Revisions to the Regional Haze Rule To Correct Mobile Source
Provisions in Optional Program for Nine Western States and Eligible
Indian Tribes Within That Geographic Area
[Federal Register: December 22, 2003 (Volume 68, Number 245)]
[Rules and Regulations]
[Page 71009-71014]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de03-3]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-7601-4]
RIN 2060-AL80
Revisions to the Regional Haze Rule To Correct Mobile Source
Provisions in Optional Program for Nine Western States and Eligible
Indian Tribes Within That Geographic Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: The EPA is taking final action to approve a correction to the
mobile source provisions of EPA's regional haze rule. This correction
is consistent with recommendations of the Western Regional Air
Partnership (WRAP). The amendments to the rule are intended to address
an emissions projection scenario for mobile sources which was not
addressed when EPA published the regional haze rule in 1999.
EFFECTIVE DATE: This final rule is effective February 20, 2004.
ADDRESSES: The EPA has established an official public docket for this
action under Docket No. OAR-2002-0076. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include confidential business information or other information whose
disclosure is restricted by statute. The official public docket is the
collection of materials that is available for public viewing at the Air
Docket in the EPA Docket Center, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The EPA Docket Center Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Reading Room is (202) 566-1744,
and the telephone number for the Air Docket is (202) 566-1742. A
reasonable fee may be charged for copying.
Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/. An electronic version of the
public docket is available through EPA's electronic public docket and
comment system, EPA Dockets. You may use EPA Dockets at http://
www.epa.gov/edocket/ to view public comments, access the index listing
of the contents of the official public docket, and to access those
documents in the public docket that are available electronically.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified above. Once in the system, select
``search,'' then key in the docket identification number, OAR-2002-
0076.
FOR FURTHER INFORMATION CONTACT: If you would like further information
about this rule, contact Kathy Kaufman, Integrated Policies and
Strategies Group, (919) 541-0102 or by e-mail kaufman.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are nine States in
the Western United States (Arizona, California, Colorado, Idaho,
Nevada, New Mexico, Oregon, Utah and Wyoming) and Indian tribes within
that same geographic area. This final action, and an earlier action
taken by EPA in 1999, provides these States and tribes with an optional
program to protect visibility in federally protected scenic areas. The
portion of the program addressed by today's final rule is a program for
tracking of mobile source emissions under the 1999 rule.
Outline
The contents of today's preamble are listed in the following
outline.
I. Background
A. What Is the Regional Haze Rule?
B. What Are the Special Provisions for Western States and
Eligible Indian Tribes in 40 CFR 51.309 of the Regional Haze Rule?
II. Changes to the Mobile Source Provisions of Section 309
A. Why Are We Changing the Mobile Source Provisions of 40 CFR
51.309?
B. What Are the Specific Changes to the Mobile Source Provisions
of 40 CFR 51.309?
C. What Comments Did We Receive on the Proposed Rule and What Is
Our Response?
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
IV. Statutory Provisions and Legal Authority
I. Background
A. What Is the Regional Haze Rule?
Section 169(A) of the Clean Air Act (CAA) establishes a national
goal for protecting visibility in federally-protected scenic areas.
These ``Class I'' areas include national parks and
[[Page 71010]]
wilderness areas. The national visibility goal is to remedy existing
impairment and prevent future impairment in these Class I areas,
consistent with the requirements of sections 169A and 169B of the CAA.
Regional haze is a type of visibility impairment caused by air
pollutants emitted by numerous sources across a broad region. The EPA
uses the term regional haze to distinguish this type of visibility
problem from those which are more local in nature. In 1999, EPA issued
a regional haze rule requiring States to develop implementation plans
that will make ``reasonable progress'' toward the national visibility
goal (64 FR 35714, July 1, 1999). The first State plans for regional
haze are due between 2003 and 2008. The regional haze rule provisions
appear at 40 CFR 51.308 and 40 CFR 51.309.
B. What Are the Special Provisions for Western States and Eligible
Indian Tribes in 40 CFR 51.309 of the Regional Haze Rule?
The regional haze rule at 40 CFR 51.308 sets forth the requirements
for State implementation plans (SIPs) under the regional haze program.
