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CHAPTER 9: STATUTORY AND EXECUTIVE ORDER IMPACT ANALYSIS

Overview

This section explains the statutory and executive orders applicable to EPA rules, and 

discusses EPA’s actions taken pursuant to these orders.

9.1 National Technology Transfer and 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 the 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 the EPA to provide Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards.

Today’s proposed rulemaking does not involve technical standards. Therefore, the EPA is 

not considering the use of any voluntary consensus standards.

9.2 Paperwork Reduction Act

This action 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 the establishment of a NAAQS under section 109 of the 

CAA.

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. 
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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 the EPA's regulations in 40 CFR are listed in 40 CFR part 9. Per the 

Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State 

Implementation Plan Requirements, the annual burden for this information collection averaged 

over the first 3 years is estimated to be a total of 40,000 labor hours per year at an annual labor 

cost of $2.4 million (present value) over the 3-year period or approximately $91,000 per state for 

the 26 state respondents, including the District of Columbia. The average annual reporting 

burden is 690 hours per response, with approximately 2 responses per state for 58 state 

respondents. There are no capital or operating and maintenance costs associated with the 

proposed rule requirements. Burden is defined at 5 CFR 1320.3(b). 

9.3 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 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 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 today's 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 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 American Trucking Associations v. EPA. 175 F. 
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3d at 1044-45 (NAAQS do not have significant impacts upon small entities because NAAQS 

themselves impose no regulations upon 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.

9.4 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, the 

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 the 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 the 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 the 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 the EPA regulatory proposals with significant federal 

intergovernmental mandates, and informing, educating, and advising small governments on 

compliance with the regulatory requirements. 

Today’s proposed 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 proposed 

rule imposes no new expenditure or enforceable duty on any state, local or tribal governments or 

the private sector, and the EPA has determined that this proposed rule contains no regulatory 

requirements that might significantly or uniquely affect small governments. Furthermore, as 
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indicated previously, in setting a NAAQS the 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 

American Trucking Associations v. EPA, 175 F. 3d at 1043 (noting that because the EPA is 

precluded from considering costs of implementation in establishing NAAQS, preparation of a 

Regulatory Impact Analysis (RIA) pursuant to the Unfunded Mandates Reform Act would not 

furnish any information which the court could consider in reviewing the NAAQS). Accordingly, 

the EPA has determined that the provisions of sections 202, 203, and 205 of the UMRA do not 

apply to this proposed 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 will address, 

as appropriate, unfunded mandates if and when it proposes any revisions to 40 CFR parts 51 or 

58.

9.5 Executive Order 12866: Regulatory Planning and Review 

Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 

the ozone NAAQS action is an “economically significant regulatory action” because it is likely 

to have an annual effect on the economy of $100 million or more. Accordingly, the EPA 

submitted this action to the Office of Management and Budget (OMB) for review under EO 

12866 and any changes made in response to OMB recommendations have been documented in 

the docket for this action. In addition, the EPA prepared this RIA of the potential costs and

benefits associated with this action. A copy of the analysis is available in the RIA docket (EPAHQ-OAR-2013-0169) and the analysis is briefly summarized here. The RIA estimates the costs 

and monetized human health and welfare benefits of attaining four alternative ozone NAAQS

nationwide. Specifically, the RIA examines the alternatives of 75 ppb, 70 ppb, 65 ppb, and 60 

ppb. 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 
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development of state plans to implement the standards. Accordingly, although this RIA has been 

prepared, the results of the RIA have not been considered in issuing today’s proposed rule.

9.6 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. Its 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 addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

To gain a better understanding of the populations within the areas potentially impacted by 

a revised ozone NAAQS, the EPA conducted a proximity analysis that examined sociodemographic attributes of populations in these areas. For these analyses, the areas of interest 

were defined as all Core Based Statistical Area (CBSA) counties with one or more monitors 

reporting air quality for the period 2011 to 2013 that is above the levels defining the range of 

alternative primary standards being considered (i.e., 65 ppb to 70 ppb). For counties with design 

values for 2011 to 2013 above the levels of the alternative standards that are not within a CBSA, 

EPA used just the county to represent the area of interest. The tabulation of results from this 

analysis are presented below. Table 9-1 shows the percent of minority populations within 

CBSAs with monitors above the levels of the proposed ozone standards, as well as the national 

percentages for comparison. Table 9-2 shows the percent of populations of different ages, 

education, and income level for those same areas. Additional details can be found in Appendix 

9A.
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Table 9-1. Demographic Attributes of CBSAs with One or More Monitors Exceeding 

