to 
``contribute significantly to nonattainment in * * * any other State.'' 
State of Michigan v. EPA, 213 F.3d at 681. The court also vacated the 
rule as it applies to Georgia and Missouri under the 1-hour standard on 
the basis that EPA had not explained why it was appropriate to base the 
SIP call on emissions throughout each entire State when there was 
evidence indicating that emissions in certain parts of those States did 
not contribute significantly to downwind nonattainment for the 1-hour 
NAAQS. State of Michigan v. EPA, 213 F.3d 681-85.
    The EPA is currently taking steps to issue proposed rules 
addressing the issues remanded or remanded and vacated by the court.
    Subsequently, EPA requested the court to lift its stay of the 
requirement for States to submit SIPs. Many of the petitioners in the 
case filed motions for rehearing by the three-judge panel that issued 
the decision, as well as the full court. On June 22, 2000, the court 
granted, in part, EPA's motion to lift the stay of the SIP submission 
obligation. In its order, the court noted that at the time the stay was 
issued, States had 128 days remaining to submit their plans (the time 
between May 25, 1999 and September 30, 1999). The court provided that 
EPA should allow 128 days from the date of the court's order for States 
to submit their plans. Thus, under the court's order, SIPs are due 
October 30, 2000. In addition, both the panel and the full court denied 
the requests for rehearing.

II. Final Rule

    The EPA is amending the final NOX SIP call rule to stay 
its findings related to the 8-hour NAAQS. The EPA believes it should 
not continue implementation efforts under section 110 with respect to 
the 8-hour standard that could be construed as inconsistent with the 
court's ruling while these issues are being considered by the Supreme 
Court. Given this position, EPA believes that the Agency should not 
continue to move forward with findings under section 110 based on the 
8-hour standard. Thus, EPA is staying indefinitely the findings of 
significant contribution based on the 8-hour standard, pending further 
developments in the NAAQS litigation. The requirements of the SIP call, 
including the findings of significant contribution by 19 States and the 
District of Columbia, and the necessary emissions reductions and 
related statewide budgets, as tempered by the court's remand of the 
internal combustion engine and EGU issues, are fully and independently 
supported by EPA's findings under the 1-hour NAAQS. Since the rule was 
based independently on the 1-hour NAAQS, a stay of the findings based 
on the 8-hour standards would have no effect on the required remedy for 
the 19 States and the District of Columbia. For these States, the 
effect of the stay would be that States would have no obligation during 
the pendency of the stay to regulate NOX emissions under the 
SIP call rule for purposes of addressing downwind nonattainment of the 
8-hour NAAQS. These 20 States would remain obligated to move forward to 
regulate emissions of NOX for the purpose of addressing 
their contribution to downwind nonattainment of the 1-hour standard.
    However, the court vacated the SIP call rule, based on EPA's 
findings for the 1-hour standard, for three States--Wisconsin, Georgia, 
and Missouri. The effect of EPA's stay of the findings under section 
110 based on the 8-hour standard is to stay the requirement for these 
three States to submit any SIP in response to the SIP call.\9\ Thus, 
these three States would have no obligation under the SIP call until 
such time as EPA either lifts the stay of the findings under section 
110 based on the 8-hour standard or completes rulemaking in response to 
the court's vacatur and remand of the 1-hour basis of the SIP call rule 
and makes new findings under section 110 based on the 1-hour standard.
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    \9\ Because the stay of the findings for the 8-hour standard 
stays any present obligation of these three States to submit a SIP 
in response to the SIP call, it also effectively stays with respect 
to these three States the applicability of the revised 
NOX budgets established in the March 2, 2000 rule.
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III. Response to Comments

    Four commenters submitted comments on the March 2, 2000 proposal. 
The comments are summarized below along with EPA's responses.
    Comment: Three commenters suggest that EPA deny and eliminate all 
findings and provisions based on the 8-hour standard in light of the 
court's decision in ATA, remanding that standard to EPA. One commenter 
also claims that EPA must adjust any emission reduction requirements to 
reflect only those needed to achieve the 1-hour standard. One of these 
commenters believes that EPA's proposal to stay the 8-hour basis of the 
SIP call rule is a ``second best'' approach.
    Response: The court in ATA remanded, but did not vacate, the 8-hour 
standard. Because the 8-hour standard remains in effect, EPA does not 
believe that it is necessary for the Agency to vacate the 8-hour basis 
of the NOX SIP call rule. Moreover, the Supreme Court has 
granted EPA's petition for certiorari and thus will be reviewing the 
D.C. Circuit's decision. Due to the uncertainty created by the pending 
litigation, regarding whether the 8-hour standard may be fully