The rule requires State plans to include visibility progress goals for
each Class I area, as well as emissions reductions strategies and other
measures needed to meet these goals. The rule also provides an optional
approach, described in 40 CFR 51.309, that may be followed by the nine
western States (Arizona, California, Colorado, Idaho, Nevada, New
Mexico, Oregon, Utah, and Wyoming) that comprise the transport region
analyzed by the Grand Canyon Visibility Transport Commission (GCVTC)
during the 1990's. This optional approach is also available to eligible
Indian Tribes within this geographic region. The regulatory provisions
at 40 CFR 51.309 are based on the final report issued by the GCVTC in
1996,\1\ which included a number of recommended emissions reductions
strategies designed to improve visibility in the 16 Class I areas on
the Colorado Plateau.
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\1\ Recommendations for Improving Western Vistas. GCVTC, June
10, 1996.
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In developing the regional haze rule, EPA received a number of
comments on the proposed rule encouraging the Agency to recognize
explicitly the work of the GCVTC. In addition, in June 1998, Governor
Leavitt of Utah provided comments to EPA on behalf of the Western
Governors Association (WGA), further emphasizing the commitment of
western States to implementing the GCVTC recommendations. The WGA's
comments also suggested the translation of the GCVTC's recommendations
into specific regulatory language. The EPA issued a Notice of
Availability during the fall of 1998 requesting further comment on the
WGA's proposal and a draft set of regulatory language based upon the
WGA's recommendations. Based on the comments received on this Federal
Register action, EPA developed the provisions set forth in 40 CFR
51.309 that allow the nine Transport Region States and eligible tribes
within that geographic area to implement many of the GCVTC
recommendations within the framework of the national regional haze
rule.
The provisions in 40 CFR 51.309 comprise a comprehensive long-term
strategy for addressing sources that contribute to visibility
impairment within this geographic region. The strategy addresses the
time period between the year 2003, when the implementation plans are
due,\2\ and the year 2018. The provisions address emissions from
stationary sources, mobile sources, and area sources such as emissions
from fires and windblown dust.
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\2\ Indian tribes are given the flexibility under EPA
regulations to submit implementation plans and opt into the program
after the 2003 deadline.
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II. Changes to the Mobile Source Provisions of Section 309
A. Why Are We Changing the Mobile Source Provisions of 40 CFR 51.309?
1. What Is the Basis for the Old Provisions?
The GCVTC determined that mobile source emissions need to be an
essential part of a strategy to reduce haze on the Colorado Plateau.
Therefore, one element of the GCVTC's strategy, as reflected in 40 CFR
51.309(d)(5), was to address mobile sources emissions. Section 309 also
requires States to establish a mobile source emissions budget for each
area that significantly contributes to visibility impairment in any of
the 16 Class I areas covered by this section of the regulations. At the
time the GCVTC made its recommendations (in 1996), mobile source
emissions were projected to be lowest in 2005, and to subsequently rise
over the course of the first regional haze planning period (i.e., until
2018). Accordingly, section 309 required mobile source emissions
budgets to be set using the lowest projected level as a planning
objective and performance indicator for each area.
2. What Is the Basis for the New Provisions?
Since the GCVTC made its recommendations, new developments have
caused mobile source emissions projections to change significantly.
Over the past few years, we have promulgated a series of new emissions
standards for several different engine types, as well as new standards
for diesel fuel content.\3\ As a result of these new standards, the
WRAP, using EPA's latest models,\4\ now projects a significant decline
in mobile source emissions throughout the region during the 2003-2018
time period covered by the section 309 plans, particularly from on-road
mobile sources. Rather than emissions being lowest in 2005, and
subsequently rising, mobile source emissions for all pollutants except
sulfur dioxide (SO2) are expected to decline continuously
over the course of the first regional haze planning period.
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\3\ See 62 FR 25355, (May 8, 1997); 63 FR 18978, (April 16,
1998); 63 FR 56968, (October 23, 1998); 64 FR 73300, (December 29,
1999); 65 FR 59895, (October 6, 2000); 66 FR 5001, (January 18,
2001); 67 FR 68241, (November 8, 2002); and 68 FR 9745, (February
28, 2003).
\4\ MOBILE6 and MOBILE6.2 for on-highway vehicles and the NON-
ROAD model for nonroad vehicles.
