[Federal Register Volume 68, Number 123 (Thursday, June 26, 2003)]
[Rules and Regulations]
[Pages 38160-38163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16236]



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Part IV





Environmental Protection Agency





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40 CFR Part 50



Stay of Authority Under 40 CFR 50.9(b) Related to Applicability of 1-
Hour Ozone Standard; Final Rule

  Federal Register / Vol. 68, No. 123 / Thursday, June 26, 2003 / Rules 
and Regulations  

[[Page 38160]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[FRL-7519-3]
RIN 2060-AK78


Stay of Authority Under 40 CFR 50.9(b) Related to Applicability 
of 1-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to stay its authority to 
determine that the 1-hour national ambient air quality standard for 
ozone no longer applies in areas that meet that standard. Under an 
existing EPA rule, EPA can determine that the 1-hour standard no longer 
applies to an area upon finding that the area has met that standard. 
The final stay will ensure that the 1-hour standard remains in place 
nationwide until EPA issues a new rule governing how and when the 1-
hour standard should be removed. EPA is addressing that issue as part 
of a proposed rule for implementing the 8-hour ozone standard (68 FR 
32801, June 2, 2003), and is providing the public an opportunity to 
comment on the issue. The stay will remain effective until the Agency 
takes final action revising or reinstating its authority to remove the 
1-hour ozone standard, and addresses any public comments received on 
certain relevant issues. This final rule addresses comments received 
during the comment period on the previously proposed rule issued 
December 27, 2002.

DATES: The effective date for this final rule is August 25, 2003.

ADDRESSES: Documents relevant to this action are available for 
inspection at the EPA Docket Center (Air Docket), located at 1301 
Constitution Avenue, NW, Room: B108, Washington, DC 20004, telephone 
(202) 566-1742, fax (202) 566-1741, between 8:30 a.m. and 4:30 p.m., 
Monday through Friday, excluding legal holidays. A reasonable fee may 
be charged for copying.

FOR FURTHER INFORMATION CONTACT: Questions concerning this final rule 
should be addressed to Annie Nikbakht, Office of Air Quality Planning 
and Standards, Air Quality Strategies and Standards Division, Ozone 
Policy and Strategies Group, Mail Drop C539-02, Research Triangle Park, 
NC 27711, telephone (919) 541-5246.

SUPPLEMENTARY INFORMATION: Electronic Availability--The official record 
for this final rule, as well as the public version, has been 
established under Docket Number OAR-2002-0067. To view electronically 
the docket for this rule, see http://www.epa.gov/rpas.

Table of Contents

I. Background
II. Summary of Today's Action
III. Summary of Comments and Responses
IV. Statutory and Executive Order Reviews

I. Background

    On December 27, 2002, EPA issued a proposed rule (67 FR 79460) to 
stay its authority under the second sentence of 40 CFR 50.9(b) to 
determine that the 1-hour ozone standard no longer applies based on a 
determination that an area met that standard. The EPA proposed that the 
stay would be effective until such time as EPA takes final action in a 
subsequent rulemaking addressing whether the second sentence of 40 CFR 
50.9(b) should be modified in light of the Supreme Court's decision in 
Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001), 
regarding implementation of the 8-hour ozone NAAQS.

II. Summary of Today's Action

    In today's action, EPA is finalizing the stay and providing that 
prior to lifting such a stay, we will consider and address any comments 
concerning (a) which, if any, implementation activities for an 8-hour 
ozone standard, including designations and classifications, would need 
to occur before EPA would determine that the 1-hour ozone standard no 
longer applied to an area, and (b) the effect of revising the ozone 
NAAQS on existing designations for the pollutant ozone.
    The EPA plans to consider the timeframe and basis for revoking the 
1-hour standard in the implementation rulemaking that it will propose 
shortly in response to a remand from the Supreme Court. The EPA 
believes that it is appropriate to reconsider this issue because, at 
the time EPA promulgated Sec.  50.9(b), EPA anticipated that subpart 2 
would not apply for purposes of implementing the revised ozone 
standard. It makes sense, in light of the many issues that are now 
being considered regarding implementation of the 8-hour standard, 
including the applicability of subpart 2 for purposes of implementing 
that standard, for EPA to consider simultaneously the most effective 
means to transition from implementation of the 1-hour standard to 
implementation of the revised 8-hour ozone NAAQS.

III. Summary of Comments and Responses

    The EPA received two comments on the proposed rule during the 
comment period which ended on January 27, 2003. Both commenters were 
concerned that the regulatory language could be construed as staying 
EPA's authority to determine whether an area has met the 1-hour ozone 
standard. The proposed language said that EPA was staying its authority 
``to determine that an area has attained the 1-hour standard and that 
the 1-hour standard no longer applies.'' The EPA agrees that the 
language in the regulatory text, as proposed, could be construed in the 
manner suggested by the commenters. The EPA did not intend to propose 
that it was staying its authority to determine whether an area has 
attained the 1-hour standard. In fact, the Clean Air Act (CAA) requires 
EPA to make such determinations within 6 months of a nonattainment 
area's attainment date. See CAA section 181(b)(2); section 179(c). In 
order to avoid confusion, EPA is modifying the regulatory text as 
follows:

    EPA's authority under paragraph (b) of this section to determine 
that the 1-hour standard no longer applies to an area based on a 
determination that the area has attained the 1-hour standard is 
stayed . . .