[[Page 56248]]

implemented, EPA believes it is appropriate to stay the 8-hour basis 
for the SIP call rule, such that States and sources are not required to 
move forward with implementing control measures designed solely to 
attain the 8-hour NAAQS at this time. However, it is premature to 
presume that implementation of the 8-hour standard will not move 
forward in the future. Thus, EPA believes the best approach at this 
time is to stay, but not withdraw, the 8-hour basis of the SIP call 
rule.
    With respect to the claim that EPA needs to adjust the emission 
budgets to reflect only those emissions reductions needed to achieve 
the 1-hour NAAQS, EPA notes that no adjustments due to staying the 
findings for the 8-hour NAAQS are necessary. The EPA assessed each 
State's contribution for the 1-hour NAAQS independent of its assessment 
of the State's contribution for the 8-hour NAAQS. See 62 FR 60,326 
(Nov. 7, 1997); 63 FR 57,377, and 57,395 (Oct. 27, 1998). However, EPA 
ultimately determined that the ``significant contribution'' of 
emissions that each State needed to address was the same regardless of 
whether the reductions were needed for the 1-hour standard or the 8-
hour standard. Therefore, EPA promulgated only one emissions budget 
relevant for each State.
    In addition, EPA notes that the budgets were not for the purpose of 
ensuring attainment of either NAAQS in downwind States. Rather, the 
budgets were for the purpose of addressing each upwind State's 
significant contribution to nonattainment in downwind areas. As EPA 
noted in the final SIP call rule, all of the downwind, 1-hour 
nonattainment areas (and many of the downwind areas violating the 8-
hour standard) generally were expected to need additional local 
emissions reductions beyond those required by the SIP call to reach 
attainment of the respective NAAQS. Because EPA's analysis focused on 
addressing the emissions that significantly contribute to a downwind 
area's nonattainment problem (as provided under section 110(a)(2)(D)), 
rather than addressing the level of emissions reductions that would 
bring a downwind area into attainment for a particular standard, it is 
not unexpected that the budget levels would be the same for the 1-hour 
and 8-hour standards.
    Comment: One commenter recommends that EPA stay the NOX 
SIP call rule in all respects until such time as there is a final, non-
appealable resolution of the litigation on the SIP call rule, and that 
EPA go through notice-and-comment rulemaking to lift the stay after the 
litigation is complete. Another commenter suggests that EPA stay the 
NOX SIP call rule until both the SIP call litigation and the 
ATA litigation are finally resolved. The commenter expresses concern 
over EPA's efforts to implement the NOX SIP call rule and 
EPA's rule under section 126 of the CAA (directly regulating sources of 
NOX) while litigation is still pending on those cases and on 
the technical amendments regarding budget corrections. The commenter 
suggests that the pending litigation makes it virtually impossible for 
sources to plan for compliance.
    Response: This rulemaking concerns a limited issue--whether EPA 
should stay the 8-hour basis of the NOX SIP call rule in 
light of the court's decision in ATA remanding that standard. That 
decision, in no way, calls into question the 1-hour NAAQS and the need 
for States to develop SIPs to address that standard. Thus, the pending 
ATA litigation does not justify a stay of the findings under section 
110 based on the 1-hour standard. Moreover, on June 22, 2000, the D. C. 
Circuit lifted its stay of the requirement for States to submit SIPs in 
accordance with the SIP call rule and has denied the requests for 
rehearing of its decision in the SIP call litigation. While parties may 
seek further review of that decision in the Supreme Court and the 
challenges to the technical corrections are pending, EPA notes that the 
mere fact that litigation is pending regarding an Agency action does 
not warrant a stay of the challenged regulation. As a general matter, 
regulations remain in effect pending litigation.
    Comment: One commenter expressed support for EPA's proposal to stay 
the 8-hour basis for the NOX SIP call rule. The commenter 
also stated that reliance on the 8-hour NAAQS prior to designation of 
areas for that standard was premature.
    Response: The EPA is taking final action as proposed and as 
supported by the commenter. In the final SIP call rule, EPA disagreed 
with the commenter's position that EPA may not require States to 
address interstate transport for a NAAQS prior to the time EPA 
designates areas for that standard. That issue was raised in the SIP 
call litigation and the court has stayed its consideration of the issue 
based on EPA's decision to stay the 8-hour basis of the SIP call rule. 
That issue has not influenced EPA's decision to stay the 8-hour basis 
for the SIP call rule and could be considered by the court if and when 
EPA lifts its stay.
    Comment: One commenter claims that EPA ``obfuscates the 
interdependence of the 1-hour and 8-hour bases for the NOX 
SIP call and Section 126 rules'' by claiming that the findings for each 
standard were ``separate.'' The commenter believes that EPA's basis for 
both the SIP call rule and the section 126 rule is the 8-hour NAAQS. 
The commenter notes that the EPA-calculated emissions reductions from 
baselines in the NOX SIP call rule assume achievement of the 
8-hour NAAQS. Two commenters are concerned that the stay has no effect 
since sources will need to implement all remaining portions of the 
rule.
    Response: In the final SIP call rule, EPA clearly stated that it 
independently assessed significant contribution for the 1-hour and 8-
hour ozone NAAQS. See 62 FR 60,326; 63 FR 57,377, and 57,395. In 
requesting the court to stay the limited issues raised exclusively 
regarding the 8-hour basis for the SIP call, EPA also clearly 
articulated that the 8-hour and 1-hour bases were wholly independent of 
each other and that ``the emission reductions that must be achieved, 
and the requirement for States to submit SIPs meeting NOX 
budgets are fully and independently supported by EPA's findings under 
the 1-hour NAAQS alone.'' Motion for Stay of Judicial Consideration of 
Certain Issues Raised In Petitioners' Briefs at 3, Michigan v. EPA, 
(No. 98-1497, D.C. Cir.) Nov. 19, 1999. The court granted EPA's request 
to stay consideration of the 8-hour basis for the SIP call and upheld 
in most significant respects the 1-hour basis for the SIP call. No 
party has sought rehearing on the grounds that the 1-hour standard 
alone cannot support the SIP call rule.
    The EPA agrees with the commenters that the stay of the 8-hour 
basis of the rule will have no effect on the emissions budget for those 
19 States and D.C. that are still covered by the NOX SIP 
call based on the 1-hour standard. As provided above, EPA determined 
that the level of reductions needed to address significant contribution 
for the 1-hour NAAQS is the same as the level needed to address the 8-
hour NAAQS and thus the budgets are the same.\10\

