# Chapter 8: Statutory and Executive Order Impact Analyses

## Synopsis

This chapter summarizes the Statutory and Executive Order (EO) impact
analyses relevant for the ozone NAAQS Regulatory Impact Analysis. In
general, because this RIA analyzes an illustrative attainment strategies
to meet the revised NAAQS, and because States will ultimately implement
the new NAAQS, the Statutory and Executive Orders below did not require
additional analysis. For each EO and Statutory requirement we describe
both the requirements and the way in which the RIA addresses these
requirements. Further analyses of the NAAQS proposal and its impact on
these statutory and executive orders are found in section VII of the
NAAQS preamble.

## 8.1 Executive Order 12866: Regulatory Planning and Review

Under section 3(f)(1) of Executive Order (EO) 12866 Number range
CHAPTER(58 FR 51735, October 4, 1993), the ozone NAAQS action is an
"economically significant regulatory action"Number range CHAPTER because
it is likely to have an annual effect on the economy of \$100 million or
more. Accordingly, EPA prepared this regulatory impact analysis (RIA) of
the potential costs and benefits associated with this action. The RIA
estimates the costs and monetized human health and welfare benefits of
attaining three alternative ozone NAAQS nationwide. Specifically, the
RIA examines the alternatives of 0.075 ppm, 0.070 ppm, and 0.065 ppm.
The RIA contains illustrative analyses that consider a limited number of
emissions control scenarios that States and Regional Planning
Organizations might implement to achieve these alternative ozone NAAQS.
However, the Clean Air Act (CAA) and judicial decisions make clear that
the economic and technical feasibility of attaining ambient standards
are not to be considered in setting or revising NAAQS, although such
factors may be considered in the development of State plans to implement
the standards. Accordingly, although an RIA has been prepared, the
results of the RIA have not been considered in issuing this final rule.

## 8.2 Paperwork Reduction Act

This RIA does not impose an information collection burden under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. There
are no information collection requirements directly associated with
revisions to a NAAQS under section 109 of the CAA.

Burden is defined as 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
in 40 CFR are listed in 40 CFR part 9.

## 8.3 Regulatory Flexibility Act

The EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this RIA. For purposes of
assessing the impacts of today's rule on small entities, small entity is
defined as: (1) a small business that is a small industrial entity as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (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, EPA has concluded that this action will not have a significant
economic impact on a substantial number of small entities. This rule
will not impose any requirements on small entities. Rather, this rule
establishes national standards for allowable concentrations of ozone in
ambient air as required by section 109 of the CAA. See also *ATA I* at
1044-45 (NAAQS do not have significant impacts upon small entities
because NAAQS themselves impose no regulations upon small entities).

## 8.4 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 the 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 to State, local, and Tribal governments, in the
aggregate, or to the private sector, of \$100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 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. The provisions of section 205 do
not apply when they are inconsistent with applicable law. 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 the 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.

Today's 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. The rule imposes no new expenditure
or enforceable duty on any State, local or Tribal governments or the
private sector, and EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Furthermore, as indicated previously, in setting a
NAAQS, EPA cannot consider the economic or technological feasibility of
attaining ambient air quality standards, although such factors may be
considered to a degree in the development of State plans to implement
the standards. See also *ATA I* at 1043 (noting that because EPA is
precluded from considering costs of implementation in establishing
NAAQS, preparation of a Regulatory Impact Analysis pursuant to the
Unfunded Mandates Reform Act would not furnish any information which the
court could consider in reviewing the NAAQS). Accordingly, EPA has
determined that the provisions of sections 202, 203, and 205 of the UMRA
do not apply to this final decision. The EPA acknowledges, however, that
any corresponding revisions to associated SIP requirements and air
quality surveillance requirements, 40 CFR part 51 and 40 CFR part 58,
respectively, might result in such effects. Accordingly, EPA has
addressed unfunded mandates in the notice that announces the revisions
to 40 CFR part 58, and will, as appropriate, address unfunded mandates
when it proposes any revisions to 40 CFR part 51.