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The projected trends for mobile source emissions of SO2
differ from those of other pollutants. Emissions reductions from
pollutants such as nitrogen oxides (NOX) and particulate
matter (PM) are dependent on technological changes to the onroad fleet
and to nonroad engines which are implemented gradually. In contrast,
SO2 emissions reductions are immediately realized when the
sulfur content of the fuel changes, because emissions from both new and
existing engines immediately drop sharply. We have already published
stringent fuel sulfur limits for onroad engines and have proposed
stringent fuel sulfur limits for nonroad engines.\5\ These Federal fuel
sulfur regulations, fully implemented, would together result in a
substantial reduction in SO2 emissions over the 2003--2018
planning period.
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\5\ See 68 FR 28327, (May 23, 2003).
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B. What Are the Specific Changes to the Mobile Source Provisions of 40
CFR 51.309?
These revisions would change 40 CFR 51.309(d)(5)(i) to eliminate
the requirement for setting mobile source emissions budgets using the
lowest projected level as a planning objective and performance
indicator for each area. Instead, the new 40 CFR 51.309(d)(5)(i) would
substitute, as the new planning objective and performance indicator, a
[[Page 71011]]
requirement for statewide inventories to show a continuous decline in
emissions of each pollutant of concern over the planning period. Should
mobile source emissions not decline as expected, States would have to
revise their SIPs to include any feasible additional strategies. This
new requirement conforms to trends that are currently projected.
In addition, in light of the continuous decline in mobile source
emissions expected over the entire region, these revisions also
eliminate the unneeded requirement in 40 CFR 51.309(d)(5)(ii) and (iii)
to determine whether mobile sources emissions constitute a significant
contributor to haze in a given State. The revisions retain the
requirements for statewide inventories and performance demonstrations.
Finally, the revisions contain a backstop provision, requested by
the WRAP, to address any potential concerns regarding SO2
from nonroad sources in the event that recently proposed Federal
standards, referenced above, are not finalized. The backstop provision,
contained in the new 40 CFR 51.309(d)(5)(i)(B), requires States to
assess the need for any long-term strategies to address SO2
from nonroad mobile sources by no later than December 31, 2008. In
determining whether to revise their SIPs to address SO2 from
mobile sources, States may consider the emissions reductions achieved--
or anticipated--by any Federal standards that are in place addressing
fuel sulfur content for nonroad engines.
C. What Comments Did We Receive on the Proposed Rule and What Is Our
Response?
We received one comment letter on the proposed rule, from the
Center for Energy and Economic Development (CEED). We also received
three comments at the public hearing--one from CEED, reiterating
comments provided in its letter, one from the WRAP in support of this
rule, and one from the Colorado Mining Association.
The CEED commented (1) that EPA should fix other flaws in section
309 before making this change; (2) that making this change now may
constrain state authority in making ``reasonable progress''
determinations; (3) that it is not clear that all WRAP states and
tribes have authorized the request for this change; and (4) that this
action circumvents the recent statutory process enacted by Arizona for
determining which regional haze path to implement.
In regard to comment (1), EPA believes that we would be remiss in
awaiting the outcome of CEED's current lawsuit before bringing the
requirements of section 309 in line with the most recent data on mobile
sources emission trends. Section 309 is currently in effect, and, as
explained earlier in this preamble, this change is needed by States and
tribes who must submit section 309 SIPs to EPA by the December 31,
2003, deadline. Without this change, those section 309 SIPs would have
to contain extra work by States to determine significance, work that
the current data shows is unnecessary.
In regard to comment (2), EPA does not agree that making this
change would constrain state authority in making ``reasonable
progress'' determinations. We do not agree with CEED that greater
public input is needed from western States on this point; we believe by
specifically requesting this change, the WRAP has made it quite clear
that western States (and tribes) need it. We believe that CEED's claim
in comment (3), that it is not ``clear that all WRAP States and tribes
authorized such a request'', is disingenuous at best. Representatives
of the WRAP have assured us that the WRAP discussed this request at
length. The WRAP requested this change, in writing, on behalf of its
member States and tribes, and we have not heard of any member State or
tribe objecting in any way.
