*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 141 of 207 V. Statutory and Executive Order Reviews
A . Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action” because it was deemed to “raise novel legal or policy issues.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements in this final ru le have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them. Th e Information Collection Request (ICR) document prepared by EPA for these revisions to part 58 has been assigned EPA ICR number 0940.23. The information collected under 40 CFR part 53 (e.g., test results, monitoring records, instruction manual, and other associated information) is needed to determine whether a candidate method intended for use in determining attainment of the National Ambient Air Quality Standards ( NAAQS ) in 40 CFR part 50 will meet comparability requirements for designation as a Federal reference method (FRM) or Federal equivalent method (FEM). We do not expect the number of FRM or FEM determinations to increase over the number that is currently used to estimate burden associated with CO FRM/FEM determinations provided in the cu rrent ICR for 40 CFR part 53 (EPA ICR Deleted: This action does not impose an Deleted: burden Deleted: provisions of the

Deleted: There are no Deleted: directly

Deleted: with

Deleted: establishment of a

Deleted: under section 109*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 142 of 207 numbers 0940.23). As such, no change in the burden estimate for 40 CFR part 53 has been made as part of this rulemaking. The information collected and reported under 40 CFR part 58 is needed to determine compliance with the NAAQS, to characterize air quality and associated health impacts, to develop emissions control strategies, and to measure progress for the air pollution program. The amendments would re vise the technical requirements for CO monitoring sites, require the relocation or siting of ambient CO air monitors, and the reporting of the collected ambient CO monitoring data to EPA’s Air Quality System (AQS). The annual average reporting burden for the collection under 40 CFR part 58 (averaged over the first 3 years of this ICR) for a network of 311 CO monitors is $7,235,483. Burden is defined at 5 CFR 1320.3(b). State, local, and Tribal entities are eligible for State assistance grants pr ovided by the Federal government under the CAA which can be used for monito rs and related activities. 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. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2008-0015. Submit any comments related to the ICR to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 143 of 207 Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [insert date of publication in the Federal Register ], a comment to OMB is best assured of having its full effect if OMB receives it [insert date 30 days after publication in the Federal Register ]. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal

. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Pro cedure 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 in clude small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today’s proposed 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 this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 144 of 207 entities. Rather, this rule proposes to re tain existing national standards for allowable concentrations of CO in ambient air as required by section 109 of the CAA. See also American Trucking Associations v. EPA . 175 F. 3d at 1044-45 (NAAQS do not have significant impacts upon small entities because NAAQS themselves impose no regulations upon small entities). Similarly, the proposed amendments to 40 CFR part 58 address the requirements for States to collect information and report compliance with the NAAQS and will not impose any requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts

. 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. Unless otherwise prohibited by law, 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 one year. Before promulgating an EPA rule for which a written statement is required under section 202, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and to 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 Deleted: This action contains no Federal mandates under the provisions of Deleted: reform Deleted: 2 U.S.C. 1531-1538 for Deleted: or Deleted: or Deleted: The

Deleted: rule imposes no new expenditure or enforceable duty on any Deleted: or

Deleted: and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 145 of 207 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 governme nts, 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 complian ce with the regulatory requirements. This action is not subject to the requirements of sections 202 and 205 of the
UMRA. EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 mill ion or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. This rule proposes to retain existing national ambient air quality standards for carbon monoxide. The expected costs associated with the monitoring requirements are described in EPA’s ICR document, but those costs are not expected to exceed $100 million in the aggregate for
any year. Furthermore, as indicated previously, in setting a NAAQS , EPA cannot consider the economic or technological feasibility of attaining ambient air quality standards

. EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it imposes no enforceable duty on any small governments. Therefore , this rule is not subject to the requirements of section 203 of the UMRA

. Deleted: contains no regulatory requirements that might significantly or uniquely affect small governments.

Deleted: , although such factors may be considered to a degree in the development of State plans to implement the standards. See also American Trucking Associations v. EPA , 175 F. 3d 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). Deleted: this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also Deleted: UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. 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 will address, as appropriate, unfunded mandates if and when it proposes any revisions to 40 CFR parts 51 or 58*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 146 of 207 E. Executive Order 13132: Federalism This action does not have federalism imp lications. 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. The rule does not alter the relationship between the Fede ral government and the States regarding the establishment and implementation of air quality improvement programs as codified in the CAA. Under section 109 of the CAA, EPA is mandated to establish and review NAAQS; however, CAA section 116 preserves the rights of States to establish more stringent requirements if deemed necessary by a State. Furthermore, this proposed rule does not impact CAA section 107 which establishes that the St ates have primary responsibility for implementation of the NAAQS. Finally, as noted in section D (above) on UMRA, this rule does not impose significant costs on State, local, or Tribal governments or the private sector. Thus, Executive Order 13132 does not apply to this rule. However, as also noted in section D (above) on UMRA, EPA recognizes that States will have a substantial interest in this rule , including the proposed air quality surveillance requirements of 40 CFR part 58. 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 this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments Deleted: E

Deleted: and any corresponding revisions to associated SIP requirements and Deleted: , 40 CFR part 51 and Deleted: , respectively*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 147 of 207 This action does not have tribal implications, as specified in Executive Order 13175 (65FR 67249, November 9, 2000). 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. G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action’s health and risk assessments are described in sections II.C and II.D.2.b. The public is invited to submit comments or identify peer -reviewed studies and data that assess effects of early life exposures to CO. H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution or Use This action is not a “significant energy action” as defined in Executive Order 13211, (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 rule concerns the review of the NAAQS for CO. The rule does not prescribe specific pollution control strategies by which these ambient standards will be met. Such strategies are 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. I. National Technology Transfer and Advancement Act Deleted: per*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Page 148 of 207 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104 – 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standard s in its regulatory activities unless to do so would be inconsistent with applicable law or otherw ise impractical. Voluntary consensus standards are technical standards (e.g., materials speci fications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide C ongress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking involves technical standards with regard to ambient monitoring of CO. We have not identified any potentially applicable voluntary consensus standards that would adequately characterize ambient CO concentrations for the purposes of determining compliance with the CO NAAQS and none have been brought to our attention. EPA welcomes comments on this aspect of the proposed rule, and specifically invites the public to identify potentially applicable voluntary consensus standards and to explain why such standards should be used in the regulation

. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. It s main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressi ng, as appropriate, disproportionately high Deleted: No. Deleted:

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Deleted:

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Deleted: does not involve Deleted: . Therefore, EPA is not considering the use