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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-5966-4]

Control of Air Pollution; Removal and Modification of Obsolete,

Superfluous or Burdensome Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) published a direct

final rule and an associated notice of proposed rulemaking of the same

title on April 11, 1996 (61 FR 16050, 61 FR 16068). Both actions were

to delete or modify certain rules previously promulgated under the

Clean Air Act in the Code of Federal Regulations (CFR), 40 CFR parts 51

and 52, clarify their legal status and remove unnecessary, obsolete or

burdensome regulations. EPA received adverse comments on the deletion

of rules 40 CFR 51.100(o), 40 CFR 51.101, 40 CFR 51.110(g) and 40 CFR

51.213 as published in both the direct final rule and associated notice

of proposed rulemaking. In response to those comments, EPA withdrew

those sections from the direct final rule on June 14, 1996 (61 FR

30162). In today's action, EPA is finalizing the notice of proposed

rulemaking with respect to these sections. Separate from the notice of

proposed rulemaking action, EPA is also removing sections 40 CFR

51.103(a)(1) and (a)(2), as they were superseded by the Clean Air Act

Amendments of 1990.

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

FOR FURTHER INFORMATION CONTACT: Maureen Delaney, Office of Air and

Radiation, Office of Policy Analysis and Review (202) 260-7431.

SUPPLEMENTARY INFORMATION:

I. Introduction

On March 4, 1995, the President directed all Federal agencies and

departments to conduct a comprehensive review of the regulations they

administer, to identify those rules that are obsolete or unduly

burdensome. EPA conducted a review of such rules, including rules

issued under the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et

seq.). On June 29, 1995, EPA deleted more than 200 Clean Air Act rules

that were no longer legally in effect under the amended Clean Air Act.

60 FR 33915 (June 29, 1995).

On April 11, 1996, EPA simultaneously published a direct final

notice of rulemaking and a notice of proposed rulemaking consisting of

EPA's second phase of its revision effort. 61 FR 106050 (April 11,

1996). Where EPA determined that a regulation did not add substantial

value to what is already contained in the law, or where there are

alternative means to accomplish the regulatory end without restricting

EPA's ability to respond to factual peculiarities in a timely and

appropriate way, EPA determined that the regulation should be deleted.

The rulemaking specified that EPA would withdraw any portions of the

direct final rule that were the subject of filed adverse or critical

comments. EPA received adverse comments on the revisions to 40 CFR

51.100(o), 40 CFR 51.101, 40 CFR 51.110(g) and 40 CFR 51.213 as

published in the direct final rule and associated notice of proposed

rulemaking within 30 days of publication in the Federal Register of the

proposed rule and withdrew those portions of the direct final rule on

June 14, 1996 (61 FR 30162). This final rule summarizes the comments

received on these CFR sections and EPA's responses.

Removal of any rules from the CFR is not intended to affect the

status of any civil or criminal actions that were initiated prior to

the publication of this rule, or which may be initiated in the future

to readdress violations of the rules that occurred when the rules were

still legally in effect. Removal of provisions on the ground that they

reiterate or are redundant of statutory provisions does not affect any

obligation or requirement to comply with such statutory provision.

II. Deletion and Modification of Unnecessary or Burdensome Rules

40 CFR 51.110(g)

Section 51.110(g) states that EPA encourages states, in developing

their attainment plans, to identify alternative control strategies and

the costs and benefits thereof. EPA proposed to delete this provision

and rely on Clean Air Act sections 110(a)(2)(A) and 101(a)(3), as well

as Train v. NRDC, 421 U.S. 60, 78-79 (1975) and Union Electric Co. v.

EPA, 427 U.S. 246, 256-57 (1976), which make clear that a state is free

to consider a broad range of factors in constructing its attainment

plans.

Commenters suggest that without section 51.110(g) states may be

hesitant to submit an implementation plan with provisions outside of

the specific requirements of the CFR or Clean Air Act. As stated

previously in the notice of proposed rulemaking, EPA agrees with the

policies embodied in section 51.110(g). For that reason, EPA has

decided to retain the provision in the CFR.