In regard to comment (4), we do not believe that removing an
unneeded requirement from a voluntary program circumvents the Arizona
legislature in any way.
The Colorado Mining Association asserted that we should make
available for public reivew the assumptions and model inputs that
support our projections. In regard to this comment, as noted in
footnote 4 of the proposed rule, the WRAP used EPA's MOBILE6 and
MOBILE6.2 models for on-highway vehicles and the NONROAD model for
nonroad vehicles. The assumptions and model inputs for these models
have undergone numerous public workshops and reviews, as described in
detail on our Web site,
http://www.epa.gov/otaq/models/mobile6/m6wkshop.htm.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
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, we have determined
that this direct final rule is not a significant regulatory action.
B. Paperwork Reduction Act
This action does not add any new requirements involving the
collection of information as defined by the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. The OMB has approved the information collection
requirements contained in the final Regional Haze regulations (64 FR
35714, July 1, 1999) and has assigned OMB control number 2060-0421 (EPA
ICR No. 1813.04). A copy of this ICR may be obtained from Susan Auby,
Collection Strategies Division, U.S. Environmental Protection Agency
(2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations are
listed in 40 CFR part 9 and 48 CFR chapter 15.
[[Page 71012]]
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., 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 rulemaking on
small entities, small entity is defined as: (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (as discussed on the SBA Web site
at http://www.sba.gov/size/indextableofsize.html);
(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 direct final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C.
sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule.
This rule eliminates certain comprehensive requirements to address
mobile source emissions that EPA now considers to be unnecessary.
Specifically, as discussed above, this rule eliminates the requirements
in 51.309(5)(ii) and (iii) to determine whether mobile sources
emissions constitute a significant contributor to haze in a given
State, and for those States with areas that meet this significance
criterion, to establish mobile source emissions budgets. The rule
requires emissions reductions consistent with the downward trend in
mobile source emission inventories that is currently projected, based
on regulations that have already been promulgated. We have therefore
concluded that today's rule will relieve regulatory burden for all
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law
104-4) (UMRA), 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 the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined under section 421(6), 2 U.S.C. 658(6), to include a ``Federal
intergovernmental mandate'' and a ``Federal private sector mandate.'' A
``Federal intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i),
except for, among other things, a duty that is ``a condition of Federal
assistance,'' section 421(5)(A)(i)(I). A ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector,'' with certain exceptions, section 421(7)(A),
2 U.S.C. 658(7)(A).
Before promulgating an EPA rule for which a written statement is
needed under section 202 of the UMRA, section 205, 2 U.S.C. 1535, of
the 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.
Because the entire program under 40 CFR 51.309, including today's
amendments, is an option that each of the States may choose to
exercise, these revisions to section 309 do not establish any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments. The program is not required
and, thus is clearly not a ``mandate.'' Moreover, as explained above,
today's rule eliminates certain requirements and will overall reduce
any regulatory burdens. Accordingly, this rule will not result in
expenditures to State, local, and tribal governments, in the aggregate,
or the private sector, of $100 million or more in any given year. Thus
EPA is not obligated, under section 203 of UMRA, to develop a small
government agency plan.
We believe that this rulemaking is not subject to the requirements
of UMRA. For regional haze SIPs overall, it is questionable whether a
requirement to submit a SIP revision constitutes a Federal mandate, as
discussed in the preamble to the regional haze rule (64 FR 35761, July
1, 1999). However, today's direct final rule contains no Federal
mandates (under the regulatory provisions of title II of the UMRA) for
State, local, or tribal governments or the private sector. In addition,
the program contained in 40 CFR 51.309, including today's revisions, is
an optional program.
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'' 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(b) 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 a regulation. Under section 6(c) of Executive Order 13132,
EPA may not issue a regulation that has federalism implications and
that preempts State law, unless EPA consults with State and local
officials early in the process of developing the regulation.
This rule 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
[[Page 71013]]
Executive Order 13132. As described above, this rule contains minor
revisions to section 309 of the regional haze rule which will reduce
any regulatory burden on the States. In addition, section 309 is an
optional program for States. The minor revisions to section 309,
accordingly, do not directly impose significant new requirements on
State and local governments. Moreover, even if today's revisions did
have federalism implications, these revisions would not impose
substantial direct compliance costs on State or local governments, nor
would they preempt State law. Thus, Executive Order 13132 does not
apply to this rule.