[[Page 56249]]

Thus, the stay has no practical effect on the SIP that these 19 States 
and D.C. will need to submit to address the SIP call.
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    \10\ The EPA notes that in reviewing the SIP call, as based on 
the 1-hour standard, the court remanded two issues to EPA that may 
affect the ultimate budget numbers for each State: (1) the 
definition of electric generating units as it relates to 
cogeneration units; and (2) the control level the Agency assumed for 
stationary internal combustion engines. Although the court only 
remanded, and did not vacate, the portions of the budgets based on 
EPA's analysis of these two issues, EPA has informed the 20 States 
that remain subject to the SIP call, as based on the 1-hour 
standard, that their initial SIPs in response to the SIP call need 
not account for the portion of the budget represented by emissions 
from these two source categories. The EPA is currently developing a 
proposed rule to address the remanded issues for purposes of the 1-
hour standard. Although the court's decision on these two issues, as 
well as the court's vacatur of the rule as it applies to Wisconsin, 
Georgia, and Missouri, was only for purposes of the 1-hour standard, 
EPA plans to consider the effect of the court's reasoning on the 8-
hour basis for the SIP call at the same time that EPA undertakes any 
rulemaking to lift the stay of the 8-hour basis of the SIP call.
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    Comment: One commenter claims that EPA should provide in the final 
rule, as it did in its similar stay of the 8-hour basis of the section 
126 rule, that EPA would lift the stay of the 8-hour basis of the SIP 
call rule only through notice-and-comment rulemaking.
    Response: The EPA agrees that it would need to lift the stay 
through rulemaking. In that rulemaking, EPA also would consider whether 
to modify the findings based on the 8-hour standard in light of the 
court's decision with respect to the findings for the 1-hour standard.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

    Under Executive Order 12866, (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget (OMB) because 
this action is simply staying its finding in the NOX SIP 
call related to the 8-hour ozone standards. The final NOX 
SIP call was submitted to OMB for review. The EPA prepared a regulatory 
impact analysis (RIA) for the final NOX SIP call titled 
``Regulatory Impact Analysis for the NOX SIP Call, FIP, and 
Section 126 Petitions.'' The RIA and any written comments from OMB to 
EPA and any written EPA responses to those comments are included in the 
docket. The docket is available for public inspection at the EPA's Air 
Docket Section, which is listed in the ADDRESSES section of this 
preamble. This action does not create any additional impacts beyond 
what was promulgated in the final NOX SIP call, therefore, 
no additional RIA is needed.

