[Federal Register Volume 65, Number 247 (Friday, December 22, 2000)]
[Rules and Regulations]
[Pages 80776-80779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32666]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[FRL-6919-5]
RIN 2060-AJ05


National Primary and Secondary Ambient Air Quality Standards for 
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to remove requirements relative to 
the revised PM-10 NAAQS EPA issued in 1997 that were intended to 
clarify the applicability of the PM-10 National Ambient Air Quality 
Standards (NAAQS) issued in 1987 (hereafter referred to as the pre-
existing PM-10 NAAQS). These requirements were added to the CFR at that 
time in anticipation of the transition to the implementation of the 
revised PM-10 NAAQS, and set forth the criteria under which the pre-
existing PM-10 NAAQS would cease to apply and the revised PM-10 NAAQS 
would then become the solely applicable coarse particle standards. 
However, a recent ruling of the U.S. Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit) vacated the revised PM-10 NAAQS and, 
thus, removed the basis for these requirements. Therefore, today we are 
taking final action to remove the requirements from the subsection of 
the CFR where they are found, thus ensuring that the pre-existing PM-10 
standards will continue to apply to all areas where they currently 
apply. In light of the action taken by the D.C. Circuit, as well as the 
need from a regulatory and administrative perspective to clarify the 
status of the pre-existing PM-10 NAAQS, we had previously proposed to 
remove these requirements as part of our June 26, 2000 proposal 
``Rescinding the Finding that the Pre-existing PM-10 Standards are No 
Longer Applicable in Northern Ada County/Boise, Idaho.'' We have not 
received any comments on this portion of that proposal to date and are 
therefore moving forward today to take final action to remove them.

DATES: This rule will become effective January 22, 2001.

FOR FURTHER INFORMATION CONTACT: Questions about this action should be 
addressed to Gary Blais, Office of Air Quality Planning and Standards, 
Air Quality Strategies and Standards Division, Integrated Policy and 
Strategies Group, MD-15, Research Triangle Park, NC 27711, telephone 
(919) 541-3223 or e-mail to [email protected].
    Public inspection. You may read the final rule at the Office of Air 
and Radiation Docket and Information Center located at 401 M Street, 
SW, Washington, DC 20460. It is available for public inspection from 
8:00 a.m. to 5:30 p.m., Monday through Friday, excluding legal 
holidays. A reasonable fee may be charged for copying.

SUPPLEMENTARY INFORMATION:   

Table of Contents

I. Background
    A.What was the basis for EPA's previous rulemaking actions 
finding that the pre-existing PM-10 standards no longer apply?
    B. What effect does the recent court decision have on today's 
action?
II. What action is EPA taking today?
III. What administrative requirements have we considered in writing 
today's final rule?
    A. Executive Order 12866: Regulatory Impact Analysis
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Executive Order 13132: Federalism
    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    G. Paperwork Reduction Act
    H. Executive Order 12898: Environmental Justice
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Background

A. What Was the Basis for EPA's Previous Rulemaking Actions Finding 
That the Pre-existing PM-10 Standards No Longer Apply?

    On July 18, 1997 (62 FR 38856), we issued a regulation replacing 
the pre-existing PM-10 NAAQS with revised PM-10 NAAQS, along with new 
NAAQS for fine particulate matter (PM-2.5). Together, these new 
standards, which became effective on September 16, 1997, were issued to 
provide increased protection to the public,

[[Page 80777]]

especially children, the elderly, and other at-risk populations.
    Also, on July 18, 1997, we announced that the effective date of the 
revocation of the pre-existing PM-10 NAAQS would be delayed and that, 
therefore, the existing standards and associated designations and 
classifications would continue to apply for an interim period. We did 
this to ensure continuity in public health protection during the 
transition from the pre-existing to the new PM-10 NAAQS. We provided, 
by regulation, that the pre-existing PM-10 standards would no longer 
apply to an area once it had attained those standards based on 3 years 
of quality-assured monitoring data, and had met certain other criteria. 
The regulation, found at 40 CFR 50.6 (d), was clearly premised upon the 
existence of the newly-revised PM-10 standards, and the implementation 
scheme developed for those standards. See 63 FR 38652, 38701.