40 CFR 51.101 Stipulations

Section 51.101 states that nothing in part 51 should be construed

to encourage states: to adopt implementation plans that do not protect

the environment; to adopt plans that do not take into consideration

cost-effectiveness and social and economic impact; to limit appropriate

techniques for estimating air quality or demonstrating adequacy of

control strategies; and otherwise to limit state flexibility to adopt

appropriate control strategies or to attain and maintain air quality

better than that required by a national standard. EPA proposed to

delete this provision and rely on Clean Air Act sections 110(a)(2)(A)

and 101(a)(3), as well as Train v. NRDC, 421 U.S. 60, 78-79 (1975) and

Union Electric Co. v. EPA, 427 U.S. 246, 256-57 (1976), which make

clear that a state is free to consider a broad range of factors in

constructing its attainment plans.

Commenters suggested that section 51.101 should remain in the CFR

because the flexibility available to States may not be clear if this

section were removed. As stated previously in the notice of proposed

rulemaking, EPA agrees with the policies embodied in section 51.101.

For that reason, EPA has decided to retain the provision in the CFR.

40 CFR 51.100(o)

Section 51.100(o) defines reasonably available control technology

(``RACT'') for the purpose of implementing secondary national ambient

air quality standards (``NAAQS''). This definition is only used in the

establishment of secondary NAAQS attainment dates and in the evaluation

of State requests for extensions of state implementation plan

submittals for secondary NAAQS.

Section 51.110(c) requires plans to provide for the attainment of a

secondary standard within a reasonable time after the date of the

Administrator's approval of the plan, and for maintenance of the

standard after it has been attained.

Under the Clean Air Act of 1977, the test for approval of the

attainment date in a SIP implementing a secondary

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NAAQS was contained in section 110(a)(2)(A)(ii). This required that the

SIP attain the secondary NAAQS within a ``reasonable time.'' Under the

CAA of 1990, this was changed. The new test for approval of a secondary

NAAQS attainment date is contained in section 172(a)(2)(B) and requires

attainment ``as expeditiously as practicable after the date such area

was designated nonattainment.''

As a result of this statutory change, EPA proposed to delete

section 51.110(c) from the CFR to eliminate any possible confusion

regarding the appropriate tests for approval of a secondary NAAQS

attainment date. Because the sole purpose of the section 51.100(o)

definition of RACT was to aid in EPA's evaluation of the approvability

of secondary NAAQS attainment dates or requests for extension of SIP

submittal dates and the 1990 Amendments changed the test governing the

evaluation of secondary NAAQS attainment dates, EPA stated that it

believed the definition was no longer necessary and proposed deletion.

The EPA then stated its belief that evaluation of the approvability of

the expeditiousness of attainment dates for secondary nonattainment

areas requires a case-by-case analysis of the nature and extent of the

problem. The EPA stated that it did not believe that the availability

and effectiveness of RACT should be a determinative factor in

implementing secondary NAAQS. In addition, EPA maintained that the

deletion of section 51.100(o) would eliminate potential confusion,

since for other purposes the Agency generally interprets the statute's

RACT requirements consistently with the definition of RACT contained in

a December 9, 1976, memorandum from R. Strelow to Regional

Administrators, Regions I-X, entitled ``Guidance to Determining

Acceptability of SIP Regulations in Nonattainment Areas.''

Commenters suggest that the definition of RACT in section 51.100(o)

is the only regulatory definition that states that the availability and

effectiveness of RACT should be a determinative factor in implementing

secondary NAAQS. EPA does not agree that RACT as defined in section

51.100(o) should be the determinative factor in setting attainment

dates for the secondary NAAQS under the new statutory test for setting

those dates. However, EPA sees no compelling need to delete the

definition of RACT for purposes of guiding the decisions under 40 CFR

51.341 on whether to grant extensions for submitting SIPs to attain the

secondary NAAQS. For these reasons, section 51.100(o) will remain in

the CFR, but for this latter purpose only. The reference to section

51.110(c)(2) will be deleted since that section has previously been

deleted from the CFR.

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

Sections 51.103(a)(1) and (a)(2) require that a state make an

official implementation plan submission to EPA for any primary national

ambient air quality standard or secondary standard, or revision, within

nine months after promulgation of such standard or revision.

Prior to the Clean Air Act Amendments of 1990, section 110(a)(1)

required submission of state implementation plans within nine months

after promulgation of a national primary ambient air quality standard.