B. Unfunded Mandates Reform Act

    This action also does not impose any additional enforceable duty, 
contain any unfunded mandate, or impose any significant or unique 
impact on small governments as described in the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 104-4). The EPA prepared a statement 
for the final NOX SIP call rule that would be required by 
UMRA if its statutory provisions applied and consulted with 
governmental entities as would be required by UMRA. Because today's 
action does not create any additional mandates, no further UMRA 
analysis is needed.

C. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State 
law, unless the Agency consults with State and local officials early in 
the process of developing the proposed regulation.
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action stays EPA's findings in 
the NOX SIP call rule related to the 8-hour ozone NAAQS and 
imposes no additional burdens beyond those imposed by the final 
NOX SIP call rule. Thus, the requirements of section 6 of 
the Executive Order do not apply to this rule.

D. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's action does not significantly or uniquely affect the 
communities of Indian tribal governments. The EPA stated in the final 
NOX SIP call rule that Executive Order 13084 did not apply 
because the final rule does not significantly or uniquely affect the 
communities of Indian tribal governments or call on States to regulate 
NOX sources located on tribal lands. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Executive Order 12898: Environmental Justice

    In addition, this action does not involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). For the final NOX SIP 
call, the Agency conducted a general analysis of the potential changes 
in ozone and particulate matter levels that may be experienced by 
minority and low-income populations as a result of the requirements of 
the rule. These findings are presented in the RIA.

F. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses,

[[Page 56250]]

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 as defined 
in the Small Business Administration's (SBA) regulations at 13 CFR 
12.201; (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    This action will not impose any requirements on small entities. 
This action stays EPA's findings in the NOX SIP call rule 
related to the 8-hour ozone NAAQS and does not itself establish 
requirements applicable to small entities.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks 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, 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.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045, because this action is not ``economically 
significant'' as defined under Executive Order 12866 and the Agency 
does not have reason to believe the environmental health risks or 
safety risks addressed by this action present a disproportionate risk 
to children.

H. National Technology Transfer and Advancement Act

    In addition, the National Technology Transfer and Advancement Act 
of 1997 does not apply because today's action does not require the 
public to perform activities conducive to the use of voluntary 
consensus standards under that Act. The EPA's compliance with these 
statutes and Executive Orders for the underlying rule, the final 
NOX SIP call, is discussed in more detail in 63 FR 57477-
57481 (October 27, 1998).

I. Paperwork Reduction Act

    The EPA stated in the final NOX SIP call that an 
information collection request was pending. Today's action imposes no 
additional burdens beyond those imposed by the final NOX SIP 
call. Any issues relevant to satisfaction of the requirements of the 
Paperwork Reduction Act will be resolved during review and approval of 
the pending information collection request for the NOX SIP 
call.

J. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by EPA. This 
section provides, in part, that petitions for review must be filed in 
the Court of Appeals for the District of Columbia Circuit if (i) the 
agency action consists of ``nationally applicable regulations 
promulgated, or final action taken, by the Administrator,'' or (ii) 
such action is locally or regionally applicable, if ``such action is 
based on a determination of nationwide scope or effect and if in taking 
such action the Administrator finds and publishes that such action is 
based on such a determination.''
    Any final action related to the NOX SIP call is 
``nationally applicable'' within the meaning of section 307(b)(1). As 
an initial matter, through this rule, EPA interprets section 110 of the 
CAA in a way that could affect future actions regulating the transport 
of pollutants. In addition, the NOX SIP call requires 22 
States and the District of Columbia to decrease emissions of 
NOX. The NOX SIP call also is based on a common 
core of factual findings and analyses concerning the transport of ozone 
and its precursors between the different States subject to the 
NOX SIP call. Finally, EPA has established uniform 
approvability criteria that would be applied to all States subject to 
the NOX SIP call. For these reasons, the Administrator has 
also determined that any final action regarding the NOX SIP 
call is of nationwide scope and effect for purposes of section 
307(b)(1). Thus, any petitions for review of final actions regarding 
the NOX SIP call must be filed in the Court of Appeals for 
the District of Columbia Circuit within 60 days from the date final 
action is published in the Federal Register.

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. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. 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 October 18, 2000.

List of Subjects in 40 CFR Part 51

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Carbon monoxide, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

    Dated: September 8, 2000.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart G--Control Strategy

    2. Section 51.121 is amended by adding paragraph (q) to read as 
follows:


Sec. 51.121  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen.

* * * * *

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    (q) Stay of Findings of Significant Contribution with respect to 
the 8-hour standard. Notwithstanding any other provisions of this 
subpart, the effectiveness of paragraph (a)(2) of this section is 
stayed.

[FR Doc. 00-23947 Filed 9-15-00; 8:45 am]
BILLING CODE 6560-50-P