B. What Effect Does the Recent Court Decision Have on Today's Action?

    On May 14, 1999, the U.S. Court of Appeals for the D.C. Circuit 
issued an opinion questioning the constitutionality of the Clean Air 
Act (CAA) authority to review and revise the NAAQS, as applied in EPA's 
revision to the ozone and particulate matter NAAQS. American Trucking 
Association, et al., v. EPA, et al., and consolidated cases. The Court 
stopped short of finding the statutory grant of authority 
unconstitutional, instead providing EPA with another opportunity to 
develop a determinate principle for promulgating NAAQS under the 
statute. In its decision, the Court found there was adequate evidence 
in the rulemaking record to justify EPA's choice to regulate both 
coarse and fine particulate matter pollution. Nevertheless, the Court 
went on to find that the Agency's decision to issue separate, but 
overlapping, regulations governing fine particles (defined as having an 
aerodynamic diameter of 2.5 microns or less) and regulations governing 
coarse particles (defined as having an aerodynamic diameter of 10 
microns or less, which, therefore, includes particles sized at 2.5 
microns and below) was unreasonable. In the Court's view, 
implementation of both PM-10 NAAQS together would have led to ``double 
regulation'' of the PM-2.5 component of the revised PM-10 NAAQS, and 
potential underregulation of pollution above the 2.5 micron size. 
Consequently, the Court determined that EPA had acted in an arbitrary 
and capricious manner, and vacated the revised PM-10 NAAQS. Since the 
regulation at 40 CFR 50.6(d) was premised on the existence of the 
revised PM-10 NAAQS, this subsection is no longer appropriate or 
necessary and must be removed from the regulations.

II. What Action Is EPA Taking Today?

    Today, we are taking final action to remove 40 CFR 50.6(d). The 
effect of this regulatory action is that the pre-existing PM-10 
standards, as codified at 40 CFR, Sec. 50.6(a) and (b), will remain 
applicable in those areas where they currently apply.

III. What Aministrative Requirements Have We Considered in Writing 
Today's Final Rule?

A. Executive Order 12866: Regulatory Impact Analysis

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the 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 is likely to result in a 
rule that may:
    (1) have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is not a ``significant regulatory action'' 
because none of the listed criteria apply to this action. Consequently 
this action was not submitted to the OMB for review under Executive 
Order 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 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), 
unless EPA certifies that the rule will not have a significant impact 
on a substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and government entities 
with jurisdiction over populations of less than 50,000. The EPA has 
determined that this regulatory action will not have a significant 
impact on a substantial number of small entities because the action 
does not itself directly impose any new requirements on small entities. 
See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 
1985) (agency's certification need only consider the rule's impact on 
entities subject to the requirements of the rule). Instead, this action 
merely removes a regulatory provision made inapplicable by the D.C. 
Circuit Court's ruling that vacated the revised PM-10 NAAQS which was 
the underlying basis for the requirement.
    Therefore, I certify that this regulatory action will not have a 
significant impact on a substantial number of small entities within the 
meaning of those terms for RFA purposes.

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least-burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    Today's regulatory action does not include a Federal 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. 
This regulatory action removes Sec. 50.6, paragraph (d), from the CFR. 
The effect of this action is that the pre-existing PM-10 standards, as 
codified at 40 CFR, Sec. 50.6(a) and (b), will remain applicable in 
those areas where they currently apply. The consequences of this action 
should not result in any additional costs within the affected areas.

D. 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,

[[Page 80778]]

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 regulatory action is not 
subject to Executive Order13045 because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
it removes a no longer applicable portion of a previously-promulgated 
health or safety-based Federal standard, and does not itself involve 
decisions that affect environmental health or safety risks.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Section 6 of Executive Order 13132, EPA may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. The EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    The EPA concludes that this regulatory action will not have 
substantial federalism implications, as specified in Section 6 of 
Executive Order 13132 (64 FR 43255, August 10, 1999), because, as noted 
previously, this action would simply remove Sec. 50.6, paragraph (d), 
from the CFR. The effect of this action is that the pre-existing PM-10 
standards, as codified at 40 CFR, Sec. 50.6(a) and (b), will remain 
applicable in those areas where they currently apply. Consequently, 
this action will not directly impose significant new requirements on 
any area, or substantially alter the relationship or the distribution 
of power and responsibilities between the States and the Federal 
government.

F. 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 regulatory action does not significantly or uniquely affect 
the communities of Indian tribal governments. This action does not 
involve or impose any requirements that directly affect Indian tribes. 
Under EPA's tribal authority rule, tribes are not required to implement 
CAA programs but, instead, have the opportunity to do so. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.

G. Paperwork Reduction Act

    This action does not contain any information collection 
requirements which require OMB approval under the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.).

H. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, each Federal agency must make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. Today's action, 
removing 40 CFR 50.6(d), does not adversely affect minorities and low-
income populations.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing new regulations. To comply with 
NTTAA, the EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. 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 become effective 30 days after publication in 
the Federal Register.

List of Subjects in 40 CFR Part 50

    Environmental protection, Air pollution control, Particulate 
matter.


[[Page 80779]]


    Dated: December 13, 2000.
Carol M. Browner,
Administrator.

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

PART 50--[AMENDED]

    1. The authority citation for part 50 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


Sec. 50.6  [Amended]

    2. Section 50.6 is amended by removing paragraph (d).

[FR Doc. 00-32666 Filed 12-21-00; 8:45 am]
BILLING CODE 6560-50-P