Consistent with EPA policy, we nonetheless did consult with
representatives of State and local governments in developing this rule.
This rule directly implements specific recommendations from the WRAP,
which includes representatives from all the affected States.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This rule eliminates certain requirements and will overall reduce
any regulatory burden on the tribes. Moreover, the section 309 program
is an optional program for tribes within the same geographic region as
the WRAP states. Accordingly, this rule will not have tribal
implications. In addition, this rule directly implements specific
recommendations from the WRAP, which includes representatives of tribal
governments. Thus, although the rule does not have tribal implications,
representatives of Tribal governments have had the opportunity to
provide input into development of the recommendations forming its
basis.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health 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 it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This rule is not subject to Executive Order 13211, ``Actions 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, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency 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. The requirements
of Executive Order 12898 have been previously addressed to the extent
practicable in the Regulatory Impact Analysis (RIA) for the regional
haze rule (cited above), particularly in chapters 2 and 9 of the RIA.
Today's direct final rule makes no changes that would have a
disproportionately high and adverse human health or environmental
effect on minorities and low-income populations.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
SBREFA, 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(a).
IV. Statutory Provisions and Legal Authority
Statutory authority for today's direct final rule comes from
sections 169(a) and 169(b) of the CAA (42 U.S.C. 7545(c) and (k)).
These sections require EPA to issue regulations that will require
States to revise their SIPs to ensure that reasonable progress is made
toward the national visibility goals specified in section 169(A).
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Nitrogen dioxide, Particulate
matter, Sulfur oxides, Volatile organic compounds.
[[Page 71014]]
Dated: December 15, 2003.
Stephen L. Johnson,
Acting Administrator.
? For the reasons set forth in the preamble, title 40, Chapter I 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: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart P--Protection of Visibility
? 2. Section 51.309 is amended by revising paragraphs (b)(6) and
(d)(5)(i), removing paragraphs (d)(5)(ii) and (d)(5)(iii), and
redesignating paragraph (d)(5)(iv) as (d)(5)(ii), to read as follows:
Sec. 51.309 Requirements related to the Grand Canyon Visibility
Transport Commission.
* * * * *
(b) * * *
(6) Continuous decline in total mobile source emissions means that
the projected level of emissions from mobile sources of each listed
pollutant in 2008, 2013, and 2018, are less than the projected level of
emissions from mobile sources of each listed pollutant for the previous
period (i.e., 2008 less than 2003; 2013 less than 2008; and 2018 less
than 2013).
* * * * *
(d) * * *
(5) * * *
(i) Statewide inventories of onroad and nonroad mobile source
emissions of VOC, NOX, SO2, PM2.5,
elemental carbon, and organic carbon for the years 2003, 2008, 2013,
and 2018.
(A) The inventories must demonstrate a continuous decline in total
mobile source emissions (onroad plus nonroad; tailpipe and evaporative)
of VOC, NOX, PM2.5, elemental carbon, and organic
carbon, evaluated separately. If the inventories show a continuous
decline in total mobile source emissions of each of these pollutants
over the period 2003-2018, no further action is required as part of
this plan to address mobile source emissions of these pollutants. If
the inventories do not show a continuous decline in mobile source
emissions of one or more of these pollutants over the period 2003-2018,
the plan submission must provide for an implementation plan revision by
no later than December 31, 2008 containing any necessary long-term
strategies to achieve a continuous decline in total mobile source
emissions of the pollutant(s), to the extent practicable, considering
economic and technological reasonableness and federal preemption of
vehicle standards and fuel standards under title II of the CAA.
(B) The plan submission must also provide for an implementation
plan revision by no later than December 31, 2008 containing any long-
term strategies necessary to reduce emissions of SO2 from
nonroad mobile sources, consistent with the goal of reasonable
progress. In assessing the need for such long-term strategies, the
State may consider emissions reductions achieved or anticipated from
any new Federal standards for sulfur in nonroad diesel fuel.
* * * * *
[FR Doc. 03-31471 Filed 12-19-03; 8:45 am]
BILLING CODE 6560-50-P