The Amendments of 1990 changed section 110(a)(1) to give states ``3

years (or such shorter period as the Administrator may prescribe)''

from promulgation. At this time, EPA sees no basis for retaining the

nine month deadline, absent a new finding that nine months is

reasonable for all purposes. Accordingly, EPA is removing the last

sentence in section 51.103 and is deleting sections 51.103(a)(1) and

(a)(2). EPA has determined that there is no need to promulgate another

regulation stating the three year deadline since a regulation would not

add substantial value to what is already contained in the law. EPA is

relying on the ``good cause'' exception to the notice requirements of

the Administrative Procedure Act (section 553(b)(3)(B)) because EPA

believes it is unnecessary to provide an opportunity for comment since

the deletion merely implements the changes Congress enacted in 1990.

40 CFR 51.213 Transportation Control Measure

Section 51.213(a) provides that plans must contain procedures for

obtaining and maintaining data on actual emissions reductions achieved

as a result of implementation of transportation control measures.

Section 51.213(b) provides that, for measures based on traffic flow

changes or reductions in vehicle use, data must include observed

changes in vehicle miles traveled and average speeds. Section 51.213(c)

requires data to be kept so as to facilitate comparison of the planned

and actual efficacy of transportation control measures.

Section 51.213(a-c) are generally addressed in section III, SIP

requirements, of the General Preamble for Title I of the 1990 CAA. The

procedural elements of the SIP submittals are specifically required by

sections 182 and 187 of the CAA. The requirements are incorporated in

Agency regulation and guidance on each required SIP submittal that is

related to transportation control. For example, guidance documents such

as ``Transportation Control Measure: State Implementation Plan Guidance

(September 1990), ``Section 187 VMT Forecasting and Tracking Guidance''

(January 1992), and ``Transportation Control Measure Information

Documents'' (March 1992), discuss the same requirements that are set

forth in section 51.213. Therefore, EPA believed this section was

redundant of other EPA guidance regarding transportation control

measures, and proposed to delete it from the CFR.

Commenters suggest that even though guidance documents provide more

detail than the rules implementing its provisions, rules, as opposed to

guidance, are binding. EPA agrees that a binding rule on this subject

would be useful, and section 51.213 will remain in the CFR.

III. Final Action

EPA determines that the above-referenced rules should be deleted or

modified at this time. This action will become effective March 26,

1998.

IV. Analyses Under E.O. 12866, the Unfunded Mandates Reform Act of

1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act

Because the withdrawal of these rules from the CFR merely withdraws

obsolete, duplicative, or superfluous requirements, this action is not

a ``significant'' regulatory action within the meaning of Executive

Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Today's

determination does not create any new requirements, but deletes or

modifies existing requirements which are obsolete, duplicative,

superfluous, unnecessary, or otherwise unduly burdensome. I therefore

certify that it does not have any significant impact on any small

entities affected.

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State,

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local, or tribal governments in the aggregate.

EPA's final action here does not impose upon the states any federal

intergovernmental mandate, as defined in section 101 of the Unfunded

Mandates Act. No additional costs to State, local, or tribal

governments, or to the private sector, result from this action, which

deletes or eases the indicated requirements. Thus, EPA has determined

that this final action does not include a mandate that may result in

estimated costs of $100 million or more to either State, local or

tribal governments in the aggregate, or to the private sector.

Finally, since EPA here is merely removing or revising superfluous

requirements, their deletion from the CFR does not affect requirements

under the Paperwork Reduction Act.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by April 27, 1998.

V. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Controller General of the

General Accounting Office prior to the publication of the rule in

today's Federal Register. This rule is not a ``major rule'' as defined

by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 51

Environmental protection, Air pollution control.

Dated: February 6, 1998.

Carol M. Browner,

Administrator.

Part 51, Chapter I, Title 40 of Code of Federal Regulations is

amended as follows:

PART 51--[AMENDED]

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

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

Subpart F--Procedural Requirements

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

Sec. 51.100 Definitions.

* * * * *

(o) * * *

(3) Alternative means of providing for attainment and maintenance

of such standard. (This provision defines RACT for the purposes of

Sec. 51.341(b) only.)

* * * * *

Sec. 51.103 [Amended]

3. Section 51.103 is amended by removing the last sentence in

paragraph (a), and removing paragraphs (a)(1) and (a)(2).

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

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