    The EPA believes this language makes clear that EPA is only staying 
its authority to determine the 1-hour standard no longer applies to an 
area, which is triggered by a determination that the 1-hour standard 
has been attained. Thus, while EPA may still determine that an area has 
attained the 1-hour NAAQS, such a determination would not provide a 
basis for revoking the 1-hour standard for that area.
    One group of commenters was further concerned that the proposed 
regulatory text did not fully reflect the settlement agreement in which 
EPA agreed to propose this stay. The EPA intended its proposed action 
to fully reflect the settlement agreement as evidenced by the preamble 
language providing that EPA would not lift the stay until such time as 
it considered certain identified issues in a future rulemaking action. 
See 67 FR 79460. The EPA did not consider it necessary to include such 
language in the proposed regulatory text as EPA fully intended to 
comply with such obligation if it took final action providing in the 
preamble that it would do so. However, EPA understands the concern 
raised by these commenters--the need for regulatory certainty--and 
believes it is appropriate to include these conditions in the 
regulatory text. Thus, EPA is modifying the regulatory text to provide 
that its regulatory

[[Page 38161]]

authority to revoke the 1-hour standard is stayed:

until such time as EPA issues a final rule revising or reinstating 
such authority and considers and addresses in such rulemaking any 
comments concerning (1) which, if any, implementation activities for 
a revised ozone standard (including but not limited to designation 
and classification of areas) would need to occur before EPA would 
determine that the 1-hour ozone standard no longer applies to an 
area, and (2) the effect of revising the ozone NAAQS on the existing 
1-hour ozone designations.

    Another commenter raises additional issues that are not directly 
implicated by the limited action EPA is taking here to stay its 
authority to revoke the 1-hour standard. Specifically, the commenter 
recommends that (1) EPA not require areas to update maintenance plans 
for the 1-hour standard but rather be allowed to commit to submit plans 
for the 8-hour standard; (2) EPA revoke the 1-hour ozone standard after 
the 8-hour standard is fully enforceable and the designation and 
classification process for the 8-hour standard is complete; and (3) EPA 
issue its guidance for implementing the 8-hour NAAQS as quickly as 
possible so that areas may consider such guidance in making 
recommendations regarding designations for the 8-hour NAAQS. The EPA 
intends to issue its rulemaking and guidance regarding 8-hour NAAQS 
implementation as expeditiously as possible. It is in that rulemaking 
that EPA will consider the other issues raised by the commenter: 
whether areas will have an ongoing obligation to update 1-hour 
maintenance plans and the time at which the 1-hour standard should be 
revoked.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines a ``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 entitlement, 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 action is not a ``significant regulatory action'' 
and was not submitted to OMB for review.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act (RFA)

    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, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's 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 final action will not impose any requirements on small 
entities. This final action stays EPA's regulatory authority to 
determine the 1-hour standard no longer applies to an area, which 
authority was based on EPA's determining that the 1-hour standard has 
been attained. It does not establish requirements applicable to small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments, and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable laws. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This final 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 UMRA. Because today's 
action does not create any additional mandates, no further UMRA 
analysis is needed.

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

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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.
    This final 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 the language 
of 40 CFR 50.9(b) regarding EPA's authority to take action and imposes 
no additional burdens on States or local entities; it does not change 
the existing relationship between the national government and the 
States or the distribution of power and responsibilities among the 
various branches of government. Thus, the requirements of section 6 of 
this Executive Order do not apply to this final rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
Tribal implications, as specified in Executive Order 13175, because it 
will not have a substantial direct effect on one or more Indian Tribes, 
on the relationship between the Federal Government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian Tribes. Today's action does not 
significantly or uniquely affect the communities of Indian Tribal 
governments, and does not impose substantial direct compliance costs on 
such communities. Thus, Executive Order 13175 does not apply to this 
final rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    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 final rule is not subject 
to Executive Order 13045, because this action is not ``economically 
significant'' as defined under Executive Order 12866 and there are no 
environmental health risks or safety risks addressed by this rule.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d)(15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. The VCS are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, 
explanations when the Agency decides not to use available and 
applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    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 final 
action to stay EPA's authority under 40 CFR 50.9(b) related to 
applicability of the 1-hour ozone standard does not have a 
disproportionate adverse effect on minorities and low-income 
populations.

K. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit by August 25, 2003. Filing a petition 
of reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce it requirements (see section 307(b)(2)).

L. Congressional Review Act

    The Congressional Review Act (CRA), 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. Section 808 of the CRA provides an 
exception to this requirement. For any rule for which an agency for 
good cause finds that notice and comment are impracticable, 
unnecessary, or contrary to the public interest, the rule may take 
effect on the date set by the Agency. 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. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
final rule is effective August 25, 2003.

List of Subjects in 40 CFR Part 50

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

    Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, part 50 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

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PART 50--AMENDED

0
1. The authority citation for part 50 continues to read as follows:

    Authority: 42 U.S.C. 7410, et seq.

0
2. Section 50.9 is amended by adding paragraph (c) to read as follows:


Sec.  50.9  National 1-hour primary and secondary ambient air quality 
standards for ozone.

* * * * *
    (c) EPA's authority under paragraph (b) of this section to 
determine that the 1-hour standard no longer applies to an area based 
on a determination that the area has attained the 1-hour standard is 
stayed until such time as EPA issues a final rule revising or 
reinstating such authority and considers and addresses in such 
rulemaking any comments concerning (1) which, if any, implementation 
activities for a revised ozone standard (including but not limited to 
designation and classification of areas) would need to occur before EPA 
would determine that the 1-hour ozone standard no longer applies to an 
area, and (2) the effect of revising the ozone NAAQS on the existing 1-
hour ozone designations.

[FR Doc. 03-16236 Filed 6-25-03; 8:45 am]
BILLING CODE 6560-50-P