Alternative Levels of the Primary Ozone Standards

Demographic 

Summary Population White

African 

American

Native 

American

Other or 

Multiracial

Minority / 

Hispanic

Area of Interest Total

 65 ppb 221,504,526 153,751,578 30,452,543 1,726,379 35,574,026 67,752,948

 70 ppb 193,316,836 132,112,738 27,193,155 1,488,364 32,522,579 61,204,098

% of Area of Interest Total

 65 ppb 69% 14% 1% 16% 31%

 70 ppb 68% 14% 1% 17% 32%

National Total 312,861,256 226,405,205 39,475,216 2,952,087 44,028,748 115,989,918

% of National 

Total 72% 13% 1% 14% 37%

Table 9-2. Age Distribution and Socioeconomic Attributes of CBSAs with One or More 

Monitors Exceeding Alternative Levels of the Primary Ozone Standards

Demographic 

Summary Population Age 0 - 4 Age 0 - 17 Age 65+

Without a 

HS Diploma Low Income

Area of Interest Total

 65 ppb 221,504,526 14,701,432 54,028,652 27,172,904 20,719,946 64,455,446

 70 ppb 193,316,836 12,849,637 47,296,147 23,518,071 18,313,343 56,123,322

% of Area of Interest Total

 65 ppb 7% 24% 12% 15% 29%

 70 ppb 7% 24% 12% 15% 29%

National Total 312,861,256 20,465,065 75,217,176 40,830,262 30,952,789 101,429,436

% of National 

Total 7% 24% 13% 15% 32%

This analysis identifies, on a limited basis, the subpopulations that may be exposed to 

elevated ozone concentrations, who thus are expected to benefit most from this regulation. This 

analysis does not identify the demographic characteristics of the most highly affected individuals 

or communities; nor does it quantify the level of risk faced by those individuals or communities. 

To the extent that any minority, low-income or indigenous subpopulation is disproportionately 

impacted by ozone levels because it resides in an area of interest, that subpopulation also stands 

to see increased environmental and health benefits from the emission reductions called for by 

this proposed rule. 

The EPA has determined that this proposed rule will not have disproportionately high and 

adverse human health or environmental effects on minority or low-income populations because it 

increases the level of environmental protection for all affected populations without having any 

disproportionately high and adverse human health or environmental effects on any population, 
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including any minority or low-income population. The proposed rule will establish uniform 

national standards for ozone air pollution.

9.7 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 the 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.

Today’s proposed 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 proposed rule will establish uniform national ambient air quality standards for 

ozone; 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, especially children with asthma, along with 

other sensitive population subgroups such as all people with lung disease and people active 

outdoors, 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 among children. Discussions of the 

results of the evaluation of the scientific evidence, policy considerations, and the exposure and 

risk assessments pertaining to children occurs throughout the preamble.

9.8 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 
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that have 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.” 

Today’s proposed 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 Executive Order 13132. The rule does not alter the relationship between the federal 

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, the EPA is 

mandated to establish 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 states have primary 

responsibility for implementation of the NAAQS. Finally, as noted in section E (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 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 the EPA 

policy to promote communications between the EPA and state and local governments, the EPA 

has specifically solicited comment on today’s proposed rule from state and local officials.

9.9 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 the 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 
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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. 

Today’s 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.

Although Executive Order 13175 does not apply to today’s proposed rule, the EPA 

contacted tribal environmental professionals during the development of the proposed rule. The 

EPA staff participated in the regularly scheduled Tribal Air call sponsored by the National Tribal 

Air Association in 2014 as the proposal was under development. The EPA specifically solicits 

additional comment on this proposed rule from tribal officials.

9.10 Executive Order 13211: Actions that Significantly Affect Energy Supply,

Distribution, or Use

Today’s proposed 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 in the Agency’s judgment 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 revised 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 the EPA cannot predict whether the control options selected 

by states will include regulations on energy suppliers, distributors, or users. Thus, the EPA 

concludes that today’s proposed rule is not likely to have any adverse energy effects and does not 

constitute a significant energy action as defined in Executive Order 13211.

Application of the modeled illustrative control strategy containing known controls for 

power plants, shown in Chapter 7, means that 3 percent of the total projected coal-fired EGU 

capacity nationwide in 2025 could be affected by controls for the alternative standard level of 70 

ppb. Similarly, 21 percent of total projected coal-fired EGU capacity in 2025 could be affected 

for the alternative standard level of 65 ppb, and 22 percent for the alternative standard level of 60 
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ppb. In addition, some fuel switching might occur that could alter these percentages, though we 

are unable to estimate the effect on energy impacts from fuel switching. Controls on EGUs 

powered by fuels other than coal were not part of this illustrative analysis, and thus, would not be 

affected. In addition, we are unable to estimate energy impacts resulting from application of 

controls to non-EGUs or mobile sources. It is important to note that the estimates presented 

above are just one illustrative strategy and states may choose to apply control on sources other 

than EGUs for the purposes of attaining a more stringent ozone standard.