## 8.6 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."

At the time of this proposal, EPA concludes that the proposed rule would
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. However, EPA recognized that States
would have a substantial interest in this rule and any corresponding
revisions to associated SIP requirements and air quality surveillance
requirements, 40 CFR part 51 and 40 CFR part 58, respectively.
Therefore, in the spirit of Executive Order 13132, and consistent with
EPA policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on the rule from State
and local officials at this time.

## 8.7 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 rule concerns the establishment of ozone
NAAQS. The Tribal Authority Rule gives Tribes the opportunity to develop
and implement CAA programs such as the ozone NAAQS, but it leaves to the
discretion of the Tribe whether to develop these programs and which
programs, or appropriate elements of a program, they will adopt.

This proposed rule does not have Tribal implications, as specified in
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian Tribes, since Tribes are not obligated to adopt or
implement any NAAQS. Thus, Executive Order 13175 does not apply to this
rule. However, in the spirit of efficaciousness, EPA staff participated
in the regularly scheduled Tribal Air call sponsored by the National
Tribal Air Association during the spring of 2007 as this proposal was
under development. EPA specifically solicits additional comment on this
proposed rule from Tribal officials.

## 8.8 Executive Order 13045: Protection of Children from Environmental Health & Safety Risks

Executive Order 13045, "Protection of Children from Environmental Health
Risks and Safety Risks" (62 FR 19885, April 23, 1997) applies to any
rule that: (1) is determined to be "economically significant" as defined
under Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
rule on children, and explain why the regulation is preferable to other
potentially effective and reasonably feasible alternatives considered by
the Agency. This rule is subject to Executive Order 13045 because it is
an economically significant regulatory action as defined by Executive
Order 12866, and we believe that the environmental health risk addressed
by this action may have a disproportionate effect on children.

The NAAQS constitute uniform, national standards for ozone pollution;
these standards are designed to protect public health with an adequate
margin of safety, as required by CAA section 109. However, the
protection offered by these standards may be especially important for
children because children, along with other sensitive population
subgroups such as the elderly and people with existing heart or lung
disease, are potentially susceptible to health effects resulting from
ozone exposure. Because children are considered a potentially
susceptible population, we have carefully evaluated the environmental
health effects of exposure to ozone pollution to this sub-population.
These effects and the size of the population affected are summarized in
section 8.7 of the Criteria Document and section 3.6 of the Staff Paper,
and the results of our evaluation of the effects of ozone pollution on
children are discussed in sections II.A-C of the NAAQS proposal
preamble.

**8.9 Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution or Use**

This rule is not a "significant energy action" as defined in Executive
Order 13211, "Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use" (66 FR 28355 (May 22, 2001))
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy. The purpose of this rule is to
establish NAAQS for ozone. The rule does not prescribe specific
pollution control strategies by which these ambient standards will be
met. Such strategies will be developed by States on a case-by-case
basis, and EPA cannot predict whether the control options selected by
States will include regulations on energy suppliers, distributors, or
users. Thus, EPA concludes that this rule is not likely to have any
adverse energy effects and does not constitute a significant energy
action as defined in Executive Order 13211.

**8.10 National Technology Transfer Advancement Act**

Section 12(d) of the National Technology Transfer 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 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. Since EPA is not
changing any of the monitoring requirements as part of this proposal,
there are no impacts associated with the NTTAA.

## 8.11 Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898, "Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations," requires Federal
agencies to consider the impact of programs, policies, and activities on
minority populations and low-income populations. According to EPA
guidance, agencies are to assess whether minority or low-income
populations face a risk or a rate of exposure to hazards that are
significant and that "appreciably exceeds or is likely to appreciably
exceed the risk or rate to the general population or to the appropriate
comparison group" (EPA, 1998).

In accordance with Executive Order 12898, the Agency has considered
whether these decisions may have disproportionate negative impacts on
minority or low-income populations. This rule establishes uniform,
national ambient air quality standards for particulate matter, and is
not expected to have disproportionate negative impacts on minority or
low income populations. In this NAAQS proposal, the Administrator
considered the available information regarding health effects among
vulnerable and susceptible populations, such as those with preexisting
conditions. Thus it remains EPA's conclusion that this rule is not
expected to have disproportionate negative impacts on minority or low
income populations.